JUDGMENT
Prafulla C. Pant, J.
1. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 13.10.1977, passed by learned IIIrd Additional District Judge, Saharanpur (earlier Hardwar was part of District Saharanpur) in Civil Appeal No. 117 of 1976 and Civil Appeal No. 118 of 1976, whereby the Judgment and decree passed by the trial court in Original Suit No. 85 of 1968, between the parties, is confirmed.
2. Plaint case.According to the plaint, Mahant Tahal Dass was chela of Mahant Shobha Dass. He was Udasin of Panth of Revered Shri Chand, the eldest son of Revered Guru Nanak Dev Ji. In said Panth, there is a custom that Mahant cannot marry and he is entitled to initiate (make a relationship with) a chela. And after death of such Mahant, his eldest chela succeeds to all the rights and Interests in the property of his Guru. It is also a custom of the above Panth that on the tenth day of death of Guru, there is a ceremony called ‘Dassehra’ when Akhand Path of Guru Granth Sahab is performed and Bhog is offered and the eldest chela of the deceased Guru is acknowledged as heir of the deceased whereafter he is known as Mahant. Mahant Tahal Dass initiated plaintiff-Dooj Dass, as his eldest chela on Purnima day of Asar Sambat, 1994 (i.e., 23rd July, 1937) at the Dera of Bhitiwala, TehsilMuktasar, District Firozpur, according to the custom in the presence of respectable persons and choti (Tuft) of the plaintiff was cut by Mahant Tahal Dass, and sacred Mantra was whispered into the plaintiffs ears and plaintiff took Charan Marai, i.e., water by which the foot of Guru is washed, which is also known as charan ghol and a langot (black) and bhagwa chaadar (saffron sheet) was offered to the plaintiff who wore It. Thereafter, prasad was distributed. On that day, plaintiff became chela of Mahant Tahal Dass and was sent according to custom, here and there for begging. Mahant Tahal Dass died at Bhitiwala on 5th December, 1957. His kriya-karam (last rites) was performed by plaintiff as his eldest chela and on tenth day, i.e., Dassehra, after Akhand Path of Guru Granth Sahab, prasad was distributed. The plaintiff was recognized and acknowledged thereafter as successor of the deceased and thereafter known as Mahant Dooj Dass. As such, he succeeded all the rights, properties and assets of Mahant Tahal Dass. Meanwhile, before the death of Mahant Tahal Dass, defendants Prag Dass, Ishwar Dass and Hari Dass, were also initiated as Chelas by him. He had no othsr chela (disciple) except these four. Mahant Tahal Dass had Deras and properties at Bhitiwala, Sheikhan, Govind Garh, Kararwala, Rampura, Dhuri and Bhupatwala {Hardwar). Plaintiff being the eldest chela succeeded all these properties according to the custom. Out of the properties in question, Mahant Tahal Dass, 301 transferred lease rights over certain land in his favour on 18.3.1925. He also got transferred 21 bigha, 8 biswa kachhi land of Khasra Plots No. 27M and 28M, situate in Bhupatwala Kalan, Hardwar from one Shri Birbal Sharma. He constructed rooms, kotharis and erected tin-sheds apart from digging well and installed an oil engine, tube-well over said land. Mahant Tahal Dass further got permanent lease of 1 bigha, 3 biswa and 10 biswansi of Khasra Plots No. 27M and 28M of the same village from Mahant Sadhu Dass through lease deed dated 17th August, 1954 (registered on 25th August, 1954). Subsequently, by other deeds dated 14th April, 1955 (registered on 29th April, 1955), and 26th June, 1955 (registered on 29th June, 1955), got 30 bighas kachha land of Khasra Plot No. 4M and 19 bighas, 3 biswa, 15 biswansi from Mahant Sadhu Singh. Mahant Tahal Dass was permanent lessee and In occupation of aforesaid land and was getting the land cultivated with the help of his men and Sewaks. He used to pay lagaan also. The area of aforesaid entire land consisted of two parts, one on the east of Hardwar-Rishikesh Road and other on the west of the said road. According to the plaintiff, he got seven years Akhand Path performed from the year 1958 to 1965 in Kararwala. Bhatlnda and observed 12 Akhotaris (each akhotari takes six months). Meanwhile, he had no suspicion about the transfer of any of the properties, succeeded by him. When the plaintiff came to Hardwar on 11th April, 1968, for ardh kumbhi, after the death of his guru to take a dip in holy Ganges, on that day he went to stay in kutiya (hut) of his guru. On his visit there he came to know that one Buddh Dass, alleging himself to be the chela of Mahant Tahal Dass, has transferred the rights through sale deed dated 5th May. 1962 (registered on June, 1962) in respect of the property to defendant No. 1–Udasin Panchayati Bara Akhara through his Mahant–defendant No, 2–Gopal Dass. Plaintiff Dooj Dass, obtained certified copy of the sale deeds in April, 1968 and found that defendants No. 1 and 2, in collusion with Buddh Dass had illegally occupied the above property described at the foot of the plaint. Apart from seeking relief of possession over the property in suit, the plaintiff has sought cancellation of sale deed challenging the aforesaid the sale deed on the grounds, namely:
(a) Buddh Dass was never initiated as chela by mahant Tahal Dass.
