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2011 DIGILAW 2513 (ALL)

Shanti Devi (Died) v. Additional District Judge, Faizabad and Others

2011-11-03

RAJIV SHARMA

body2011
Rajiv Sharma, J.— Heard learned Counsel for the parties. At the out set it is relevant to mention that the instant writ petition was filed by Smt. Shanti Devi wife of Munni Lal. During the pendency of the writ petition, said Smt Shanti Devi died and as such she has been substituted by her legal heirs. Petitioners, being aggrieved by the order dated 9th July, 1993 passed by VI Additional District Judge, Faizabad, has filed the instant writ petition inter alia on the ground that it is not open either for the Civil Court or Revenue Court to exercise jurisdiction with regards to the title of the property as there is a specific bar under Section 5 of the U.P. Consolidation of Holdings Act on issuance of notification under Section 4 of the U.P. Consolidation of Holdings Act and as such, proceedings ought to have abated. Brief facts, giving rise to the instant writ petition, are that Krishna Kumar Singh (opposite party No.2 in the instant writ petition), had filed a suit for cancellation of sale deed, pleading therein that land in dispute was originally owned by Jai Singh (father of opposite party No.2/plaintiff) with Bhumidhari rights, Jai Singh died on 15.1.1962 and as opposite party No.2/plaintiff was minor, his mother Smt. Gomti Devi (defendant No. 2 in suit) has got right only to manage the property till the plaintiff attains majority and no right had vested in her for executing any sale deed or relinquished the property in question in any manner whatsoever but inspite of that, sale deed was executed by her and as such, as stated hereinabove, the suit was filed for cancellation of the sale deed. In the said suit, notices were issued and in reply thereof, the petitioner had put in appearance and filed a written statement, controverting the allegations made in the plaint. It has been stated in the written statement that sale deed, which was executed in favour of the defendant No.1/petitioner and opposite party No.4/defendant No.2, was in bona fide manner for the benefit and legal necessity of the plaintiff by his mother during the minority of the plaintiff, as his legal guardian. It has been stated in the written statement that sale deed, which was executed in favour of the defendant No.1/petitioner and opposite party No.4/defendant No.2, was in bona fide manner for the benefit and legal necessity of the plaintiff by his mother during the minority of the plaintiff, as his legal guardian. It has also been stated that the proceeding so initiated by filing civil suit stands abated on issuance of notification under Section 5 of the U.P. Consolidation of Holdings Act in view of the pendency of the consolidation proceedings in the villages. The trial Court, after going through the averments made in the plaint as well as written statement, vide order dated 12.2.1985, came to the conclusion that since the suit in question has been filed for cancellation of a void sale deed, as such, it is liable to be abated in view of Section 5 of the Act on account of pendency of the consolidation proceedings. Being aggrieved by the order dated 12.2.1985, opposite party No.2-Krishna Kumar filed a revision before VI Additional District Judge, Faizabad, who, vide its order dated 9.7.1993, allowed the revision and set-aside the order dated 12.2.1985 passed by the trial Court on the ground that the trial Court has got jurisdiction and the bar as mentioned under Section 49 of the Act is not attracted. Learned Counsel for the petitioners submits that Section 49 of the Act provides that with respect to the declaration and adjudication of rights of the tenure holders in respect of land lying in the area for which notification has been issued under sub-Section (2) of Section 4 of adjudication of any other rights arising out of the consolidation proceedings regarding which the proceedings could or ought to have been taken under this Act, shall be done in accordance with the provisions of the Act and no civil or revenue court shall entertain any suit or proceeding with respect to the rights in such land or with respect to any other matter for such a proceeding could or ought to have been taken under this Act. It is to be noted that the consolidation proceedings in a particular village or unit starts with notification under Section 4(2) or restarts with notification under Section 4-A(2) of the Act and ends with notification under Section 52 of the Act, if notification under Section 4 of the Act is not cancelled under Section 6 of the Act. Before consolidating the scattered plots of a tenure holder, it is necessary to decide their rights and claims, which power is given to consolidation authorities. As such pending case regarding title, correction of papers, mutation etc. whether pending in Civil Court or Revenue Court, whether at the stage of a suit, revision or appeal cannot be permitted to proceed. The effect of the abatement is given in Section 5(2)(b) of the Act. The person affected by the abatement may agitate his right and interest before the consolidation authorities. This abatement will not affect his right or interest. Facts of the case are not in dispute. However, in order to determine as to whether the document, which has been executed is void or voidable document, a finding has been recorded. Further on perusal of the facts, it reflects that Jai Raj (father of the plaintiff) had bhumidhari rights over the land in question, which had devolved upon Smt. Gomti Devi (mother of the plaintiff) till the plaintiff attains the majority and no right is vested in her for executing any sale deed or relinquished the property in question and as such, the said document is said to be void document and not voidable document. The aforesaid distinction between void and voidable documents is that voidable document is one which remain enforce until set-aside and such voidable document can be only set-aside by the competent Civil Court and with regards to the claim of transfer it void, the same can be adjudicated by the consolidation authorities as held by the Hon'ble Apex Court in the case of Gorakh Nath Dube Versus Hari Narain Singh [ 1974 (1) SCR 339 ]. It is not a case of either of the parties that document has been executed by mis-representation or fraudulently. Thus, in view of the law laid down by Hon'ble Apex Court in the case of Smt. Bismillah Versus janeshwar Prasad and others [ 1990 (1) SCC 207 ], the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. Thus, in view of the law laid down by Hon'ble Apex Court in the case of Smt. Bismillah Versus janeshwar Prasad and others [ 1990 (1) SCC 207 ], the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. The order dated 9th July, 1993 passed by VI Additional District Judge, Faizabad, is hereby set-aside and the order of trial Court is approved. _