S.K. Singh, J.
1. These are three writ petitions in which common questions of law are involved and. therefore, they are being taken up together and are being disposed of. The file of Writ Petition No. 9587 of 1988 shall be the leading case.
2. In Writ Petition No. 9587 of 1988, Jai Singh v. 2nd Addl. District Judge and Ors., the courts below have taken a view that the suit for cancellation of sale deed as has been filed by the plaintiff will lie in the civil court even though the plaintiff is not recorded in the revenue papers and documents sought to be cancelled in view of the pleadings, appear to be void.
3. In Writ Petition No. 29170 of 1990, Ramapati v. Babau and Ors., the courts below after repelling the plea of the petitioner, held that the civil court has jurisdiction to try the suit.
4. In Writ Petition No. 19105 of 1987, Tara Chand and Ors. v. IInd Addl. District Judge and Ors., there was a question of abatement of the suit under the provisions of U. P. Consolidation of Holdings Act. The trial court, on the application moved by the defendants directed that the suit will abate under Section 5 of U. P. Consolidation of Holdings Act but on filing revision by the plaintiff, the order of the trial court was set aside and it was held that the suit will lie in the civil court.
5. The question involved in all the cases relates to the jurisdiction of the civil court in respect to the documents, sought to be cancelled by filing suit in that respect.
6. The question can be formulated in the following manner :
(i) whether the suit for cancellation of voidable document concerning to agricultural land will lie in the civil court, when the revenue entry is in favour of the plaintiff?
(ii) whether the suit for cancellation of voidabledocument in respect of the agricultural land wilt lie in the civil court when entry is not in favour of the plaintiff?
(iii) whether suit for cancellation of void document in respect to agricultural piece of land, if the plaintiff is not recorded, will lie in the civil court?
(iv) whether the suit for cancellation of void document if the plaintiff is recorded will lie in the civil court?
7. This question has already engaged attention of this Court as well as Hon'ble Apex Court in large number of decisions, which will be useful to be mentioned in this judgment.
8. The learned counsel for the petitioner in support of submission that in respect to the void document, if the plaintiff is not recorded in the revenue papers, the suit will lie in the revenue court has placed reliance on the judgment as has been given in Tej Bhan Singh v. IInd Addl. District Judge, 1994 (2) ACJ 911, given by Hon'ble S. P. Srivastava, J., judgment as given in Lal Bihari v. Addl. District Judge, 1996 AWC (Suppl) 314, by Hon. N. L. Ganguly, J., and decision given in Rasheedan v. Amar Singh, 1993 AWC 1695, given by Hon. S. K. Phaujdar, J. The ratio of the aforesaid cases appears to be that If the document claimed in the plaint to be void, and the plaintiff is not recorded in the revenue papers, the main relief appears to be of declaration to the rights and, therefore, relief of cancellation of the sale deed is surpluses and the plaintiff has to go in the revenue court. The observation as has been made in the decision in 1994 (2) ACJ 911 by Hon. S. P. Srivastava. J., in para 6 of that judgment is quoted below :
The learned counsel for the petitioners have vehemently urged that in the face and circumstances of the case that suit was cognizable by the civil court. In fact for an adjudication of an issue relating to jurisdiction, the avermentscontained in the plaint have to be taken in their entirety. The effort of the court has to be to gather the pith and substance of what is alleged in the plaint. The pith and substance of the plaint in the instant case necessarily involved in the adjudication of the question as to whether the plaintiffs were or not the bhumidhars of the land in dispute to the extent of 2/3rd share. The plaintiffs own case was that they were not recorded in the revenue papers and the entry stood in favour of the defendants No. 2 to 5, the vendees. Obviously, therefore, the plaintiffs had to seek a declaration in their favour and to this, the Gaon Sabha and the State would be necessary parties. Moreover, the absence of the names of the plaintiffs in the revenue record necessitates an action for declaration on the part of the plaintiff because the entries may not be set right without such a declaration being asked for and given as contemplated under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act. There can be no escape, therefore, from the conclusion that upon the cause of action set up in the plaint, the suit would He for declaration in the revenue court under Section 229B of the U. P. Act No. 1 of 1951.'
Similar observation has been made in other cases as has been referred in support of the contention that in the event the plaintiff is not recorded in revenue papers and the allegations in the plaint leads the documents to be void then the civil court has no jurisdiction to try the suit.
