Paras Singh v. Baiknntb Singh — 1979 DIGILAW 109 (PAT)

Judgment Shivanngrah Narain, J. 1. This application by the plaintiff is directed against the order dated 18 -.-1978 of the Second Additional Subordinate Judge Jahan-abad, holding that the suit had abated in view of the provisions of section 4 (1) (c) of the Bihar Consolidation of Holding and Prevention of fragmentation Act, 1956 (hereinafter called the act ). 2. In the aforesaid suit the principal relief, claimed by the plaintiff was "for declaration of his title as absolute owner of the lands in suit on declaration that the said deed of gift dated 2-2-1973 purported to be executed by the said Baliram Singh in favour of the defendants is illegal, void and inoperative and not binding on the plaintiff. " The lands were situate in two villages, namely, Solhanda and Naugarh bihta, both in the district of Gaya. 3. The plaintiff claims title to the suit property on the basis of a registered deed of gift executered in his favour by the pro forma who according to the plaintiff was the nearst heir of said Baliram Singh who died on 10-2-1970. According to the plaintiff, the deed of gift dated 2-2-1973 purported to have been executed by Baliram Singh in favour of the defendants 1st party was void and inoperative for reasons which will be set out presently and, therefore, conferred no title upon the defendants 1st party. 4. The suit was resisted by the defendants 1st party on the basis of the aforesaid deed of gift purported to have been executed by Baliram Singh. The defendants contended that the deed of gift was genuine, valid and operative. It is common ground that a notice under section 3 (1) of the Act had been published in the Official Gazette in respect of the area within which the lands are situate. Both the plaintiffs and the defendants maintained that the suit had not abated under the provisions of section 4 (1) (c) of the Act and the hearing of the suit be proceeded with. The evidence of both the parties was adduced, and the case was fixed for argument. Both the plaintiffs and the defendants maintained that the suit had not abated under the provisions of section 4 (1) (c) of the Act and the hearing of the suit be proceeded with. The evidence of both the parties was adduced, and the case was fixed for argument. In the meantime, the case come up on transfer to the Court of the 3rd Additional Subordinate judge, Jahanabad, and the transferee -Court being of the opinion that it appeared prima facie that the suit had abated in view of the provisions of section 4 (1) (c) of the Act, by his order dated 10-3-1978 directed to issue of notice to the parties to the suit making them to show causs as to why the suit should not be held to have abated. Both the parties appeared and filed show cause and after hearing the parties, the learned Subordinate Judge has passed the impugned order holding that the suit had abated. 5. Sri Lakshman Saran Sinha, the learned Advocate for the petitioner contends that the Court below erred in holding that the suit had abated inasmuch as this was a suit for setting aside a deed of gift which could cease to have legal effect only after it was actually set aside by a competent court and, therefore, was not a suit or proceeding" for declaration or adjudication of any right in regard to which proceedings can or ought to be taken under this Act. " In support of this contention, Sri Sinha has placed reliance upon the decision of the Supreme Court in Gorakh Nath Dubey V/s. Hari narain Singh and others (A. I. R.1973 S. C.2451) and the interpretation upon it by a Full Bench of this Court in Ramkrit Singh and others V/s. The state of Bihar and others, 1979 B. B. C. J.259 ). 6. 6. Before I refer to these decision, it is necessary to set out the relevant statutory provision i. e. section 4 (1) (c) of the Act, which runs as follows:- "upon the publication of the notification under sub section (1) of section 3 in the Official Gazette the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation,, ensue in the area to which the notification relates, (a) (b) (c) "every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights of interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending stand abated. " 7. It is, therefore, specific mandate of section 4 (1) (c) of the Act that every suit "in respect of declaration of right or interest In any land lying in the area" which is pending in any Court shall stand abated on an order being passed on that behalf by the Court before which it is pending. 8. I have already quoted the principal relief claimed by the plaintiff in the suit. The relief claimed being for declaration of title to the suit land it is certainly a suit "in respect of declaration of right or interest" in land it is not disputed that the suit lands lie in the area in respect of which a notification under section 3 of the Act has been published. In 1977 B. B. C. J 701 a suit for recovery of possession and mesne profit was held to be recovered by section 4 (1) (c) of the Act because in every suit for recovery of possession or mesne profits a declaration of right or interest in respect of the lands the possession of which or mesne profits in respect of which are sought to be recovered the necessarily to be made. The title of the plaintiff in the suit land cannot be declared without declaring his right or interest in the land. The title of the plaintiff in the suit land cannot be declared without declaring his right or interest in the land. I would presently refer to the decision of the Supreme Court relied upon but that case is clearly not an authority for the proposition that a suit in which the relief of declaration of title of the land lyine in the area in respect of which notification under section 3 of the Act has been published in the official Gazette, has specially been sought is not covered by section 4 (1) (c) of the Act. The suit, so far as the declaration of title to the suit land is concerned, is, therefore, clearly covered by section 4 (1) (c) of the Act and was rightly held to have abated The question, however, remain whether the suit also abated in so far as it relates to the declaration that the deed of gift purported to have been ecuted by said Baliram Singh is