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Chhedi Vs. Smt. Indrapati - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 508 of 1966
Judge
Reported inAIR1972All446
ActsUttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 209 and 331; Code of Civil Procedure (CPC) , 1908 - Sections 9; Limitation Act, 1963 - Schedule - Article 59
AppellantChhedi
RespondentSmt. Indrapati
Appellant AdvocateBrijesh Kumar, Adv.
Respondent AdvocateH.D. Srivastava, Adv.
DispositionAppeal dismissed
Excerpt:
property - bar of jurisdiction - section 331 of u.p. zamindari abolition and land reforms act, 1951 and section 9 of code of civil procedure, 1908 - suit for setting aside decree obtained fraudulently - to determine proper forum for the suit - pith and substance of relief and not its form should be looked into - main relief claimed - decree void - held, relief can be granted in civil court only and period of limitation under article 59 start from the knowledge of decree. - - if the answer to the enquiry is in the affirmative the suit brought in the civil court must fail even if the relief actually claimed in the suit was on the face of it cognizable by the civil court. it was observed that the allegations in the plaint, clearly amounted to the contention that she was dispossessed of the.....t.s. misra, j.1. this appeal is directed against the decision of the civil and sessions judge, linked court of gonda-bahraich at gonda, allowing the appeal of the plaintiff respondent and reversing the decree passed by the trial court by which the plaintiff's suit was dismissed. the facts giving rise to this appeal may be, briefly, stated as follows:the plaintiff alleged herself to be the sirdar of several plots situate in village basantpur, pargana tulsipur and the defendant had no right, title and interest in the same. she contended that the defendant filed a false suit in the court of the judicial officer, balrampur under section 209 of the u.p. zamindari abolition and land reforms act on 29th september, 1961 against the plaintiff and on 30th september, 1961 he filed a compromise.....
Judgment:

T.S. Misra, J.

1. This appeal is directed against the decision of the Civil and Sessions Judge, Linked Court of Gonda-Bahraich at Gonda, allowing the appeal of the plaintiff respondent and reversing the decree passed by the trial Court by which the plaintiff's suit was dismissed. The facts giving rise to this appeal may be, briefly, stated as follows:

The plaintiff alleged herself to be the sirdar of several plots situate in village Basantpur, Pargana Tulsipur and the defendant had no right, title and interest in the same. She contended that the defendant filed a false suit in the Court of the Judicial Officer, Balrampur under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act on 29th September, 1961 against the plaintiff and on 30th September, 1961 he filed a compromise purporting to have been arrived at between the parties in the suit. She, however, did not have any knowledge of the institution of the suit or of the compromise petition. In the month of October, 1964, the defendant started interfering with her possession on the land in question on the basis of the compromise decree and then she came to know that some case was filed by the defendant. She got the file of the case inspected and then it transpired that some lawyer put in appearance in the case on her behalf and made the compromise purporting to be on her behalf. She asserted that she never engaged any counsel nor authorised him to put in appearance in the case and file the compromise. The entire proceedings were fraudulent and the alleged compromise decree was not binding on her. She, therefore, sought cancellation of the compromise decree dated 30th September, 1961.

2. In defence the defendant pleaded that he was the sirdar of the land in suit and the plaintiff had taken wrongful possession over the same. Consequently he had to file the suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. Prior to the institution of that suit Panchayat between the parties in the village took place wherein the plaintiff admitted the claim of the defendant and it was decided therein that the dispute should be settled by filing compromise in the Court, hence that suit was filed and the plaintiff entered into a compromise which was signed and verified by her counsel whom she had engaged by executing a vakalatnama. It was also alleged that the suit filed by the present respondent was barred by time and that the suit was not cognizable by the Civil Court.

3. The trial Court dismissed the suit holding that the plaintiff had engaged Sri Shaukat Husain as a counsel in the suit in which the compromise decree was passed and had instructed him to file the compromise on her behalf, that the plaintiff had knowledge of the institution of the suit and passing of the decree in question. He, therefore, held that the suit was barred by time. In regard to the question of jurisdiction it was observed by the trial Court that the counsel for the defendant did not press the issue. Despite that the trial Court proceeded to decide the issue relating to jurisdiction and held that the suit was cognizable by the Civil Court. The appellate Court below allowed the appeal and decreed the suit holding that no Panchayat in the village took place in which it was decided that the plaintiff would go to Court and file a compromise petition. It also held that no compromise was filed on her behalf. Considering all the facts and circumstances of the case the appellate Court below refused to place any reliance on the statement of Sri Shaukat Husain vakil. It recorded a finding that the compromise decree was obtained by fraudulent means and was, therefore, liable to be cancelled. The finding of the trial Court on the issue of jurisdiction was upheld. It was, however, held that the suit was not barred by time. Aggrieved by the said decision the defendant has now come up to this Court in second appeal.