(b) Buddh Dass never succeeded to property from Mahant Tahal Dass.
(c) Buddh Dass had no right to transfer the property in suit.
(d) Consideration shown in sale deed is fictitious.
(e) Sale deed in question is result of collusion between Buddh Dass and defendants No. 1 and 2, as such not binding on the plaintiff.
3. Case setup by the contesting defendants in their written statements:
Defendants No. 1 and 2 denied the custom alleged by the plaintiff. These defendants also disputed that plaintiff was ever initiated as chela by Mahant Tahal Dass. They also denied that last rites of Mahant Tahal Dass was performed by the plaintiff. However, these defendants admitted that Mahant Tahal Dass had properties in Bhitiwala, Sheikhan, Govind Garh, Kararwala, Rampura and Bhupatwala (Hardwar). It was also admitted that Mahant Tahal Dass died in the year 1957. The execution of the lease deeds in favour of Mahant Tahal Dass, mentioned in the plaint, are also admitted and it is not disputed that Mahant Tahal Dass was a permanent lessee in respect of the land mentioned in the lease deed. In additional pleas, these defendants namely-Udasin Panchayati Bara Akhara, Kankhal, Hardwar (defendant No. 1) and its Mahant-Gopal Dass (defendant No. 2) have pleaded that the property in question is governed by U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, and the civil court has no jurisdiction to try the suit. It is further pleaded that the answering defendants have purchased the property in suit bona Jide for consideration (Rs. 32,000) from Buddh Dass who has died about three years before the institution of the suit. It Is further pleaded in the written statement that the suit against the dead person is not maintainable (initially Buddh Dass was impleaded in the plaint as defendant No. 3 but later his name was deleted by way of amendment). It is alleged in the written statement of these answering defendants that plaintiff-Dooj Dass is chela of Mangal Dass. It was Buddh Dass, chela of Tahal Dass, who succeeded property situated at Bhupatwala on the death of his Guru (Mahant Tahal Dass). Lastly, it is pleaded that the rights of the contesting respondents are protected under Section 41 of Transfer of Property Act, 1882.
4. Defendant No. 5–Hari Dass also contested the suit by filing separate written statement in which only this much is admitted that Mahant Tahal Dass was chela of Mahant Shobha Dass and was Udasin of the Panth established by Shri Chand Ji, elder son of Gum Nanak Dev Ji. It is also admitted in this written statement that Mahant Tahal Dass owned the properties in various places including the property in question. It is also not disputed that Mahant Tahal Dass has died. In the additional pleas, this defendant (who filed separate second appeal wrongly numbered as 1507 of 2001, old No. 2713 of 1977, dismissed already as withdrawn on 16.12.1996) has pleaded that plaintiff Dooj Dass is chela of Mangal Dass who was in fact disciple of Mahant Tahal Dass. This defendant has also stated that Buddh Das (transferor in disputed sale deed) was chela of Mahant Tahal Dass who has died before the institution of the suit. It is further pleaded that initially impleading Buddh Dass (even after his death) in the plaint itself shows that the plaintiff had no knowledge of the developments in respect of the property in suit after the death of Mahant Tahal Dass. Defendant No. 5 further pleaded in his written statement that Mahant Tahal Dass has property in several places but his headquarter was at Sheikhan, Tehsil Burnal, Sangrur, Punjab and property situate at Hardwar, was being looked after by one Prem Dass. It is alleged that Prem Dass in fact became Mahant after the death of Mahant Tahal Dass and he appointed Buddh Dass to manage the properties in suit at Hardwar. It is also pleaded that at the time of death of Mahant Tahal Dass, Buddh Dass had gone for tapasya (penance). Lastly, it is pleaded by defendant No. 5 that Buddh Dass had no right to transfer the property in suit but since Prem Dass had no objection to it, as such no one else has any right to object to it.
5. Undisputed facts : From the above pleadings, it is admitted to the contesting parties that Mahant Tahal Dass was permanent lessee in respect of the land in suit. It is also not disputed that Mahant Tahal Dass died in the year 1957. Lease deeds of the year 1925, 1951, 1954 and 1955, executed in favour of Tahal Dass, are also not in question. It is also admitted fact that Mahant Tahal Dass owned properties in many places, namely-Bhitiwala, Sheikhan, Govind Garh, Kararwala, Rampura, Dhuri and Bhupatwala (Hardwar). There is no dispute as to the plot numbers and the areas of the land mentioned in the plaint.
6. Issues framed by trial court:
Trial court framed the following issues during the trial:
1. Whether in view of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 the Court has no jurisdiction to try the suit?
2. Whether the suit is undervalued? If so, its effect?
3. Whether the plaintiff was initiated as eldest chela of Mahant Tehal Dass (deceased) according to the custom alleged in paras No. 1 and 2 of the plaint? If so, its effect?
4. Whether the plaintiff being eldest chela, became heir and successor in respect of the property of Mahant Tahal Dass? If so, is he entitled to the property in suit?
