Mukesh Kumar and Others vs Smt. Shakuntala and Others

Prakash Krishna, J.—The defendants of suit No. 343 of 2001 : Smt. Shakuntala and Anr. v. Sushil Kumar and Ors. filed the present writ petition against the impugned orders dated 25th of January, 2007 passed by the Additional District and Sessions Judge, Court No. 11, Ghaziabad in Civil Revision No. 89 of 2006 which was preferred against the order dated 10th of March, 2006 passed by the trial court in the aforestated original suit holding that the suit as framed is maintainable before Civil Court. The only point mooted, thus, in the present writ petition is as to whether the suit No. 343 of 2001 is cognizable by the Civil Court or is barred by Section 331 of the U.P.Z.A. & L.R. Act. The two courts below concurrently negatived the plea of the defendants-petitioners and have held that the suit is cognizable by Civil Court.

The parties belong to one family and are descendants of Ameer Singh who had three sons, namely, Omkar Singh whose widow Smt. Shakuntala is plaintiff No. 1, Dayanand the plaintiff No. 2 and Anand the defendant No. 6. Ameer Singh was the recorded tenure holder of the land in Khata No. 2, Khasra No. 284, situate in village Alipur, Pergana Loni, Tehsil and District Ghaziabad, he was Bhumidhar with transferable right and expired on 17th of January, 2001. Omkar Singh, the husband of the plaintiff No. 1, died during the lifetime of Ameer Singh leaving behind him Smt. Shakuntala, plaintiff No. 1 and the daughters. Allegedly, Ameer Singh executed a Will dated 13th of March, 2000 in favour of defendants No. 1 to 5 who are the sons of Anand, defendant No. 6 and defendant No. 9 Naresh. The suit has bee filed with the allegation that the said Will was not executed with free consent. Ameer Singh was a sick person and the said Will was got executed by him by playing fraud. He was taken out from the house on the pretext of medical check up but the defendants by playing fraud got executed the said Will. Ameer Singh by subsequent Will dated 12.5.2000 cancelled the earlier Will dated 13th of March, 2000 and as such the Will dated 13th of March, 2000 stands cancelled. But the defendants are insisting upon the said Will and as such the suit for cancellation of the Will dated 13th of March, 2000 was filed. The defendant No. 1, one of the legatees, in the meantime executed a sale deed in respect of Khata No. 215, Khasra No. 284, 1/6th of the total area 3.96 hectares to the defendants No. 10 to 12. Cancellation of the said sale deed dated 21st of May, 2004 was also sought for. The relief for possession was claimed on the ground that if ultimately it is found that the plaintiffs are not in occupation of the land in question they may be put into possession through court. The said suit is being contested by the defendants by denying the plaint allegations. The defendants No. 1 to 5 pleaded that Ameer Singh executed the registered Will deed dated 13th of March, 2000 voluntarily, after understanding its contents. It was further pleaded that the land has been mutated in the name of petitioners by the order dated 5th of March, 2001. The name of the respondent No. 10 has also been mutated. The said mutation order has attained finality. The plaintiff-respondents failed to get their names mutated over the land in dispute. Reference was made to para 8 of the counter affidavit to the writ petition in this regard. In reply to the said para, in the rejoinder affidavit, the factum of mutation has not been denied. The trial court has found that the suit is not barred by Section 331 of the U.P.Z.A. & L.R. Act. The said finding of the trial court has been confirmed by the revisional court by the impugned order.

Shri N.C. Rajvanshi, the learned senior counsel for the petitioners submits that in the revenue record the names of the defendants have been mutated. The said revenue entry can be corrected only when the plaintiffs get their right, title and interest in the disputed land declared by a competent court. Such a declaration in respect of agricultural land can be granted only by the Revenue Courts u/s 229 B of the U.P.Z.A.& L.R. Act. Reliance in this regard has been placed upon a judgment of the Apex Court in Kamla Prasad v. Krishna Kant Pathak 2007 ACJ 1275.

Shri N.K. Chaturvedi, Advocate, for the contesting respondents, on the other hand, submits that in the present case the declaration of title of the plaintiffs is not involved at all. The plaintiffs being the legal heirs and representatives of the deceased Ameer Singh, inherited the property left by Ameer Singh being widow of predeceased son (plaintiff No. 1) and the another son (plaintiff No. 2). It is for the defendants to establish the genuineness of the said Will dated 13th of March, 2000. The legality and validity of the said Will can be examined by the Civil Court and the fact that mutation has taken place on the basis of the Will set up by the defendants is of no consequence. Admittedly, Ameer Singh was the recorded tenure holder being Bhumidhar with transferable rights and after his death, his sons including the widow of the predeceased sons along with other would inherit the property left by him.

Considered the respective submissions of the learned Counsel for the parties and perused the record.

It is an acknowledge legal position that in such matters, the plaint allegations only have to be seen to determine the question of jurisdiction of the court. A bare perusal of the plaint allegations would show that the land in dispute originally belong to the common ancestor, Ameer Singh, who was the recorded tenure holder. After his death, the petitioners and defendant No. 6 namely Anand (respondent No. 3 herein)would have inheritted the property in the normal circumstances by succession being the nearest heirs and legal representative. In other words, no declaration of title by them is required. To disinherit the plaintiffs on the basis of the Will dated 13th of March, 2000, the propounders of the Will have to establish the Will and its due execution by calling the attesting witnesses as required u/s 68 of the Evidence Act. Before establishing the Will, suspicious circumstances, if any, surrounding the Will has to be explained by them, failing which the property will go to the natural heirs and legal representatives of the deceased Ameer Singh. In my considered view, on the facts of the present case, the declaration of the title of the plaintiffs is not required, being the natural heirs and legal representatives of the deceased Ameer Singh. The main relief, thus, in the suit is for cancellation of the Will which can be granted by the Civil Court. This being so, the view taken by the two courts below holding that the suit before the Civil Court is maintainable is perfectly justified and calls for no interference.

Strong reliance was placed by the learned senior counsel for the petitioners on Kamla Prasad v. Shri Krishna Kant Pathak (supra). A close and meaningful reading of the said judgment would show that in that case, the suit was for cancellation of the sale deed allegedly executed by the plaintiff on the ground that he executed the sale deed not with free will. He was given tablets by defendants No. 1 to 10 and he became unconscious. At the time of execution of the sale deed he was unconscious and was unable to understand the judgment of his act. The defendants No. 1 to 9 became vendees on the basis of the sale deed but they were liable to be cancelled in view of the circumstances under which the documents were executed by the plaintiff. On these facts, it was held by the Apex Court that a declaration of title would be necessarily required u/s 229 B of the U.P.Z.A. & L.R. Act as admittedly on the statement of the plaintiff, the name of the vendors were mutated in the revenue record. In para 16 of the report it was found by the Apex Court that the plaintiff himself appeared as a witness before the mutation court, admitted the execution of the sale deed, receipt of sale consideration and the factum of putting the vendees into possession of the property purchased by them, which is not so here. The facts of the present case are nearer to the facts of the case of of Shri Ram and Another Vs. Ist Addl. District Judge and Others, wherein a suit for cancellation of a registered sale deed and delivery of possession was held to be maintainable before a civil court which could entertain, try and decide such suit. The judgment in the suit case proceeds on the footing that where a recorded tenure holder having a title and in possession of the property files 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 recorded tenure holder is not under cloud. He does not require declaration of his title to the land. So is the case here. As noticed hereinabove, declaration of title of the plaintiffs in the present case is not required.

In view of the above discussion, I do not find any merit in the writ petition. The writ petition is dismissed with cost of Rs. 5,000/- (Rupees Five Thousand).