Bhawna Gaur vs Vijay Kishore Gaur & Others

Manoj K. Tiwari, J

Heard learned counsel for the parties on the delay condonation application.

There is a delay of 19 days in filing present civil revision. Learned counsels for the respondents do not oppose the delay condonation application. Accordingly, delay condonation application is allowed. Delay in filing civil revision is hereby condoned.

This is defendant's civil revision under Section 115 of C.P.C. against the order dated 20.12.2018 passed by learned Vth Additional Civil Judge (S/D), Dehradun in O.S. No. 209 of 2017, whereby issue No. 6, as to maintainability of the suit before a civil court, was decided against the revisionist.

It transpires that the land in suit originally belonged to Sri Har Prasad Gaur, who bequeathed the said land by way of a Will in favour of his three sons. The revisionist purchased

59 Sq. Mtr of land, with specification of boundaries in the sale deed, from defendant/respondent No. 1 - Sri Raj Kishor Gaur, one of the three sons of Late Har Prasad Gaur.

Sri Vijay Kishor Gaur filed a suit for cancellation of sale deed executed by his brother, Sri Raj Kishor Gaur in favour of revisionist - Smt. Bhawna Gaur and relief of permanent injunction was also sought in the said suit. The principal contention of the plaintiff in the suit was that the land in question was owned jointly by the three sons of Late Har Prasad Gaur and in the absence of any partition by metes and bounds, one of the brothers could not have transferred the land with defined boundaries; and further that Sri Raj Kishor Gaur had transferred more land than what he owned. The revisionist, who had purchased the share of Sri Raj Kishor Gaur raised an objection in her written statement regarding maintainability of the suit before a civil court and contended that the land in question is agricultural land and her name has been recorded in the revenue records in place of Sri Raj Kishor Gaur, therefore, the suit is not maintainable before a civil court and the plaintiff may approach the Competent Revenue Authority.

Learned trial court decided the objection raised by revisionist regarding maintainability of the suit as issue No. 6 and held that suit is maintainable in view of the law laid down by Hon'ble Supreme Court in the case of Shri Ram & another Vs 1st Additional District Judge, & others reported in (2001) 3 SCC 24. Learned trial court considered and discussed various other judgments as well, while disposing of the application of the revisionist.

This Court is in agreement with the view taken by learned trial court. There is no dispute that plaintiff and defendant Nos. 1 and 3, who are real brother, are recorded as tenure holder in respect of suit land, therefore, bar of Section

331 of U.P. Zamidari Abolition & Land Reforms Act, 1950 will not be attracted to the suit and the suit is therefore maintainable before a civil court. Hon'ble Supreme Court in the case of Shri Ram (Supra), while dealing with the similar situation has held as under:-

"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 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. 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."

In such view of the matter, there is no scope for interference with the order dated 2012.2018 passed by learned trial court. Accordingly, civil revision is hereby dismissed.