Ram Sewak Rai Vs Dhaneshwar Thakur and Others

S.K. Choudhri and Abhiram Singh, JJ.@mdashThis revision by defendant 4 (defendant 2nd party) is directed against order dated 25.1.80 passed by the Munsif, Sitamathi (East) in Title Suit 63 of 1979, holding that the suit has not abated u/s 4(c) of the Bihar Consolidation or Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act 22 of 1956), hereinafter toe referred to as the ''Act''.

2. The plaintiffs (opposite parties 1 and 2) filed the aforesaid suit for declaration that the sale deed dated 17.8.79 executed by Kamal Thakur, defendant 1, who is opposite party 3 in this application, in favour of the petitioner, is illegal void and inoperative and for a direction that defendants 1st party (opposite parties 3, 4 and 5 of this application) be restrained permanently from cutting away the trees standing on the suit land. The plaintiffs'' case in short is that one Henbansh Thakur died leaving behind his widow Rajkali Devi, and four sons, namely, Kamal Thakur, Hulas Thakur Ramswarath Thakur and Dhaneshwar Thakur. According to the plaintiffs, after the death of Harbansh Thakur, the aforesaid heirs inherited the property and they had one-fifth share each in the property inherited by them. These properties have been described in schedule 2 of the plaint. It is the further case of the plaintiffs that Kamal Thakui, defendant 1, would have only 61 decimals of the land out of the joint family property which was equivalent to his 1/5th share but he had sold 63 decimals of the land and also subsequently sold 15 decimals of land out of plot 2282, knata 24 situate in village Majaura described in schedule 1 of the plaint. on 17.8.79 to the petitioner (defendant 4) for Rs. 2,000/-. According to the plaintiffs, schedule 2 lands of the plaint are joint family properties. With these allegations, the plaintiffs have filed the aforesaid suit.

3. During the pendency of the suit, the petitioner filed an application u/s 4(c) of the Act praying therein that order be passed that the suit has abated. A rejoinder was filed to the said application by the plaintiffs contesting the said application. The Court below, by the impugned order aforesaid, rejected the said application and held that the suit has not abated. Hence, the present revision application.

4. This revision application was originally placed for hearing before a learned single Judge of this Court, who by order dated 4.10.1982, has referred the case to a Division Bench and that is how it has been placed before us for hearing.

5. Mr. A.N. Chaterjee, learned Counsel appearing on behalf of the petitioner, contended that the allegations made in the plaint clearly make out a case which would be covered by Section 4(c) of the Act and, therefore, the Court below acted illegally and with material irregularity in the exercise of its jurisdiction in rejecting the application and holding that the suit has not abated. He contended that the reliefs claimed in the suit would be covered by Clause (c) of Section 4 of the Act and, therefore it has to be held that the suit had abated. Mr. Naresh Chandra Verma, learned Counsel appealing for the plaintiffs opposite parties, on the other hand, supported the order of the Court below and contended that the suit would not fall within Section 4(c) of the Act. It is, therefore, necessary to quote Section 4(c) of the Act, which reads thus:

Upon the publication of the notification under Sub-section (1) of Section 1 in official gazette the conseqences, as hereinafter set forth, shall subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, namely--

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(c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaring adjudication of 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....

There are several provisos to this section but they are not necessary to be quoted as they are not relevant for the decision of this case.

6. In support of the submission, Mr. Chaterjee relied upon the Supreme Court decision in Gorakh Nath Dube Vs. Hari Narain Singh and Others, . He contended that his submission should be accepted in view of the aforesaid Supreme Court decision. It appears from the facts of the Supreme Court decision that when a second appeal was pending in the High Court which was filed by the defendants a notification u/s 4 of the U.P Consolidation of Holdings Act, 1954 was published in relation to the village in which the disputed lands were situate Accordingly an application u/s 5 of the U.P. Act was filed before the Allahabad High Court in that second appeal. But the same was rejected and the appeal was decided on merits. Ultimately, the matter went to the Supreme Court. In that suit, out of which the matter went to the Supreme Court, the sale deed executed by the uncle of the plaintiff dated 12.432 to the extent of half share was challenged by the plaintiff to be invalid, inoperative and void; prayer for possession was also made in the suit, of the plaintiff''s share. While dealing with the question of abatement, the learned Judges of the Supreme Court in paragraph 5 has referred to a Bench decision of the Allahabad High Court in Jagamarh Shukla v. Sita Ram Pande 1969 A.L.J. 768. That was a suit for cancellation of a sale deed and during the pendency of the suit a notification was issued under the U. P. Consolidation Act. The Allahabad High Court held that the suit had abated. The learned Judge of the Supreme court, dealing with the Bench decision of the Allahabad High Court, fully approved the said decision and held that "it is the substance of the claim and not its form which is decisive". While discussing the said Bench decision of the Allahabad High Court, their Lordships of the Supreme Court have stated, inter alia, as follows:

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 adjudications 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 if. 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.

The Supreme Court allowed the appeal and held that the appeal as also the suit abated.

7. The learned Counsel for the petitioner next relied upon the Pull Bench decision of this Court in Ramkrti Singh v. The State of Bihar 1979 PLJR 161. He referred only to paragraph 16 of this Full Bench decision where Oorak Nath Dubey''s case (supra) has been referred to. Like the Supreme Court decision in paragraph 16 of the Full Bench decision, a distinction has been pointed out between a case where a document is wholly or partially invalid and a case where a document is required to be set aside by a Court before it can cease to have its legal effect. It has been stated therein that in the latter class of cases question of abatement would not arise.

8. Corning now to the present case, it has already been indicated above that an allegation has made in the plaint that Kamal Thakur, defendant 1, had already sold more than his share before execution of the sale deed in question, namely, the sale deed dated 17.8.79 and, therefore the suit has been brought for a declaration that the sale deed is illegal, void and inoperative. We do not find any difficulty in accepting the contention of Mr. Chaterjee that such suit would what in view of the aforesaid decision of the Supreme Court.

9. For the reasons stated, above, it has to be held that the suit has abated. In the result, the application is allowed and the impugned order is set aside. In the circumstances there will be no order as to costs.