Case: SHANKAR Vs. SURENDRA SINGH RAWAT (D) THR. L.RS

1. This appeal arises out of the judgment dated 20.07.2006 passed by the High Court of Uttaranchal at Nainital in Second Appeal No. 49 of 2006 in and by which the High Court has affirmed the judgment of the Courts below granting the decree for permanent injunction restrainin appellants/defendants from putting further construction and granting mandatory injunction for demolition of the construction raised in the property. 2. The respondents/plaintiffs purchased the suit property by a sale deed dated 03.05.1979 from the owner Swami Sardar Jagir Singh for a consideration of Rs. 18,400/- and the respondents/plaintiffs have become owner of the property and their names were also recorded as Bhumidhar in the revenue records. Respondents/plaintiffs alleged that the appellants/defendants have encroached upon the suit property and put up construction. Hence, the respondents/plaintiffs filed the suit for demolition of the construction raised by the appellants in the suit property and for permanent injunction restraining the appellants/defendants from putting up construction. 3. The appellants pleaded that they purchased the property from sardar Jagir Singh by a document dated 11.03.1976 for Rs. 1,800/- of the area 30x30 ft. The appellants/defendants contended that they are in possession of the property for more than 15 years and perfected the title by adverse possession. The defendants have taken specific plea that the suit is barred by the provisions of Section 331 of U.P. Zamindari Abolition Act and Land Reforms Act. 4. The Trial Court decreed the suit and granted permanent injunction in favour of the respondents/plaintiffs and also ordered demolition of the construction raised in the property by the appellants. The First Appellate Court dismissed the appeal; but held that the respondents/plaintiffs are not entitled to receive compensation/manse profit for use and occupation as ordered by the Trial Court. The Second Appeal preferred by the appellants/defendants was dismissed by the High Court. 5. We have considered the submissions of the learned counsel appearing for the appellants and perused the impugned judgment and materials on record. 6. The appellants/defendants are claiming title over the suit property by unregistered document dated 11.03.1976. As concurrently held by the Courts below, the unregistered document does not confer any right upon the respondents. We also do not find any good ground to interfere with the concurrent findings of the Courts below regarding the rejection of plea of adverse possession raised by the appellants. Learned counsel appearing for the appellants mainly raised the contention that the Courts below have not adverted to the plea raised by the appellants that the Civil Court has no jurisdiction to hear the suit and the suit is barred by Section 331 of the U.P. Zamindari Abolition Act. In the Trial Court, Issue No. 7 was framed on the plea regarding the bar of jurisdiction of Civil Court under Section 331 of the U.P. Zamindari Abolition Act. Sofar as Issue No. 7 is concerned, the Trial Court in its judgment pointed out that the issue relating to jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents/plaintiffs in the preliminary issue by order dated 13.02.1998. 7. While considering the question relating to the jurisdiction of the Court, the High Court in its judgment observed as under: An identical case, the Allahabad High Court in Ram Awalamb and others vs. Jata Shankar and others reported in AIR 1969 Allahabad P/526 has held that if the suit for perpetual injunction and mandatory injunction along with the ancillary relief of possession have been filed before the Civil Court, the Civil Court had the right to entertain the said suit under Section 9 of the Civil Procedure Code. Learned counsel for the defendants/appellants relied upon the judgment of the Apex Court in Deokinandan and others vs. Surajpal and others, 1996 Revenue Decisions P/70. In that case, the suit for the possession over the property governed by the U.P.Z.A & L.R. Act was filed for the possession of the said property. The Honble Apex Court held that the suit is maintainable in the Revenue Court. The above proposition is in consonance with Section 331 of the U.P.Z.A & L.R. Act. This case is not applicable in the case in hand. The plaintiff/respondents had sought the main relief of perpetual injunction as well as mandatory injunction in the suit in hand. 8. Since the issue relating to the jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents and in the light of the above findings recorded by the High Court, in our view, the judgment of the Courts below do not suffer from any infirmity warranting interference. 9. In Chheda Singh vs. Town Area Committee, Akbarpur and Another reported in (1991) 1 SCC 266, this Court held that the jurisdiction of the Civil Court is only ousted by virtue of Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950. The ouster of Civil Courts jurisdiction under the said Act would only arise if the defendant was tenant under the said Act or in other words, there existed such basic fact, before the coming in force of the said Act, to qualify him to be tenant. In this case, the appellants have claimed possession by purchase and in the alternative adverse possession. The Courts below rightly found that the suit was not barred and the Civil Court had jurisdiction to entertain the same. 10. In Kali Prasad and Others vs. Deputy Director of Consolidation and Others reported in (2000) 6 SCC 640 , this Court reiterated that Section 331 read with Schedule II bars the jurisdiction of the Civil Court only in respect of such reliefs which are mentioned in Schedule II and for adjudication of which, a specific authority has been prescribed here under. In the aforesaid case, this Court held that Section 209, which contemplates filing a suit for adjustment of a person occupying land without title, does not postulate eviction of asamis. If Section 209 is not applicable, the consequential provisions contained in Section 210 would also not be attracted. 11. In Shri Ram and Another vs. 1st Addl. Distt. Judge and Others reported in (2001) 3 SCC 24 , this Court held that: 4........the question that now arises for consideration is whether a recorded tenure-holder having prima facie title in his favour and in possession is required to file a suit in the Revenue Court or the civil court has jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. In Ram Padarath v. Second ADJ 1989 RD 21 (All) (FB), a Full Bench of the Allahabad High Court considered this aspect of the matter and held thus: We are of the view that the case of Indra Dev v. Ram Piari (1982) 8 ALR 517, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr.) v. Gangotri Prasad 1981 AWC 469 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 and a tenure-holder is necessarily needed in which event relief for cancellation will be surplus age 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 approach the court of law and in such case he can also claim ancillary relife even though the same can be granted by the Revenue Court. 5. The correctness of the decision in the above case has not been challenged before us..... 7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the 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...... 12. In this case too, the title of the respondents/plaintiffs was not in question. The appellants raised alternative defenses of title pursuant to unregistered sale document and also of adverse possession. It was not the case of the appellants that they were tenants. The Civil Court rightly found that an unregistered sale deed could not confer title. The plea of adverse possession is a plea in desperation, since the plea of title pursuant to a sale document defeats the plea of adverse possession.

