Manoj K. Tiwari, J
1. By means of this petition, petitioner has challenged the judgment & order dated 26.09.2016 passed by learned Civil Judge (Junior Division), Laksar,
District Haridwar and the judgment & order dated 22.11.2018 passed by learned Additional District Judge, Laksar, District Haridwar.
2. Petitioner filed a Civil Suit for cancellation of sale deed dated 09.08.2016 with the allegation that Smt. Haneefa (mother of respondent no. 1) had
executed a sale deed in favour of defendant no. 2 Jodh Singh (respondent no. 2 herein) by playing fraud and impersonation. The said suit was
registered as Original Suit No. 100 of 2016 in the Court of learned Civil Judge (Junior Division), Laksar, District Haridwar. Respondent no. 2 moved
an application stating that a notification under Section 4 (2) of the U.P. Consolidation of Holdings Act, 1953 has been issued by the State Government
in the year 2003 and consolidation proceedings are on, therefore, the suit stands abated in terms of Section 5(2)(a) of the Act.
3. Learned trial Court allowed the said application filed by respondent no. 2 and held that the Suit stands abated under Section 5 (2)(a) of the Act.
Petitioner challenged the said order by filing Misc. Civil Appeal No. 54 of 2016, which was dismissed by learned Appellate Court vide judgment dated
22.11.2018. Thus, feeling aggrieved, petitioner has approached this Court.
4. Thus, the short point, which falls for consideration of this Court is whether upon publication of notification under Section 4 (1) of U.P. Consolidation
of Holdings Act, 1954, a suit for cancellation of sale deed in respect of agricultural land pending before a Civil Court abates or not.
5. A Division Bench of Allahabad High Court in the case of Jagannath Shukla Vs. Sita Ram Pande and others, reported in 1969 Allahabad Law
Journal 768, considered this question and held that suit for cancellation of a sale deed, which is pending on the date of notification under Section 4,
should be abated under Section 5 (2). Relevant extract of the said judgment is reproduced below:
“11. The language of the amended Section 5(2) is very wide. It provides for the abatement of suits not only “for declaration of rights or interests
in any land†but also for suits in respect of declaration of rights or interests in any land. In consolidation proceedings, the question whether a sale
deed is binding or not arises during the course of adjudication upon the rights of parties in the land. The decision of this question is, in effect and
substance, in respect of the declaration of the rights or interests of parties in the land. A suit for cancellation of a sale deed is filed to dispel the cloud
on the right and title of the plaintiff in the land; cancellation by itself is no relief, the real relief is that, in spite of the execution of the sale deed, the
plaintiff continues to be the tenureholder. What the plaintiff really wants is that he should be declared to be the tenureholder-whether that is done by
actually cancelling the sale deed or by declaring that the sale deed is not binding and is inoperative. In substance, 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 sale deed in respect of agricultural land is covered by Section 5(2) of
the Act.
12. It was urged by learned counsel for the opposite-parties that the specific relief of cancellation cannot be granted by consolidation authorities. It is
true that the consolidation authorities cannot ask the parties to deliver up the sale deed and cancel it or sent a copy of its order to the Registrar to
make entries in thee original sale deed and in his registers. The form of the relief however is, to our mind immaterial. If the consolidation authorities
hold that the sale deed 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 the tenureholder 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 the civil court can does not affect the question. The suit remains a suit in respect of the declaration or
adjudication of the rights of parties in the land. Learned counsel for the respondents referred as to certain cases which lay down that until a sale deed
is cancelled by a competent court, it must be given effect to. We have no quarrel with this proposition. What we have to decide is whether the
consolidation authorities can go into the question whether the sale deed is binding or not and grant substantially the same relief which the civil court
can. Since we have come to the conclusion that the consolidation authorities have been empowered to grant substantially the same relief in respect of
a sale deed which the civil court can, they must be held to be competent authorities to declare the sale deed not binding and inoperative.
