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2001 DIGILAW 269 (ALL)

BEKARU v. SHIV MURAT

2001-03-20

U.S.TRIPATHI

body2001
U. S. TRIPATHI, J. ( 1 ) THE respondent of the appeal has moved an application for abatement of the appeal under section 5 (2) of U. P. Consolidation of Holdings Act (hereinafter called the Act) mainly on the ground that during pendency of the appeal, notification under Section 4 of the Act has been issued and by virtue of Section 5 (2) of the said Act, the appeal stands abated. ( 2 ) HEARD learned counsel for the parties and perused the pleadings of the parties and judgment of the courts below. ( 3 ) IT is not disputed that notification under Section 4 of the Act has been issued in respect of the village, in which land in suit is situate. The respondent has also filed the photo copy of the gazette notification dated 16. 2,1991. ( 4 ) THE suit out of which this second appeal arose was filed for cancellation of sale deed dated 9. 9. 1979. The case of the plaintiff was that the plot in suit originally belonged to Tamma alias tamai, Smt. Balraji was wife of Tamma alias Tamai. Tamma had no issue and, therefore, he had adopted plaintiff Bekaru. After the death of Tamma alias Tamai, the plaintiff inherited his property as his heirs. The defendant wrongly obtained sale deed of the land in suit from Smt. Balraji widow of Tamma alias Tamai, who had no right to execute sale deed. ( 5 ) IT is not disputed that cancellation of sale deed was sought on the basis that Smt. Balraji executor of the sale deed had no authority to execute the sale deed. Therefore, according to the plaintiff, the sale deed was void. Thus, the suit was filed for cancellation of void deed. It was held by Apex Court in the case of Gorakh Nath Dube v. Hari Narain Singh and others. (1973) 2 scc 535 , as below : "questions relating to the validity of sale deeds, gift-deeds and wills tan 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. (1973) 2 scc 535 , as below : "questions relating to the validity of sale deeds, gift-deeds and wills tan 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. 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 right 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. " ( 6 ) IN this way, the Consolidation Authorities are competent to decide right, title and interest of the land in suit ignoring the sale deed, which is admittedly void and, therefore, the suit stands abated under Section 5 (2) of the Act. The application is, accordingly, allowed and the appeal as well as suit stands abated under Section 5 (2) of U. P. Consolidation of Holdings Act. .