Gulabi vs Ram Autar and Others

A. K. Banerji, J.—By means of the aforesaid application the defendantrespondents have prayed that the aforesaid second appeal may be declared as abated under Section 5(2) of the Consolidation of Holdings Act, 1953.

The relevant facts, in brief, are that the plaintiffappellant filed a Suit No. 887 of 1974 for the cancellation of the saledeed on the ground that she wanted to execute a deed of Will in favour of her daughter but the defendantrespondent No. 3 by playing fraud upon her obtained her thumb impression on a saledeed. The suit was contested by the defendants who filed their written statement and denied the allegations made in the plaint. The trial court decreed the plaintiffs suit by holding that the saledeed dated 10.7.1974 was procured by the defendants by playing fraud upon the plaintiffappellant. The lower appellate court," however, allowed the defendants'' appeal and set aside the decree passed by the trial court and dismissed the plaintiff s suit. Aggrieved, the plaintiffappellant has preferred the above noted second appeal in this court which is pending.

It appears that consolidation operations started in the village in October, 1988 and the same was going on. Consequently, the present application has been filed by the defendantrespondents praying that the present second appeal be declared as abated under Section 5(2) of the U.P. Consolidation of Holdings Act. The plaintiffappellant has filed a counter affidavit to the said application and has taken the stand that though consolidation operations have commenced the second appeal will not abate as the provisions of Section 5 (2) of the Consolidation of Holdings Act will not be applicable in the facts of the present case.

I have .heard learned counsel for the parties and have perused the record of the appeal. Learned counsel for the defendant respondents has submitted that the subjectmatter of the saledeed was agricultural land and as the plaintiff had come with a case that the saledeed has been obtained from her by playing fraud and misrepresentation and she had never agreed to execute any saledeed, the document in question was void and the matter could be decided by the consolidation courts and the second appeal should be declared as abated. Learned counsel for the plaintiffappellant has, however, contended that the saledeed in question was voidable and the suit for cancellation of that sale deed is not liable to be abated under Section 5(2) of the Consolidation of Holdings Act. Moreover, the revenue entries are in favour of the plaintiff who is also in possession of the land in question. The suit has been filed only to clear the cloud on the title of the plaintiff and the relief claimed was for cancellation simplicitor. Therefore, the suit has rightly been filed before the civil court and the same will not abate. He has also contended that in a part of plot No. 482, which is one of the plots mentioned in the disputed saledeed, the plaintiff has her house. Besides, there are constructions made by certain other persons, therefore, also this plot has lost the character of agricultural land. Consequently, the suit was rightly filed before the civil court and it is only the civil court which could grant to the plaintiff the relief sought for in the plaint. Learned counsel for both the parties have supported their submissions by certain reported decisions.

Before proceeding to consider the respective submissions made by learned counsel for the parties, it would be appropriate to quote Section 5 (2) of the U.P. Consolidation of Holdings Act under which the present application has been filed. The said section reads as follows:

"S. 5(2) Upon the said publication of the notification under subsection (2) of Section 4 the following further consequences shall ensue in the area to which the notification relates namely

(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication for any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated...."

From the aforesaid provisions quoted above, it would be evident that the object of Section 5(2) of the Consolidation of Holdings Act as it stands at present, is clearly to abate suits and other proceedings for correction of records, declaration of rights or interest in any land which are pending before any court or authority or in appeal or revision. Therefore, what emerges is that if a matter can be gone into in consolidation proceedings then a suit in respect of that matter must be abated under Section 5 (2) of the Consolidation of Holdings Act.