4. The learned counsel for the appellant urged that the suit was barred by time and that it was not cognizable by the civil Court. In regard to the question of limitation it was urged that the suit for cancellation of the compromise decree dated 30th September, 1961 having been filed on 28th November, 1964 was barred by time under Article 59 of the Indian Limitation Act. The plaintiff alleged that she acquired knowledge of the suit in question in the month of October, 1964. The defendant denied this fact and alleged that she had the knowledge of the suit from its inception. The appellate Court below, on a consideration of the evidence on record, found that no compromise was made by the plaintiff nor did she instruct Sri Shaukat Husain vakil to make a compromise on her behalf. The story that the plaintiff had engaged Sri Shaukat Husain in the case was disbelieved. That suit was filed on 29th September, 1961 and on the very next date the compromise petition was filed in the case. Obviously no summons were issued to Smt. Inderpati and she could not have any knowledge of the institution of that suit or of the passing of the decree therein. The defendant did not suggest any other date when the plaintiff could have acquired the knowledge of the institution of that suit. His assertion that the plaintiff Smt. Indrapati knew of the institution of the suit from its inception and the compromise petition was filed on her behalf by her counsel was rightly disbelieved. Under Article 59 of the Limitation Act, 1963 a suit for cancellation or setting aside an instrument or decree is to be filed within three years of the date when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside first become known to him. In the instant case the plaintiff came to know of the institution of the suit and the passing of the compromise decree in the month of October, 3 964 when the defendant wanted to interfere with her possession over the land in suit and she got the file of the case inspected. Thereafter in the month of November, 1964 she filed the suit which was obviously within time.

5. The second contention on behalf of the appellant was that the suit was not cognizable by the Civil Court as according to the allegations of the plaintiff the compromise decree having been, obtained by fraud was a nullity and could be ignored by her and she could obtain a declaration of her title by the revenue Court. In support of this submission the learned counsel for the appellant referred to Section 331 of the U.P. Zamindari Abolition and Land Reforms Act and placed reliance on Kasool Ahmad v. Beni Prasad, : AIR1965All514 ; Ram Awalamb v. Jata Shankar, : AIR1969All526 and an unreported decision of this Court in Jugraj v. Dy. Director of' Consolidation, Hardoi (Civil Misc. Writ No. 146 of 1968 decided by the Lucknow Bench on 14-2-1969). On behalf of the respondent it was argued that as the plaintiff had sought cancellation of the compromise decree the civil Court alone had jurisdiction to try the suit,

6. It is a matter of common knowledge that in view of the provisions of Section 9 of the Code of Civil Procedure the civil Court has jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly Or impliedly barred. The learned counsel argued that because of the provisions of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act tbe present suit was not maintainable in the civil Court inasmuch as its cognizance is barred thereby. Section 331 of the U.P. Zamindari Abolition and Land Reforms Act read as follows:

'(1) Except as provided by or under this Act no Court other than a Court mentioned in column 4 of Schedule II, shall, notwithstanding anything contained in the Civil Procedure Code, 1908, take cognizance of any suit, application, or proceeding mentioned in column 3 thereof;

Or of a suit, application or proceeding based on a cause of action in :espect of which any relief could be obtained by means of any such suit or application;

Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.

Explanation.-- If the cause of action is one in respect of which relief may be granted by the revenue Court, it is immaterial that the relief asked for from the civil Court may not be identical to that which the revenue Court would have granted, and

(2) Except as hereinafter provided no appeal shall lie from an order or deeree passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid.

(3) An appeal shall lie from an order passed under Sections 47, 104 and Order 41, Rule 1, of the Code of Civil Procedure, 1908, or any final order or decree passed by a court mentioned in column No. 4 in the proceedings mentioned in column No. 3 to the court or authority mentioned in column No. 5 thereof; and

(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Civil Procedure Code, 1908, from the final order or decree, passed in an appeal under Sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid.'

