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Judgment
Petitioner before this Court is plaintiff in Title Suit No. 469 of 2010 pending in the court of Sub-Judge-I, Bhabhua at Kaimur. She has filed this writ
application for quashing the order dated 27.09.2013 whereby and whereunder the learned court below abated the suit in view of provision of section 4
(c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.
2. Heard learned counsel for the petitioner and the respondents.
The petitioner filed the aforesaid suit on the file of Sub-Judge for cancellation of registered sale deed nos. 10414 and 10415 dated 22.11.2010 which
were allegedly executed by Jokhan Singh in favour of the defendant no. 1 and also for partition of suit property among the parties.
It appears that the plaintiff in her plaint has alleged that the land in dispute is joint family property. The father of the plaintiff was an old person and
he had lost his consciousness since last six months before his death. The defendants taking advantage of the mental condition of her father,
fraudulently brought into existence the said deeds by committing fraud and forgery. The father of the plaintiff died only after two days of execution
and registration of said sale deeds. He further submitted that it is the civil court who has jurisdiction to decide the issue relating to cancellation of
document which have been allegedly brought into existence by committing fraud. The court below committed error in holding the suit abated in view of
provision of section 4 (c) of Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and so the impugned order is fit to be set
aside.
The learned counsel for the respondents on the other hand submitted that the plaintiff has alleged that the document in question is illegal and void
and also for partition of suit property and so the court below has rightly abated the suit. The court below has not committed any jurisdictional error and
so this application is fit to be dismissed.
On going through the averment made in the plaint, I find that the plaintiff is only daughter of her father. The defendants are brother and nephews of
the father of plaintiff. In the plaint, she has specifically alleged that his father was mentally ill and was unconscious since last six months and had lost
his memory. The defendants in collusion with each other fraudulently created two registered sale deeds by committing fraud and forgery. Her father
neither received any consideration money nor executed any document nor affixed his thumb impression and so the plaintiff filed the suit for
cancellation the said sale deeds. This document is voidable document and it is within the jurisdiction of civil court to cancel/set aside such document.
In this regard, I would like to refer the Full Bench decision of this Court passed in a case of Ramkrit Singh and others Vs. State of Bihar and others
reported in AIR 1979 Patna 250 where this Court has considered about jurisdiction of civil court in deciding such type of issue. It has been held that
except where there is necessity to set aside a document after calling for it, there suit will lie, that is the exclusive jurisdiction of the Civil Court. In
other words, if a document has to be set aside, Civil Suit is maintainable but a mere declaration of title or a mere declaration that a document is void
that can be done by the consideration authority. Same view has been expressed in a case decided by this Court in Ram Bhajan Mahto vs. Bam Mahto
and others reported in 2007 (4) PLJR 649.
In the case at hand I find that the plaintiffs have sought relief for cancellation of two sale deeds on the ground of fraud and forgery which requires
determination only after recording the evidence of the parties. Such type of case cannot be decided by the consolidation court.
In view of above facts, the impugned order dated 27.09.2013 holding the suit abated is set aside and the trial court is directed to proceed with the
suit.
This writ application is accordingly allowed.