The question for consideration however, in the present matter before me is whether the words, of Section 5(2) of the said Act is wide enough to cover suit for cancellation of saledeed which was filed before the Civil Court prior to the commencement of the consolidation proceedings and is now pending in Second Appeal before this Court. The learned counsel for the plaintiff appellant has referred to the relief sought in the plaint of the said suit and has contended that the same was a simple suit for cancellation of a saledeed on the ground that the plaintiff wanted to execute a will in favour of her daughter but the defendant No. 3 by misrepresentation and by playing fraud upon her got a saledeed written and obtained the thumb impression of the plaintiff thereof. The cancellation of this deed was sought as the same cast a could on her right and title over the land and the property of which she was in possession and had her name recorded in the revenue records. She did not seek any declaration or any other ancillary reliefs regarding her rights and title, therefore, it was the Civil Court alone which could grant the relief to her and such a question could not be decided by the consolidation authorities. This being the position, the suit or the appeal cannot abate under Section 5(2) of the said Act. Learned counsel has supported his submissions by placing reliance upon the Full Bench decision of this Court in the case of Ram Padarath v. 2ndA.D.J. Sultanpur, reported in 1988 (2) Select Civil Decisions 387 and also on the decision of the Supreme Court in the case of Smt. Bismillah v. Janeshwar Prasad reported in AIR 1990 SC 540. I have perused the aforesaid decisions. In the Full Bench decision of Ram Padarath (supra), the question referred for the consideration of the Full Bench was whether a suit for cancellation of a saledeed was cognizable by the revenue court or the civil court keeping in view the provisions of Section 331 (1) of Zamidari Abolition and Land Reforms Act. Similarly, in the case of Smt. Bismillah (supra), the question before the Supreme Court was whether a suit before the Civil Court for cancellation of saledeed in respect of agricultural lands and for possessions was barred by the provisions of Section 331 of the U.P.Z.A. and L.R. Act. It is, therefore, evident that in both these cases which have been referred to by the learned counsel for the plaintiffappellant, the question of the abatement of the suit or appeal under Section 5 (2) of the Consolidation of Holdings Act was not involved. It is well settled by a catena of decisions that the jurisdiction of the consolidation authorities is wider than the Civil and the revenue courts. Therefore, such decisions in which the question involved was regarding the jurisdiction of civil court or revenue court under Section 331 (1) of the U.P.Z.A. & L.R. Act could not be invoked for the purposes of deciding whether the pending suit was liable to be abated under Section 5 (2) of the Consolidation of Holdings Act. Even the Full Bench in the case of Ram Pradarath (supra) had observed as follows:

"The jurisdiction of the consolidation authoritis or courts is wider than that of the civil or revenue court and adjudication by them is final and cannot be responded by any civil or revenue court in view of bar for the same contained in Section 49 of the U.P. Consolidation of Holdings Act which even bars, the case which should have been raised before the consolidation authorities, but not raised. The decisions given under U.P. Consolidation of Holdings Act even in respect of void documents do not throw light conclusively regarding jurisdiction of civil court and revenue court with reference to Section 331 of U.P.Z.A. and L R Act. The provisions of Section 331 of the Act'' cannot be interpreted with reference to the provisions of or language used in U.P. Consolidation of Holdings Act. It is sound principle of interpretation that provisions of another Act are not to be taken as guide for interpreting the provisions of another Act which are not in pari materia with the former Act. The cases under U.P. Consolidation of Holdings Act regarding the jurisdiction of consolidation authorities throw great light on the question of extent or exclusiveness of the jurisdiction of revenue and civil court but they do decide or resolve this controversy fully."

In view of what has been observed above, the aforesaid decisions cited byt he learned counsel for the plaintiff appellant is of no help in deciding the present controversy.

The learned counsel for the defendantapplicants has however cited certain decisions which in my opinion applies to the facts of the present case. A similar controversy like the present was referred to a Division Bench of our Court in .the case of Jagarnath Shukla v. Sita Ram Pandey reported in 1969 ALJ 768. The question was whether a suit for cancellation of saledeeds in respect of agricultural plots, which are pending on the date of notification under Section 4 of the U.P. Consolidation of Holdings Act should be abated under Section 5(2) of the said Act. In this case also a suit was filed for cancellation of the saledeed on the ground that it had been obtained by playing fraud and by impersonating the plaintiff. The argument raised was that as no declaration or adjudication of the rights were called for therefore, the said suit could only be decided by the civil court and the consolidation authorities will have no jurisdiction to decide the said case. The contention further was that the specific relief of cancellation could not be granted by consolidation authorities as it could not ask the parties to deliver the saledeed and cancel or send a copy of this order to the Registrar to make entries in the original sale deed and in his registers. The Division Bench held as follows:

"The language of the amended Section 5 (2) is very wide. It provides for the abatement of suit not only (for declaration of rights or interest in any land) but also for suits in respect of declaration of rights or interest in any land. In consolidation proceedings, the question whether the saledeed is binding or not arises during the course of adjudication upon the rights of the parties in land. The decision of this question is in effect and substance, in respect of declaration of rights or interest of parties in the land. A suit for cancellation of a saledeed is filed to dispel the cloud on the right and title of plaintiff in the land cancellation by itself is no reliefthe real relief is that, inspite of the execution of the saledeed, the plaintiff continues to be the tenureholder. What the plaintiff really wants that he should be Declared to be the tenureholderwhether that is done by actually cancelling the saledeed or by declaring that the saledeed is not binding and is inoperative. In substances, the suit is in respect of declaration of rights or interests in the land. It, thus, appears to us that a suit for cancellation of a saledeed in respect of agricultural land is covered by Section 5 (2) of the Act. (Emphasis supplied)

The form of relief however, is, to our mind, immaterial. If the consolidation authorities held that the saledeed has been obtained by fraud etc. and is inoperative, the party will get substantially all the relief which he wants. He will be declared to be still tenure holder of the plots and will be entitled to a chak in lieu of them. Therefore, the mere fact that the consolidation authorities cannot grant a relief in the form in which civil court can does not effect the question. The suit remains a suit in respect of the declaration or adjudication of the rights of the parties in the land....................... Since we have come to the conclusion that the consolidation authorities have been empowered to grant substantially the same relief in respect of a saledeed which the civil court can, they must be held to be competent authorities to declare the saledeed not binding and inoperative."