Sub-section (1) of Section 331 of the Act bars the trial in any court other than the court mentioned in column 4 of the IInd Schedule of any suit, application or proceeding mentioned in column 3 thereof or of any suit, application or proceeding based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. It further stipulates that if the cause of action is one in respect of which relief may be granted by the Revenue Court it is immaterial that the relief asked for from the Civil Court may not be identical to that which the Revenue Court would have granted. Hence, in order to determine whether the suit would be cognizable by the Civil Court or tbe Revenue Court one has to look to the cause of action pleaded in the suit and not to the form in which the relief has been asked for. The term 'cause of action' was interpreted in the case of Mohammad Khalil Khan v. Mahbub Ali Khan as meaning every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Hence, the pith and the substance of the allegations made in the plaint constituting the cause of action ought to be scrutinised in order to find out whether on the same cause of action any alternative remedy would be available to the plaintiff in the Revenue Court. If the answer to the enquiry is in the affirmative the suit brought in the Civil Court must fail even if the relief actually claimed in the suit was on the face of it cognizable by the Civil Court.

7. In the case of Mt. Ram Kuer V. Iqbal Narain Singh AIR 1947 All 92 the plaintiff sought for a declaration that the decree passed by the Revenue Court, the ejectment proceedings in execution of it and the grant of the lease to defendant No. 1 were fraudulent and that the defendant No. 1 had acquired no title in them. A further relief for eviction of defendant No. 1 and possession of the land was also sought by the plaintiff. It was alleged that the plaintiff, who was a Purdahnashin lady, had entrusted the management of the property to the defendant No. 1, who was related to her. While she was away the thekedar of the village filed a suit for arrears of rent against the plaintiff and one Jangi and obtained a decree for the same. This decree was put to execution and the plaintiff and the said Jangi were evicted from the property. Subsequently the plaintiff brought a suit in the Civil Court for a declaration that the rent decree and the ejectment proceedings in execution of it and the grant of the lease to another person were fraudulent and that the lessee did not acquire any title in them. In that suit the defendants contested the maintainability of the suit in the Civil Court and raised the question as to whether the suit was cognizable by the Civil or the Revenue Court. The Division Bench held that in determining the Jurisdiction of the Civil and Revenue Court the pith and substance of the relief and not its form should be looked into and that the grounds on which the relief was based were immaterial. The essence of the relief claimed by the plaintiff in that suit was considered to be a declaration of her tenancy rights and restoration of possession to her. It was observed that the allegations in the plaint, clearly amounted to the contention that she was dispossessed of the disputed land otherwise than in accordance with the provisions of law and thus the substance of the relief claimed fell within the purview of Sections 59 and 183 of the U.P. Tenancy Act and the suit was cognizable by a Revenue Court only. The Division Rench placed reliance On the case of Ram Diral Dubey v. Gajaraj Upadhaya : AIR1935All499 . It may be pointed out that in that case the plaintiff was dispossessed in the execution of the decree which was alleged to have been fraudulently obtained inasmuch as the plaintiffs address was wrongly given therein and she was never informed of the proceedings in that suit and as the allegations contained in the plaint clearly amounted to the contention that she was dispossessed of the land otherwise than in accordance with the provisions of law the suit fell within the ambit of Sections 59 and 183 of the U.P. Tenancy Act. In the present case the plaintiff has no doubt alleged that she could not have any knowledge of the institution of the suit filed under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act in the court of the Judicial Officer, Balrampur, that she had not engaged any counsel to put in appearance in that case on her behalf and that she did not enter into any compromise in that case. She had also alleged that no summons were served on her and the decree was, therefore, fraudulently obtained. As the said decree would cast a cloud on her sirdari rights in respect of the plots of land in question it was necessary to have the same adjudged void. She, however, alleged herself to be in possession of the property and as such the only relief sought for by her was to adjudication of the invalidity of the said decree. The tilling reported in Mt. Ram Kuer's case (supra) would, therefore, not be applicable to the facts of the instant case.

