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1981 DIGILAW 285 (ALL)

Rama Shanker Misra v. Kashi Misra

1981-02-25

GOPI NATH

body1981
ORDER Gopi Nath, J. - This is a defendant's application in revision from an order passed by the 2nd Addl. District Judge, Ghazipur, dated 26-2-1977. By that order the learned Judge allowed a revision against an order passed by the Munsif holding that the suit filed by the plaintiff was not barred by Section 49 of the U.P. Consolidation of Holdings Act. The learned Judge held that the suit was barred under Section 49 of the U.P. Consolidation of Holdings Act as adequate relief could be granted by the consolidation authorities in proceedings under the U. P. Consolidation of Holdings Act. 2. The plaintiff filed a suit for cancellation of a sale deed executed by defendant No. 2 on his behalf as well as on behalf of the plaintiff representing himself to be the plaintiff's Karpardaz, in favour of the defendant No. 1. The plaintiff and defendant No. 2 were brothers. The plaintiff was the tenant of the holding in dispute. He was originally a sirdar but had subsequently become the Bhumidhar of the same. According to him he was out of the province of Bihar for the last seven or eight years and had not been living in the village in question. It appears that the defendant No. 2 was looking after the plaintiff's holdings. The plaintiff alleged that the defendant No. 2 surreptitiously got his name entered in the revenue records during the consolidation operations and no notice had been received of the proceedings by the plaintiff. The defendant No. 2 thereafter executed a sale deed of the land in dispute in favour of defendant No. 1 on his behalf as well as on behalf of the plaintiff disclosing himself to be his Karpardaz. According to the plaintiff the defendant No. 2 was not authorised to act as a Karpardaz in respect of the transfer made by him. The entries made in favour of defendant No. 2 during consolidation operations were according to the plaintiff made on misrepresentation of facts and by practising fraud on the authorities. By the execution of the sale deed in favour of the defendant No. 1' a cloud had been cast on the title of the plaintiff in respect of the property in dispute and he was called upon to get the same cancelled. By the execution of the sale deed in favour of the defendant No. 1' a cloud had been cast on the title of the plaintiff in respect of the property in dispute and he was called upon to get the same cancelled. The plaintiff alleged that the transaction was voidable at law and was liable to be set aside on an action laid challenging the same. One of the defences raised in the suit was that the suit was barred by Section 49 of the U. P. Consolidation of Holdings Act as the village in question had come under consolidation operation. The trial Court held that the suit being one for cancellation of a sale deed and the transaction being tainted with fraud and misrepresentation of facts the consolidation authorities had no jurisdiction to adjudicate upon the rights of the parties, the suit accordingly was cognizable by the Civil Court. 3. On revision the learned Judge reversed that order and held that appropriate proceedings could be taken under Section 12 of the Consolidation of Holdings Act as regards rights of the plaintiff over the land in dispute and the civil suit was barred under Section 49 of the U. P. Consolidation of Holdings Act. It may be stated that consolidation proceedings in the village had reached the stage of Section 23 and the map had been published. It may further be pointed out that according to the plaintiff no notice of the proceedings under Section 9 of the U.P. Consolidation of Holdings Act had been served on the plaintiff and the defendant No. 2 had got his name entered over the plots by practising a fraud on the consolidation authorities. The defendant No. 2 had obtained mutation of his name along with the plaintiff and had thereafter executed the sale deed in favour of the defendant No. 1 on his behalf as also on behalf of the plaintiff representing himself to be his karpardaz. Thus the sale deed was one which purported to be executed jointly by the plaintiff and defendant No. 2. The plaintiff's case is that the transaction is voidable as it is tainted with fraud and misrepresentation of facts. The question is whether the suit for cancellation of the sale deed is barred by Section 49 of the Consolidation of Holdings Act. A suit for cancellation of a deed is maintainable in the civil court. The plaintiff's case is that the transaction is voidable as it is tainted with fraud and misrepresentation of facts. The question is whether the suit for cancellation of the sale deed is barred by Section 49 of the Consolidation of Holdings Act. A suit for cancellation of a deed is maintainable in the civil court. The Consolidation authorities have no jurisdiction to cancel a document. See Smt. Prem Vati v. Harnam Singh, (1980 Allahabad Civil Journal 78) : (1980 UPLT NOC 71) and Similesh Kumar v. Gaon Sabha Uskar Ghazipur, ( AIR 1977 All 360 ) . In Gorakh Nath Dube v. Hari Narain Singh, (1973 Rev. Dec. 423) it was held that a transaction which is void could be ignored by consolidation authorities and rights of the parties to the land could be determined by them, while a transaction needing to be cancelled or set aside cannot be dealt with by them and the same can be adjudicated upon by a court competent to grant the relief in that behalf. In Ram Nath v. Smt. Munna, (1976 All WC 412) (FB) it was held that a suit for cancellation of a voidable sale deed as regards an agricultural holding pending in a Civil Court did not abate under Section 5 (2) of the U. P. Consolidation of Holdings Act. 4. The question, therefore, is whether the transaction on the allegations made by the plaintiff was void or voidable. The plaintiff alleged that the document was voidable. It appeared to be executed on his behalf by defendant No. 2 as his Karpardaz but since he was not authorised to alienate the holding the transaction did not bind the plaintiff. It was further alleged that the defendant No. 2 ,obtained entries in his own name in the revenue records by misrepresentation of facts and by practising fraud on the consolidation authorities. The transaction in these circumstances was voidable at the plaintiffs instance. In Karbalai Begum v. Mohammad Sayeed, ( AIR 1981 SC 77 ) it was held that a suit for joint possession of land on the allegation that the defendants had obtained mutation of their names over the plots in dispute by practising fraud on the consolidation authorities was not barred by Section 49 of the U. P. Consolidation of Holdings Act. The facts were these. 5. The plaintiff in the suit was a widow. The facts were these. 5. The plaintiff in the suit was a widow. She succeeded to the interest of her husband in the holding. Cousins of the husband were looking after the land on her behalf. They got their names ,mutated over the holdings. Separate chaks were carved out in their favour, and the plaintiff's name was deleted from the revenue records. When she came to know of the conduct of the defendants and the entries made in the revenue records she filed a suit for joint possession of the land on the allegation that the contesting defendants had by practising fraud on the authorities obtained mutation in their favour to the detriment of the plaintiff. The Supreme Court held that the suit filed wan cognizable by the civil court and it was not barred by Section 49 of the U. P. Consolidation of Holdings Act. Facts are parellel to the instant case, suit does not appear to be barred. Learned counsel for the opposite party placed reliance on Amanat Ullah v. Mohd. Fariyad, (1978 Rev. Dec. 262) (1978 All LJ 661) to contend that a suit for declaration challenging a document or transaction as void is liable to abate under Section 5 (2) of the U. P. Consolidation of Holdings Act. The case is distinguishable. The sale deed in the instant case is challenged as voidable and not as void and since its cancellation is sought the bar of Section 49 of the Consolidation of Holdings Act is not attracted to the proceedings. 6. The revision, accordingly, succeeds and is allowed with costs. The order of the court below dated 26-2-1977 is set aside and that of the trial court is restored.