Sunamani Bewa and Others vs Brajabandhu Patnaik and Others

P.K. Mohanty, J.—Defendants 2, 3, 4 and 12 are the petitioners in the present Civil Revision against the order of the learned District. Judge, Puri in Title Appeal No. 25 of 1992 rejecting the petitioners'' application for an order declaring that the suit as well as the appeal abates in view of Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972.

The short facts giving rise to the present case is that the opp. parties 1 to 19 in their representative capacity as villagers of the suit village, filed a suit, O.S. No. 23/39 of 88/83-I in the Court of the learned Additional Sub-Judge, Puri for declaration of their title over the suit tank and for permanent injunction restraining the defendants from interfering with their possession. The learned trial Court framed as many as 12 issues and decreed the suit as against which the petitioners filed Title Appeal No. 25 of 1992 before the learned District Judge, Puri.

During the pendency of the appeal in the lower appellate Court, the defendant-appellants therein filed an application for an order that the suit out of which the appeal arises and the appeal have abated in view of Section 4(4) of the Orissa Consolidation of Holding and Preventions of Fragmentation Land Act (herein after called "the Consolidation Act"), the suit schedule lands being notified u/s 3 of the Act. The learned lower appellate Court, however, has rejected the application, hence the revision.

The learned lower Appellate Court having found that in effect, the prayer for declaration of title over the suit land made by the plaintiff was dependant upon determination of the nature of the saie deed (Ext. 5) which the defendant assail to be a voidable document and on consideration of the relevant decisions, the learned District Judge, Puri has held that the suit is neither barred u/s 51 of the CPC nor the suit or the appeal liable to abate under the provision of Section 4(4) of the Consolidation Act.

Law is well settled that abatement of a suit in view of Section 4(4) of the Consolidation Act, the substance of the plaint has to be considered and be read as a whole. If it is found that the document in question is void and can be ignored, result is abatement. But in a case of voidable document the only competent forum is the Civil Court. Where alienations are challenged on the ground on which the document, the sale deed would render voidable, the suit would not abate. The learned lower Appellate Court has noted with care the decision of the Apex Court in Gorakh Nath Dube Vs. Hari Narain Singh and Others, in which the Apex Court held that 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 that the Civil Court has the jurisdiction. In Smt. Bismillah v. Janeshwar Prasad and Ors. AIR 1990 SC 540 the Apex Court while considering a case u/s 331 of the U.P. Zamindari Abolition and Land Reforms Act with regard to bar of a suit, while following the decision of Gorakh Nath Dube (supra) took the view that the suits or action for cancellation of a void document will generally lie in the Civil Court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage and redundant. A recorded tenure-holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of seeking relief for cancellation of a void document which made him to approach the Court of Law and in such case-he can also claim ancillary relief even though the same can be granted by the Revenue Court. The jurisdiction of the Civil Court would not be barred when declaration is sought against a person. The Apex Court in a recent decision in Ram Sakal Singh v. Mosamat Monako Devi (Dead) and Ors. AIR 1998 SC 227 considered a case under Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 with regard to abatement of a suit u/s 4(1)(c), thereof and held at paragraphs 8 and 9 as follows :

"8. It thus settled law that if the document is invalid, it can be disregarded by the Court or the authority and it may proceed to consider declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act. Since we have in the present case proceedings before the. Consolidation authorities, it would necessarily imply in the adjudication of a dispute involving conflicting claims in respect of rights or interest in land which is subject matter of the proceedings before the consolidation authorities but if a dispute relating to the land was based upon a document where its validity is impugned, it is for the Court to declare such document effective or ineffective and the legal effect would hinge upon such a declaration. Based thereon, if the document requires to be set aside or cancelled, the Consolidation Authorities under the Act have no power to cancel such deed. Therefore, the proceedings would not abate. As held, but if the document is void, the proceedings in any Court or authority stand abated.

Therefore, the Civil Court gets jurisdiction to declare the document to be voidable. In consequence, the notification u/s 3(1) does not have the effect of abatement u/s 4(1)(c) of the Act. If the document is void, there would be no need to set aside or cancel the document/deed. Then the Consolidation Authorities get exclusive jurisdiction to deal with all questions relating to declaration of a right or interest in any land or for declaration or adjudication of any other right in regard to such proceedings. The Court or authority before whom any suit etc. is pending should record that the suit or proceedings have abated leaving it to the parties to avail of the remedy under the Act."

In view of the conspectus of the decisions referred to above, there cannot be any manner of doubt that where a document requires to be set aside or cancelled, the consolidation authorities under the Act have no power to cancel such a deed and, therefore, the proceedings in a Civil Court would not abate. Only in cases where the document is void ab initio the proceeding pending in any Court shall stand abated. In the case at hand, it is the case of the defendants-petitioners itself in their written statement that the sale deed (Ext. 5), which is the basis of claim of the plaintiffs is voidable on the ground of lack of legal necessity inasmuch as after attaining majority late Kanduri who executed the sale deed (Ext. 5) through his grand father Ananta in 1931 in respect of the suit tank in favour of one Brundaban Das, executed a sale deed in respect of the suit tank in favour of the contesting defendants. The question, therefore, that was necessary to be considered and was considered by the trial Court was whether the alleged sale by Ananta, the grand-father, is binding against Kanduri, the minor at the time of execution of the sale deed. The prayer for declaration of title over the suit land, therefore, depended on the adjudication of the binding nature of sale deed (Ext. 5), which the defendants challenged to be voidable.

In such view of the matter, the appeal as well as the suit out of which it arises before the lower Appellate Court does not abate in terms of Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. The learned lower Appellate Court having rightly held so, there is no illegality or infirmity in the impugned order calling for interference of this Court in its revisional jurisdiction.

In the result, the Civil Revision is dismissed being devoid of any merit.