8. In the case of Ram Sewak Lal v. Bashist : AIR1949All419 the question of cognizability of the suit by the Revenue or a Civil Court was again considered by this Court. In that case the plaintiff instituted a suit in the Civil Court for a declaration that a consent decree passed by the Revenue Court was void and ineffectual against him. He alleged that he was an occupancy tenant of certain plots and that by the fraud practised by the defendants, who were the plaintiffs in the suit in the Revenue Court, he was made to give an admission of the adverse claim to tenancy put up by them in that suit. As a result of the consent decree passed by the Revenue Court his name was ordered to be removed from the revenue papers. The Division Rench held that the plaintiff's allegations in substance came to this that the plaintiff's status as a tenant had been adversely affected by the so-called consent decree passed by the Revenue Court and that the plaintiff consequently sought a declaration, in substance though not in form, that he was still a tenant of the plots in suit. The suit was, therefore, one contemplated by Section 59 of the U.P. Tenancy Act and could be filed in the Revenue Court and that the Civil Court had no jurisdiction to entertain the suit. Reliance was placed on the case of Mt. Ram Kuer (supra). It may be observed that in that case the plaintiff had come with the definite allegation that a fraud was practised upon him and he was made to give an admission of the adverse claim to tenancy put up by the plaintiffs of that suit. In the instant case the plaintiff has come with the allegations that the decree was obtained by fraudulent means, that she was not a party to the consent decree inasmuch as she had no knowledge of the institution of the suit, that she had not engaged any counsel and had not authorised any person to enter into any compromise on her behalf and that no summons had been served on her.

9. In the case of Rasool Ahmad v. Beni Prasad, : AIR1965All514 the plaintiff had sought a declaration that the decrees of the Revenue Court passed in the earlier suits filed against him were void and ineffective ind were not binding on him. He also sought an injunction restraining the defendants and their agents 'from interfering with his possession. The suits were dismissed by the trial Court and the decree of the trial Court was affirmed in the appeal mainly on the ground that they were beyond the cognizance of the Civil Court. It was observed that according to the plaint allegations the plaintiff continued to be the tenant and the defendants had not acquired tenancy rights in spite of the leases in their favour and that the decrees in question were without jurisdiction, null, void and ineffective. In view of these allegations it was held that the plaintiff was free to ignore those decrees and a declaration as to their being without jurisdiction, null, void and ineffective would not be a condition precedent to a relief under Section 59 of the U.P. Tenancy Act. It was also held that if the plaintiff was in possession of the land in suit and wanted to establish that his rights as a tenant had remained unaffected by the leases or the decrees, a suit for declaration under Section 59 of the U.P. Tenancy Act could not only serve his purpose but would provide a completely effective relief. The learned Single Judge further held that:

'If the deed or a decree has legal force and operation and precludes the grant of a declaration or other relief to a plaintiff without having been cancelled or adjudged as void and ineffective it might be necessary for him to invoke the jurisdiction of the Civil Court and to clear the ground for obtaining the relief which may be available to him in the Revenue Court, but where, according to the plaintiff himself, the deed or the decree is devoid of all legal force and effectiveness it cannot constitute an impediment in the way of the plaintiff in getting a declaration as to his rights or in recovering possession through the Revenue Court. Cancellation or adjudication of the invalidity of the deed or the decree is in such circumstances wholly unnecessary and the jurisdiction of the Revenue Court cannot be ousted nor can jurisdiction be conferred on the Civil Court by claiming reliefs to that effect.'

In support of this proposition reliance was placed on the decision of this Court in Uma Pandey v. Purshottam (1960 All LJ 676). In the case of Uma Pandey the objective of the plaintiff was to obtain possession but he could not get the same unless the consent decrees, under which the defendants were declared to be the tenants, were set aside. These decrees were alleged by the plaintiff to have been obtained by fraud and misrepresentation. It was held that where the main relief in the suit was for a declaration that the consent decree was ineffectual the Civil Court had jurisdiction to try the suit. The case of Ram Sewak Lal : AIR1949All419 (supra) was distinguished and the case of Man Singh v. Khachera, (1957 All WR (HC) 41) was relied upon.

