Shyam Kumar And Ors. vs Budh Singh And Ors.

on 27 January, 1977

Rajasthan High Court Shyam Kumar And Ors. vs Budh Singh And Ors. on 27 January, 1977 Equivalent citations: AIR 1977 Raj 238, 1977 WLN 51 Author: R Sachar Bench: R Sachar ORDER Rajindar Sachar, J. 1. This is a revision petition by the defendant against the order of the Civil Judge dated 13-12-75 by which he has held that the suit is cognizable by the Civil Court. 2. The plaintiff has filed a suit alleging that he is the owner and in possession of the suit land. It is alleged that the defendant No. 4 purporting to act as the holder of a power of attorney from the plaintiff has executed a sale deed in favour of defendants Nos. 1 to 3 of the land belonging to plaintiff. It is alleged that defendant No. 4 was not appointed by the plaintiffs nor was he the holder of power of attorney from the plaintiffs and consequently the sale deeds executed are void, inoperative and of no effect and therefore they should be cancelled and the defendants be restrained by permanent injunction from interfering with the plaintiff's possession of the suit land. Defendant through an application raised the preliminary objection that the court-fees has not been properly paid and suit has not been properly valued. Another objection raised was that the suit was not triable by a civil court but by a revenue court 3. With regard to the point of court-fees the trial court has held that it is a question of fact and no definite finding can be given in the absence of clear averment until the written statement is filed and evidence has been recorded. It has opined that it is premature to decide this important question at this early stage. Counsel for the petitioner Mr. Asopa wanted to rely on Section 38 of the Rajasthan Court-Fees Act. Apart from what had been urged in the trial court I feel that in view of the fact that the trial court has taken the view that the question of valuation can only be decided after some evidence has been taken, it is not possible for me to interfere at this stage in revision with this finding, of course it is open to the petitioner to raise the objection on the basis of Section 38 of the Court-Fees Act before the trial court as the said question has yet to be decided by it. 4. With regard to the second point the trial court has taken the view that it is cognizable by the civil court and this the petitioner challenges seriously. Section 207 (1) of the Rajasthan Tenancy Act provides that all suits and applications of the nature specified in the third Schedule shall be heard and determined by a revenue court. Item No. 23-C in third schedule mentions suit for perpetual injunction. Counsel for the petitioner's contention is that the present is a suit for perpetual injunction and therefore it is cognizable only by a revenue court. It is well settled that the question of jurisdiction namely, whether; a suit is exclusively triable by a revenue court or a civil court can take cognizance of it has to be decided on the allegations made in the plaint. It is also further settled that it is the substance of the plaint and the true nature of the suit that is to be seen to determine the question of jurisdiction. If in substance the relief claimed is one which the revenue courts alone are entitled to give the jurisdiction of the civil courts will be ousted even though it may require the revenue court to incidentally determine some ancillary facts. Mr. Asopa relies mainly on Asala v. Narain (1963 Raj LW 323) in which it was held that suits of the nature mentioned in Section 207 means suits not only which squarely fall within the four walls of various items specified in the third Schedule but also those which may not so fall but which may partake of the nature thereof can be heard and determined by a revenue court only. In that case after examining the substance of the plaint Modi J. came to the conclusion that the plaintiff's case is virtually for a declaration of their rights as tenants with respect to the land in suit and further for recovery of possession if they were found to be out of it. It was found that such a suit was covered by items 5, 7 and 8 of third Schedule. It was also found that the suit for possession was governed by Section 183 (1) (b) of the Tenancy
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Shyam Kumar And Ors. vs Budh Singh And Ors. on 27 January, 1977

