Tirla Devi & Others v. Sukhbir & Others

appellants/plaintiffs for cancellation of sale deed dated

14.01.2013 was dismissed and the appeal thereagainst was also dismissed.

2. The appellants/plaintiffs claim ownership over the suit property, Khasra No. 129, area 0.2650 hectares, 1 situated at Village Khijarpur Kalanjara, Tehsil and District Haridwar on the basis of a registered Will executed favour by their mother Smt. Chandrabalia. They allege respondents/ defendants were attempting to interfere with their peaceful possession, therefore, the appellants/plaintiffs filed O.S. No.357 of 2012 against the respondents /defendants seeking a decree of perpetual injunction.

3. Thereafter, appellants/plaintiffs filed another O.S. No.73 of 2013 “Smt. Tirla Devi and others v. Sukhbir and others” for cancellation of Sale Deed dated

14.01.2013, executed by respondent nos.1 and 2/defendant nos.1 and 2 in favour of respondent no.3/defendant no.3.

4. Learned Trial Court clubbed both the suits vide order dated 05.03.2020 and the O.S. No.357 of 2012 was made the leading case. In the leading case, learned Trial Court and the learned First Appellate Court recorded a finding the suit property being agricultural land, the appellants/plaintiffs had to get their title decided by the competent revenue court and the Civil Court had no jurisdiction to grant relief of 2 perpetual injunction. In the case, where the sale deed was challenged, the appellants/plaintiffs contended that the same was void as the same was executed on

14.01.2013 when the stay order dated 24.12.2012 was in operation. The concurrent finding of fact as recorded by the learned Trial Court and the First Appellate Court in relation to the issue of suit property and sale deed are as follows:- The suit property, which is an agricultural land, originally belonged to Late Mool Chand and after his death, Dhoom Singh, being his son, was recorded as Bhumidhar in revenue records; after death of Dhoom Singh; in the year 1992 his mother Chandrabalia was recorded in revenue records in PK11, and on 09.12.2009, names of respondent nos.1 and 2/defendant nos.1 and 2 were mutated, however, the same was stayed on

24.12.2012, based on a restoration application filed by the appellants/plaintiffs. The sale deed was executed by respondent nos.1 and 2/defendant nos.1 and 2 in favour of respondent no.3/defendant no.3 on 14.01.2013.

5. The appellants/plaintiffs contended that as the Will was executed on 02.05.2003 by their mother Chandrabalia in their favour as such after her death on 3

20.02.2008, they became the owners and possessor of the suit property. It was further contended that the names of respondent nos.1 and 2/defendant nos.1 and 2 was entered on 09.12.2009 and on a restoration application filed by the appellants/plaintiffs an order was passed on 24.12.2012, by which the order dated

09.12.2009 was stayed, as such after 24.12.2012, respondent nos.1 and 2/defendant nos.1 and 2 had no right on the suit property. Moreover, as the respondent nos.1 and 2/defendant nos.1 and 2 were aware of O.S. No.357 of 2012 as such the transfer was hit by Section 52 of Transfer of Property Act.

6. Both the Trial Court and the First Appellate Court have recorded a concurrent finding of fact that the appellants/plaintiffs were though aware of the ex-parte stay order dated 24.12.2012 obtained by them against the defendants, however, no information was submitted to the respondent nos.1 and 2/defendant nos.1 and 2 in the O.S. No.357/2012 in which date was fixed on

04.01.2013 and 15.01.2013. Moreover, it has also been recorded that as the restoration application submitted by the appellants/plaintiffs on 24.12.2012 was an ex-parte order, as such, the respondent nos.1 and 2/defendant 4 nos.1 and 2 were neither heard nor they were aware of the said order. The finding of fact further records that for the first time the respondent nos.1 and 2/defendant nos.1 and 2 submitted their objection on 08.03.2013 against the ex-parte order dated 24.12.2012. On the basis of said finding of fact, the learned Trial Court and the First Appellate Court came to the conclusion that the sale deed executed on 14.01.2013 by respondent nos.1 and 2/defendant nos.1 and 2 in favour of respondent on.3/defendant no.3 was bonafide. Moreover, it was also held that as the appellant were never recorded as Bhumidhar in the suit property, as such, without such declaration being granted in their favour by the competent revenue court which is the main relief, the consequential relief of cancellation of sale deed would be surplusage.

7. The Hon’ble Apex Court in the case of “Kamla Prasad and others vs. Krishna Kant Pathak and others” (2007) 4 SCC 213, considering the earlier decision of the Court in Shriram v. First ADJ (2001) 3 SCC 24 has held as follows:- “12. Having heard the learned advocates for the parties, in our opinion, the submission of the learned counsel for the appellants deserves to be accepted. So far as abadi 5 land is concerned, the trial court held that civil court had jurisdiction and the said decision has become final. But as far as agricultural land is concerned, in our opinion, the trial court as well as the appellate court were right in coming to the conclusion that only Revenue Court could have entertained the suit on two grounds. Firstly, the case of the plaintiff himself in the plaint was that he was not the sole owner of the property and Defendants 10 and 12 who were pro forma defendants, had also right, title and interest therein. He had also stated in the plaint that though in the revenue record, only his name had appeared but Defendants 10 to 12 have also right in the property. In our opinion, both the courts below were right in holding that such a question can be decided by a Revenue Court in a suit instituted under Section 229-B of the Act. The said section reads thus: “229-B. Declaratory suit by person claiming to be an asami of a holding or part thereof.-(1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the landholder for a declaration of his rights as asami in such holding or part, as the case may be. (2) In any suit under sub-section (1) any other person claiming to hold as asami under the landholder shall be impleaded as defendant. 6 (3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a bhumidhar with the amendment that for the word ‘landholder’ the words ‘the State Government and the Gaon Sabha’ are substituted therein.”

13. On second question also, in our view, courts below were right in coming to the conclusion that legality or otherwise of insertion of names of purchasers in record- of-rights and deletion of name of the plaintiff from such record can only decided by Revenue Court since the names of the purchasers had already been entered into. Only Revenue Court can record a finding whether such an action was in accordance with law or not and it cannot be decided by a civil court.

14. In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24. In Shri Ram A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering 7 relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land.

15. The Court, however, proceeded to observe: (Shri Ram case1, SCC p.28 para 7) “The position would be different where a person not being a recorded tenure-holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the Revenue Court, as the sale deed being void has to be ignored for giving him relief for declaration and possession.”

8. As both the suits were clubbed together and decided by the learned Trial Court and the First Appellate Court, and while deciding the issue relating to the title of the appellants/defendants it was held that a suit for perpetual injunction would not be maintainable without declaration of title in revenue proceeding, the subsequent 8 relief of cancellation of sale deed, could also not be decided by the civil court.

9. This Court is of the considered opinion that such finding does not give rise to any substantial question of law warranting any interference in present second appeal.

10. Accordingly, the second appeal fails and is dismissed in limine. (Subhash Upadhyay, J.)

26.06.2025 Rajni RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db4844 8ac3701a9ae475a2547e4b7f1d9b1f17d0 1342, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4 DF4FC80D4557562F95BEBA013F530616 A158A0A878BD8, cn=RAJINI GUSAIN 9