The case of Man Singh v. Khachwa (1957 All WR (HC) 41) was filed for setting aside the compromise decree and for possession of the land in dispute. The suit was contested, inter alia, on the ground; that the plaintiff was a sub-tenant of the disputed land, that the Civil Court had no jurisdiction to entertain the suit and that the compromise was entered into by the parties out of their own free will and consent. Thus the first relief that the plaintiff claimed related to the cancellation o| the decree and the second relief related to the possession of the plots in dispute. The circumstances in that case, according to the plaintiff, were that in the previous suit he had obtained a decree against the defendant. That decree, according to him, was res judicata. There was, however, hurdle in his way to obtain possession. That hurdle lay in the compromise decree which had been passed against him and which according to him was vitiated by undue influence and coercion. He was himself a party to the said decree. The decree was, therefore, voidable, the cancellation of which was a condition precedent to any further relief that he could have obtained in that suit. The Division Bench observed that the question whether the said compromise decree was valid was the main question to be decided. It was held that the suit was cognizable by the Civil Court.

10. The question of jurisdiction was also raised in the case of Mewa v. Baldeo : AIR1967All358 . The plaintiff filed the suit in the Civil Court for cancellation of the sale deed on the ground of fraud. He claimed that he was in possession of the property but in the alternative also prayed that if the opposite party was found in possession a decree for delivery of possession might also be passed. The defendants raised an objection to the maintainability of the suit in the Civil Court. The trial Court held that the Civil Court had jurisdiction to entertain the suit. In the revision filed from the said order a Division Bench of this Court while discussing the bar created by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act held that the bar exists where a suit is filed in the Civil Court which is based upon a cause of action in respect of which cause of action the plaintiff could get any relief by a proceeding in the Revenue Court. The primary important thing to be observed in each case filed in Civil Court is, where an objection is raised as to its maintainability in a Civil Court, as to what is the cause of action for it, and whether on the basis of that cause of action any relief can be granted by the Revenue Court. If the cause of action is one in which the Revenue Court can give no relief then the suit is one which would lie in the Civil' Court. Consideration of individual reliefs divorced from cause of action is therefore, wholly irrelevant. In that case the cause of action was that the plaintiff was induced under fraudulent circumstances to execute a sale deed to be restored to him. The cause of action was, therefore, the fraudulent act in obtaining the sale deed and as the sale deed bad been executed by the plaintiff himself on account of fraud it was a voidable document. It was, therefore, valid and binding on the plaintiff as long as it was not set aside. The Division Bench further held that the position would have been different if the document which was sought to be cancelled was a document void ab initio, for instance, if it had been executed by the plaintiff while he was a minor. Then the document being completely void it would not have been necessary to avoid it and in that case he would, merely by proving that it was a void document, get a declaration of his title to the property or even possession without cancellation of the sale deed. It was possible for the Revenue Court in those circumstances to look into the facts and if it came to the conclusion that the sale deed was completely void and ineffectual to pass title to the transferee it could give a declaration or could also pass a decree for possession in favour of the plaintiff. But in a case where avoidance of a document is necessary the position is different. The attention of the Division Bench was drawn to two earlier Division Bench cases, namely, Mt. Ram Kuer v. Iqbal Narain Singb AIR 1947 All 92 and Ram Sewak Lal v. Bashist : AIR1949All419 . While distinguishing these two cases it was argued that a declaration of title or a decree for possession could not be granted unless the decree or document was set aside and the learned fudges had proceeded upon the footing that the real purpose of the suit was to get a declaration of title or possession. It was further observed that it was not necessary to examine the facts of those cases in detail for the principles had been clearly laid down in subsequent Division Bench cases, namely, (1957 All WR (HC) 41) .and (I960 All LJ 676), and the learned Judges fully agreed with those principles.

