Daya Shanker v. Deputy Director of Consolidation, Sitapur
1983-04-18
K.N.MISRA
body1983
DigiLaw.ai
JUDGMENT K.N Misra, J. 1. This petition under Article 226 of the Constitution is directed against the order dated 13th May, 1980, passed by the Deputy Director of Consolidation rejecting application of the petitioner for staying the hearing of revision till disposal of the suit, which was filed for cancellation of sale deed which is the basis of claim of the petitioner before the Consolidation Courts. 2. Opposite parties No. 2 to 5 had placed reliance upon a sale deed executed by Smt. Govinda in their favour in respect of land in dispute and they had prayed that their names be recorded on the basis of sale deed in place of Govinda, which appeared in the basic year Khatauni. This suit was contested by Govinda and others on various grounds. The Consolidation Officer as well as Settlement Officer, Consolidation upheld the claim of the opposite parties No, 2 to 5 and directed their names to be recorded on the basis of aforesaid saledeed. Smt. Govinda, aggrieved by these orders, had filed revision and during pendency of revision she died, Daya Shanker applied for substitution of his name in place of deceased revisionist Smt. Govinda and he also moved an application foil staying hearing in the revision on the ground that a suit for cancellation of this very sale deed is pending for decision before the Civil Court. It would be relevant to mention here that Smt. Govinda along with others had filed a suit for cancellation of sale deed on various grounds and this suit is still pending. The question cropped up for consideration in that suit w s whether it deserves to abate under Section 5(2) of the U.P. Consolidation of Holdings Act and it was held that the suit does not abate because the sale deed is a voidable document and this question can be gone into by the Civil court even during pendency of the Consolidation proceedings. Before the Deputy Director of Consolidation it was urged on behalf of the petitioner Daya Shanker that the hearing in revision be stayed till disposal of the aforesaid suit because whatever finding will be recorded in that suit will be binding between the parties. This application has been rejected by the Deputy Director of Consolidation by order dated 1351980. The petitioner has challenged this order in this writ petition. 3.
This application has been rejected by the Deputy Director of Consolidation by order dated 1351980. The petitioner has challenged this order in this writ petition. 3. Learned counsel for the petitioner, placing reliance upon a Single Judge decision of this Court in Smt. Long Shri Devi v. Rajendra Singh and others, (1978 RD 133) urged that it would be in the interest of justice to stay further proceedings before the Deputy Director of Consolidation till final decision in the aforesaid civil suit. Learned counsel referred to the observation in aforesaid decision which is to the effect that: However, in view of the fact that the Consolidation authorities cannot go into the question of the validity of the alleged gift dee4 on the ground that it was voidable, it would be in the interest of justice to stay further proceedings in the matter till the final decision of the Civil Court in regard to this dispute. It was urged that although there is no provision in the U.P. Consolidation of Holdings Act for staying proceedings pending before Consolidation Courts, but when a Civil suit is pending for cancellation of a deed of transfer on the ground that it is voidable, it would be in the interest of justice to say (stay?) further proceedings in (on?) the objection filed before the Consolidation authorities concerning same land. 4. This question cropped up for Consideration before the Divisions Bench in Ram Seva v. Deputy Director of Consolidation, Deoria and others, (1982 All LJ 1116). In para 5 of the report it was observed: Before parting with this case it is necessary, however, to observe that the decision in Srat. Longshri's case (Supra turned on the facts of the case. It cannot be urged as a matter of law that in every case where a suit for cancellation of sate deed or gift deed is pending or suit for specific performance has been filed the Consolidation Authorities should stay their hands. 5. It was further observed that; In case consolidation proceedings are finalised in favour of 'A' on strength of sale deed but the same is cancelled on suit for specific performance is decreed in favour of 'B' no difficulty can arise and the name of B' can be substituted in place of A and possession be delivered under rules. Normally, therefore, proceedings before Consolidation Authorities should not be stayed. 6.
