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1998 DIGILAW 126 (ALL)

Dukharan v. Balmukund Singh

1998-02-06

R.K.MAHAJAN

body1998
JUDGMENT : R.K. Mahajan, J. 1. This is an application for recall of the order dated 2.3.1995. The order dated 2.3.1995 is quoted below:- ^^i{kdkjksa ds fo}ku vf/koDrkvksa dks lquk x;kA Áfri{kh & Áfroknh us orZeku vihy esa mŒÁŒ tksr pdcUnh vf/kfu;e dh /kkjk 5¼2½ ds Ákfo/kkuksa ds vUrxZr vihy mi'kfer ?kksf"kr fd;s tkus dh ÁkFkZuk dh gSA i{kdkjksa ds vf/koDrkvksa dks Lohdkj gS fd orZeku vihy esa d`f"k lcU/kh Hkwfe ds laca/k esa fookn gSA lacaf/kr Hkwfe mŒÁŒ tksr pdcUnh vf/kfu;e ds Ákfo/kkuksa ds vUrxZr vf/klwfpr dh tk pqdh gSA rnuqlkj mDr vf/kfu;e dh /kkjk 5¼2½ ds Ákfo/kku ds vUrxZr ewyokn ,oa vihy mi'kfer gks pqdh gSA rnuqlkj vihy mi'kfer gksus ds vk/kkj ij fujLr dh tkrh gSA** 2. Shri M. A. Qadeer learned counsel for the appellants has sought recall of the order aforesaid by filing an application on 10.10.1995. The application is hopelessly time-barred. Mr. Qadeer submits that even it is time-barred but there is no limit of time for filing the review application in the interest of justice. He has submitted that this case justifies recall of the order. He submitted that cancellation of sale deeds are not cognizable by consolidation authorities and the suit for cancellation shall not abate u/s 5 (2) of the U. P. Consolidation of Holdings Act and it is not an alternative and efficacious remedy. He further submits that the Hon'ble High Court has passed the aforesaid order under some misconception of fact as it could not be passed as the same relate to cancellation which was passed on the basis of contents of the documents and cannot be adjudicated by civil court. 3. It appears that Smt. Nanki Devi. respondent No. 2 was Bhumidhar of land as submitted by Shri Qadeer. learned counsel for the appellants and she was alleged to have sold the land on 5.6.1994 for a sum of Rs. 17,500 in favour of five appellants and respondent No. 1 Bal Mukund Singh. The shares of the transferee have not been given in the said sale deed. According to Shri Qadeer, they will get per strip, i.e. 1/6th share. He further submitted that respondent No. 1 Bal Mukund who had 1/6th share sold half share of the entire plot on 1.7.1994 in favour of the respondent Nos. 2 to 4 whereas he had kept only 1/6th share. 4. According to Shri Qadeer, they will get per strip, i.e. 1/6th share. He further submitted that respondent No. 1 Bal Mukund who had 1/6th share sold half share of the entire plot on 1.7.1994 in favour of the respondent Nos. 2 to 4 whereas he had kept only 1/6th share. 4. Suit was filed in the lower court in the year 1994 for cancellation of the said sale deed and Smt. Nanki Devi filed written statement (Annexure-3 to recall application) stating that she has transferred 1/6th share each to all those transferees now appellant Nos. 1 to 5 and respondent No. 1. The trial court dismissed the suit on 26.5.1980 and the civil appeal was also dismissed by the District Judge on 9.2.1982. Thereafter present appeal has been filed. During the pendency of the Second Appeal, an application was filed by the respondents for abating the appeal u/s 5 (2) of the U. P. Consolidation of Holdings Act and the said application was allowed by order dated 2.3.1995. 5. I have also perused the judgment of the trial court. The Additional District Judge has field that defendant respondent No. 1 who had 1/2 share in the plot could transfer it to the respondent Nos. 2 to 4. u/s 5 (a) of the Act. every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or 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 the 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. 6. There is authority of Hon'ble Supreme Court Gorakh Nath Dube Vs. Hari Narain Singh and Others, (1973) 2 SCC 535 which lays down as follows : "Questions relating to the validity of sale deeds, gift deeds and wills can be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arise and have to be decided in the course of adjudications on 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 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." 7. A perusal of the Section 5 (a) of the U. P. Consolidation of Holdings Act itself clearly shows that the consolidation authorities have a power to declare rights arising out of any document so that the proper adjustment of share can take place and there is hierarchy of forums for appeals and revision u/s 48 of the U. P. Consolidation of Holdings Act to the Deputy Director of Consolidation under U. P. Consolidation of Holdings Act to adjudicate the matter. 8. I see no force in the argument of Sri Qadeer that validity of sale deed cannot be gone into second appeal. The Legislature thought it fit to provide the complete code in the Act regarding determination of the rights in case provision of abatement has not been made there would have been duplicacy, i.e., proceeding would have remained pending in the civil court and other Courts and the consolidation proceedings would have been delayed to wait the result of decisions. We cannot question the wisdom of the Legislature in enacting the provision of law. 9. The application for recall of the order dated 2.3.1995 is devoid of force and is dismissed.