5. Whether Buddh Dass succeeded the property at Bhupatwala at Hardwar owned by Mahant Tahal Dass and if so, was he competent to transfer the property in suit to defendants No. 1 and 2?
6. Whether Shri Prag Dass (defendant No. 3) succeeded to property of Mahant Tahal Dass situated at Sheikhan, Dhuri and Govind Garh?
7. Whether sale deed dated 5.5.1962, executed by Buddh Dass in favour of defendants No. 1 and 2 is void on the grounds mentioned in para 11 of the plaint? If so, is the plaintiff entitled to possession over the property in dispute, and the mesne profits?
8. To what relief, if any, the plaintiff is entitled?
9. Whether Prem Dass had succeeded the Mahant rights of Mahant Tahal Dass as alleged by defendant No. 5? If so, whether Mahant Prem Dass relinquished his rights In the entire gaddi on 11.8.1968 in favour of defendant No. 5 Hari Dass as alleged?
10. Whether Prem Dass was competent to so relinquish the rights in the property as alleged?
7. Points raised before lower appellate court : Following points were raised and argued before lower appellate court by the appellants:
1. Whether the plaintiff-Dooj Dass is the eldest chela of Mahant Tahal Dass?
2. Whether the plaintiff was duly installed as successor Mahant in place of Mahant Tahal Dass as alleged?
3. Whether Prem Dass was successor of Mahant Tahal Dass?
4. Whether Prem Dass abdicated the office of Mahantship in favour of Hari Dass?
5. Whether Buddh Dass (transferor) was installed as successor of Mahant Tahal Dass in respect of the property in suit at Hardwar?
6. Whether defendants No. 1 and 2 are bonajlde purchaser for consideration? If so, its effect?
7. Whether the suit is not cognizable by a civil court?
8. Whether the plaintiff is entitled to any amount as mesne profits?
8. Findings/decisions of courts below : Issues No. 1 and 2. framed by the trial court were decided as preliminary issue on 13.10.1969. It is pertinent to mention here that Issue on point of jurisdiction was decided in favour of the plaintiff by the trial court. As to the valuation, the issue was decided holding that the value of the property is Rs. 10,389. It appears that consequently necessary amendments were made and court’s fee was paid before the trial court.
9. As to the issue No. 3 after recording the evidence and hearing the parties, the trial court found that DooJ Dass was the eldest chela of Mahant Tahal Dass. On issue Nos. 4, 5 and 6, the trial court gave the finding that It was plaintiff who succeeded the property in suit from Tahal Dass on his death. It was further held by the trial court that Buddh Dass had no right to transfer the property in question to defendants No. 1 and 2. It was further held that Prag Dass never succeeded properties of Tahal Dass. On issue No. 7, the trial court found that the sale deed dated 5.5.1962, in question, is a forged and fictitious document and did not confer any title on the defendants No. 1 and 2. Issues No. 9 and 10, were also decided against the defendants. And holding that plaintiff is entitled to the relief of possession as well as relief of cancellation of sale deed, the suit was decreed accordingly, apart from awarding Rs. 500 per month as mesne profits.
10. Learned lower appellate court also decided the points pressed before it, as mentioned above, in favour of the plaintiff (respondent before this Court), and agreed with the finding arrived at by the trial court. Aggrieved by the Judgment and decree dated 13.10.1977, passed by lower appellate court, whereby the appeals Instituted by Hari Dass (Civil Appeal No. 117 of 1976), and Udasin Panchayati Bara Akhara, Kankhal, Hardwar and its Mahant Gopal Dass (Civil Appeal No. 118 of 1976), were preferred before the Allahabad High Court in the year 1977 wherefrom after Its admission, this appeal is received by this Court under Section 35 of U. P. Reorganisation Act, 2000. for its disposal. (Second Appeal No. 2713 of 1997 filed by Hari Dass was dismissed as withdrawn on 16.12.1996 by Allahabad High Court).
11. Substantial questions of law involved in this case : Following substantial questions of law are involved in this appeal:
1. Whether after enforcement of the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, the land in suit, stood vested with the State of U.P. by operation of law free from all encumbrances and stood settled with the appellants (defendant Nos. 1 and 2) exclusively? If so, whether the suit was barred by Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950?
2. Whether the suit was barred by law of limitation and whether the plea of limitation can be raised at the stage of second appeal in a situation when neither it was pressed before the trial court nor before the first appellate court?
3. Whether the State of U.P. and the Gaon Sabha/Gaon Panchayat, were the necessary parties? If so, was the suit liable to be dismissed for non-joinder of necessary parties?
12. The above substantial questions of law, were formulated by this Court on 12.11.2002 only, as it appears that due to inadvertence the same could not he framed by the Allahabad High Court at the time of admission of the appeal in the year 1977. It is pertinent to mention here that Section 100 of the Code of Civil Procedure 1908, was amended w.e.f 1.2.1977, and the memo of the appeal presented in November, 1977, does not contain suggested substantial questions of law though grounds mentioned in the appeal did raise the above questions.
