HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 25 of 2011 Smt. Sushila Devi. ……..Appellant Versus Sri Trilok Singh and others. …….Respondents Mr. J.C. Belwal, Advocate for the appellant. Mr. Yogesh Pandey, Advocate for the respondents. Dated: October 17, 2011 Hon’ble V.K. Bist, J. Instant Second Appeal is directed against the judgment and decree dated 07.04.2011 passed by the District Judge, Nainital in First Appeal No. 35 of 2009 and also against the judgment and decree dated 29.09.2009 passed in Civil Suit No. 59 of 2009 ‘Smt. Sushila Devi vs. Trilok Singh and others’. 2. Plaintiff/appellant instituted a suit for declaring the registered sale deed dated 15.02.2005 as null and void and also for cancellation of the same, executed by defendant/ respondent nos. 2 to 4 in favour of defendant/ respondent no.1 in respect of 468.31 square feet land, situated at village Kusum Khera, Tehsil Haldwani, District Nainital. Another prayer was made in the suit for permanent injunction restraining the defendant/ respondents from interfering in the land in question. 3. The case of the plaintiff/appellant is that the father of the appellant was absolute owner of land measuring 4 Bigha 10 Biswas situated in village Kusum Khera, Tehsil Haldwani, District Nainital. On 19.09.1990, 2 the father of the appellant executed a registered Will, by virtue of which, a house constructed over plot no. 3A measuring 11.8 X 60 feet, bounded on the east and north by public road, was bequeathed to the plaintiff/appellant. The plaintiff/appellant is in possession over the land and house from the time of her father. After the death of the father of the plaintiff/appellant in the year 2003, the defendant/respondent nos. 2 to 4 who are the real brothers of the plaintiff/appellant got their names mutated in revenue records and on the basis of the entries, transferred the part of the land, which was bequeathed by the father of the plaintiff/appellant in her favour. The plaintiff/appellant was not aware about this fact and she instituted a suit for partition in the Court of Civil Judge, Haldwani. The suit was dismissed on the ground that the Court had no jurisdiction to try the same. On the basis of the Will executed by her father, the plaintiff/appellant got her name mutated over 0.014 hectors of land in plot no. 3A, alongwith her sister Nirmala Devi on 06.02.2009. After getting her name mutated in revenue records, she filed the suit for cancellation of sale deed. The respondent no.1 and respondent nos. 2 to 4 filed their separate written statements refuting the plaint allegations. The respondents also filed an application under Order-VII Rule 11 of the Code of Civil Procedure alleging therein that since the name of the plaintiff/ appellant is not entered in revenue records; she has no title over the land in question, the Civil Court has no jurisdiction to try the suit. The plaintiff/appellant filed objection against the said application and stated that the name of the plaintiff/appellant is recorded in revenue records. The learned Civil Judge, allowed the application filed by the 3 respondents under Order-VII Rule-11 C.P.C. on the ground that since name of the plaintiff/appellant is not recorded in the revenue records, which she herself admitted in the plaint, the suit is not maintainable and in such circumstances, the plaintiff/appellant should get her title declared first from the revenue Court. The appeal filed by the plaintiff/appellant was also dismissed on the same ground. Aggrieved by the orders passed by the Courts below, the plaintiff/appellant filed present appeal before this Court. 4. This second appeal was admitted on the following substantial questions of law:- 1. Whether suit for cancellation of sale deed instituted by the daughter of a person from whom she got property in question, could be dismissed under Order VII Rule 11 of the Code of Civil Procedure? 2. Whether the learned Courts below erred in dismissing the suit of plaintiff/appellant on the ground that the suit is barred by Section 331 of U.P.Z.A. and L.R. Act? 5. Heard Sri J.C. Belwal, learned counsel for the appellant and Sri Yogesh Pandey, learned counsel for the respondents and perused the entire material available on record. 6. Learned counsel for the appellant submitted that the question, whether the name of the plaintiff has been entered in revenue records rightly or wrongly, cannot be adjudicated at the time of deciding application under Order VII Rule 11 C.P.C. and these questions can be 4 tried only at the time of trial and in any case, the person who challenges the validity of revenue entries, may challenge the same before the competent Court. He submitted that once the name of the plaintiff is entered in revenue records even belatedly, she is entitled to file a suit in Civil Court for the protection of her legal rights. He submitted that disputed questions of fact cannot be considered at the time of deciding application filed under Order-VII Rule 11 C.P.C. In support of this argument, he relied on the judgment reported in (2005) 7 SCC-510 ‘Popat and Kotecha Property vs. State Bank of India Staff Association’. He further submitted that there is no dispute to the fact that over a major portion of the property in suit, house has been constructed and rest of the portion has been purchased by the respondent no.1 for commercial purposes. According to him, this is not the case of the respondents that the property in suit or any part thereof, is being used for the purpose of agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, therefore the property does not fall within the purview of land as defined in the U.P.Z.A. and L.R. Act. 7. Learned counsel for the plaintiff/appellant further submitted that the suit instituted by the plaintiff is for