13. We may also mention that we have come across a large number of consolidation cases where the consolidation authorities have gone into the
question of validity of sales, gifts, exchanges, wills and decrees. We have been referred to only two cases, already noticed above, where it was
challenged that the consolidation authorities had no jurisdiction to do so; but we have not been referred to any decision where such objection has been
upheld. In the two cases referred to above, the objection was rejected. It, therefore, appears to be the consistent view of this Court, at least after the
amendment of Sec. 5, that the consolidation authorities have jurisdiction to go into these question and that suits, in which these very questions arise and
which are pending on the date of the notification under Sec. 4 of the Act, should be abated.
14. For these reasons, we are of opinion that suits for cancellation of sale deeds in respect of agricultural plots, which are pending on the date of the
notification under Sec. 4 of the U.P Consolidation of Holdings Act, should be abated under Section 5(2). These two revisions are accordingly allowed.
The order of the Additional Munsif, Varanasi, rejecting the application under Sec. 5 is set aside and Suit No. 219 of 1967 is abated under Section 5 of
the U.P Consolidation of Holdings Act. The order of Munsif. Jaunpur dated August 11, 1967, is also set aside and Suit No. 181 of 1965 is also abated
under Section 5 of the U.P Consolidation of Holdings Act. Parties will bear their own costs of these two revisions.â€
6. A similar question was considered by Hon’ble Supreme Court in the case of Gorakh Nath Dube v. Hari Narain Singh and others, reported in
(1973) 2 SCC 535. Paragraph nos. 4 & 5 of the said judgment are extracted below:-
“4. Ram Adhar Singh v. Ramroop Singh was relied upon by the respondents before us. But, this was a case in which the question considered and
decided by this Court was whether a suit for possession of agricultural land, under Section 209 of U.P. Zamindari and Land Reforms Act, would abate
when Section 5 of the Act does not mention suits for possession. It was held there that the language of Section 5 of the Act, after its amendment, was
wide enough to cover suits for possession involving declaration of rights and interests in land which can be the subject-matter of decisions in
consolidation proceedings. The whole object of this provision of the Act was to remove from the jurisdiction of ordinary civil and revenue courts, for
the duration of consolidation operations, all disputes which could be decided in the course of consolidation proceedings before special courts governed
by special procedure. Such adjudications by consolidation authorities were considered more suitable, just, and efficacious for speedy decisions which
had to be taken in order to enable consolidation operations to be finalised within a reasonable time.
5. There is no decision of this Court directly on the question whether a suit for cancellation of a sale-deed, which was pending on the date of the
notification under Section 4 of the Act, abates under Section 5(2) of the Act. A decision of a Division Bench of the Allahabad High Court, in
Jagarnath Shukla v. Sita Ram Pande, directly dealing with the question before us, was then cited before us. Here, we find a fairly comprehensive
discussion of the relevant authorities of the Allahabad High Court the preponderating weight of which is cast in favour of the view that questions
relating to the validity of sale-deeds, gift deeds, and wills could be gone into in proceedings before the consolidation authorities, because such questions
naturally and necessarily arose and had to be decided in the course of adjudication on rights or interests in land which are the subject-matter of
consolidation proceedings. We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be
disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in
excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would
be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation
proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed
to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare
such documents effective or ineffective, but, 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 to be binding on them
so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff’s claim is that the sale of his half share by
his uncle was invalid, inoperative, and void. Such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the
view expressed by the Division Bench of the Allahabad High Court in Jagarnath Shukla case that it is the substance of the claim and not its form
which is decisive.â€
7. Hon’ble Supreme Court in the case of Gorakh Nath Dube (Supra) had drawn a distinction between a void and voidable documents and it was
held that a void document can be disregarded by any Court or Authority; while, a voidable document has to be actually set aside before it can cease to
have legal effect.
