Uttarakhand High Court
Tirla Devi & Others …Appellants vs Sukhbir & Others on 26 June, 2025
2025:UHC:5449
Judgment Reserved On: 20.06.2025
Judgment Pronounced On: 26.06.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No.64 of 2025
Tirla Devi & Others ...Appellants
Versus
Sukhbir & Others ...Respondents
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Presence:-
Mr. Siddhartha Singh, Advocate for the appellants
Mr. Nikhil Singhal, Advocate for the caveator/respondents
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Hon'ble Shri Justice Subhash Upadhyay, J.
Present second appeal is preferred by the
appellants/plaintiffs against the judgment and decree
dated 25.02.2023 passed by Civil Judge (J.D.), Haridwar
in O.S. No.73 of 2013 “Smt. Tirla Devi vs. Sukhbir and
another” and the judgment and decree dated 28.05.2025
passed by Ist Additional District Judge, Haridwar in Civil
Appeal No.25 of 2023, whereby the suit of the
appellants/plaintiffs for cancellation of sale deed dated
14.01.2013 was dismissed and the appeal filed
thereagainst was also dismissed.
2. The appellants/plaintiffs claim ownership over
the suit property, Khasra No. 129, area 0.2650 hectares,
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situated at Village Khijarpur Kalanjara, Tehsil and
District Haridwar on the basis of a registered Will
executed in their favour by their mother Smt.
Chandrabalia. They allege that the 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 that 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
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2025:UHC:5449
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
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2025:UHC:544920.02.2008, 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
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2025:UHC:5449nos.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
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2025:UHC:5449land 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.
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2025:UHC:5449
(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
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2025:UHC:5449
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
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2025:UHC:5449
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
Digitally signed by RAJINI GUSAIN
RAJINI
DN: c=IN, o=HIGH COURT OF
UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=97cfa6e4cbd49c07b876db4844
8ac3701a9ae475a2547e4b7f1d9b1f17d0
GUSAIN
1342, postalCode=263001,
st=UTTARAKHAND,
serialNumber=8D039BC77BD1A2222B4
DF4FC80D4557562F95BEBA013F530616
A158A0A878BD8, cn=RAJINI GUSAIN
Date: 2025.06.26 03:59:32 -07’00’
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