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2007 DIGILAW 2134 (ALL)

RAM PYARI v. HARI RAM BHARGAVA

2007-08-16

TARUN AGARWALA

body2007
JUDGMENT Hon’ble Tarun Agarwala, J.—The plaintiff filed a suit for a declaration to the effect that the sale deed executed in favour of his wife was a Benami Transaction and that he should be declared to be the real owner and in possession. The suit was resisted by the defendant alleging that her husband led an immoral life and had kept a concubine and was addicted to liquor and that he neglected the defendant and her children as a result of which the defendant’s father made a permanent provision for her livelihood in her name. The defendant contended that the agricultural land was not purchased from the earnings of the plaintiff, but was purchased by her father. The defendant further contended that the suit was not maintainable in view of the provisions of Section 49 of the U.P. Consolidation of Holdings Act. The defendant further pleaded in the alternative that in the event, the transaction was found to be a benami transaction, the sale deed may be treated as a gift in her name. 2. On the basis of the pleadings of the parties, the trial Court framed several issues and, after considering the evidence, decreed the suit holding that the sale deed executed in favour of the defendant was a benami transaction and that the land was purchased from the earnings of the plaintiff. The trial Court further found that the suit was not barred under Section 49 of the U.P. Consolidation of Holdings Act. 3. Aggrieved, the defendant filed an appeal which was dismissed and the findings of the lower appellate Court was affirmed. Aggrieved, the defendant appellant filed the present second appeal which was admitted on the following substantial questions of law, namely, (1) Whether the suit is barred under Section 49 of the U.P. Consolidation of Holdings Act? (2) Whether the suit is barred by time? 4. During the pendency of the appeal the Benami Transactions (Prohibition) Act, 1988, was promulgated. Consequently, fresh substantial questions of law was framed, namely, “(i) Whether the plaintiff’s suit was barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988 and (ii) whether the plaintiff’s suit could be decreed in view of the Benami Transactions (Prohibition) Act, 1988”. 4. During the pendency of the appeal the Benami Transactions (Prohibition) Act, 1988, was promulgated. Consequently, fresh substantial questions of law was framed, namely, “(i) Whether the plaintiff’s suit was barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988 and (ii) whether the plaintiff’s suit could be decreed in view of the Benami Transactions (Prohibition) Act, 1988”. The Court vide judgment dated 5.9.1991 allowed the second appeal and dismissed the suit holding that in view of Section 4 of the Benami Transactions (Prohibition) Act, 1988, the suit was barred. Against this judgment, the plaintiff filed a Special Leave Petition before the Supreme Court which was allowed by a judgment dated 8.3.1995 and the matter was remitted to the High Court for a fresh decision on merits. The Supreme Court, while allowing the civil appeal and remitting the matter to the High Court, passed the following order : “In view of the law laid down by this Court in R. Rajagopal Reddy (dead) by Lrs. and others v. Padmini Chandrasekharan (dead) by Lrs., 1955 (1) Scale 692, we allow the appeal and set aside the impugned judgment of the High Court. Since the High Court decided the appeal following the judgment of this Court in Mithilesh Kumari and another v. Prem Behari Khare 1989 (1) SCR 621 and other points were not dealt with, we remand the case to the High Court for fresh decision on merits and also on other points, if any, involved in the appeal. The appeal is allowed in the above terms. No costs.” 6. Heard Sri R.S. Mishra, the learned Counsel for the defendant-appellant assisted by Sri A. Chaturvedi, Advocate and Sri Ahmad Saif Jamali, the learned counsel, holding the brief of Sri Shashi Nandan, the learned Senior Counsel for the plaintiff-opposite party. 7. The learned Counsel for the defendant submitted that in view of Section 49 of U.P. Consolidation of Holdings Act, the suit was barred and that the decree passed by the Court below was a nullity in the eyes of law. 8. On the other hand, the learned Counsel for the opposite party submitted that the suit was not barred and that complicated questions of fact could only be adjudicated in a civil Court. 8. On the other hand, the learned Counsel for the opposite party submitted that the suit was not barred and that complicated questions of fact could only be adjudicated in a civil Court. The learned Counsel for the plaintiff further submitted that a specific issue with regard to the maintainability of the suit was framed which was decided in the negative and this issue was not challenged by the defendant in the first appeal before the lower appellate Court. Consequently, it was not open to the defendant to challenge this issue before the second appellate Court. On the other hand, the learned Counsel for the appellant in rejoinder submitted that a decree passed without jurisdiction was a nullity and its validity could be set up whenever and wherever it was sought to be enforced or relied upon. Since it was a pure question of law, it was open to the defendant to question the findings of the Court below even at the second appellate stage. 9. In order to deal with the aforesaid submissions raised by the rival parties, it would be appropriate to consider the provisions of Section 49 of U.P. Consolidation of Holdings Act, 1953 which is quoted hereunder: “49. Bar to Civil Court jurisdiction.—Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of rights of tenure-holders in respect of land by the lying in an area, for which a [notification] has been issued [under sub-section (2) of Section 4], or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act : [Provided that nothing in this section shall preclude that Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act].” 10. The preamble of the Act states that the Act is to provide for consolidation of agriculture holdings in U.P. for the development of agriculture. The object of the Act is to allot a compact area in view of scattered plots to the tenure holders so that cultivation on a large scale is possible. The learned Counsel submitted that in view of the ambit and limit contained in Section 49 of the Act, the jurisdiction of the civil Court was clearly excluded. Consequently, the suit was not maintainable. Admittedly, the consolidation proceedings had started at the time when the suit was filed and the question whether the plaintiff who had executed the sale deed in favour of the defendant alleging it to be a benami transaction, could be considered by the consolidation authorities. It was contended that an objection could be filed by the plaintiff under Section 9 of the Act, while considering the claim of the defendant. 