9. Learned counsel for respondents in support of the submission that the suit for cancellation, even in respect to avoid document although the plaintiff may not be recorded in the revenue paper, will lie in the civil court, made reference to the decisions rendered in Batasar v. Udit Narain, 1970 AWR 204, given by Hon. K. B. Asthana, J., andthe decision as has been given in Indra Dev v. Ram Pyari, 1982 ALJ 1308, given by Hon. S. C. Mathur, J.
10. A survey of the above decisions shows that consistent view appears to be the cause of action in a suit for cancellation of sale deed, is not the denial of the plaintiffs title which may be said to be implicit in the cancellation of the sale deed but the execution of the deed itself.
11. So far the documents which are voidable in nature, there appears to be no dispute or any diversion of views about maintainability of suit in the civil court, either the plaintiff is recorded in the revenue papers or not recorded. The diversion of the opinion appears to be only in the cases where the deed sought to be cancelled on the allegations made in the plaint appears to be void and if the plaintiff is not recorded in the revenue papers. If the plaintiff is recorded in the revenue papers, then also there appears to be no diversion of opinion about maintainability of the suit in the civil court even in respect of the void document.
12. In view of this, the only question which appears to be answered is about the maintainability of the suit in respect to the cancellation of deed in the civil court when the plaintiff is not recorded in the revenue papers and the deed is alleged to be void.
13. In all the three petitions dealt by this judgment, the controversy that whether the deed is void or voidable needs no attention by this Court as I am of the opinion, for the reasons recorded that in either of the cases, the suit for cancellation of sale deed will He in the civil court.
14. The provision of Section 331 of U. P. Z. A. and L. R. Act, Section 31 of Specific Relief Act and Section 41 of Transfer of Property Act, will be useful to be referred here.
15. Section 331 : Cognizance of suit, etc., under this Act.--(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 containedin the Civil Procedure Code, 1908 take cognizance of any suit, application, or proceedings mentioned in column 3 thereof (or a suit, application or proceedings based on a cause of action in respect 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 relates 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.
16. The sub-section as well as the Explanation speak of a cause of action. Proceedings which a Revenue Court is competent to entertain are mentioned in column 3 of Schedule II of the Act. In order to determine whether a proceeding falls under any of the clauses of column 3, the form in which the relief is claimed is not decisive. The decisive thing is the cause of action on which the proceeding is based. If in respect of this cause of action Revenue Court is competent to grant relief, the suit or proceeding would lie in the Revenue Court and not in the civil court, the jurisdiction under Section 331 being exclusive and not concurrent. Therefore. If on the basis of the cause of action pleaded in the plaint a suit is cognizable by the Revenue Court, the Revenue Court alone will have jurisdiction to entertain the same and the civil court will have no jurisdiction to entertain the suit. The material question, therefore, for determination is what is the cause of action in a suit for cancellation of sale-deed on the ground that the executant of the sale-deed had no title to the propertyconveyed through the deed? Is it the assertion of title by the executant involving therein the denial of the title of the plaintiff or is it the execution of the deed itself?
17. Section 31 : When cancellation may be ordered.--Specific Relief Act, 1963 provides as follows :
(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.
(2) If the instrument has been registered under the Registration Act, 1908, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered, and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.'
18. From the above provision, it would be clear that suit for cancellation of a deed is filed even on the basis of the apprehension that the instrument, if left outstanding, may cause the plaintiff serious injury. If the instrument is one which has been registered, a copy thereof will be maintained in the registration office. The holder of the instrument may negotiate for sale of the property and purchaser, in order to satisfy himself that the holder of the deed has valid title to the property, may examine the registration record and in the absence of any endorsement of cancellation of the document, he may legitimately believe in the representation of title made to him by the holder of the deed and purchase the property. The purchaser may, afterwards, claim protection of his title under Section 41 of the Transfer of Property Act on the basis that he purchased the property from ostensible owner.
19. Further cancellation of a void document protects the prospective purchaser of the property also- If an endorsement of cancellation of the deed has been made in the registration department. a prospective purchaser would not be misled by the representation of the holder of the deed. I am, therefore, of the opinion that the real cause of action in a suit for cancellation is not the assertion of title by the executant but the cloud that is cast on the title of the actual holder of the property. In this way, the cause of action is provided by the execution of the deed Itself.