13. Answer to Substantial question of law No. 1:
Shri Ajit Kumar, learned Counsel for the appellants submitted that since the relief for possession in respect of agricultural area, within the limits of Nagar Palika, can be granted by the Revenue Court, the suit in question was not cognizable by the civil court. It is pertinent to mention here that U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act No. IX of 1957), got the assent of the President on March 7th, 1957 and was published in the U.P. Gazette Extraordinary dated 12th March, 1957. The said Act was passed to provide for abolition of Zamindari system In agricultural areas situate in urban areas in Uttar Pradesh and for the acquisition of the rights title and interest of intermediaries between the tiller of the soil and the State. Section 8 of said U.P. Act No. IX of 1957, reads as under:
8. Vesting of agricultural area in the State.After the agricultural area has been demarcated under Section 5, the State Government may, at any time, by notification in the official Gazette, declare that as from a date to be specified all such areas situate in the urban area shall vest in the State and as from the beginning of the date so specified all such agricultural areas shall stand transferred to and vest except as hereinafter provided, in the State free from all encumbrances.
A notification No. 2653/1A-168-60, dated June 20, 1963, published in U.P. Gazette, Part 1st dated June 29, 1963 at page 1217, shows that the agricultural area falling in Hardwar municipality, vested In the State of U.P. w.e.f 1st July, 1963. The relevant portion of the notification is reproduced as under:
Rajasva Vibhag Notification No. 2653/1A-168-60, dated June 20, 1963, published in U.P. Gazette, Part I dated June 29th 1963, p. 1217.
In exercise of the powers under Section 8 of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act No. IX of 1957), the Governor of Uttar Pradesh is pleased to declare that as from the first day of July, 1963, all agricultural areas in the following urban areas of the State, which have been so demarcated under Section 5 of the aforesaid Act, shall vest in the State of U. P., and as from the beginning of that date, all such agricultural areas shall stand transferred to, and vest, except as provided in the said Act, in the State, free from all encumbrances.
Serial No. Name of Urban Area District
Meerut Division
Municipality
1
2. Hardwar Do Saharanpur
Union
3
The aforesaid notification published in the Gazette can be read by the Court under Section 81 of Indian Evidence Act, 1872. On behalf of the plaintiff/respondent, it is argued that without demarcation, there cannot be vesting of the agricultural area within the limits of municipality. However, this Court is of the opinion that from the expression “which have been so demarcated under Section 5 of the aforesaid Act” contained in notification, itself indicates that the demarcation was made before the aforesaid notification under Section 8 of U.P. Act IX of 1957. was issued. It is also argued on behalf of the plaintiff/respondent that as to the demarcation, neither there is any pleading nor proof in the case. But this Court found that it is pleaded in the written statements of defendants No. 1 and 2, particularly in the additional pleas that the property in dispute is revenue paying land and it is covered and governed by U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, as such, the civil court has no jurisdiction to try the suit. This plea is sufficient to agitate the issue how the land in question stood vested in the State. It is settled principle of law that law and evidence are not required to be pleaded. That being so, under aforesaid notification, it can safely be said that agricultural land in Hardwar Municipality, vested in the State w.e.f. 1st July, 1963, as mentioned in the aforesaid notification.
14. It is contended on behalf of the plaintiff/respondent that the property in suit includes building, tube-well, brick-kiln as such, the property cannot be said to be agricultural area. To examine the contention, it is necessary to look to the provisions of law on this point. Expression ‘Agricultural Area is defined in Section 2(1) of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 and the definition contained therein, reads as under:
(1) ‘Agricultural area’ as respect to any urban area means an area which, with reference to such date as the State Government may notify’ in that behalf, is:
(a) in the possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary’s grove;
(b) held as a grove by or in the personal cultivation of a permanent lessee in Avadh ; or
(c) included in the holding of:
(i) a fixed-rate tenant,
(ii) an ex-proprietary tenant,
(iii) an occupancy tenant,
(iv) a tenant holding on special terms in Avadh,
(v) a rent-free grantee,
(vi) a grantee at a favourable rate of rent,
(vii) a hereditary tenant,
(viii) a grove-holder,
(ix) a sub-tenant referred to in Sub-section (4) of Section 47 of the U.P. Tenancy Act, 1939, or
(x) a non-occupancy tenant of land other than land referred to in Sub-section (3) of Section 30 of the U.P. Tenancy Act, 1939 ; and is used by the holder thereof for purposes of agriculture or horticulture:
Provided always that land which on the date aforesaid is occupied by buildings not being “improvements” as defined in Section 3 of the U.P. Tenancy Act, 1939, and land appurtenant to such buildings shall not be deemed to be agricultural area.
(d) held on a lease duly executed before the first day of July, 1955, for the purposes of erecting buildings thereon, or
(e) held or occupied by an occupier.
Explanation.An area, being part of the holding of a tenant shall not be deemed to have ceased to be agricultural area by reason merely that it has not been used, during the seven years preceding the commencement of this Act. for raising crops or other agricultural produce.
As to the meaning of word ‘holding’ Sub-section (16) of Section 2 clarifies that it will have same meaning as contained in U.P. Tenancy Act, 1939. Sub-section (7) of Section 3 of U.P. Tenancy Act, 1939, defines the word ‘holding’ and reads as under:
(7) ‘holding’ means a parcel or parcels of land held under one lease, engagement or grant, or in the absence of such lease, engagement or grant under one tenure and in the case of a thekadar includes the theka area.
In para 10 of the plaint, plaintiff has categorically pleaded that he is permanent lessee of all the land under the aforesaid lease. Apart from this, in paras 6 and 7 of the plaint, it has been pleaded that Mahant Tahal Dass was permanent lessee through the lease deeds mentioned in these paras’ from whom the plaintiff claimed inheritance. Not only this, in para 8 of the plaint, it has been specifically pleaded that Mahant Tahal Dass was cultivating the land through his men and Sewaks. As such, mere fact that there are rooms, tube-well, tin-shed, situate in the land in question, does not change its nature from “agricultural area”. However, brick-kiln certainly cannot be said to be an improvement which can form a part of agricultural area but rest of the land have not changed its character (however, it is nowhere pleaded if the brick-kiln was established by Mahant Tahal Dass). The word ‘improvement’ is defined under Section 3(8) of U.P. Tenancy Act, 1939, which reads as under:
(8) ‘improvement’, means with reference to a tenant’s holding:
(i) a dwelling-house erected on the holding by the tenant for his own occupation or a cattle shed or a store-house or any other construction for agricultural purposes erected or set up by him on his holding:
(ii) any work which adds materially to the value of the holding and is consistent with the purpose, for which it was let, and which, if not executed on the holding, Is either executed directly for its benefit or is after execution made directly beneficial to it; and subject to the foregoing provisions of this clause, includes
(a) the construction of wells, water channels and other works for the supply or distribution of water for agricultural purposes;
(b) the construction of works for the drainage of land, or for the protection of land from floods, or from erosion or other damage by water;
(c) the reclaiming clearing, enclosing, leveling or terracing of land;
(d) the erection in the immediate vicinity of the holding otherwise than on the village site, of building required for the convenient or profitable use or occupation of the holding;
(e) the construction of tanks or other works for the storage of water for agricultural purposes;
(f) the renewal or reconstruction of any of the foregoing works, or such alterations therein, or additions thereto, as are not of the nature of mere repairs:
Provided that such water channels, embankments, enclosures, temporary wells, or other works are made by tenants in the ordinary course of cultivation shall not be deemed to be improvements.
In view of the definition of expression “agricultural area” read with the definition of “holding” and “improvement” and notification quoted above, it is abundantly clear that the land in suit in fact vested in the State w.e.f. 1st July. 1963. This Court is of the view that the learned trial court has erred in law in holding that the suit is cognizable by civil court. The lower appellate court has also erred in law by confirming the same view.
15. Learned Counsel for the plaintiff/respondent, submitted that the main relief in the suit is for cancellation of sale deed, which could not have been granted by the revenue court, as such, the courts below have not committed any error of law in holding that civil court had the jurisdiction to try the suit. It is pertinent to mention here that the suit was initially instituted by the plaintiff, for possession only and during the pendency of suit, relief for cancellation of sale deed was added. Section 82 of U.P. Urban Areas Zamindari Abolition and Land Reforms Act 1956 (U.P. Act No. IX of 1957), makes provisions of Sections 331, 331A and 333 of U.P. Zamindari Abolition and Land Reforms Act, 1950. applicable to the suits and proceedings under the Act No. IX of 1956). Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, reads as under:
331. Cognizance of suits, 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 contained in the Civil Procedure Code, 1908 (V of 1908). take cognizance of any suit, application, or proceedings mentioned in column 3 thereof or of 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 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.
(1A) Notwithstanding anything in Sub-section (1), an objection that a Court mentioned in Column 4 of Schedule II, or, as the case may be, a civil court, which had no jurisdiction with respect to the suit, application or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance of the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(2) Except as hereinafter provided an appeal shall lie from an order or decree passed under any of the proceedings mentioned in Column 3 of Schedule aforesaid:
(3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order XLIII, Rule 1 of the First Schedule to that Code passed by a Court mentioned in column No. 4 of Schedule II to this Act in proceedings mentioned in column No. 3 thereof to the court or authority mentioned in column No. 5 thereof.
(4) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 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.
Serial No. 24 of Und Schedule of U.P. Zamindari Abolition and Land Reforms Act, 1950, which provides that suit for ejectment of persons occupying land without title would lie before Assistant Collector 1st Class (i.e., revenue court), is herein quoted below:
Serial Section Description of Courts of Courts
No. Proceeding original
jurisdiction
First Appeal Second
Appeal
24 209 Suit for ejectment Assisant Commissioner Board
of persons occu- Collector.
pying the land 1st Class
without title and
damages.
As such, the above entry contained in second Schedule of the aforesaid Act, read with Section 331 quoted above, bars the Jurisdiction of the civil court in respect of the suit in possession of an agricultural land.
16. Shri S.P. Gupta, senior advocate, argued on behalf of the plaintiff/respondent that since the suit is basically for cancellation of sale deed, which can be granted by civil court, as such, the suit for possession would also lie before the civil court. In support of the submission, on behalf of the learned Counsel for the plaintiff/respondent, attention of this Court was drawn to the principle of law contained in Smt. Bismillah v. Janeshwar Prasad 1990 (1) AWC 359 (SC) : (1990) SCC 207. Para 7 of said case law reads as under:
It is settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. The provisions of a law which seek to oust the jurisdiction of civil court need to be strictly construed. Section 331 of the Act has been the subject of series of pronouncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases In which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, It was held, a suit was cognizable by the civil court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non est.
From the above para what appears is this that in respect of the void documents, the Jurisdiction of the revenue court remains unaffected while in the case of the voidable documents, the Jurisdiction would lie in the civil court. It is pertinent to mention here that in the present case, plaintiff has come up with the case that Buddh Dass has no authority whatsoever to transfer the land as he never succeeded it. In other words, he pleaded that sale deed in question is a non est document.
17. A suit for cancellation of sale deed lies under Section 31 of Specific Relief Act, 1963 (47 of 1963), which reads as under:
31. When cancellation may be ordered.(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 Indian Registration Act, 1908 (16 of 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.
On behalf of both the parties, reliance was placed in the case of Indra Dev and Ors. v. Smt. Ram Pyari and Anr. 1982 All LJ 1308, in which Lucknow Bench of Allahabad High Court, has observed that:
The decisive thing is the cause of action on which the proceeding is based. In the 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 deed had no title to the property conveyed 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?
In the opinion of this Court, the above mentioned Indra Dev’s case, clearly demarcates when the Jurisdiction of the revenue court comes to an end and when it vests in the civil court. For example, if the transferor has denied the title of the plaintiff by transferring the land then the title is the real question to be decided for which jurisdiction lies with the revenue court. And if some fraud played on the plaintiff to get the sale deed executed and his title is not questioned, a suit for cancellation of such Instrument would lie only In the civil court. From the pleadings of the parties, it is clear that by execution of sale deed title of the plaintiff stands denied by the transfer or Buddh Dass, as such in the present case it is the question of title in respect of the agricultural land, which is the real issue and in respect of such cause. Jurisdiction lies only with the revenue court.
18. In the Full Bench decision of Allahabad High Court in Ram Padarath v. Second Additional D.J. Sultanpur 1989 (1) AWC 290 (LB) : 1989 RD 21. it has been held that:
It is the real ’cause of action’ which determines the jurisdiction of the Court to entertain particular action notwithstanding the language used in the plaint or the relief claimed. The strength on which the plaintiff comes to the Court does not depend upon the defence or relief claimed which could determine the forum for the entertainment of claim and grant of relief. It is the pith and substance which is to be seen and not the language used which may even have been so used to oust the jurisdiction of a particular court.
19. In Ram Padarath’s case (supra), it is further observed that:
The forum for action in relation to void documents or instruments regarding agricultural land depends on the real cause of action with reference to the facts averred. Void documents necessarily do not require cancellation like voidable documents. A simple suit for cancellation of a document or instrument if the same casts cloud on one’s right and title or is likely to cast cloud over it or affects the same adversely in respect of agricultural property, that is ‘land’ poses no difficulty provided further it does not necessitate any declaration as to the claimant’s right and title over the land, i.e., tenancy rights under the existing law.
Above observations had made it simple and clear that if the plaintiff is required to prove his title in respect of agricultural land then by mere institution of suit for cancellation, the jurisdiction would not vest in the civil court. In Ram Avalambh v. Jata Shankar and Ors. 1968 RD 470, another Full Bench of Allahabad High Court had also earlier expressed similar view.
20. Had it been a case in which the plaintiff Doq Dass was a recorded tenure holder of the property in question, it could have been easily said that the suit for cancellation of sale deed is cognizable by civil court, as it would not have involved declaration of title. But unfortunately, it is not so. Rather copy of the yearly khatauni of the year 1375 phasli (calendar year 1967), which is paper No. 44 C 1 (Exh. A-l) in the record of the trial court, shows that it is defendants No. 1 and 2, who are recorded tenure holder in respect of the land in suit. Not only this, three year khatauni for the year 1374 to 1376 (calendar year 1966 to 1968), a copy of which is paper No. 45C (Exh. A-2) also corroborates the fact that the land which originally belonged to Birbal Sharma by whom a deed was executed in favour of Tahal Dass, has been mutated in the name of defendants No. 1 and 2. I have also examined copy of khatauni of the year 1366 Phasli (calendar year 1958), which is paper No. 82C (Exh. A-3) in the trial court record, shows that it is Buddh Dass, who has been recorded as tenure holder in the property in question. As such, this Court is of the view that the real question between the parties is question of title in respect of agricultural area, covered under U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, for which the remedy was available in the revenue court. And the trial court has wrongly exercised the jurisdiction, which did not vest in said Court. And the learned lower appellate court has also erred in law by confirming the decree passed by the trial court.
