- (1.) D. K. Seth, J. Leave is granted to convert this petition under Article 227 of the Constitution.
(2.) BY means of this writ petition the petitioners have challenged the order dated 20-12-1988 passed by Sri B. B. Agarwal, District Judge, Allahabad in Civil Revision No. 378 of 1988, affirming the order dated 23-9-1988 passed by the Addi tional Munsif, Allahabad in Suit No. 833 of 1985. The fact of the case, inter alia, was that the respondent No. 3, filed a Suit for declaration of the sale-deed as void or cancellation thereof against the petitioners alleging that he was bhumidhar in respect of the disputed land alongwith his brother, respondent No. 4 and that the petitioner got the sale-deed executed in their favour in respect of the disputed land through imposter and, as such, the sale deed is void and is liable to be cancelled. The petitioners as defendants contended in their written statement that the suit for cancellation of the alleged void document, in view of the assertions, made in the plaint was not maintainable and was barred under Section 331 of U. P. Zamindari Abolition and Land Reforms Act, 1950, herein after-referred to as the said Act, by an order dated 23-9-1988 the learned Munsif had held that the docu ment is void and the Civil Court has jurisdiction to entertain the suit, as framed. Being aggrieved by and dissatisfied with the order dated 29-2-1988 the petitioners had filed revision which was dismissed on 20-12-1988. It is this order against which the present writ petition has been filed. The petitioners have also pointed out that the respondent No. 3 had filed a Suit No. 144 of 1987 before the Revenue court in respect of the same land for declaration of his right under the said Act. Learned counsel for the petitioners contends that the said suit being barred under Section 331 of the said Act both the orders passed by the trial Court can not be sustained and the order dated 23-9-1988 passed by the learned Munsif Magistrate and the order dated 20-12-1988 passed by the learned District Judge, in revision there out, are wholly without jurisdiction, particularly, when by filing suit before the Revenue Court the respondent No. 3 has admitted the situation.
(3.) THE learned counsel for the respondent contends that the suit for declara tion of a document as void on account of the same being executed through imposter, can only be decided in Civil Court and not by the Revenue Court. Section 331 of the said Act is not barred in respect of such suit. Admittedly the allegations made in the plaint are that the sale-deed was alleged to have been executed by an imposter and, therefore, the same is void and be cancelled. A sale-deed which obtained by fraud, namely, by setting up some one else as the original owner. Therefore the deed was obtained by fraudulent method, was sought to be cancelled in the present proceeding. A suit for cancellation of the sale-deed on the ground of fraud lies in the Civil Court. [see, Raghunath and others v. District Judge, 1986 RD 315, and Mahabir Singh v. Ham Chandra, 1981 ALJ 394]. In a case where the Plaintiff is Bhumidhar of the land and the executant had no title to the land, in such a case suit for cancellation of the sale-deed is cognizable by the Civil Court and not by Revenue Court, See, Indra Dev v. Ram Pyara, 1982 ALJ 1308]. In order to appreciate the situation it is necessary to refer to Section 331 of the said Act, which runs as under : "331. Cognizance of suits, etc. under this Act - (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule-II shall, notwithstand ing anything contained in the Civil Procedure Code, 1908 (V of 1908) take cognizance of any suit, application or proceedings mentioned in Column 3 thereof (or of a suit applica tion or proceedings based on a cause of action in respect of which any relief could be obtaind by means of any such suit or application : Provided that where a declaration has been made under S. 143 in respect of any hold ing or part thereof, the provisions of Schedule II in so far as they relate to suits, applica tions or proceedings under Chapter VII shall not apply to such holding or part thereof. " Section 331 prescribes that the suit, enumerated in Schedule II shall lie in the court mentioned in Column 4 of the said Schedule and shall not be cognizable by any other Court. Schedule II Column 3 prescribes nature of proceeding. While Column 4 prescribes Court where such proceeding can be initiated. On perusal of Schedule II I am unable to find out in Column-3 where description of proceeding as at hand has been given and that nature of suit involved in the present case has been included therein.;