8. In the case of Ram Nath v. Smt. Munna (Second Appeal No. 444 of 1968), learned Single Judge of Hon’ble Allahabad High Court referred the
following question to be decided by a larger Bench:
“Whether a suit for cancellation of a voidable sale deed relating to an agricultural plots pending in civil court will abate under Section 5(2) of the
U.P. Consolidation Holdings Act after issue of a notification under Section 4 of that Act with respect to that village.â€
9. A full Bench of Allahabad High Court answered the question in the negative vide judgment dated 15.11.1975 reported in 1976 R.D. 220. Paragraph
nos. 2, 3 & 4 of the said judgment are reproduced below:
“2. After considering the judgment in Gorakh Nath v. H.N Singh, we are of opinion that it does declare the law about the applicability of Section 5
of the U.P Consolidation of Holdings Act to suits for cancellation of voidable documents. A suit had been instituted for the cancellation of a sale deed
to the extent of a half share claimed by the plaintiff in fixed rate tenancy plots on a payment of Rs. 250/-, or whatever sum the plaintiff may be found
liable to pay and after cancellation of the sale deed to the extent of the plaintiff's share in an award of possession of the plaintiff’s share. There
was no prayer for partition and by asking for possession of his share the plaintiff could only be seeking joint possession after declaration of rights
claimed. The trial court dismissed the plaintiff’s suit. The first appellate court allowed the plaintiff’s appeal and decreed the suit. Defendant
went up in appeal. Whiles the second appeal was pending in the High Court a notification under Section 4 of the U.P Consolidation of Holdings Act
was issued. An application was moved under Section 5 of the Act. But the High Court dismissed the application and decided the appeal on merits.
The appeal was allowed with the result that the suit was dismissed. The plaintiff on special leave went up to the Supreme Court against the decree of
the High Court. A preliminary objection was taken by the defendant to the effect that the suit was liable to be abated by reason of Section 5 of the
U.P Consolidation of Holdings Act. This plea was accepted by the Supreme Court and the suit was directed to be declared as abated.
3. The Supreme Court has noticed in paragraph 3 that the High Court had held that Section 5 did not apply to a case in which possession could be
granted only after cancellation of a sale deed to the extent of half share before awarding possession. Thereafter the Supreme Court found that there
was no decision of that court directly on the question whether a suit for cancellation of a sale deed which was pending on the date of the notification
under Section 4 abated under Section 5 of the Act. It thereafter noticed the decision of this Court in J.N Shukla v. S.R Pande (1). After mentioning
the points decided therein it was observed:
“We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any Court
or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer
would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the
decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of Consolidation proceedings. The existence
and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with
jurisdiction by the necessary implication of their statutory powers to adjudicate upon such rights and interest in land, to declare such documents
effective or ineffective, but 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 to be binding on them so long as it is not
cancelled by a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid,
in-operative, and void such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the
Division Bench of the Allahabad High Court in Jagannath Shuklas case (1), that it is the substance of the claim and not its form which is decisive.â€
A reading of this passage shows that the Supreme Court had not agreed with the decision of this Court in J.N Shukla v. S.R Pande’s case(1) to
the effect that both void and voidable instruments stood at par with reference toSection 5 of the U.P Consolidation of Holdings Act. It had found a
distinction between the two types of documents. The void documents, it found, were invalid and were liable to be disregarded by the consolidation
authorities. So far as the other class of documents, viz., the voidable documents was concerned, the observation of the Supreme Court is clearly to the
effect that their legal effect can be taken away only by their being cancelled or set aside and that the documents could be cancelled only by a court
having power to cancel them and that the documents remain binding so long as they were not cancelled. It is further clear from the judgment that
consolidation authorities had no power to cancel such documents. These observations of the Supreme Court in our opinion, are sufficient declaration of
the law that the documents which are voidable can be cancelled by the Civil courts only and cannot be cancelled by consolidation authorities and they
remain effective till cancelled and liable to be given effect to by Consolidation till they are cancelled by a competent court. In view of this law declared
by the Supreme Court there can be no doubt that the suit in respect of cancellation of voidable sale deed will not abate under Section 5 of the U.P
Consolidation of Holdings Act.
4. We find that the Supreme Court had before it the specific question for decision about the applicability of Section 5 of the U.P Consolidation of
Holdings Act to suits for cancellation of voidable sale deeds. It disagreed with the view of this Court in the Division Bench case of J.N Shukla v. S.R
Pande(1) where the voidable and void documents had been put at par with reference to Section 5 of the U.P Consolidation of Holdings Act and it
pointed out the distinction between the two types of documents and had also given the reasons why a document which was only voidable was
effective till cancelled by a court competent to cancel the same. After laying down this law the Supreme Court applied it to the facts of the case
before it and came to the conclusion that the document was pleaded to be void and for that reason held that the suit was liable to be abated.
