Bibi Sobaratan v. Md. Kamaluddin — 1983 DIGILAW 308 (PAT)

JUDGMENT : Ashwini Kumar Sinha, J.-Defendants in Title Suit no. 85 of 1982 are the petitioners in the instant applicant. This application is directed against the ORDER :dated 18th January, 1983 by which the Court rejected the application filed by the defendants-petitioners under section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act') and' held that the suit was not hit by the provisions of section 4(c) of the Act, as the genuineness of the documents (on the basis of which the plaintiff wanted declaration of his title) is challenged and that has to be decided in the suit and hence in view of the decision of the Supreme Court in the case of Gorakh Nath Dube vs. Hari Narain Singh and others (A.I.R.1973 Supreme Court, 2451), the suit was well within the jurisdiction of the civil court. 2. The plaintiff-opposite party filed a title suit (85 of 1982) in the court of the Munsif 2nd, Buxar, for declaration of his title over the lands mentioned in the schedule of the plaint on the basis of the deed of gift dated 20.1.1981 executed in his favour. It is desirable to quote the relevant prayer, the plaintiff has asked for: "Amurdadarsi 1. Yeh ki batajwij marativ munderje arji yeh declare kiya jaye ki baksisname mar-kume tarikh 20.1.81 bahak man muddai sahi wo asli hai bajariye jiske ma-nmuddai ko kul hak hasil ho gaya hai. 2. Yeh ki kharcha adalat wo digar dadarsi munasib dila mile. Jamima no. 1 Tafsil Erazi bake mauza Turkchakia, thana Buxar, zila Bhojpur: Khafa Plot A.D. 4 55 O-6 Tar per wo khand 1-19 Jotwas 96 -------------- 1-25 Buxar Fidwi Dinank 17.7.82" 3. Admittedly, a notification under section 3 of the Act was published by the State of Bihar expressing its intention to make scheme for consolidation of holdings with regard to Buxar Anchal including the mauza where the disputed lands are situate. Admittedly, no notification bas been issued by the State Government as yet in the official gazette under section 26A of the Act for purpose of closing consolidation operation in respect of the mauza in question where the disputed lands are situate. Admittedly, no notification bas been issued by the State Government as yet in the official gazette under section 26A of the Act for purpose of closing consolidation operation in respect of the mauza in question where the disputed lands are situate. There are also other admitted facts and they are these: The chak map of the concerned mauza stands already confirmed on 17.7.1976 by the Deputy Director of Consolidation under section 13(1) of the Act. The delivery of possession, as well, is already given to the ratyats and the certificates of transfers have also been given to the raiyats on 17.11.76. 4. In view of the aforesaid admitted facts, which are not under challenge, the plaintiff filed a petition under section 10(b) of the Act before the Consolidation Officer, Buxar, on the basis of his own deed of gift dated 20.1.1981. The plaintiff of the title suit, when he moved the Consolidation Officer by a petition under section 10(b) of the Act, he asked for the correction of the land register: As against this ORDER :of the Consolidation Officer passed on the application filed by the plaintiff under section 10(b) of the Act, the defendants of the present suit have filed a revision before the Director of Consolidation, Bihar, Patna, ,under section 35 of, the Act and, admittedly, this revision application is still pending before the Director of Consolidation, Bihar. 5. The defendants' names, in view of the admitted facts as mentioned above, were mutated by the Circle Officer, Buxar, in respect of the disputed lands and the appeal filed by the plaintiff, as against the ORDER :of mutation by the Circle Officer was dismissed by the Deputy Collector Land Reforms, Buxar, on 9th July, 1983. This statement of fact in paragraph 6 of the petition has not been denied by the plaintiff-opposite party as no counter affidavit has been filed in this case. 6. The defendants-petitioners filed an application under section 4(c) of the Act and con- tended in the title suit in question that the suit was hit by the provisions of section 4(c) of the Act and it has abated, as the consolidation proceeding, admittedly, was going on in the mauza in which the disputed lands are situate. To this application filed by the defendants-petitioners, the plaintiff-opposite party filed a rejoinder. To this application filed by the defendants-petitioners, the plaintiff-opposite party filed a rejoinder. In the• rejoinder filed by the plaintiff-opposite party the plaintiff's case was that the consolidation proceeding in the mauza was already over and that the chak was already. confirmed and that the certificates of transfer have already been issued to the raiyats in accordance with the delivery of possession and in that view of the matter, the plaintiff contended that it was beyond the jurisdiction of the Consolidation Officers and hence the provisions of section 4(c) of the Act were not applicable in the facts of the case. The plaintiff in his rejoinder also stated that the plaintiff has challenged the validity of the deed of gift executed in favour of the defendants which was exclusively within the jurisdiction of the civil court and in that view of the matter as well, the suit was not hit by the provisions of section 4(c) of the Act. 7. The impugned ORDER :is based upon two reasonings; firstly, as the genuineness of the documents is under challenge, this case was covered under the principles decided in the case of Gorakh Nath Dube v. Hari Narain Singh (supra), and, secondly, the final chak stands already confirmed and the khatian stands already prepared and that the preparation of the khatian proves that the consolidation proceeding in the mauza in question has come to an end. 8. On these two grounds, the court below negatived the contention• raised by the defendants-petitioners. 