Madan Mohan Mishra Vs.
Chandrika Pandey [2009] INSC 346 (17 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATGE JURISDICTION CIVIL APPEAL NO.1078 OF 2009 (Arising
out of SLP (C) No.14015 of 2006) Madan Mohan Mishra ... Appellant Versus
Chandrika Pandey (Dead) by LRs. ... Respondents
S.B. Sinha, J.
1.
Leave
granted.
2.
Whether
jurisdiction of the Civil Court is barred in respect of grant of a relief for
setting aside a deed of gift in terms of Section 49 of the U.P.
Consolidation of
Holdings Act, 1953 (for short, `the 1953 Act') is in question in this appeal.
It arises out of a judgment and order dated 26.5.2005 passed in CMWP No.1920 of
1999 passed by a learned Single Judge of the High Court of Judicature at
Allahabad.
3.
The
basic fact of the matter is not in dispute.
One Ram Baran Tewari
was the owner of the property. He died on 12.7.1927 leaving behind two sons,
Devki Nandan and Lalta Tewari as also a daughter Bishundai. Lalta Tewari died
on 4.3.1927 leaving behind his widow, Bhagwanta Kunwar. Bhagwanta Kunwar died
on 10.8.1949. Devki Nandan died on 3.12.1952 leaving behind a daughter Parma
Devi. Murli Dhar Mishra, Madan Mohan Mishra and Akhilesh Mishra are her sons.
Bishundai died
leaving behind her daughter Ghoora Devi. Respondent Chandrika Pandey is her
husband.
4.
Bhagwanta
Kunwar filed a suit for partition in the year 1949 in terms of the provisions
of U.P. Tenancy Act claiming half share in the properties of the said Ram Baran
Tiwari. The said suit was decreed by a judgment and order dated 17.7.1954.
5.
Questioning
the legality or validity of the said decree, Madan Mohan Mishra, appellant
herein, filed a suit for cancellation of the said decree.
During the pendency
of the said suit, Bhagwanta Kunwar executed a deed of gift in favour of the
respondent herein whereafter the plaint was amended, inter alia, claiming for a
decree for setting aside the said deed of gift.
Indisputably, in the
year 1972-73, consolidation proceedings started in the village in terms of
Section 5 of the 1953 Act. The suit was, in view thereof, held to have abated.
It is stated that the said order has attained finality. It is furthermore
stated that no objection was filed by the appellant herein in the said
consolidation proceedings. Akhilesh Mishra is stated to have filed an objection
before the Consolidation Officer which was rejected on 31.7.1979. An appeal
preferred thereagainst was dismissed on 5.8.1983.
A Revision Petition
was filed thereagainst which was dismissed on 11.4.2002. It is stated that the
writ petition has been filed thereagainst before the Allahabad High Court which
is said to have been pending.
6.
Madan
Mohan Mishra again filed a suit for a decree for injunction and in the
alternative for recovery of possession in the year 1994 which was marked as
suit No.510 of 1994. The learned Trial Judge held the said suit to be barred
under Section 49 of the 1953 Act. However, on an appeal preferred thereagainst,
the First Appellate Court reversed the said judgment and order dated
14.12.1998.
By reason of the
impugned judgment, the High Court has allowed the writ petition filed by the
respondents herein.
7.
Mr.
S.P. Singh, learned senior counsel appearing on behalf of the appellant, would
contend that keeping in view the fact that the purported 4 deed of gift
executed by Bhagwant Kunwar not only consisted of agricultural properties but
also homestead properties, a suit for setting aside the said deed as invalid is
not barred under the provisions of the 1953 Act.
8.
Our
attention in this behalf has been drawn to the provisions of U.P. Zamindari
Abolition and Land Reforms Act, 1950 and, in particular, the interpretation of
the term `land' as contained in Section 3(14) thereof as also Section 143 to
contend that by no stretch of imagination, non-agricultural land could be
brought within the purview of the provisions of the said Act which was enacted
only to consolidate the agricultural holdings. The learned counsel would
contend that jurisdiction of a Civil Court for passing a decree for
cancellation of a deed of gift is not barred as the same is void and not
voidable. It was furthermore urged that the jurisdiction of a Civil Court in
such matters should be upheld in order to avoid multiplicity of proceedings. It
was submitted that the High Court should have determined the issue and should
not have allowed the writ petition by a cryptic order.
9.
Mr.
S.R. Singh, learned senior counsel appearing on behalf of the respondent, on
the other hand, would contend that the orders dated 17.7.1973 passed in Civil
Suit No.550 of 1969 having attained finality, the impugned judgment warrants no
interference.