21. Shri Gupta, senior advocate, argued on behalf of the plaintiff/ respondent that Sub-section (1A) of Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, provides exception and saves the jurisdiction exercised by the civil court if the same is not challenged in the court of first instance. This argument, in the opinion of this Court, does not help the plaintiff/respondent for the reason that I have already discussed above that not only the plea as to the Jurisdiction was raised in the written statement but also an issue was framed on said point by the trial court, which appears to have been wrongly decided in favour of the plaintiff. Even in the additional written statement, after the relief of cancellation of sale deed is added in plaint, the plea of jurisdiction was again raised before the trial court by the defendants No. 1 and 2 (appellants). That being so, subsection (1A), has no application to the present case to save the impugned Judgment and decree. For the reasons, as discussed above, the substantial question of law No. 1 is decided accordingly holding that under the notification dated 20.6.1963 (quoted above), issued under Section 8 of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956, land vested in the State of U.P. w.e.f. 1.7.1963. And in view of the provisions of Section 82 of said Act read with Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1950, the suit before civil court between the parties, is barred by law.
22. Answer to substantial question No. 2:
On behalf of the appellants, it is argued that admittedly Mahant Tahal Dass died in December, 1957, and the plaintiff (respondent), did not take any steps to take possession of the property in suit since 1957 till April, 1968. And meanwhile, Buddh Dass, who was in occupation, executed the sale deed dated 5.5.1962, in favour of the defendants No. 1 and 2, as such it is contended that the suit is barred by time. In reply to this, on behalf of the plaintiff/respondent, it is argued that the limitation for cancellation of sale deed begins from the date when the facts entitling the plaintiff to have the instruments cancelled, first became known to him. As far as cancellation of sale deed is concerned, I agree with the contention of learned Counsel for the plaintiff/respondent that Article 59 contained in Part IV of Schedule to Limitation Act, 1963, provides three years limitation for cancellation of document from the date it became known to the plaintiff. The said Article is being reproduce as under:
Part IV-suits relating to decrees and instruments
Description of suit period of time from which period begins
limitation to turn
59. To cancel orset Three years When thefacts entitling the
aside an instrument plantiff tohave theinstrument
or decree or for the or decreecancelled or set aside
rescission of a orthe contract rescined first
cotract become known to him
23. Needless to say that before the agricultural area in municipal limits vested in the State under U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act No. IX of 1956), the provisions of U.P. Tenancy Act, 1939, were applicable to such agricultural land. I have already discussed earlier that land in question vested in the State w.e.f. 1st July 1963. As such in a year 1957 when Tahal Dass died, the land was governed under U.P. Tenancy Act, 1939. After 1st of July. 1963. U.P. Act No. IX of 1956 was enforceable in respect of the land in question. Rule 98 of the rules framed under said Act, provides that suits are required to be instituted within the period specified in the Appendix of U.P. Urban Areas Zamindari Abolition and Land Reforms Rules, 1958. Rule 98 is being reproduced below:
98. The suits, application and other proceedings specified in Appendix I:
(i) shall be instituted within the time specified in the said Appendix for them respectively, and
(ii) the court-fees payable in respect of them shall be as specified in the seventh column of the said Appendix.
Item No. 31 of the Appendix of the aforesaid Rules, provided three years period of limitation for filing the suit for those who are in possession on the date of vesting and six years in the case where possession of land is taken or retained unlawfully, forms a part of bhumidhar, sirdar or asami. Since after the death of Tahal Dass in 1957, suit was instituted in the year 1968, as such period of three years as well as that of six years had already expired and plaintiffDooJ Dass admittedly remained out of Hardwar, without taking possession of the land in question for more than seven years, from the date he alleges to have inherited the land. In fact the suit was instituted in the year 1968, i.e., after eleven years of death of Tahal Dass.
24. It is pertinent to mention here that in view of Section 64 and Section 82 of U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 (U.P. Act No. IX of 1956), the provisions contained in Chapter VIII and Chapter X of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. I of 1951), are borrowed in U.P. Act IX of 1956. As such, provisions containing suits under Section 209 of U.P. Act No. I of 1951 are applicable for the proceedings under U.P. Act No. IX of 1956. That being so, it appears that when the plaintiff found that institution of suit before the Revenue Court for possession is barred by time, he instituted the suit before civil court for taking benefit of Article 65 of Limitation Act. 1963, which provides 12 years limitation for a suit for possession. Therefore, as far as the institution before the civil court is concerned, it cannot be said that the suit is barred by time though the same relief before the competent court was already barred by limitation. The substantial question of law No. 2 stands answered accordingly.
25. Answer to substantial question No. 3:
Learned Counsel for the defendants No. 1 and 2/appellants, argued that since the land and property in suit vested in the State w.e.f. 1st July, 1963 (as discussed above), the suit is bad for non-joinder of necessary parties, i.e., State of U.P. and Gaon Sabha. In reply to this, on behalf of the plaintiff/ respondent, my attention was drawn to provisions contained in Rule 13 of Order I of the Code of Civil Procedure, 1908. And it is contended that the objection as to the non-joinder of the parties, stands waived. I would like to quote Rule 13 of Order I of the Code of Civil Procedure, 1908, which reads as under:
13. Objections as to non-joinder or misjoinder.All objections on the ground of non-joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.
