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2006 DIGILAW 406 (PAT)

Kashi Bhagat @ Kashi Nath Bhagat v. Keshar Bhat

2006-05-02

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard the parties. 2. The present revision application is directed against an order by which the trial court on an application of the defendants held that the suit abates in terms of Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. 3. Mr. S.S. Dwivedi, learned senior counsel for the plaintiff-petitioner submits that in order to come to a finding whether the relief claimed in respect of any document being void or viodable the Court was bound to look to the substance of the matter and not words or phrases used. If on true reading of the plaint it is found that the relief sought is primarily for setting aside a document then the suit must continue. The consolidation authority has no power to set aside any document, which power is the exclusive power of the Civil Court. He has relied upon a Division Bench decision of this Court reported in 1992(2) PLJR 678 (Para 16), (Shivaji Rai V/s. Rajendra Rai & Anr.) for the said proposition, and submitted that if relief claimed is for declaring a document to be void, in substance, then it is made declaration which can be granted by the authority under the Act but if in substance the relief is for cancellation of a document then it is a document which is voidable. In other words, if a document is void then consolidation authority has jurisdiction and if it is voidable then Civil Court has jurisdiction. In later case the power is exclusively of the Civil Court and the suit shall not abate. 4. Mr. Ganpati Trivedi, learned senior counsel for the opposite party placed reliance on a Full Bench decision of this Court in 1985 PLJR 86 , Sheoratan Chamar & Ors. V/s. Ram Murat Singh @ Kishori Raman Singh, and referred to paragraphs 12 and 14 thereof. 5. I have examined the plaint as well as the judgments referred to above. Unfortunately both the counsel argued the same. A suit praying for declaration that a document is void, abates in cases where the relief is to set aside a document that is, the document being voidable the suit will not abate. This is the ratio of both two judgments. The judgment of the Division Bench aforesaid goes and then expresses as to how this issue, whether a document is void or voidable, is to be decided. This is the ratio of both two judgments. The judgment of the Division Bench aforesaid goes and then expresses as to how this issue, whether a document is void or voidable, is to be decided. This issue is based on the actual pleading as made and not on words or averments made. 6. In the present case it is not disputed that what has been pleaded in substance is that a gift deed has been executed in respect of part of property over which the donor had no authority. To that extent the relief would be that the document would be void but the plaintiff asserts that in respect of other part of the property being subject matter of the said gift the donor had no intention to gift and the deed was got fraudulently executed. This would require adjudication and setting aside of the document as such the document was voidable. 7. The question now arises where a document is partly void and partly voidable what is course of action. The answer is simple. As the document cannot be dealt with by two different authorities, the jurisdiction of civil court is excluded. The document then would have been tested as held by the competent authority who is only a Civil Court as cancelling a document is the exclusive jurisdiction of Civil Court. 8. Accordingly I find that the impugned order is wholly without jurisdiction and set aside the order dated 1.6.2005 passed by Sub-Judge VIth, Gopalganj in T.S. No. 445 of 1990. 9. This application is allowed. 10. I may, however, observe that as the matter was posted for argument in the court below, the court below will take up the suit at an early date and conclude the same at an earliest.