Act. Modi J. expressed his diffidence in agreeing with an earlier decision of this Court where it was held that a suit for cancellation of a decree whether passed by a revenue court or a civil court is of civil nature and the suit for cancellation of a decree passed by a revenue court was triable by a civil Court. It is however important to note that the decision by Modi J. was given on a definite finding that the substance of the suit was for possession of the agricultural land on the basis that the plaintiffs were tenants. 5. Next case referred was Rooda Ram v. Rattu Ram (1972 Raj LW 532) in that case also learned Judge Kan Singh J. found that the real cause of action is to whom does the field in question belong and the crux of the matter was that the plaintiff was seeking vindication of his own Khudkasht right in the field by the suit and the connected or collates points that will arise for consideration would be about validity of sale made by Ghisaram. In that case the field belonged to one Kashiram. Ghisaram defendant was his son and Ratura was his grandson from another son Phasaram. Ghisaram sold the land to Rudaram defendant. A suit was brought on behalf of Raturam minor asking for cancellation of sale-deed executed by Ghisaram and it was averred that Ghisaram has no right to sell the field. It will be appreciated that the suits thus was for a declaration that the sale made by Ghisaram could not affect the rights of plaintiff's. This was a challenge to a sale by a third party and the main relief sought was the assertion of Khatedari right by the plaintiff and the relief of cancellation of deed was only incidental to the main plea. It is obviously distinguishable. 6. In Jagan Singh v. Choteylal (1973 Raj LW 674) the plaintiff filed a suit alleging that the defendant had practiced fraud and got a sale-deed executed by him in defendant's favour and that the sale was void ab initio being in contravention of Section 42 (2) (b) of the Rajasthan Tenancy Act, hereinafter to be called 'the Tenancy Act' as the plaintiff was a member of Scheduled Tribe. It was prayed that the sale-deed be declared void ab initio and a decree for possession be given. Lodha J. held that the real and substantial relief is for possession of the Land and dwelling house and that the Revenue Court after coming to the conclusion that the document was void could grant a decree and therefore the revenue court alone had jurisdiction. It will be seen that the decision was based on the finding that the substance of the suit was for possession of the agricultural land. It is relevant to note that Lodha J. observed in the said case as follows:-"But in a suit where the main relief asked for by the plaintiff is restoration for the possession of the property which is the subject-matter of the instrument, the question whether relief for cancellation must be asked for, could depend upon an answer to the other important question whether the instrument is void ab initio or is voidable. If the instrument is voidable and the avoidance of same is necessary, the relief for cancellation of the instrument is indispensable and in that case. I have, no doubt; the revenue can give no relief as long as the sale deed is not cancelled. But the position in my view would be different if the instrument is alleged to be or proved to be void ab initio." 7. In that case the sale was undoubtedly void because of prohibition in the statute and therefore the main relief for suit was for possession and hence triable by revenue court. 8. In Civil Reference No. 36 of 1976, Kaluram v. Mamraj, decided on 20-1-1977 (Raj). Kudal J. on a consideration of the plaint found that the main relief sought for in the plaint is for restoration of agricultural holding and therefore held that this relief could only be granted by a revenue court. In the judgment it is mentioned that the plaintiff had prayed for cancellation of sale-deed on the ground that the sale-deed was void. But from the judgment it is not clear as to what was the ground on which cancellation of sale-deed was sought. Mr. Asopa however said that in that case one brother had sold the property and the plaintiff had filed a suit for a declaration that the sale was not binding on him. Apparently as the sale made by third party was being challenged, the learned Judge found that the main relief sought was relief for possession, obviously such a case could be triable only by a revenue court. The case is clearly distinguishable. 9. In Civil Revn. No. 397 of 1962, Bhhem Ram v. Ranjeet Singh decided on 6-8-1963 (Raj) by Jagat Narayan J. (as his Lordship then was) a suit had been filed for possession alleging that the sale by the plaintiff was void as it was against the provisions of Section 42 of the Rajasthan Tenancy Act as the defendant was already in
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Shyam Kumar And Ors. vs Budh Singh And Ors. on 27 January, 1977