11. In the case of Ram Awalamb v. Jata Shanker : AIR1969All526 it was held by the Full Bench that the main point for consideration in all cases where on a definite cause of action two reliefs can be claimed is which relief or other reliefs are ancillary reliefs. Where from facts and circumstances of the case the relief there could be no reason why the jurisdiction of the Civil Court should be barred. On the other hand, if it could be said that the main relief, that is to say, the real and substantial relief, could on that cause of action be of possession only then the suit will definitely lie in the Revenue Court. It is difficult to lay down any hard and fast rule that where the suit is brought against a trespasser the only relief which the plaintiff should claim as an effective relief is that of possession and he need not try to obtain any injunction order and get the constructions made by the trespasser demolished. A Civil Court will, therefore, have the power to entertain the suit where the main relief sought by the plaintiff is that of injunction and demolition, a relief which could be granted by the Civil Court only. The Full Bench endorsed the view expressed by the Division Bench in the case of : AIR1967All358 , that once the suit is maintainable for the main relief in the Civil Court then there is no bar for the Civil Court to grant all possible reliefs flowing from the same cause of action and observed that the determination of the. question as to which out of the several reliefs arising from the same cause of action is the main relief will depend on the facts and circumstances of each case. It was laid down that where on the basis of a cause of action the, main relief is cognizable by a Revenue Court the suit would be cognizable by the Revenue Court only. The fact that the ancillary reliefs claimed are cognizable by Civil Court would be immaterial for determining the proper forum for the suit. But where the main relief is cognizable by the Civil Court the suit would be cognizable by the Civil Court only and the ancillary reliefs, which could be granted by the Revenue Court, may also be granted by the Civil Court. In the second appeal No. 282 of 1967, which the Full Bench disposed of the sale deeds were voidable and not void. It was held that to have a document adjudged void or voidable could not be considered to be altogether unnecessary because after a lapse of several years the unchallenged existence of such documents can cause serious difficulty to the plaintiff in establishing his title to the land of his share. It was held that the plaintiff was not bound to ask for a mere declaration of his title in respect of the joint land when he could pray for cancellation of the entire sale deed or at least a part of it and that the reliefs for declaration and partition could not be said to be effective uternative relief for the cancellation of the sale deeds in respect of the whole or part of the joint property.

12. In the case of Ramaswami v. Rangachariar AIR 1940 Mad 113 a Full Bench of the Madras High Court held that in respect of alienations by father to which the minor was not eo nomine a party and which are challenged by him in the suit for partition against his father, the plaint need not contain a prayer for a declaration or cancellation, as the prayer is for a purely incidental but unnecessary relief. However, where a minor sues for partition of joint family property and cancellation of money decrees in which he had been eo nomine impleaded as a party such money decrees would be binding on him until set aside and he could not seek to obtain a decision on the footing that his interest in the joint family property is not affected by them. It made no difference that the plaintiff was a minor or merely a junior member of the family, as the considerations which apply to the decree of a competent court, once it is passed, are essentially different from those applicable to the transactions of a party.

13.-14. In Jugraj v. Deputy Director of Consolidation at Hardoi (Civil Misc. Writ Petn. No. 146 of 1968 decided by the Lucknow Bench on 14-2-1969 (All.) the main contention raised by the petitioners was that if the opposite party No. 2 was entitled to challenge the validity of the compromise decree he could do so only by means of a suit to be filed within three years of the date of knowledge about the decree on his part in a court of competent jurisdiction. It was argued that as the Judicial Officer before whom opposite party No. 2 had filed his suit for ejectment under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act in the year 1965 was not competent to adjudge the compromise decree of 1967 void on the ground that it had been obtained by fraud, it was not open to the consolidation authorities to go behind that decree while disposing of the objections of the opposite party No. 2 under Section 9 of the Consolidation of Holdings Act. It was held that there was ample authority for the proposition that any decree relied on by a party to a litigation as a bar to the claim set up by the other party can be shown to be not binding by the party against whom it is set up as a bar in the same litigation on the score that it had been obtained by fraud or collusion and, therefore, the opposite party No. 2 was competent to prove and the consolidation authorities were competent to decide that the compromise decree relied upon by the petitioners as a bar to the claim of the opposite party No. 2 was not valid and binding for the reason that it had been obtained by fraud. Reference was made to the provisions of Section 44 of the Indian Evidence Act. This decision would apply to a case where the plaintiff sought possession on the property basing his title on a compromise decree. In such a suit it would be open to the defendant, who was in possession of the property, to contend that the alleged consent decree was not binding on him on the ground that it was delivered by a court not competent to deliver it or was obtained by fraud or collusion. It would not apply to a case where the plaintiff was in possession of the property alleging himself to have right, title or interest therein and sought the cancellation or setting aside of the compromise decree on the ground that it was obtained by fraud or collusion or was delivered by a court having no jurisdiction to deliver it.

15. The result of this enquiry into the various cases referred to above may be stated as follows:--

(1) In each and every case the cause of action of the suit shall have to be strictly scrutinised to determine whether the suit is solely cognizable by a revenue court or is impliedly cognizable by a revenue court or is solely cognizable by a civil court.

