- (1.) S. U. Khan, J. Heard learned Counsel for the petitioner. No one appears on behalf of the respondent No. 2, the only contesting respondent at the time of arguments.
(2.) LEARNED Counsel for the petitioners made an oral prayer for deletion of the names of respondents 4 and 5. Prayer is accepted and respondents 4 and 5 are deleted from the array of the parties. Respondent No. 2 Sardara filed Original Suit No. 372 of 1978 against the petitioners. Petitioners had purchased the agricultural land in dispute (Khasra No. 44 area 5 bigha 2 biswa and 5 biswansis) from Prabhu, real brother of plaintiff Sardara. Sale-deed was executed on 2-3-1963 and registered on 4-3- 1963. In the plaint it was stated that Prabhu had no right to execute the sale-deed and plaintiff was also co-sharer to the extent of 50 per cent. Relief "a" in the plaint was to the effect that sale-deed dated 2/4 March, 1963 be cancelled and its intimation be sent to the office of the Registrar concerned. The second prayer was that the plaintiff must be delivered possession of the land in dispute through Court Amin. Petitioners-defendants filed written statement and stated that the suit was not cognizable before the civil Court. Issues were framed. Issue No. 10 pertained to jurisdiction. The issue of jurisdiction was decided as preliminary issue and III Additional Munsif Bijnor through order dated 13-5-1980 held that the suit was not cognizable by the civil Court and directed the return of plaint for being filed before the proper Court i. e. revenue Court under U. P. Zamindari Abolition and Land Reforms Act. Against the said order plaintiff-respondent filed Civil Revision No. 56 of 1982. First Additional District Judge, Bijnor allowed the revision on 13-4-1982, set aside the order of the learned Munsif and held the suit to be maintainable before the civil Court. Hence this writ petition. The trial Court had held that according to the allegations in the plaint the sale-deed was void, hence suit was cognizable before the revenue Court.
(3.) IT is true that by virtue of Full Bench of this Court reported in Ram Padarath v. II A. D. J. Sultanpur and Ors. , 1989 A. W. C. 290, even a suit for cancellation of void sale-deed in respect of agricultural land may be maintainable before the Civil Court. The said Full Bench Authority has virtually been upheld by the Supreme Court in Smt. Bismilla v. Janeshwar, AIR 1990 SC 540. The Supreme Court held that if the plaintiff is of the opinion that without getting the offending deed set aside, he can not get proper reliefs then the bar is not attracted and plaintiff is at liberty to file suit before the Civil Court. In Shri Ram and Anr. v. 1st Additional District Judge and Ors. , 2001 (1) JCLR 891 (SC) : AIR 2001 SC 1250, also it has been held that recorded tenure-holder is not required to approach the revenue Court for declaration of right. He can challenge the sale-deed purported to have been executed by him in the civil Court. The aforesaid Full Bench authority of this Court in the case of Ram Padarath (supra) was also approved by the Supreme Court in the case of Shri Ram.;