possession of land which together with the land so transferred exceeded the ceiling area applicable to the defendants. The learned Judge held that the relief of cancellation of sale-deed was redundant and the only relief claimed was a relief for possession over the Land which was sold by the plaintiff under the sale-deed and that this was a suit for possession of agricultural land governed by Section 183 of the Tenancy Act and hence triable by the revenue court. 10. In Longram v. Jaipal Singh, Civil Revn. Petn No. 153 of 1971 decided on 29-7-1971 (Raj) also the paintiff had filed a suit on the allegation that the sale by his father in the absence of legal necessity was void and there was a prayer for cancellation of the sale-deed. The learned Judge found that the prayer for the cancellation of the sale-deed is not very material and the suit is essentially one for possession of agricultural land and hence the suit was triable by the revenue court. 11. A reference to the authorities, cited by Mr. Asopa will show that in all these cases wherein it was held that the suit is triable by revenue court, the learned Judges had first come to the conclusion that the main relief sought in the suit was restoration of possession or the sale was void because of a statutory prohibition. Thus the substance of suit related in main to the relief for possession which could only be granted by revenue court and other grievances were incidental. It is apparent that each case has to be examined on its own particular facts and no universal rule can be made applicable to every case. 12. Let us therefore see what in substance is the case in the suit and the reliefs claimed. The plaintiff has alleged that plaintiff's sell their agricultural produce through the shop of defendants 1 to 3 and in that connection they take loan which they adjust by selling of produce at the shop of defendants. It was further alleged that on 4th June, 1974 the defendants Nos. 1 and 2 have got a sale-deed executed by one defendant No. 4 purporting to act as a Mukhtior khas of plaintiffs and have got it registered from the Sub-Registrar Office. This sale deed is said to be based on wrong facts and inoperative. It was alleged that similarly on 14th June, 1974 another sale-deed in favour of the defendants Nos. 1 to 3 was executed by defendant No. 4 purporting to act as special attorney of plaintiff No. 2. These two sale-deeds are alleged to be inoperative and void and not binding on the plaintiffs. It was alleged that defendant No. 4 was never authorised to execute any sale-deed on behalf of plaintiffs. It was alleged that the defendant No. 4 was not even known to the plaintiff and was on the contrary, a man of defendants Nos. 1 to 3. Defendant No. 4 is said to have acted fraudulently in having executed the said sale-deeds and purporting to be acting on behalf of plaintiffs. Sale-deeds are said to be in violation of Registration Act. It was also alleged that some pronotes had been got executed by defendants Nos. 1 and 2 from plaintiff No, 3 and which are fabricated. It was therefore, prayed that the sale-deeds dated 4th June, 1974 and 14th June, 1974 executed in favour of defendant No. 2 and defendant No. 3 respectively were void and of no effect and could not affect the rights of the plaintiff, and the defendant have got no rights through these sale-deeds. It was also prayed that it be declared that defendant No. 4 had never been appointed a special attorney by the plaintiff and that the defendant No. 4 had no right to sell the land of plaintiffs Nos. 1 and 2 and a further prayer was made that the registration had not been done according to the Registration Act and the sale-deeds were thus not registered according to the law and could not effect the rights of plaintiff. Relief was also sought to declare the pronotes as fabrication. 13. A perusal of the plaint thus shows that the main relief which the plaintiffs are seeking is that the sale-deed dated 4th June, 1974 and 14th June, 1974 have been executed by defendant No. 4 without any authority and that they should be treated to be cancelled as being inoperative and as passing no title to the defendants Nos. 2 and 3- In my view the main relief therefore that the plaintiffs are seeking in the present case is a relief for cancellation of the documents of sale deeds Section 31 of the Specific Relief Act provides that "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." The learned counsel for the petitioner has sought to urge that it was not necessary for the plaintiffs to have the sale-deed cancelled and that their main relief should be considered to be a relief for perpetual injunction and the suit therefore would be triable under item 23-C of the IIIrd Schedule of the Tenancy Act. I do not agree. Here are
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Shyam Kumar And Ors. vs Budh Singh And Ors. on 27 January, 1977