Normally, therefore, proceedings before Consolidation Authorities should not be stayed. 6. I had also an occasion to consider similar question in Mithan Singh Chandra Pal Singh and others, (1982 All LJ 1445) wherein it was held that: ......If the name of opposite parties I to3 will be recorded on the land in dispute on the basis of the impugned saledeed and the petitioner Ultimately succeeds in getting the sale deed cancelled through the competent civil court where his suit is pending, the name of the petitioner will then be recorded in place of opposite parties I to3 on the basis of the order passed in the Civil Suit. The proceedings in the Consolidation courts cannot wait for long and the consolidation authorities have to give effect to the sale deed which is voidable. If the sale deed is challenged by the petitioner on the ground that it is void, then the consolidation authorities can determine the said question but the sale deed cannot be challenged before the Consolidation authorities on the ground that it is voidable for reasons stated in the Civil suit. The consolidation authorities will have no jurisdiction to determine the question and they will have to record the names of opposite parties I to3 which will be subject to the final decision in the Civil Court (See Ram Nath v. Smt. Munna, 1976 Luck. LJ 52 (FB). In this view of the matter the petitioner will not be prejudiced in any manner, 7. It was further held that: The suit which is pending the Civil Court will not abate under Section 5(2), U.P. Consolidation of Holdings Act, nor it would be barred under Section 49 of the Act and will have to be decided on merits irrespective of the entries made in favour of opposite parties I to3 on the basis of the sale deed in these proceedings before the datioti authorities, although the petitioner may not pursue hi before the Consolidation authorities after losing before the Consolidation Officer. 8. In view of these decisions, I am of the opinion that the Deputy Director of Consolidation has not committed any error of law or jurisdiction in refusing to stay hearing in the revision which is pending before him. In the present case since the sale deed is said to be a voidable document, its validity cannot be gone into by the Consolidation authorities.
In the present case since the sale deed is said to be a voidable document, its validity cannot be gone into by the Consolidation authorities. The consolidation authorities have to give effect to a voidable document as has been held by Full Bench in Ram Nath v. Smt. Munna, (1976 Lucknow Law Journal 52)., wherein in para 5 of the report, referring to Supreme Court decision in Gorakh Nath v. H.N. Singh, ( AIR 1973 SC 2451 ) it was observed that : These observations of the Supreme Court in our opinion, are sufficient declaration of the law that the documents which are voidable can be cancelled by the Civil Courts only and cannot be cancelled by consolidation authorities and they are effective till cancelled and liable to be given effect to by consolidation authorities till they are cancelled by a competent Court. (Emphasis supplied) 9. In view of above, the consolidation authorities have to give effect to the sale deed which is challenged as voidable sale deed before the Civil Court in a suit for cancellation of that deed. The Deputy Director of Consolidation, therefore, need not stay hearing in revision awaiting decision in the title suit. Whatever decision will be recorded by the Civil Court will be given effect to in appropriate proceedings enforcing that decree. 10. Learned counsel for the petitioner urged that since the decision in the case of Smt. Long Shri Devi (Supra) was not expressly overruled by the Division Bench and, as such, the matter may be referred to Division Bench if a different view is taken by this Court. Learned counsel farther urged that Since in the Division Bench this question was not directly referred and as such that decision cannot be taken to be laying down law on the subject. In support of this contention he placed reliance upon two decisions of the Supreme Court in cases of K. Venkamma v. Govt. of Andhra Pradesh, (AIR 1977 Supreme Court 1170) and Lala Shri Bhagwan and another v. Ram Chandra and another, ( AIR 1965 SC 1767 ).
In support of this contention he placed reliance upon two decisions of the Supreme Court in cases of K. Venkamma v. Govt. of Andhra Pradesh, (AIR 1977 Supreme Court 1170) and Lala Shri Bhagwan and another v. Ram Chandra and another, ( AIR 1965 SC 1767 ). In Rant Sewak's case (Supra) Division Bench has very categorically laiddown that the decision in Smt. Long Shri's case (Supra) turns on the facts of the erase and it cannot be urged as a matter of law that in every ease where a suit for cancellation of sale deed or gift deed is pending or suit for specific performance has been filed the Consolidation authorities should stay their hands. In case Consolidation proceedings are finalised in favour of 'A' on the strength of sale deed but the same is cancelled or suit for specific performance is decreed in favour of CB no difficulty can arise and the name of 'B' can be substituted in place of 'A' and possession be delivered under rules, The Division Bench has, thus, expressed the opinion that the Consolidation proceedings cannot be stayed merely because a suit for cancellation of a voidable sale deed is pending in the Civil Court, In view of this decision as well as the decision of the Full Bench in Ram Nath's case (Supra), I do not find any necessity to refer the matter to the larger Bench. 11. In the result, the writ petition fails and is accordingly dismissed. The parties are directed to bear their own, costs. [Petition dismissed.]