P.N. Shinghal, J.
1. This is a second appeal which arises from the appellate judgment and decree of District Judge, Pratapgarh, dated March 22, 1963.
2. As the appeal succeeds on the question of jurisdiction which was the subject matter of issue No. 5 in the trial court, it is not necessary to state the facts in any detail.
3. The plaintiff claimed to be the adopted son of Bhooralal defendant No. 1. This Bhooralal sold the lands and the well described in paragraph 4 of the plaint to Sangram Singh defendant No. 2, the present appellant, under sale deed Ex. 2 dated August 18, 1957 and delivered the possessor also to him, In his turn, Sangram Singh sold a portion of the suit lands to Madanlal defendant No 5 on September 25, 1957. He sold the rest of the lands to Mohan Lal defendant No. 3 on November 22, 1957. The plaintiff therefore raised the present suit on April 16, 1958 alleging that the suit lands were ancestral agricultural lands which were in the joint possession of his father Bhooralal and himself, and that as they were not sold by his father Bhooralal for legal necessity or for the payment of any antecedent debt, the sale was void. The plaintiff prayed for the cancellation of the sale teed and for the restoration of possession to him or to him and his father Bhooralal jointly. He also prayed for the recovery of damages on account of the dispossession.
4. Defendant Bhooralal denied having taken the plaintiff in adoption and traversed the claim in the suit altogether. He died during the course of the trial and his name was struck of from the cause title. Separate written statements were filed by the remaining defendants. Defendants Sangram Singh and Mohanlal filed one written statement. They denied the plaintiff's adoption as well as the claim that the suit lands were ancestral properties. It was pleaded that the sale was made for legal necessity and that defendant Bhooralal could make the sale in his capacity as the manager of the family. They also pleaded that the case was triable exclusively by a revenue court. It is not necessary to refer to the other written statement.
5. Issues were framed on the points which were in controversy between the parties. Both the courts found that the plaintiff was the adopted son of Bhooralal, that the sale by Bhooralal was with consideration and that the suit property was the ancestral property of Bhooralal and the plaintiff. So also, both the courts held that suit properties were not sold by Bhooralal for legal necessity or for the payment of any antecedent debt. As regards issue No. 5 which, as has been stated, dealt with the question of the maintainability of the suit in a civil court, both the courts took the view that the suit was not barred under the provisions of Section 207 of the Rajasthan Tenancy Act, 1955. The plaintiff therefore succeeded in his claim in the suit. It is in these circumstances that defendant Sangram Singh has filed the present second appeal.
6. The only point which has been urged for consideration in this Court is that relating to the maintainability of the suit in a civil court It has been argued by Mr. Maheshwari, learned Counsel for the appellant, that the suit is triable exclusively by the competent revenue court, while it has been argued by Mr. Bhandari that the suit does not fall within the preview of any of the sections of the Rajasthan Tenancy Act, 1955 and (sic) the two courts below were right in deciding that it was triable by a civil court According to Mr. Bhandari the impugned sale was a voidable transaction, so that it was necessary for the plaintiff to ask for the relief of the cancellation of sale deed Ex. 2 dated 18, August, 1957 and that such a relief could not be granted by a revenue court, the learned Counsel has supported his argument by a reference to Mewa and Ors. v. Baldev : AIR1967All358 .
7. I shall therefore first examine the question whether there is any force in the argument that it was necessary for the plaintiff to ask for the relief of cancellation of the sale deed in question. It is settled law, and will also appear from Mewa's case : AIR1967All358 cited by Mr. Bhandari that the relief of cancellation is necessary in the case of a voidable document and not where the document is void ab initio. The question therefore is whether sale deed Ex. 2 was voidable as has been argued by Mr. Bhandari or whether it was void ab initio.
8. As has been stated, it is the concurrent finding of fact of both the courts below that the impugned sale was not made for legal necessity, or for the payment of any antecedent debt. This finding has not been challenged before me. It is also not disputed that the plaintiff was rot a party to the sale. It must therefore be held that the sale was void, and I think it will be sufficient for me to refer here Article 269 of Mulla's Hindu Law, thirteenth edition. Reference may also be made to Lachhman Prasad and Ors. v. Sarnam Singh and Ors. A.I.R. 1917 P.C. 41, in which it has been held that an alienation of joint family property by the father, which is not made for discharging any antecedent debt or for family necessity, is void in toto. So when the tale in question was void ab initio, it was not necessary for the plaintiff to ask for the relief of cancellation of sale-deed Ex 2. Moreover, Bhooralal defendant No. 1, the vendor was alive at the time of the suit, and as the plaintiff was not a party to the sale deed, it cannot be said that he could sue for the cancellation of the sale-deed altogether. I am supported in this view by decisions in Radhu Ram v. Mohan Singh and Ors. A.I.R. 1915 Lah. 200, Dwarka Prasad v. Mst. Ram Debi and Ors. A.I.R. 1924 Oudh. 120 (2), Kheta Chinna Eswarareddi and Ors. v. Khukkala Reddigary Venkatachellamma Reddi : AIR1954Mad83 and Goni Mohomed and Ors. v. Meeru Khan and Ors. ILR (1953) 3 Raj. 823.
9. More over, a perusal of the plaint shows that the plaintiff specifically pleaded in parapraph 6, 7, 8 and 14 that the sale of the suit lands by Bhooralal defendant No. 1 was void. It cannot therefore be said that it was necessary for the plaintiff to ask for the relief of cancellation of the sale-deed.
10. There is thus no force in the argument that the sale, was voidable and that the suit was triable by a civil court because the relief of cancellation of the sale-deed could be granted only by that court.
11. It is not disputed that the plaintiff and his father were tenants of the suit lands. It was the plaintiff's own case that the sale was void in toto. Therefore the only substantial relief which he asked was delivery of possession on the ground that he had been prevented from taking possession on account of the sale even though he and his father Bhooralal were owners in joint possession of the suit lands before the sale. The case therefore fell within the purview of Section 187 of the Rajasthan tenancy Act, 1955 as the plaintiff claimed that he had been prevented from obtaining possession of his lands on account of the impugned sale. I have no doubt therefore that the two courts below erred in taking the view that the suit was triable by a civil court in deciding issue No. 5 in favour of the plaintiff. That issue is now decided against him.
12. The proper course for the trial court was to have returned the plaint for presentation lo the proper revenue court. If this had been so, the parties would have been saved from all the prolonged litigation. There is however no alternative for me but to quash the proceedings which have taken place so far in the civil courts and to direct now that the trial court shall return the plaint to the plaintiff for presentation in the proper revenue court. It is ordered accordingly. The costs of this Court and the two courts below shall abide the final result. Leave to appeal is prayed for by Mr. Bhaodari, and is allowed.