(2) The pith and substance of the relief and not its form should be looked into: consideration of individual reliefs divorced from cause of action is wholly irrelevant.

(3) (a) If the cause of action is one in which the revenue court can give no relief then the suit is one which would lie in the civil court.

(b) Where on the basis of a cause ol action the main relief is cognizable by a revenue court the suit would be cognizable by the revenue court only. The fact that the ancillary reliefs claimed are cognizable by civil court would be immaterial for determining the proper forum for the suit.

(c) Where on the basis of a cause of action the main relief is cognizable by the civil court the suit would be cognizable by the civil court only and the ancillary reliefs, which could be granted by the revenue court may also be granted by the civil court.

(4) Where the plaintiff is a party to a document or decree transferring his interest in favour of another and where the transaction was said to have been brought about by coercion, misrepresentation, undue influence or fraud the document or decree being voidable could be got cancelled or adjudged void without seeking a relief for a mere declaration of title and the suit would be cognizable by a civil court inasmuch as the document or the decree in question would remain binding on the party concerned as long as the same is not set aside because the title which had passed from the plaintiff to the defendant in pursuance thereof would continue to vest in the defendants as long as the sale deed is not cancelled or the decree is not adjudged void.

(5) To have the document adjudged void or voidable is provided under Section 31 of the Specific Relief Act and cannot be considered to be altogether unnecessary because after a lapse of several years the unchallenged existence of such a document can cause serious difficulty to the plaintiff in establishing his title to the land in question.

(6) If the document which was sought to be cancelled was a document void ab initio, for instance if it had been executed by the plaintiff while he was a minor, it would not be necessary to avoid it and the plaintiff could merely by proving that it was a void document get declaration of his right to the property or even possession without cancellation thereof. In that event the revenue court after coming to the conclusion that the document was completely void and ineffectual to pass title to the transferee could grant a declaration or could decree possession in favour of the plaintiff but in those cases where avoidance of a document is necessary the position is different.

(7) 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 coercion, undue influence or 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. In that event the main relief would be cancellation of the decree and the relief of possession would be merely consequential relief and the suit would lie in the civil court.

(8) If the plaintiff was not a party to the consent decree but was out of possession of the property in question the relief for possession would be granted only by the revenue court and the relief for declaration that the decree was not binding on him would be merely an ancillary relief which could also be granted by the revenue court.

16. In the light of these conclusions I have to examine how the present case stands. In the instant case the plaintiff has alleged that she was the sirdar of the land in question and was in possession of the same. The defendant had no right, title or interest in the said land. She had no knowledge of the institution of the suit in the court of the Judicial Officer under Section 209 of Act No. 1 of 1959.

No summons were served on her. She did not engage any counsel nor authorised any counsel to appear on her behalf in the court and file the compromise petition. She never consented to the terms of the compromise and the decree was not binding on her but as the defendant was trying to interfere with her possession on the basis of the alleged consent decree, which was casting a cloud on her title to the land, it had become necessary to have the said decree adjudged void. The appellate Court below has found as a matter of fact that she had not engaged Sri Shaukat Husain as a counsel in the case and had not authorised him to file and verify a compromise on her behalf. The cause of action for the suit was, therefore, the alleged consent decree, which according to the plaintiff was obtained by fraudulent means and was not binding on her. She came to know of the said decree in the month of October, 1964 and if she had not instituted the suit for having the said consent decree adjudged void within a period of three years from the date of knowledge and allowed the decree to exist she would have been faced with serious difficulties inasmuch as the consent decree which was obviously delivered by a court competent to deliver it would always have come in her way and would operate as estoppel against her. It was, therefore necessary for her to have the decree adjudged void. As she was in possession of the property no other relief was necessary to be sought. Declaration of her title was in these circumstances not a substantial and alternative relief. The main relief in the circumstances of the case which could be sought by her was the relief for adjudging the consent decree void. Such a relief could be granted by the civil court only. The pith and substance of the allegations made in the plaint and the cause or action disclosed therein made the suit cognizable by the civil court only. In my opinion for the reasons stated above the suit was cognizable by the civil court.

17. No other point was urged by the learned counsel for the appellant.

18. In the result the appeal fails and is accordingly dismissed with costs.


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