20. The question was elaborately considered by a Full Bench of this Court in Ram Awalamb v. Jata Shankar, 1968 ALJ 1108. It is true that in this case, the cancellation was sought of a voidable sale deed but the observations made by the Full Bench are relevant even for a suit in which cancellation is sought of a void document, which are as follows :. 'A document under which the plaintiffs share also purports to have been transferred by person not authorised to do so can be cancelled through court to the extent of the plaintiffs share and after a decree has been passed in his favour information regarding it has to be sent to the registration department for making a note in their register. To have a document adjudged void or voidable is provided for under Section 31, Specific Relief Act and cannot be considered to be altogether unnecessary because after a lapse of several years the unchallenged existence of such documents can cause various difficulties to the plaintiff in establishing his title to the land in his share...'
Repelling the argument that a co-sharer claiming cancellation of the sale deed to the extent of his share only may file a suit for partition under the Act, the Bench observed thus :.The parties may, after the sale deeds have been cancelled like to hold the land as co-sharers. They need not in all cases be forced to get the holding partitioned...'
Again repelling the argument that suit for mere declaration of title would be sought to protect the interest of the plaintiff, the Bench observed :
'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. In short, the relief for declaration and partition could not be said to be effective alternative relief for the cancellation of the sale deed in respect of the whole or part of the joint property...'
I entirely agree with the observations of the Full Bench that a decree for declaration is not an effective alternative relief which may be claimed in substitution of the relief for cancellation of the sale deed.
21. The scope of Section 331 was elaborately considered along with Section 31, Specific Relief Act, by K. B. Asthana. J., as he then was, in Batasar v. Udit Narain Upadhyaya, 1970 AWR (HC) 204. In this case, the plaintiff claimed cancellation of the sale deed on the ground that the transferor was not the exclusive bhumidhar of the plots transferred but was merely a bhumidhar along with the plaintiff and also on the ground that the sale was an Illusory transaction inasmuch as neither consideration passed to the transferor nor possession was delivered to the transferee. On behalf of the defendants, It was pleaded that the plaintiff could file a suit for declaration of title under the Act and, therefore, the suit was not cognizable by the civil court. Asthana, J., came to the conclusion that Section 331 of the Act could not be so interpreted as to render nugatory the right conferred under Section 31, Specific Relief Act. Repelling the argument of the defendant that the plaintiff could file a suit for declaration. Asthana, J., observed in paras 11 and 13 as follows :..........It is for the plaintiffto decide whether for better protection of his interest, he would prefer to have an instrument in writing void against him cancelled or to ignore it and proceed to seek other relief to secure his interest. I do not think under the scheme of Section 31, Specific Relief Act, a court would be justified in the exercise of its discretion to refuse the relief to a plaintiff merely for the reason that the instrument in writing sought to be cancelled being void against the plaintiff could always be ignored in the eye of law and a decree for its cancellation was not necessary. If that were so, then the right conferred by Section 31 to have an instrument in writing void against the plaintiff cancelled will be rendered nugatory and illusory.'
'.........To my mind, the objectof the cancellation of an instrument in writing under Section 31, Specific Relief Act will always be to remove the cloud on the title of the plaintiff inasmuch as by the cancellation of the instrument, the right and Interest of the plaintiff in such property would become secure. Since the object of cancellation of a sale deed in respect of agricultural holding is for securing of his rights and interests by the plaintiff in that land, then to say any plaint presented before the civil court based on a cause of action on which relief for cancellation could be obtained is a facade or camouflage, would amount to defeating the right of a plaintiff conferred under Section 31, Specific Relief Act to obtain the equitable relief of cancellation....'
I entirely agree with the above observations.
22. The decision as has been rendered in Indra Dev v. Rzm Pyari 1982 ALJ 1308, holding the civil court jurisdiction to try even the suits in respect to void documents even if the plaintiff is not recorded, was approved by the Full Bench of thisCourt in the decision given in Ram Padarath v. IInd Addl. District Judge, 1989 AWC 290. This Court while allowing the appeal and reversing the finding of the District Judge, in the decision in 1982 ALJ 1308 held as follows :
'A survey of the aforesaid decisions shows that the consistent view of this Court is that the cause of action in a suit for cancellation of sale deed is not the denial of plaintiffs title which may be said to be implicit in the execution of the sale deed by the defendant but is the execution of the deed itself..'
