Narain vs Addl. District Judge,Azamgarh and Others

S. C. Verma, J.—The petitioner has challenged the impugned order dated 1041990 passed by the learned VII Additional District Judge, Azamgarh allowing the revision filed by the respondents and setting aside the order dated 5101988 passed by the learned XVI Additional Munsif in O.S. No. 502 of 1984. and remanding the case for decision afresh oh merits.

The plaintiff filed Suit No. 502 of 1984 alleging themselves to be theBhumidhars of the disputed land belonging to one Ghure who had executed the registered saledeed dated 2461967 in favour of one Durjan. The former tenureholder Ghure had deposited ten times of rent to obtain Bhumidhari Sanad which was issued on 2461967 and after the saledeed was executed on the same day, mutation proceedings were initiated and thename of the former tenureholder Ghure was deleted and the name of Durjan was recorded as the Bhumidhar of the disputed land. Later on heirs of Ghure filed a declaratory suit No. 2099 of 1968 under Section 229Bof the U.P. Zamindari Abolition and Land Reforms Act which was decided on 2251971 by the learned S.D.M., Phoolpur holding that the saledeed was void abinitio and fraudulent as the vendor had already died before the execution of the sale deed. An appeal was preferred before the learned Commissioner, Gorakhpur against the aforesaid order dated 2251971 passed by the S.D.M. During the pendency of the appeal, consolidation proceedings started in the village on account of which the proceedings before the learned Commissioner abated and thereafter the findings of the revenue court were confirmed by the Consolidation Courts. The Deputy Director of Consolidation by order dated 351979 upheld the decisions of the Consolidation Officer and the Settlement Officer of Consolidation holding that the saledeed was obtained by fraud and because the vendor had already died before the execution of the saledeed.

The plaintiffs filed the present suit alleging that the consolidation courts had no jurisdiction to declare the saledeed as fraudulent and void and the suit is maintainable by civil court. The plaintiffs took the stand that at the time of execution of the saledeed Ghure was alive and the defendants had no concern with the disputed land but they are interfering with the rightful possession of the plaintiffs on the basis of wrong judgments of the Consolidation Courts. The plaintiffs prayed for cancellation of the order passed by the Deputy Director of Consolidation on 3131979 and also for declaration that the saledeed dated 2461967 was genuine. The trial Court held that the suit was not maintainable and the Civil Court had no jurisdiction to consider the validity of the order of the Consolidation Courts and the void saledeed.

The contesting respondents filed a revision against the order dated 5101988. The learned VII Additional District Judge by the impugned order dated 1041990 set aside the order of the trial Court holding that the again relief sought by the plaintiff is for the cancellation of the order of the Deputy Director of Consolidation and declaration of the saledeed as genuine and as such the suit was cognizable by Civil Court and the validity of the saledeed could also be adjudicated upon by the Civil Court. Assailing the order dated 1041990 the petitioner has alleged that the respondents 2 and 3 did not place full and complete facts before the revisional Court as they had not disclosed that the order of the Deputy Director of Consolidation dated 351979 was upheld by this Court, in writ petition No. 4738 of 1979 by order dated 1491979. It was further alleged that the saledeed having been held to be void the suit under Section 49 of the U.P. Consolidation of Holdings Act was barred by res judicata and the Consolidation Courts had rightly adjudicated upon the rights in favour of the petitioners. The petitioners also placed reliance upon the judgment of the Hon''ble Supreme Court reported in Smt. Dularia Devi v. Janardan Singh and others (1990 All CJ 278).

Relying upon the decisions in Gorakh Nath Dube v. Hari Narain Singh and others (1974) 1 SCR 339) and Nanawwa v. Byrappa and others (1968) 2 SCR 797) the Hon''ble Supreme Court held that the document in question evidenced a void transaction, and not a mere voidable transaction, and the suit was, therefore, maintainable in view of the bar contained in Section 49 of the Act. The prayer of the plaintiffs for declaration for their rights could be adjudicated upon by the consolidation courts as the saledeed was void.

In my opinion the contention has substantial force; The order of the Deputy Director of Consolidation dated 3131979 has been upheld by this Court and these findings have become final. The respondents 2 aid 3 had themselves filed the writ petition against the judgment of the Deputy Director of Consolidation and after the matter was adjudicated upon between the parties it was held that the saledeed was void and the Consolidation Courts had rightly declared the plaintiffpetitioners to tie the tenureholders. In view of the finality to these finding nothing further was Required to be adjudicated upon by the Civil Court and the learned VII Additional District Judge committed manifest error of law in remanding the case and setting aside the order of the learned Munsif dated 5101988. The learned Munsif has rightly held that the main relief is for declaration and was cognizable by Revenue Court and thereafter the Consolidation Courts have rightly declared the eights of the plaintiffpetitioners treating the saledeed to be void transaction. The reliance placed by the petitioners on the decisions in Om Prakash v. Janki (1965 ALJ 627) and Anirudh Rai v. Court of Revenue (1981 ALJ 1182) which apply to the case with full force. The decision of the Hon''ble Supreme Court in Smt. Dularia Devi (supra) has concluded the controversy and in the above circumstances the impugned order is liable to be set aside.

The wirt petition is accordingly allowed and the order dated 1021990 is quashed. The suit of the respondents (O.S. No. 502 of 1984) is liable to be dismissed.

Writ petition allowed.