The learned counsel for the defendantapplicants has further submitted that from the reading of the allegations made in the plaint as a whole it would be evident that according to the plaintiff the saledeed in question was void as the plaintiff had challenged the character of the document itself apart from the contents. It has been stated that the plaintiff wanted to execute the Will in favour of her daughter whereas the defendants had by misrepresentation and fraud got her thumb impression on a sale deed. It was, therefore, not the conscious act of the plaintiff and her mind did not accompany the signature or thumbimpression. It was therefore, a void saledeed and could be ignored by the consolidation authorities and as such the proceedings in which the same is under question, the same shall abate. He has placed reliance in support of his submission of the Supreme Court decision in the case of Gorakh Nath Dubey v. Hari Narain Singh & others reported in AIR 1973 SC 2451. In this case, the distinction between the void and viable saledeed was pointed out and it was held that a void saledeed is to be ignored by the consolidation authorities and as such the proceedings in which the same is under question the suit will abate. It is noteworthy that in Gorakh Nath Dubey''s case (supra), the suit of the plaintiff was for cancellation of a saledeed on the ground that the plaintiff had half share in the plots in dispute which have been illegally transferred and therefore, the relief claimed was for cancellation of the saledeed and for giving possession of the plaintiff''s share to the plaintiff. The suit was dismissed by the Trial Court but the lower appellate court allowed the plaintiff''s appeal and the matter was pending in the second appeal before the High Court when the notification under Section 4 of the UP. Consolidation of Holdings Act was published. The Supreme Court approved the decision of the Division Bench of this Court in the case of Jagarnath Shukla v. Sita Ram Pandey, 1969 ALJ 768, (supra), and held that the Second Appeal will abate under Section 5 (2) of the Consolidation of Holdings Act.

A similar question arose before the Supreme Court in the case of Sm.t Dulari Devi v. Jannrdan Singh & others reported in AIR 1990 SC 1173. The facts here. are. that an illiterate woman put her thumbimpression on two deeds honestly believing that the thumb impression taken from her were of a single document namely, the gift deed in favour of her daughter in respect of her properties as per her desires, but in fact two documents were got executed from her only one of which was a gift deed but the other was a saledeed of her properties in favour of the persons who perpetrated the fraud. The Supreme Court held that the said saledeed which was got executed from the plaintiff was by fraudulent misrepresentation as to the character of the documents itself and, therefore, the same was totally void and the suit to setaside the saledeed instituted at the time when consolidation proceedings were pending was barred by Section 49 of the U.P. Consolidation of Holdigns Act. In this case, the Supreme Court had also referred to its earlier decision in the case of Gorakh Nath Dubey (supra) and heavily relied upon the observations made therein and held that the remedy of the plaintiff lay in the proceedings pending before the consolidation authorities and it was open to the parties to approach them for appropriate relief. The aforesaid decisions cited by the defendantapplicants suport their case. It is noteworthy that the said cases relates to the Consolidation of Holdings Act and are akin to the facts of the present case and the question involved therein whereas the cases cited by the learned Counsel for the plaintiffappellant are in relation to the jurisdiction of the civil court and revenue courts in the light of the provisions of Section 331 (1) of the U.P.Z.A. & L.R. Act and in my opinion they are of no help in the facts of the present case at hand.

Before parting with the case one more argument of the plaintiffappellant may he noticed. It has been contended that as on a part of plot No 482 certain constructions are standing, therefore, the consolidation courts will have no jurisdiction to decide the dispute. I am unable to agree. It is noteworthy that plot No. 482 is not recorded as abadi in the revenue records. Consequently, it cannot be said that the matter cannot be agitated before the consolidation court.

In view of the aforesaid discussions, the application filed by the defendantapplicants for abatement of the present Second Appeal is liable to be allowed. Consequently, the application is allowed and the present Second Appeal No. 228 of 1990 is declared to be abated under Section 5(2) of the U.P. Consolidation of Holdings Act, 1954. It shall, however, be open to the plaintiff to get her rights adjudicated before the consolidation authorities by getting the proceedings reopened, if necessary. The parties shall bear their own cost.