S.U.Khan - (1.) -Heard learned counsel for the petitioner.
(2.) IN spite of sufficient service, no one has appeared for respondent No. 2 the only contesting respondent. Petitioner filed O. S. No. 288 of 1985 against defendant-respondent No. 2. The suit was for cancellation of a sale deed and a Will deed alleged by the defendants to have been executed by one Januka. Petitioners claimed themselves to be heirs of Smt. Januka. The trial court decided the question of maintainability of the suit before the civil court in favour of the plaintiff. The revisional court held that as the allegation in the plaint was that sale deed and Will deed were void, hence civil court has got no jurisdiction. Accordingly, revisional court allowed the revision and held that the suit is cognizable by revenue court and not by civil court. The said order was passed by IInd A.D.J., Saharanpur on 7.2.1989, which has been challenged through this writ petition. Neither copy of the plaint nor of order of the trial court has been filed in the writ petition.
(3.) IN my opinion, the view taken by the revisional court is utterly erroneous in law. IN the Full Bench authority of this Court in Ram Padarath v. Second A.D.J., Sultanpur, (1989) RD 21 : 1989 (1) AWC 290 (LB-FB), it has been held that suit for cancellation of a void document or for declaration that the document is void is maintainable before the civil court if plaintiff has prima facie title and is recorded tenure-holder. Supreme Court has approved the said authority in Bismillah v. Janeshwar Prasad, AIR 1990 SC 540 : 1990 (1) AWC 359 (SC) and Shri Ram v. Ist Addl. Distt. Judge, AIR 2001 SC 1250 : 2001 (1) AWC 862 (SC). Paragraphs No. 4 to 7 of the latter authority are quoted below : "4. IN the present case what we find is that vendor Smt. Vidyawati Devi admitted that she had executed a registered sale deed in favour of the appellants on 12th July, 1984. She also admitted that she delivered the possession of the said land to the appellants and the appellants are in possession over the said plot of land. It is also on record that the names of the appellants have been ordered to be recorded as a tenure holder in the revenue record. The aforesaid facts show that the appellants are the recorded tenure holder in possession of the plot in dispute in pursuance of the sale deed dated 12 July, 1984. The question that now arises for consideration is whether a recorded tenure holder having prima facie title in his favour and in possession is required to file a suit in the revenue court or the civil court has jurisdiction to entertain and decide the suit seeking relief for cancellation of a void document. IN Ram Padarath v. Second A.D.J., Sultanpur, (1989) RD 21 : 1989 (1) AWC 290 (LB-FB), a Full Bench of Allahabad High Court considered this aspect of the matter and held thus : "We are of the view that the case of INdra Dev v. Ram Pyari (Smt.), 1982 ALJ 1308, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Dr. Ayodhya Prasad v. Gangotri Prasad, 1981 ALJ 647, is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the revenue court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the civil court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure holder is necessarily needed in which event relief for cancellation will be surpluses and redundant. A recorded tenure holder having prima facie title in his favour can hardly be directed to approach the revenue court in respect of seeking relief for cancellation of a void document which made him to approach the Court of law and in such case he can also claim ancillary relief even though the same can be granted by the revenue court." (Emphasis supplied) 5. The correctness of the decision in the above case has not been challenged before us. IN fact, the said decision was approved in Smt. Bismillah v. Janeshwar Prasad, (1990) 1 SCC 207 : AIR 1990 SC 540 : 1990 (1) AWC 359 (SC). IN Gorakh Nath Dube, AIR 1973 SC 2451 (supra) which is strongly relied upon by learned counsel for the respondents, it was held thus. (Para 5 of A.I.R.) : ".....but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it........" 6. The said decision is distinguishable and is of no help to the case of the respondent. The observation quoted above has to be understood in the context of the fact of the case. IN the said case, the plaintiff had filed a suit for cancellation of the sale deed to the extent of half share claimed by the plaintiff and also an award of possession of the plaintiff's share. IN the suit, it was alleged that the vendor had no title to the extent of half share in the land and, therefore, the sale deed to that extent is void. IN the said case there was no prima facie title in favour of plaintiff and his title to the land and delivery of possession was required to be adjudicated. 7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court-reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession." At this juncture, Section 31 (1) of Specific Relief Act, 1963 which is quoted below may also be noticed : "31. When cancellation may be ordered.-(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable ; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled." ;