9. In the case of Gorakh Nath Dube v. Hari Narain Singh (supra) the Supreme Court was dealing with a case covered under section 5(2) of the U. P. Consolidation of Holdings Act (5 of 1954). It is pertinent to mention here that section 5(2) of the U.P. Consolidation of Holdings Act ( 5 of 1954 ) is at per with section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. The Supreme Court while dealing with the case, has, for the guidance of the Courts laid down the following principles of law: "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 or interests in land which are the subject-matter 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 powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside or 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. In the case before us, the plaintiff's claim is that the sate of his half share by his uncle was invalid, inoperative and void, such a claim could be adjudicated upon by consolidation courts." In the case of Smt. Surajmani Devi vs. Smt. Shanti Devi and another (A.I.R. 1981 Patna, 244), this Court held that as the plaintiff filed a suit for a declaration that registered deed of gift in respect of the lands executed by her in favour of the defendent was illegal void, fraudulent, invalid and for cancellation and also for declaration of title, the case could not be said to be covered by section 4(c) of the Act. The main relief which was sought was that the registered deed of gift was illegal and void on account of fraud practised upon the executant and it did not fall within the mischief of the Act and the relief regarding the declaration of title flowed from that relief. Hence it was held that neither the suit nor the appeal had abated, as the document was sought to be cancelled on the ground of fraud and such a document was binding on the parties unless set aside by the Court as avoidable document. Hence it was held that neither the suit nor the appeal had abated, as the document was sought to be cancelled on the ground of fraud and such a document was binding on the parties unless set aside by the Court as avoidable document. It was further held that the consolidation authorities could have no power to cancel the deed of gift on the ground of fraud and it was only the civil court which had jurisdiction to decide the case. 10. Thus, the principle is well settled that if the document in question on which the plaintiff bases his title needs to be cancelled and is avoidable document, the consolidation authorities have no power to cancel such a deed and it is the civil court which has the jurisdiction to decide the matter. If the relief asked for is dependant upon• cancellation of a document without which relief cannot be granted; in that case, it is the civil court which has jurisdiction to decide the matter and the matter is beyond the jurisdiction of the consolidation authorities. 11. The Supreme Court in the case of Gorakh Nath Dube v. Hari Narain Singh (supra) has laid down the ratio (which has already been qoted above) to the effect that where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it can be urged that the consolidation authorities have no power to cancel such a deed and, therefore, it must be held to be binding on them so long as it is not cancelled by Court having power to cancel it. 12. In the present case, the main relief, arid if I can say so, the only relief asked for by the plaintiff is to declare the deed of gift dated 20.1.81 executed in his favour to be genuine and real and to declare further that the plaintiff has got title over the lands covered by the said deed of gift. There is no relief for cancellation of any deed. From the relief asked for, as quoted above, it is apparent that the Court has not to decide whether the deed of gift dated 20.1.1981 executed in favour of the plaintiff is void or avoidable. There is no relief for cancellation of any deed. From the relief asked for, as quoted above, it is apparent that the Court has not to decide whether the deed of gift dated 20.1.1981 executed in favour of the plaintiff is void or avoidable. The only declaration asked for is that the deed of gift dated 10.1.1981 is genuine and the plaintiff has asked for this relief alone upon the basis of which the plaintiff has asked for a declaration of title as well. 13. Learned counsel for the plaintiff-opposite party has drawn my attention to paragraphs 8 and 9 of the plaint which ate as follows : "8. Yeh ki Mohrav Hajam bewajah chand ke manmuddai se nakhush rahe lage wo mudalahum ke mel men no gaye wo bela kisi jankari manmuddai ke, mudalasum ne tarikh 25.5.81 ko baksisname markume tarikh 20.1.81 ko Mohrav Hajam se kanshi-Ianama tahrir kara diye wo badhu tarikh 5.6.81 ko apne pakchh men jali wo farebi baksisnama tahrir kara liye. "9. Yeh ki manmuddai arj pardaj hai ki bad tahrir karne baksisnama markume tarikh 20.1.81 ko Mohrav Hajam ko 25.5.81 ko cancel karne ka koi hak nahin tha wo na usse baksisnama cancel hua wo Mohrav Hajam ne apni jankari men koi cancel-nama tahrir karne baksisnama manmuddai ke Mohrav Hajam ko mudalahum ke pakchh men baksisnama tahrir karne ke koi hak nahin tha." 14. From the averments made in these two paragraphs that is, paragraphs 8 and 9 of the Plaint, learned counsel for the plaintiff-opposite party, while supporting the impugned ORDER :, has contended that the plaintiff has challenged, the deed of gift executed in favour of the defendants on 5.6.81 and in that view of the matter it must be taken that, even though the plaintiff has not asked in his only relief for cancellation of any document either his or of the defendants, the plaintiff has challenged the deed of gift executed in favour of the defendants on 5.6.81 and in that view of the matter it is only the civil court which has jurisdiction to deal with the matter and the matter is beyond the jurisdiction of the consolidation officers. 