In reply to this argument, learned Counsel on behalf of the defendants 1 and 2/appellants, drew my attention to Rule 9 of the same Order I of the Code, which provides that “no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and Interest of the parties actually before it : Provided that nothing in this rule shall apply to nun joinder of a necessary party.” To examine the rival contentions it is necessary to see if the objection as to the non-impleadment of necessary party is raised in the written statements of the defendants No. 1 and 2/appellants or not? I did not find any plea raised by defendants No. 1 and 2 in their written statements, as to suit being bad for non-joinder of State or Gaon Sabha. In view of principle of law laid down in Shri Ram v. Jagannath , and that the one contained in Bihari Lal v. Bhuri Devi , this Court has no hesitation in holding that the defendants should have taken the objection as to the non-joinder of the parties at the earliest stage and it cannot be permitted to be raised now at the second appellate stage. In the circumstances, I have no reason to disagree with the contention of the learned Counsel for the plaintiff/respondent that in view of the provision contained in Rule 13. the objection as to the non-joinder of the State or Gaon Sabha, stands waived. Accordingly, substantial question No. 3 is answered in favour of the plaintiff/respondent.
26. Other submissions:
On behalf of the plaintiff/ respondent, attention of this Court is drawn to Para 11 of the Apex Court’s judgment in Santosh Hazari v. Purushottam Tiwari , and argued that the appeal being in violation of Section 100 of the Code of Civil Procedure, 1908, cannot be allowed. Para 11 of said Judgment is being reproduced below:
Even under the old Section 100 of the Code (pre-1976 amendment), a pure finding of fact was not open to challenge before the High Court in second appeal. However the Law Commission notices a plethora of conflicting Judgments. It noted that in dealing with second appeals, the Courts were devising and successfully adopting several concepts such as, a mixed question of fact and law, a legal inference to be drawn from facts proved, and even the point that the case has not been properly approached by the courts below. This was creating confusion in the minds of the public as to the legitimate scope of second appeal under Section 100 and had burdened the High Courts with an unnecessarily large number of second appeals. Section 100 was, therefore, suggested to be amended so as to provide that the right of second appeal should be confined to cases where a question of law is involved and such question of law is a substantial one. (See Statement of Objects and Reasons). The Select Committee to which the Amendment Bill was referred felt that the scope of second appeals should be restricted so that litigations may not drag on for a long period. Reasons, of course, are not required to be stated for formulating any question of law under Sub-section (4) of Section 100 of the Code ; though such reasons are to be recorded under proviso to Sub-section (5) while exercising power to hear on any other substantial question of law, other than the one formulated under Sub-section (4).
27. No doubt, no substantial questions of law were suggested by the appellants in the memo of this appeal nor Hon’ble the Allahabad High Court, could frame substantial question of law when this appeal was admitted in the year 1977. But I have already mentioned earlier that amendments in Section 100 came into force w.e.f. 1.2.1977 and in many appeals filed soon thereafter these bona fide mistakes did occur in the beginning. But since this Court has already framed substantial question of law after the appeal is received in this Court, the mistake stands rectified and in my opinion, in the circumstances, appeal cannot be thrown out merely for the reason that the substantial questions of law were not suggested in the memo of the appeal, particularly when the mistake appears to be a bona fide one, as discussed above. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar , it has been observed that the provision to Section 100 acknowledges the powers of the High Court to hear the appeal on a substantial question of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant, where such question was not formulated at the time of admission, either by mistake or by inadvertence.
28. Lastly, on behalf of the plaintiff/respondent, it is contended that questions of law, formulated by this Court on 12.11.2002, do not qualify the definition of substantial question of law. In this connection, attention of this Court was drawn to law laid down by the Apex Court in Kshitish Chandra Purkait v. Santosh Kumar Purkait and Hari Singh v. Kanahiya Lai (1997) 7 SCC 288. However, in the opinion of this Court, all the three questions formulated in the present appeal are not mere questions of law but are substantial questions of law. The above two cases on which reliance has been placed by the learned Counsel for the plaintiff/respondent, are not applicable to the present case, as the plea of jurisdiction in the present case was raised right from the stage of proceedings before the trial court. Question of Jurisdiction as well as that of limitation are so important that if even before the objections raised, the trial court detects It on the basis of the plaint allegations that the suit Is barred by time or for the lack of Jurisdiction, it can reject the plaint under Order VII, Rule 11 of the Code of Civil Procedure, 1908.
29. Before concluding the judgment, this Court feels it necessary to mention that finding of trial court as to the fact that Buddh Dass was a fictitious person, appears to be totally perverse and against the record. Name of Buddh Dass, chela Tahal Dass, not only figures as transferor in the registered sale deed dated 5.5.1962 in question but also in the revenue records as Exh. A-3 (for 1366 phasli-calendar year 1958), paper No. 82C and a registered mortgage deed dated 23.5.1961 (which is paper No. 61C in the trial court record). Learned lower appellate court also erred in law in confirming such finding given by trial court.
30. Conclusion : For the reasons as discussed above and the answers given particularly on substantial question of law No. 1, this appeal deserves to be allowed as the civil court had no jurisdiction to try the suit. Accordingly, the appeal is allowed. Impugned judgment and decree passed by learned appellate court and that of trial court, are set aside. Original Suit No. 85 of 1968, between the parties is dismissed. No order as to costs.
