M.P. Mehrotra, J.
1. This second appeal arises out of a suit for cancellation of a sale deed. The plaintiff also claimed joint possession in case defendants 1 to 3 were found to be in such possession. The brief facts are these:--
One Jaswant Singh was the predecessor-in-interest of the parties. He died in February, 1955 leaving the plaintiff, widow of a pre-deceased son and two sons namely, Sita Rani and Her Bhajan Singh (defendants 4 and 5 respectively) as his heirs and as such the three heirs inherited the property left by the deceased Jaswant Singh. The three heirs had equal shares in such property. The plaintiff alleged that she filed a suit for declaration in the revenue court in 1960. Necessity for such suit arose as she found that defendants 4 and 5, the two sons of Jaswant Singh. got their sole names mutated in the revenue records. The said suit in the revenue court was, however, stayed on account of consolidation proceedings. During the stay of the said suit defendants 4 and 5 sold the disputed plots to defendants 1 to 3 through a sale deed dated 27th August, 1,962. The plain-tiff claimed that her share in the disputed plots was one-third and, therefore, she was entitled to get the sale deed cancelled as the same was void and illegal. Defendants 4 and 5 did not contest the suit but defendants 1 to 3 did. They questioned the court's jurisdiction to try the suit and claimed that in view of Section 49 of the U. P. Consolidation of Holdings Act the suit was not maintainable. They denied the plaintiff's share in the disputed plots and alleged that there was a family arrangement whereunder the plaintiff had given up her rights in the plots in question. Certain other pleas were also taken. The trial court framed necessary issues and tried the suit. The same was dismissed. Feeling aggrieved, the plaintiff went up in appeal to the lower appellate court and the said court dismissed the appeal and maintained the judgment and decree of the trial court. However, reasons which found favour with the lower appellate court were different from those which commended themselves to the trial court. The trial court was of the view that the suit was barred under Section 49 of the U. P. Consolidation of Holdings Act. The lower appellate court, however , felt that the suit was not barred under the said provision. However, taking into consideration the fact that defendants 4 and 5 were admittedly in possession of other joint lands the said court felt that the proper remedy for the plaintiff was to file a suit for partition and in such a suit if it was possible for the plaintiff to get her complete one-third share by allotment of excess land in the jointly held lands still in possession of defendants 4 and 5, then it would not be necessary for her to proceed against the disputed plots which had been sold in favour of defendants Nos, 1 to 3. It was held that the plaintiff had no right to get the sale deed cancelled in these circumstances and the decree of the trial court was affirmed. Now feeling aggrieved the plaintiff has come up in the instant appeal and in support thereof I have heard his learned counsel.
2. In my opinion the lower appellate court has correctly approached the controversy. In a situation like this where third party's interests have come into existence, it would be a sound exercise of discretion not to decree the plaintiff's suit but to direct him to seek his remedies in a regular suit for partition wherein the entire property may be before the court to be dealt with in such a manner that the third party's interest may not be allowed to suffer as far as possible. It is well known that the suits for cancellation and the suits for declaration are both in the realm of the court's discretion. Section 31 of the New Specific Relief Act dealing with cancellation of instrument clearly says that the Court may in its discretion so adjudge a written instrument as void or voidable and direct it to be delivered up and cancelled. Similarly in Section 34 dealing with declaratory decrees the expression used is '......and the court may in its discretion make therein a declaration.' The plaintiff, therefore, did not have an absolute right to get the sale deed in question declared void or cancelled and the lower appellate court has given good reason for directing the plaintiff to file a regular suit for partition and to get her remedies by allotment of proportionately larger share in the jointly held plots which still remained in the hands of defendants 4 and 5.
3. This appeal, therefore, fails and Is dismissed. But in the circumstances of the case there will be no order as to costs.