11. The learned Counsel for the defendant-appellant in support of his submission relied upon a decision of a Division Bench of this Court in Ram Jiwan Singh v. Kamlesh Kumar, 1977 AWC 275 in which it was held : “Thus, even though there is no specific prohibition in the Act against Benami holding of lands and Benami transfers of holdings, such prohibition is implied in the scheme of the Act, since permitting a person to establish in civil Court the Benami character of his holding, would materially affect carrying out a proper consolidation scheme under the Act. Hence it follows that all claims of a real owner of a land should be put forward before the consolidation authorities under Section 9 of the Act so that they may determine who is the true owner of the land and if he fails to do so, he will be debarred from establishing the Benami character of such holding, in a civil Court. In the present case the purchase of the suit land in the name of defendant-3, was prior to the commencement of the consolidation proceedings in respect of those lands. As such plaintiff did not put forward before the consolidation authorities his claim that he was the real owner of those lands and defendant-3 was only a Benamidar, he is debarred under Section 49 of the Act from establishing his claim in the present suit.” 12. As such plaintiff did not put forward before the consolidation authorities his claim that he was the real owner of those lands and defendant-3 was only a Benamidar, he is debarred under Section 49 of the Act from establishing his claim in the present suit.” 12. The Court held that a claim of the real owner of the land could be forwarded before the consolidation authority under Section 9 of the Act, so that the determination as to who was the true owner of the land could be finalised. 13. On the other hand, the learned Counsel for the opposite party placed reliance in Suba Singh v. Mahendra Singh and others, AIR 1974 SC 1657 in which it was held that complicated question of title could not oust the jurisdiction of the civil Court. The same proposition was reiterated by the Supreme Court in Karbalai Begum v. Mohd. Sayeed and another, AIR 1981 SC 77 . 14. It is well settled that the exclusion of the jurisdiction of the civil Court cannot easily be inferred and any provision which takes it away must be strictly construed. Keeping this principle in mind, the Supreme Court in Suba Singh’s case analysed Section 49 of the Act and found that there are two prohibitory clauses in Section 49 which could oust the jurisdiction of the civil Court namely, “adjudication of any other right arising out of consolidation proceedings" and secondly, “in regard to which a suit or application could be filed under the provisions of this Act.” 15. So far as the first part is concerned, the present suit is not confined to the matters arising out of consolidation proceedings and therefore, this clause is not applicable and could not oust the jurisdiction of the civil Court. The question which now remains is “whether the civil Court’s jurisdiction could be ousted under the second clause namely, “in regard to which a suit or application could be filed under the provisions of this Act.” In consolidation proceedings an application could be filed provided it is alleged that the sale deed, was liable to be ignored, being a void document. In my view, the mere fact that the sale deed was based on a benami transaction could at best make the document voidable but under no circumstances, it could be treated as a void document. In my view, the mere fact that the sale deed was based on a benami transaction could at best make the document voidable but under no circumstances, it could be treated as a void document. Consequently, the second clause is also not applicable and is not fatal to the plaintiffs filing a suit for a declaration. 16. In Gorakh Nath Dube v. Hari Narain Singh and others, 1973 RD 423, the Supreme Court pointed out the distinction between a void and a voidable sale deed and held that a void sale deed could be ignored by the consolidation authorities. The Supreme Court observed. “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 right 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 cancelled by a Court having the power to cancel it. 17. The aforesaid view was reiterated by a Full Bench of this Court in Ram Nath v. Smt. Munna, 1976 AWC 412. 18. In Ram Padarath and others v. Second Addl. District Judge, Sultanpur and others, 1989 AWC 290 a Full Bench of this Court held that a suit or action for the cancellation of a void document would generally lie in the civil Court and a party could not be deprived of his right in getting this relief permissible under law except where a declaration of a right or the status of a tenure holder was necessarily needed, in which event, the relief for cancellation would be a surplusage and redundant. 19. In the opinion of the Court, the question whether the transaction was a benami transaction and whether the sale consideration was made from the earnings of the plaintiff or was funded by the father of the defendant are complicated question, of fact which requires to be adjudicated, and which, in the opinion of the Court, could only be adjudicated in a civil Court. Consequently, the second clause in Section 49, in the opinion of the Court is not attracted. The word could also signifies that it is open to the plaintiff to question the claim of the defendant in the consolidation proceedings under Section 9 of the Act, or by filing a suit. The second part of Section 49 is not mandatory and does not oust the jurisdiction of the civil Court. 20. In view of the decision of the Supreme Court in Suba Singh’s case [supra] holding that complicated questions of fact can only be adjudicated by a civil Court, the decision of the Division Bench in the case of Ram Jiwan Singh is clearly distinguishable. 21. In view of the aforesaid, this Court is of the opinion, that the civil Court had the jurisdiction to entertain the suit and consequently, the suit was not barred under Section 49 of the U.P. Consolidation of Holdings Act. Thus, the question of law framed by the Court cannot be answered in the affirmative. No arguments was raised on the second substantial question of law framed. Consequently, this Court declines to answer the question in the affirmative. 22. In view of the aforesaid, the second appeal fails and is dismissed. ————