illegal, void and inoperative and not binding on the plaintiff. In Ramkrit Singhs case (supra) it was held that a composite suit which it so far as it seeks relief or reliefs unconnected with the declaration and determination of title to the land does not abate section 4 (1) (c)of the Act in relation to the aforesaid independent relief or reliefs (at page 268 of the report ). Now, can it be said that the relief regarding declaration that the impugned deed of gift is an independant relief connected with the declaration of title to the land. The relief has been couched in words which indicate that the only real relief claimed is the declaration of title to the land. The use of the words declaration of title to the land on declaration that the said deed of gift it illegal void and inoperative" clearly indicates that the further declaration sought that the "said deed of gift dated 2-2-1973" is illegal, void and inoperative and not binding on the plaintiff" is in the nature of a finding which has to be recorded before the relief prayed i. e the declaration of title to the suit land can be granted. 9. Even assuming that this is a separate relief, I am of the opinion that the suit for this relief would also be covered by section 4 (1) (c) of the Act. 9. Even assuming that this is a separate relief, I am of the opinion that the suit for this relief would also be covered by section 4 (1) (c) of the Act. The decision of the Supreme Court in Gorakh Nath V/s. Hari Narain Singh and others (supra) relied upon by the learned counsel for the petitioner is a clear authority for the proposition that a claim by the plaintiff that a certain document was wholly or partially invalid and could be disregarded by any court or authority could be adjudicated upon by the Consolidation Court under the U. P. Consolidation of Holdings Act, 1954, and, therefore, a suit in which such a claim was made was covered by section 5 of the U. P. Act aforesaid, which corresponds section 4 of the Act and, therefore, abates. In that case Beg, J. (as he then was) speaking for the supreme Court observed as follows: - "we think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the Consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory power to adjudicate upon such rights and interest in land, to declare such document effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside its cancellation it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it" 10. The aforesaid decision of the Supreme Couit apparently did not specifically decide whether the suit be set aside a document which has to be actually set aside before it can cease to have legal effect did not abate, but the decision of the Supreme Court has been so interpreted by a Full Bench of this Court in Ramkrit Singhs case (at page 268 of the report) and, therefore, I must proceed on the footing that a suit to set aside a document which has to be actually set aside before it can cease to have legal effect, is outside the scope of the provision relating to the abatement of the suit but if the suit is to set aside a document which is wholly orpartially invalid so that it can be disregarded by any court or authority, it is covered by the provision relating to the abatement of suit. 11. Sri Sinha strenuously contended that it was a suit to set aside the deed of gift which was a document which was not wholly or partially invalid so that it can be disregarded by any court or authority to set aside the document but was a document which had to be actually set aside before it can cease to have legal effect. I am, however, unable to agree. The grounds on which the impugned deed of gift is said to be void and inoperative set forth in the plaint were firstly that the deed of gift dated 2-2-1973 had never been executed by Baliram Singh, secondly that at the time of execution Baliram singh was not in a fit state of body and mind and was ailing since long and had lost his power of understanding and thirdly that he was completely under the influence and coercion of the defendants at the time the deed is purported to have been executed. It was also asserted that the deed was not presented before the Registering Officer legally as the officer was also under the influence of the defendants. Now the allegation about undue influence and coercion may make the deed of gift a voidable document. It was also asserted that the deed was not presented before the Registering Officer legally as the officer was also under the influence of the defendants. Now the allegation about undue influence and coercion may make the deed of gift a voidable document. But the allegation that the time the deed was executed Baliram Singh was unconscious and had lost all powers of understanding will, if established, make the deed void because Baliram Singh would then be a person not to competent to contract within the meaning of section 11 of the Contract Act. The allegation that the document was a forgery if substantiated also make the deed void and not merely voidable. 12. Therefore, on the allegations in the plaint the impugned deed of gift was a void document. It is well settled that void document does not require to set aside before it can cease to have legal effect and can be disregarded by any court or authority. Therefore, assuming that this was a suit for cancellation of the impugned deed of gift, the deed of gift has to use the words of the Supreme Court in Gorakh Nath Dubeys case (supra) "a document which is wholly or partially invalid so that it can be disregarded by any court or authority" and not one "which has to be actually set aside before it can cease to have legal effect. " The decision of the Supreme court relied upon by the learned Counsel for the petitioner is, therefore, of no avail to him. 13. In the result the application is without merit and it is, accordingly, dismissed. As there is no appearance on behalf of the opposite party there will be no order as to costs. 14. Before, I part with the case, I want to clarify that the abatement, as pointed out by Full Bench of this Court in Ramkrit Singhs case (supra) will not be binding for all time and that on the close of consolidation operations in the area, the abated suit would survive. Application dismissed.