Decision:
0[ds]5. We have considered the submissions of the learned counsel appearing for the appellants and perused the impugned judgment and materials on record.6. The appellants/defendants are claiming title over the suit property by unregistered document dated 11.03.1976. As concurrently held by the Courts below, the unregistered document does not confer any right upon the respondents. We also do not find any good ground to interfere with the concurrent findings of the Courts below regarding the rejection of plea of adverse possession raised by the appellants. Learned counsel appearing for the appellants mainly raised the contention that the Courts below have not adverted to the plea raised by the appellants that the Civil Court has no jurisdiction to hear the suit and the suit is barred by Section 331 of the U.P. Zamindari Abolition Act. In the Trial Court, Issue No. 7 was framed on the plea regarding the bar of jurisdiction of Civil Court under Section 331 of the U.P. Zamindari Abolition Act. Sofar as Issue No. 7 is concerned, the Trial Court in its judgment pointed out that the issue relating to jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents/plaintiffs in the preliminary issue by order dated 13.02.1998.8. Since the issue relating to the jurisdiction of the Court and the suit being barred by the provisions of Section 331 of the U.P. Zamindari Abolition Act has been decided in favour of the respondents and in the light of the above findings recorded by the High Court, in our view, the judgment of the Courts below do not suffer from any infirmity warranting interference.9. In Chheda Singh vs. Town Area Committee, Akbarpur and Another reported in (1991) 1 SCC 266, this Court held that the jurisdiction of the Civil Court is only ousted by virtue of Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950. The ouster of Civil Courts jurisdiction under the said Act would only arise if the defendant was tenant under the said Act or in other words, there existed such basic fact, before the coming in force of the said Act, to qualify him to be tenant. In this case, the appellants have claimed possession by purchase and in the alternative adverse possession. The Courts below rightly found that the suit was not barred and the Civil Court had jurisdiction to entertain the same.10. In Kali Prasad and Others vs. Deputy Director of Consolidation and Others reported in (2000) 6 SCC 640 , this Court reiterated that Section 331 read with Schedule II bars the jurisdiction of the Civil Court only in respect of such reliefs which are mentioned in Schedule II and for adjudication of which, a specific authority has been prescribed here under. In the aforesaid case, this Court held that Section 209, which contemplates filing a suit for adjustment of a person occupying land without title, does not postulate eviction of asamis. If Section 209 is not applicable, the consequential provisions contained in Section 210 would also not be attracted.11. In Shri Ram and Another vs. 1st Addl. Distt. Judge and Others reported in (2001) 3 SCC 24 , this Court held that:4........the question that now arises for consideration is whether a recorded tenure-holder having prima facie title in his favour and in possession is required to file a suit in the Revenue Court or the civil court has jurisdiction to entertain and decide the suit seeking relief of cancellation of a void document. In Ram Padarath v. Second ADJ 1989 RD 21 (All) (FB), a Full Bench of the Allahabad High Court considered this aspect of the matter and held thus:We are of the view that the case of Indra Dev v. Ram Piari (1982) 8 ALR 517, has been correctly decided and the said decision requires no consideration, while the Division Bench case, Ayodhya Prasad (Dr.) v. Gangotri Prasad 1981 AWC 469   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 and a tenure-holder is necessarily needed in which event relief for cancellation will be surplus age 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 approach the court of law and in such case he can also claim ancillary relife even though the same can be granted by the Revenue Court.5. The correctness of the decision in the above case has not been challenged before us.....7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure-holder having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having been obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the 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......12. In this case too, the title of the respondents/plaintiffs was not in question. The appellants raised alternative defenses of title pursuant to unregistered sale document and also of adverse possession. It was not the case of the appellants that they were tenants. The Civil Court rightly found that an unregistered sale deed could not confer title. The plea of adverse possession is a plea in desperation, since the plea of title pursuant to a sale document defeats the plea of adverse possession.