23. The Full Bench in Ram Padarath (supra), while approving the said judgment in para 41 held as follows :
'We are of the view that the case of Indra Deo v. Ram Pyari, 1982 ALJ 1308, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad v. Gangotri, 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 of a tenure holder is necessarily needed in which event relief for cancellation will be surplusages 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.'
24. The aforesaid decision as has been given in Indra Deo v. Ram Pyari (supra), and in the Full Bench Ram Padarath (supra) have been taken note of by the Hon'ble Apex Court in the decision in Bismilla v. Janeshwar Prasad, AIR 1990 SC 540, and have been duly approved.
25. Otherwise, also if a deed is executed in respect to agricultural land, even though if the plaintiff is not recorded in revenue papers, it does not appeal that why if the plaintiff only intends to get the sale deed cancelled, why he cannot come to civil court asking that relief. By remaining the deed in favour of the opposite party, the records of the registration office will demonstrate that fact and that may create problem to the plaintiff in many ways in his practical life. In normal life, at various places, if the party is not able to produce the revenue entry and if a deed is presented showing the transaction in favour of a particular person, the concerned authorities are excepted to accept the ownership of the land of that party in whose favour the deed exists. In view of this, if a plaintiff wishes to get the deed cancelled in order to get any shadow of doubt of a claim by a person holding the deed removed, he can have every right to approach the civil court.
26. There is another reason for which the plaintiff should not be precluded from going to the civil court to get the deed cancelled even though, he is not recorded in the revenue papers as in the event of cancellation of deed, further action about correction of the revenue entry will be just a sheer formality which can be said to be a follow-up action and it will be just a ministerial act to be performed by revenue authorities. If the plaintiff after getting declaration in his favour by civil court visits revenue authority and brings this fact to his notice, then the revenue authority after finding it out that the name of the defendant came to be recorded only on the basis of the deed in question, which having been cancelled, will have no option but to restore the entry. In this view, noadjudication by revenue authorities of any kind will be required, if the main bone of contention between the parties, i.e., deed goes away from the hands of the defendants on account of its cancellation by civil court. The decision as has been referred in support of the argument for abating the suit under the provisions of U. P. Consolidation of Holdings Act. In Sumitra Devi v. Addl. District Judge and Ors., 2000 RD 45, to my mind, has a not dealt the aspect that if there is no specific bar in maintaining the suit the civil court for the relief for which the plaintiff has come, i.e., cancellation of the deed, then irrespective of availability of the claim for another relief which might be available in the revenue court or consolidation court, why the civil court is not competent to grant the relief of cancellation of deed for which the plaintiffs have come to the civil court. As a deed, it remains in existence, it causes or may cause the mischief in various manners which may not be foreseen today but that may create a situation in future and therefore, why that be permitted to remain if its existence can be taken away by competent forum of the civil court.
27. To my mind, the jurisdiction of the civil court as is provided under Section 9 of C.P.C., cannot be permitted to be curtailed indirectly unless it is expressly barred. The pretext of ousting the jurisdiction of the civil court, on the plea that the relief claimed by the plaintiff appears to be ancillary and the main relief is of declaration of right which is to be given by the revenue court and, therefore, the civil court lacks jurisdiction, to my mind will not be laying down a correct law as the plaintiff has come to the civil court for a relief of cancellation which can only be given by civil court and, therefore, even for the sake of argument, it is accepted that the relief claimed is ancillary relief, why the civil court will lack jurisdiction to grant it, (i.e., relief of cancellation of deed) especially in view of the fact that by grant of that relief, no adjudication between the parties in respect to their rights will surviveeither before the revenue court or before consolidation court and the correction of entry will remain a ministerial act.
28. In view of the aforesaid analysis, in respect to all the questions (i) (ii), (iii) and (iv) posed above, it is being held that the suit will lie in the civil court. If a plaintiff comes to the civil court for seeking cancellation of deed which may be void or voidable, whether the name of the plaintiff is recorded or not, the jurisdiction of the civil court not having been expressly barred to try such suits, the suit will be maintainable in the civil court.
29. In all the three writ petitions, the courts below have taken view that the suit will lie in the civil court as it has been filed for cancellation of deed and for its declaration to be void, in which, I do not find any infirmity and, therefore, no interference is called for by this Court in these writ petitions.
30. In view of the discussions as made above, all the three writ petitions fail and are accordingly dismissed without any order as to costs.