cancellation of sale deed which is not provided in Scheduled-II of the U.P.Z.A. and L.R. Act. He submitted that suit for cancellation of sale deed can only be filed in the Civil Court, as revenue Court does not have jurisdiction. In support of his arguments, learned counsel for the appellant relied upon the judgment reported in 1999 RJ 265 ‘Mahavir Singh and others vs. District Judge, Fatehpur and others, 2002 RJ-177 ‘Jai Singh vs. II Addl. 5 District Judge’, in which it has been held out that a suit for cancellation of sale deed, is not barred by the provisions of Section 331 of U.P.Z.A. and L.R. Act. He also submitted that in the instant case, the appellant is also recorded tenure holder, but the disputed property is also ABADI land as no portion of it is being used for any purpose connected with agriculture and, as such, the only jurisdiction to try the suit, vests in the Civil Court. According to him, the finding recorded by the learned Courts below that the plaintiff/appellant is not a recorded tenure holder, is incorrect and against the evidence and facts on record. Learned counsel for the plaintiff/ appellant argued that when there is any disputed questions on facts, these questions cannot be seen at the time of deciding application under Order-VII Rule 11 C.P.C. In this regard he relied on the judgment reported in (2006) 5 SCC-466 ‘Subhaga vs. Shobha’ He also submitted that the fact that the appellant is in possession over the house constructed over 11.8 X 60 feet cannot be looked into by this Court, as same is matter of evidence and same cannot be seen at the time of deciding application under Order-VII Rule 11 C.P.C. He further submitted that since, the appellant is not claiming her rights beyond any land than that is shown in the Will, the Courts below erred in allowing the application filed by the defendant/ respondents under Order-VII Rule 11 C.P.C. 8. On the other hand Mr. Yogesh Pandey, learned counsel for the defendant/respondents has submitted that while mutation proceedings were going on, the revenue Court provided ample opportunity to the plaintiff/appellant and after considering her objection, the mutation order was passed in favour of respondent 6 nos. 2 & 3. He also submitted that while considering their application moved under Order-VII Rule-11 C.P.C., the Court is required to look into the plaint version only. In support of this submission he referred judgments of Hon’ble Supreme Court reported in (2004) 3 SCC, 137 and (2003) 1 SCC, 557. He submitted that in the present case, the basis of suit is the Will dated 19.09.1999, in which the area given to the plaintiff/appellant is 11.8 X 60 Square feet and house, constructed over this area. The plaintiff/appellant is in occupation over the said land and the land in question is land other than the land given to the plaintiff/appellant by way of aforesaid Will. Therefore, no cause of action, whatsoever arose against the respondents. He further submitted that the land in dispute is an agricultural land, as such the suit is barred under the provisions of Section 331 of U.P.Z.A. and L.R. Act. In support of this submission he referred 2006(1) UD, 380. He further submitted that the plaintiff/appellant has no right and title over the land in dispute as her name was also not recorded in the revenue records. He also submitted that the plaintiff/ appellant is required to prove her case in respect of the land in question and mere institution of a suit for cancellation of sale deed in respect of an agricultural land, the jurisdiction would not vest in the Civil Court. Thus, the suit instituted by the plaintiff/appellant has rightly been rejected by the Courts below. 9. I have considered the submissions of learned counsel for the parties and have gone through the relevant Rules as well as the citations referred by the learned counsel for the parties. 7 10. It is well settled that for the purpose of deciding an application under Order 7 Rule 11 of C.P.C, the averments in the plaint alone are germane. In the present case, the learned Courts below have categorically given finding that land in dispute is agricultural land. In the plaint also the plaintiff/appellant nowhere stated that the land in question is not agricultural land or any declaration had been made in respect of same under section 143 of U.P. Zamindari & Land Reform Act, 1950. The finding given by the Courts below cannot be interfered in the Second Appeal. The plaintiff/appellant herself accepted in the plaint that her name is not recorded in the revenue records. In absence of averment in the plaint that the plaintiff is recorded holder of property in question, the suit for cancellation of sale deed is not cognizable by Civil Court. Plaintiff/appellant should have instituted suit for declaration of title from the revenue Court. Thus, case law cited by the counsel for the plaintiff/appellant 1999 RJ 265 and 2002 RJ 177 does not help the plaintiff/appellant. In my view, the Courts below rightly reached to the conclusion that in the facts of the present case, suit for cancellation of sale deed is not maintainable in the Civil Court and is barred by provision of Section 331 of U.P.Z.A. and L.R. Act. Accordingly, the substantial question no.2 is answered in negative. So far the substantial question no.1 is concerned, it cannot be disputed that suit for cancellation of sale deed instituted by the daughter of a person from whom she got property in question, could not be dismissed under Order-VII Rule 11 C.P.C., but in view of the fact that the land in question is agricultural land and plaintiff/appellant has no title over the same, suit was rightly dismissed. Question no.1 is answered accordingly. 8 11. The appeal fails and is dismissed with costs. (V.K. Bist, J.) 17.10.2011 NCM: