- (1.) N. L. Ganguly, J. This writ petition is directed against the judgment of the IIIrd Addl. District Judge, Mirzapur, dated 17. 12. 1986 by which the learned Judge set aside the judgment and order of the learned Munsif on the issue that the suit filed by the plaintiff-respondent was barred by Section 331 of the U. P. Z. A. and L. R. Act for appreciating the controversy in the present case it would be necessary to state brief facts and reliefs claimed by the plaintiff-respondent in the suit.
(2.) A pedigree has been shown in the plaint mentioning Bhola, Doodhnath and Paras as three sons of Lalla. It was pleaded that the plots in dispute were ancestral holding of Lalla, which had devolved on the three sons afore-mentioned. Bhola was married at the age of nine years, who had died at the age of 15 years even before the Gauna ceremony had taken place. His widow Smt. Phuljharia had married again according to the customs with one Moti Lal. It was pleaded that Raj Kumar had no legal right in the holding simply on the ground that he could never be the son of Bhola who had died before the Gauna ceremony. The petitioner remained in continuous possession adverse to Smt. Phuljharia who had no legal right also. Lalla had died and the petitioners remained as the sole successor and tenureholder of the land. Raj Kumar, Defendant No. 1, is the son of defendant No. 2 Smt. Phuljharia and Moti Lai to whom she had remarried after the death of her first husband Bhola. It was pleaded that Raj Kumar, defendant, had been living with Moti Lai and in other cases Raj Kumar and Smt. Phuljharia, defendants No. 1 and 2, sub mitted written statement admitting that they are son and widow of Moti Lal deceased. It was pleaded that defendants No. 1 and 2 Rajkumar and Phuljharia had no legal right, title over the land in question. By playing fraud a sale deed was got executed for the alleged share of Rajkumar and Phuljharia in favour of defendants No. 3 to 5. The pleading in the suit is that the sale deed dated 12. 3. 1985 executed by defendant Raj Kumar in favour of defendants No. 3 to 5 Lal Behari was liable to be set aside and quashed. It has also been stated in the pleadings that defendant No. 1 Rajkumar is not the son of Bhola deceased brother of the plaintiff nor he has any right, title or interest in the property or in any share thereof. The sale deed ex ecuted by Rajkumar was wholly illegal and is liable to be cancelled. Another plead ing was that the sale deed in question was liable to be cancelled in view of Section 168 of the U. P. Z. A. and L. R. Act. The relief claimed in the suit is that the sale deed dated 12. 3. 1985 executed by defendant Raj Kumar in favour of Lal Behari, Kishori Lal and Tikori Lal be cancelled and the court may grant any further relief that may consider just and proper. A written statement was filed raising the plea that the suit was barred by section 331 of the U. P. Z. A. and L. R. Act. I will not refer to further details of the pleadings raised in the written statement since it is the plaint allegations which are to be taken into consideration when jurisdiction of the Court is to be adjudicated.
(3.) THE learned Munsif referred to the pleadings of the parties and was pleased to observe that here the main relief of the plaintiffs is that they be declared the sole Bhumidar of the disputed land and the sale deed executed by the defendant No. 1 be cancelled. THE Learned Munsif was of the view that it was really a case for declaration about the competency of the defendant No. 1 to execute the sale deed in favour of defendants No. 3 to 5. THE learned Munsif also recorded a finding that the plaintiffs have not categorically denied that the name of defendant No. 4 has been entered in the revenue record. Ultimately the decision of the learned Munsif was that the main relief of the plaintiff is for declaration and the civil court cannot grant such relief. THE learned Munsif directed that the Court has no jurisdiction to try the suit, decided the issue and directed the record of the case to be consigned to the record room. Against the said judgment an appeal was filed by the plaintiff-respondents. The learned IIIrd Addl. District Judge, before whom the appeal was trans ferred, referred the facts stated in the plaint. It was observed that the sale deed executed by Rajkumar, defendant No. 1, has not been given effect to in the revenue record. The learned lower appellate court mentioned in the judgment that in para 11 of the written statement the sale deed was stated to be void but during the course of arguments in appeal, this plea was not pressed before the lower appellate court. It was said that since the main relief from the facts indicated that it was a case for declaration as such the provisions of section 331 of the U. P. Z. A and L. R. Act would bar the maintainability of the suit in Civil Court. It was also argued before the lower appellate court that the name of the person recorded in the revenue record, if executes a sale deed, without declaration, the sale deed could be got cancelled by filing a suit in the civil court.;