15. 15. In my opinion, the relief sought for by the plaintiff-opposite party, as referred to above, is not dependant upon the cancellation of the deed of gift said to have been executed In favour of the defendants and thus there is no document before the Court which needs to be cancelled or set aside. Though it will bear repetition, the plaintiff's suit is only for a declaration that the deed of gift dated 20.1.81 executed in his favour is genuine. The court below, in the impugned ORDER :, as already stated above, has relied upon the principle laid down by the Supreme Court in the case of Gorakh Nath Dube v. Hari Narain Singh (supra) and has held that the suit was not hit by the provisions of section 4 (c) of the Act. I have already stated above, what the plaintiff's case is and as to what relief sought for is and I have already quoted above the ratio decided by the Supreme Court in the case of Gorakh Nath Dube v. Hari Narain Singh (supra). I have carefully examined the whole plaint, as the applicability or non-applicability of the provisions of section 4 (c) of the Act must depend upon the plaint itself having no relationship with the defence taken The decisive factor is the plaint alone. The reason for placing reliance upon the principles enunciated in the Supreme Court case (supra) by the court below is only one and that is this: "Jaisa ki badi ne is case men apne baksisnama dinank 20.1.81 ko jali aur asli declare ke liye case dayer kiye hai. Isliye is case men genuineness of document is challenged and this matter is to be decided. Aisi paristhiti men muddai duara dakhil kiya gaya kanun lagu hota hai. " While stating the plaintiff's reliefs, the Court has given its own reason about the genuineness of the document. The paragraph just quoted above admittedly refers to the plaintiff's document and I fail to understand as to wherefrom the Court got this impression that the plaintiff's document was under challenge, as a perusal of the impugned ORDER :, as a whole, does not whisper about it. In this view of the matter, in my opinion, the court below, under a mistaken notion; wrongly relied upon the principles laid down in the Supreme Court case-(supra). 16. In this view of the matter, in my opinion, the court below, under a mistaken notion; wrongly relied upon the principles laid down in the Supreme Court case-(supra). 16. Then remains the other reason given by the court below which requires to be considered. The other reason given by the court below for holding that the suit was not hit by the provisions of section 4(c) of the Act is that the consolidation proceeding had already come to an end. As I have already stated above, admittedly, no notification has been issued by the State Government in the official gazette under section 26A of the Act for the purpose of closing the consolidation proceeding in respect of the mauza in question where the disputed lands are situate. It is well settled that to close the consolidation proceedings, issuance of a notification in the official gazette by the State of Bihar stating the consolidation operations have been closed in the unit concerned is a must under section 26A of the Act and till this notification is not published the abatement operates. The court below under a wrong notion of law has negatived the contention of the petitioners that only because the chak has been finally prepared, the certificates of transfers have been issued to the raiyats and delivery of possession as well bas been given, the consolidation proceeding has come to a close. It is true that before the issuance of the notification under section 26A of the Act for the close of the consolidation operation, the aforesaid factors must precede but only because those facts have been decided, the consolidation operation does not come to an end. .The requirement is the issue of notification and that, too, in the official gazette by the State of Bihar and that also again. stating that the consolidation operation in the unit concerned has come to a close. Admittedly, this notification under section 26A has not been issued. Thus the second reason, for accepting the contention of the plaintiff opposite party and negativing the plea of the defendants petitioners is based on a wrong notion of Jaw by the court below. 17. stating that the consolidation operation in the unit concerned has come to a close. Admittedly, this notification under section 26A has not been issued. Thus the second reason, for accepting the contention of the plaintiff opposite party and negativing the plea of the defendants petitioners is based on a wrong notion of Jaw by the court below. 17. As both the reasons given by the court below for holding that the suit was not hit by the provisions of section 4(c) of the Act are against the well established principles of law, I hold that the ORDER :under revision needs to be interferred with and I hold that the court below has acted illegally in exercise of its jurisdiction and also with material irregularity. I further hold that if the ORDER :is allowed to stand, it will occasion in a failure of justice. 18. In the result, the application succeeds and is allowed. The impugned ORDER :is set aside and I hold that the suit is hit by the provisions of section 4(c) of the Act. But in the circumstances of the case, there will be no ORDER :as to costs.