Gorakh Nath Dube Vs. Hari Narain Singh
& Ors [1973] INSC 132 (7 August 1973)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
MATHEW, KUTTYIL KURIEN
CITATION: 1973 AIR 2451 1974 SCR (1) 339 1973
SCC (2) 535
CITATOR INFO:
F 1990 SC 540 (5) F 1990 SC1173 (4,6,7) C
1991 SC 249 (11)
ACT:
Consolidation of Holdings Act
S.5(2)-Plaintiff claiming that land in question belonged to Hindu Undivided
Family-Claiming cancellation of sale deed in respect of land and possession of
his half share-Appeal in suit pending In High Court when land in question came
under consolidation operation Appeal whether abates.
HEADNOTE:
The plaintiff-appellant filed the present
suit for the cancellation of a saledeed dated 12-4-1932 to the extent of a half
share claimed by him in certain plots of land and for the award of possession
of the said half share. According to the plaintiff the vendor, who was his
uncle had purchased the plots in question on behalf of the joint Hindu family
which provided the funds for the purchase of the plots. The trial court
dismissed the plaintiff's suit on 4-1-1960. The District Judge allowed the
plaintiff's appeal, and decreed the suit on 30-4-62. The defendants-respondents
filed a second appeal to the High Court on 18-8-1962 which was admitted for
hearing. During the pendency of the second appeal, a notification under s. 4 of
the U.P. Consolidation of Holdings Act of 1954 was published in the Government
Gazette on 22-10-1966 declaring that the village in which the plots in dispute
were situated had come under consolidation operations. Consequently, the
defendantsappellants filed an application under s.5 of the Act in the second
appeal. The High Court by its judgment dated 5-51967 after dismissing the
defendants' applications under s.5 of the Act dealt with the merits of the case
and accepted the appeal of the defendants-appellants. The High Court took the
view that section 5 did not apply to a case in which the possession could be
granted only after cancellation of the sale-deed to the extent of half before
awarding possession. In the plaintiff's appeal to this Court by special leave,
the defendants-respondents raised a preliminary objection to the hearing of the
appeal on merits on the ground that the High Court should have held that the
Dlaintiff's suit before it had abated under s.5(2) of the Act.
Allowing the appeal,
HELD : 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.
All 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 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 present case the plaintiff's claim was 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.
Accordingly it must be declared that the suit
of the plaintiff had abated under s.5 of the Act. [342C-F] Ram Adhar Singh v.
Ramroop Singh & Ors. [1968] 2 S.C.R. p. 95 and Jagarnath Shukla v. Sita Ram
Pande & Ors. 1969 A.L.J.
768, referred to.
340 Since the High Court had dismissed the
plaintiff's appeal it was not necessary for the defendants to appeal against
the order of the High Court dismissing their application under ss. 4 & 5 of
the Act, and the defendants were accordingly not precluded from raising the
preliminary objection based on ss. 4 & 5 of the Act in this Court. [343D-E]
[Appropriate directions given]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1579 of 1967.
Appeal by special leave from the Judgment and
Order dated 5th May, 1967 of the Allahabad High Court in Second Appeal No. 2753
of 1962.
J. P. Goel and S. M. Jain, for the appellant.
Bishan Narain, Suresh Sethi, R. K. Maheshwari
and B. P.
Maheshwari, for respondents 1-4.
The Judgment of the Court was delivered by
BEG, J. The Plaintiff-Appellant, Gorakh Nath Dube, before us by grant of
special leave against the judgment and decree of the High Court of Allahabad
allowing a Defandants' second appeal, had filed a suit for the cancellation of
a sale deed, dated 12-4-1932, 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, for 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 plaintiff based his claim in the fixed
rate tenancies on the ground that, although, the vendor Sukhpal Dube, his
uncle, had, on' 28-91912, ostensibly singly and separately purchased the plots,
which were the subject matter of the impugned sale, yet, actually, this was an
acquisition on behalf of the joint Hindu family which provided the funds for the
purchase of the plots. The Trial Court had dismissed the plaintiff's suit on
4-1-1960. The learned District Judge of the Jaunpur had allowed the plaintiff's
appeal and decreed the suit on 30-4-1962. The Defendants-Respondents before us
then filed a second appeal in the High Court on 18-8-1962 which was admitted
for hearing. During the pendency of the second appeal, a notification under
Section 4 of the U.P.
Consolidation of Holdings' Act of 1954
(hereinafter referred to as 'the Act) was published in the Government Gazette
on 22-10-1966 declaring that village Kukuripur, in which the plots in dispute
were situated, had come under consolidation operations. Consequently, the
Defendants-Appellants filed an application under Section 5 of the Act in the
second appeal. The High Court, by its judgment dated 5-5-1967, after dismissing
the Defendant's application under Section 5 of the Act, dealt with the merits
of the case and accepted the appeal of the Defendants-Respondents.