5. The judgment of the Supreme Court came up for consideration before a learned Single Judge of this Court in Ram B harose Lal v. Sukhdai (3). It
was held that the effect of the Supreme Court’s decision in Gorakh Nath v. H.N. Singh (2) was that a voidable transfer could only be avoided in a
civil suit and could not be avoided in consolidation proceedings. This view was expressed by of the learned Judges who had given the judgment in the
case of J.N. Shukla v. S.R. Pande (1).â€
10. A single Judge of Hon’ble Allahabad High Court in the case of Havaldar Singh and others vs. Aditya Singh and others reported in AIR 1978
All. 266 following the full Bench judgment rendered in the case of Ram Nath v. Smt. Munna held that a suit for cancellation of a voidable sale deed
relating to agricultural land pending in Civil Court will not abate under Section 5(2) of the U.P. Consolidation of Holdings Act, but the suit would abate
if it is for cancellation of a void sale deed. Relevant extract of the said judgment is reproduced below:
“3. It is no longer in dispute, in view of a decision of a Full Bench of this Court in Ram Nath v. Smt. Munna that a suit for cancellation of a
voidable sale deed relating to agricultural land pending in civil court will not abate under section 5(2) of the U.P. Consolidation of Holdings Act, but the
suit would abate if it is for cancellation of a void sale deed. The question for consideration in the present case is whether the sale deed in question is a
voidable document or is altogether void. The learned counsel contended that on the allegations in the plaint the executant of the sale deed never
applied their mind to execute a deed of sale in favour of the defendants and it must be held that the document was altogether void. Reliance was
placed on Ningawa v. Byrappa Shiddappa Hireknrabar. This case instead of supporting the applicants goes against them. The Supreme Court laid
down the law thus:â€
“It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party
defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests
in the matter which they may enforce against the party defrauded.â€
4. The learned counsel for the applicants referred to the distinction pointed out by the Supreme Court between the contents of the document and the
character of the document and urged that in the present case fraud was alleged with regard to the character of the document and on the principle laid
down by the Supreme Court sale deed involved in the present case would be a void document. The argument is untenable. In the case before the
Supreme Court it was alleged that plots no. 91 and 92 were fraudulently got included in the gift deed although the donor never intended to transfer
those plots. The Supreme Court held the document to be voidable and not void. In the present case also the plaintiffs came forward with the case that
they did intend to execute a sale deed but that was to be in favour of Bechan of his village in respect of certain piece of land but the defendants by
practising fraud got certain other plots mentioned in the document and in place of Bechan they got their own names entered as transferees. The
fraudulent misrepresentation was not with regard to the character of the document but with regard to its contents. The plaintiffs did not deny their
signature on the document. Such a document could not be treated to be a void document. It would have its legal effect unless it is avoided at the
instance of the party defrauded. In my opinion, the court below rightly took the view that the suit of the present nature would not abate under section
5(2) of the U.P. Consolidation of Holdings Act.â€
11. Now coming back to the facts of the present case, petitioner, who is plaintiff in Original Suit No. 100 of 2016 has filed the suit for cancellation of
sale deed in respect of agricultural land with the allegation that Smt. Haneefa, who was the daughter of Shafi, executed the sale deed by playing fraud
and by impersonating as daughter of Gafur.
12. Thus, according to the case set up by the petitioner in the plaint, the sale deed is a voidable document.
13. In view of the legal position as discussed above, a suit for cancellation of a voidable sale deed relating to agricultural land pending in a Civil Court
will not abate under Section 5 (2) of U.P. Consolidation of Holdings Act. Thus, learned Courts below fell into error in holding that the suit pending
before a Civil Court for cancellation of a voidable sale deed shall abate under Section 5 (2) of the Act.
14. In such view of the matter, the writ petition is allowed. The impugned order dated 26.09.2016 passed by learned trial Court as well as the judgment
dated 22.11.2018 passed by learned revisional Court are unsustainable and the same are set-aside. Original Suit No. 100 of 2016 shall stand restored
to the file of learned Civil Judge (Senior Division), Laksar, District Haridwar and shall be proceeded with in accordance with law.