two sale-deeds which purport to sell the land of the plaintiffs. The sale-deeds have been executed by defendant No. 4 purporting to act as special attorney of the plaintiffs. The case of plaintiffs is that defendant No. 4 has nothing to do with them and was never constituted a special attorney and that the whole transaction is fraudulent. Once having come to know of the sale-deeds it is obviously not permissible for the plaintiffs to ignore the deeds which have cast a cloud on their title. If the plaintiffs even after having come to know of the said sale-deed do not take steps to have the said deeds cancelled they would be in very real danger of locking their rights in the said land. It is certainly not permissible for the plaintiffs to keep silent after coming to know of the sale-deed They cannot hope to succeed in their suit for perpetual injunction without first getting rid of the sale-deeds which purport to be executed on their behalf. Thus the main relief which the plaintiffs seek is a relief for cancellation of the said sale-deeds. They cannot ignore the said sale-deeds and sue for permanent injunction because their very locus standi to file a suit for perpetual injunction must be on the footing that they are owners of the land and this they cannot prove unless they first have the said sale-deeds cancelled. Section 19 of the Contract Act provides that when consent to an agreement is caused by fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. If therefore the plaintiffs do not take steps to have the said sale-deeds cancelled and of no effect, they would be bound by the sale-deeds and consequently any claim on the basis of their title to the land would not avail them, It was held in Sankaranarayana Pillai v. Kandasamia Pillai (AIR 1956 Mad 670) (FB) that if a minor is eo nominee a party to the sale-deed or other documents of alienation he must sue for cancellation of the documents and it is not enough if he applies for possession. In Lal Singh v. Tejsingh, 1971 WLN 674 : (AIR 1972 Raj 137) a suit was filed for a declaration that the sale deed executed by the plaintiff's father was not binding on them and also asked for possession over the land sold under the sale-deed. Question arose whether the said suit was for cancellation of a sale-deed or not. After pointing out that there is a difference between suit for cancellation of any instrument and one for declaration, that the instrument is not binding on the plaintiff, Jagat Narayan C. J. held that as the suit was for cancellation of the sale-deed, it is necessary to get it cancelled before one can be entitled to the property disposed of by it. The learned Chief Justice also further observed: "The relief of the cancellation of sale-deed or a decree can only be granted by a civil court and not by revenue court. The suit therefore lies in the civil court." 14. In Chhedi v. Smt. Indrapati (AIR 1972 All 446) it was held that where the consent decree to which the plaintiff was a party was alleged to be void on the ground that the consent was obtained by a fraud, the decree was voidable and the cancellation of the same would therefore be a condition precedent before any relief could be granted in the suit to the plaintiff. 15. The learned counsel for the petitioner seeks to place much reliance on the explanation to Section 207 of the Tenancy Act by urging that even in cases in which the cause of action is one in respect of which relief might be granted by revenue court, it is immaterial that the relief asked for from, the civil court is greater than, or additional to or is not identical with, that which the revenue court could have granted. The argument is that as relief for permanent injunction can be granted by the revenue court, the other relief for cancellation of sale deeds can also be granted by the revenue court which alone has jurisdiction. In my view this argument is fallacious, The explanation presupposes that the cause of action is one in respect of which relief might be granted by revenue court. Now in the present case, as I have said before, the relief and the main relief is the cancellation of the said sale-deeds. Unless the said sale-deeds are cancelled no other relief can, be given by the court. The cause of action in the present ease is the execution of the sale-deeds by defendant No. 4 purporting to act as a special attorney of the plaintiffs. It is this cause of action which has forced the plaintiffs to file the suit; the relief therefore that is mainly sought is a relief of cancellation of the sale-deeds, and such a relief cannot obviously be given by a revenue court, but can only be given by the civil court. It is apparent that the explanation to Section 207 is not applicable. The relief of perpetual injunction and others are incidental to the main relief, and will follow as a consequence to the finding of the court with regard to the relief of cancellation of the sale-deeds or otherwise.

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Shyam Kumar And Ors. vs Budh Singh And Ors. on 27 January, 1977

16. It should also be seen that the suit also asks for a declaration that the purported power of attorney in favour of defendant No. 4 is fraudulent and of no effect. It is apparent that complicated questions of law and fact about the alleged fraudulent nature of the transactions and the effect of the alleged power of attorney and the interpretation of Registration Act require to be decided in the suit. Such matters are inevitably triable by civil courts, as revenue courts are obviously not well equipped to try such difficult questions of law. 17. In my view therefore the suit as framed is one which is triable by the Civil Court and does not come within the provision of Section 207 of the Rajasthan Tenancy Act. 18. As a result of above, I would dismiss the revision petition. There will be no order as to costs.

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