Learned Counsel for the Defendants-Respondents
has taken a preliminary objection to the bearing of this appeal on merits by us
on the ground that the High Court should have held that the plaintiff's suit
before it had abated under the provisions of Section 5(2) of the Act which
reads as follows 341 .lm15 "5 (2) Upon the said publication of the
notification under sub-section (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 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 :
Provided that no such order shall be passed
without giving to the parties notice by post or in any other manner and after
giving them an opportunity of being heard :
Provided further that on the issue of a
notification under sub-section (1) of Section 6 in respect of the said area or
part thereof, every such order in relation to the land lying in such area or
part, as the case may be, shall stand vacated;
(b) such abatement shall be without prejudice
to the rights of the persons affected to agitate the right or interest in
dispute in the said suits or proceedings before the appropriate consolidation
authorities under and in accordance with the provisions of this Act and the
rules made thereunder".
The learned Judge who heard and disposed of
the second appeal 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 before awarding possession.
Ram Adhar Singh v. Ramroop Singh & Ors.
(1), 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 & 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.
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 (1) [1968] (2) S.C.R. p. 95.
342 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 & ors.(1)
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's case (Supra), that it
is the substance of the claim and not its form which is decisive.
Learned counsel for the Plaintiff-Appellant
tried to urge before us, on the strength of a copy of a judgment of the
Settlement Officer, Consolidation, Jaunpur, dated 24-1-1968, filed with an
affidavit in opposition to Defendants Respondents' application under Sections 4
& 5 of the Act made before us, that the Settlement Officer himself had held
that consolidation authorities had no jurisdiction to decide the case now
before us by special leave. After going through the order of the Settlement
Officer-, we find that he did not reach any such conclusion. All that the
Settlement Officer did was to stay the appeal pending before him until the
appeal by special leave pending before this Court is decided here. We may
observe that this was a very correct and proper coarse for the Settlement
Officer to adopt. He did not make any observations about the absence of his own
jurisdiction. And, he could not properly make any observation about the
existence or absence of the jurisdiction (1) 1969 A. L..J. 768.
343 of this Court to decide the merits of the
case pending before us because this question was likely to arise before this
Court and has been raised in the case before us now.
It is obvious to us that the result of the
order of the Settlement Officer is that, after the disposal of this appeal by
special leave by us, the appeal pending before the Settlement Officer can be
revived and an appropriate decision on merits on respective claims taken by him
in view of Section 52, sub-sec. (2) of the Act, which provides, inter-alia,
that, despite a notification under Section 52(1) of the Act, closing
consolidation operations in a village, cases or proceedings pending under the
Act on the date of the issue of notification under Section 52(1) will be
decided as though consolidation operations had not terminated. The result is
that the Parties are not deprived of an appropriate form for a decision on the
merits of the case before us about which we deliberately refrain from making
any observations.
It may be mentioned here that Shri J. P.
Goyal, appearing for the Plaintiff-Appellant, had also contended that the
Defendants-Respondents were precluded from raising the preliminary objection as
they had not appealed from the order of the High Court dismissing. their
application under Sections 4 & 5 of the Act. We find that the merits of the
question raised by the application were dealt with in the body of the judgment
allowing the second appeal and dismissing the plaintiff's suit which is under
appeal before us. The Defendants-Respondents are only seeking to support the
judgment of dismissal of the suit on another ground which was available. It is
true that there is a very short separate order of the High Court also on the
application of the Defendants Respondents in the High Court under Sections 4
& 5 of the Act stating that the application is dismissed for the reasons
given in the body of the judgment in the case. We, however, think that the
Defendants-Respondents were justified in not appealing separately from it as
the, there could be no res-judical against them when the plaintiffs suit was
dismissed by the High Court. It has been rightly contended, on behalf of the
Defendants Respondents, that, as they had secured their object, which was the
dismissal of the suit, there was nothing left for them to appeal against.
Upon the facts and circumstances mentioned
above, we think that the preliminary objection of the Defendants Respondents,
in support of which they have filed a separate application in this Court also,
under Sections 4 & 5 of the Act, has to be accepted for the reasons given
above. But, we also think that there is some force in the objection on behalf
of the Plaintiff-Appellant that, if we allow the decree of the High Court to
stand, the disposal of the claims on merits by the consolidation authorities
may be hampered. Accordingly, we allow this appeal and set aside the judgments
and decrees of the High Court as well as of the two Courts below it, so that it
is clear that there is no decision anywhere else on merits of the claims which
must now be decided by consolidation courts. We also allow the Civil
Miscellaneous Petition No. 2452 of 1970 of the Defendants-Respondents under
Sections 4 & 5 of the Act, and, we declare that the suit of the
Plaintiff-Appellant has abated. The parties will bear their own costs
throughout.
G.C.
Appeal allowed.
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