10.
Appellant
before us was plaintiff in both the suits. In the list of dates, Bhagwant
Kunwar, wife of Lalta Tiwari is said to have expired on 10.10.1949 which is not
correct as she was impleaded as a party in suit No.550 of 1969 as the first
defendant. She, thus, must have expired after 1969. The said suit was in
respect of certain `Araji' properties which are agricultural in nature. In
paragraph 6 of the plaint, it has been accepted that a final decree dated
17.7.1954 was passed in the aforementioned suit No.12 of 1949 in respect of the
`Araji' mentioned in Item No.(3) which was allotted in her favour and Item
No.(b) was allotted in the share of the plaintiff and the defendant No.3.
One of the grounds
taken in the plaint was that the first defendant therein obtained final decree
in respect of good and fertile lands in more than what could be allotted in her
share. Such a statement was evidently made as the lands in suit were
agricultural lands.
11.
The
reliefs prayed for in the said suit are as under :
"a. That this
Hon'ble Court may be pleased to pass a decree of declaration declaring that the
decree dated 6.6.51 and 17.7.54 passed in the Suit No.12 under Section 49/59 of
Act No.17 of 1939; Most. Bhagwanta Versus Murlidhar & Ors. passed by the
Court of J.O. Sahab, Ghosi, District Azamgarh, and the Hibbanama dated 9.1.70
executed by Most. Bhagwanta Kunwar in 6 favour of Chandrika Pandey, Defendant
No.2 and in against of the plaintiff and the defendant No.1 is null and void.
b. If due to any
legal reason due to the defendants it is proved in the court that the plaintiff
and the defendant No.3 has been dispossessed from the Araji Property mentioned
in Item No. (a) then this Hon'ble Court may be pleased to pass a decree of possession
over the Araji property mentioned in item (a) in favour of the plaintiff and
the defendant No.3 and against the defendants 1st party.
c. Cost of the
litigation may be granted in favour of the defendants 1st party."
The Schedule appended
to the said suit as also in averments made in the plaint do not suggest that
the same contained any homestead or non- agricultural property.
12.
The
order dated 17.7.1973 directing abatement of the said suit has attained
finality. Appellant did not question the correctness or otherwise of the said
order. He also did not file any objection in the consolidation proceedings
contending that the same involved non-agricultural lands. It is in the
aforementioned premise, we may consider the nature of the suit filed by the plaintiff
in the year 1994 being suit No.510 of 1994, paragraph 2 whereof reads as under
:
7 "That the
plaintiff is the owner in possession of the Plot Nos.15/1.260, 16/289, 82/600,
140/745, 274/67, 488/117, 489/68, 423,55, 439/489, 323/122, 14/30, 46/31,
148/325, 260/54, 491/115, 835/398 as co-khatedar and successor since prior to
the zamindari abolition and are cultivating the land."
13.
It
is not in dispute that the term `co-khatedar' means `co-tenure holder'. It is
not only that for the first time in the plaint an averment was made that deed
of gift, inter alia, contained some house properties, further averments made in
the said plaint revealed that the name of the respondent herein had been
entered in the records of the consolidation proceedings in respect of Plot
No.153/08, 185/148, 504, 1.360, 611/304.
The reliefs prayed
for therein are as under :
"(a) That this
Hon'ble Court may graciously be pleased to pass a decree of permanent
injunction in favour of the plaintiff and against the defendant pertaining to
the suit property. The defendant may be ordered to not transfer the Araji
No.153/87, 185/148, 504, 1.360, 611/304 which is in possession of the
plaintiff."
We have noticed
hereinbefore that the Araji lands are agricultural lands.
14.
Suit
No.510/94 covers the same property which was the subject matter of Suit No.550
of 1969. As noticed hereinbefore, the said suit has abated by an order dated
17.7.1973. Another suit by the appellant, therefore, would not only be barred
by res judicata but also under Order II Rule 2 of the Code of Civil Procedure.
Furthermore, appellant had not filed any objection in the consolidation
proceedings, which again go to show that it was accepted that the lands in
question were agricultural lands.
15.
Section
49 of the Act reads as under:
"49. Bar to
Civil Court jurisdiction-- Notwithstanding anything contained in any other law
for the time being in force, the declaration and adjudication of rights of
tenure-holders in respect of land by the lying in an area, for which a
notification has been issued under Sub-section (2) or Section 4, or
adjudication of any other right arising out of consolidation proceedings and in
regard to which a proceeding could or ought to have been taken under this Act,
shall be done in accordance with the provisions of this Act and no Civil or
Revenue Court shall entertain any suit or proceeding with respect to rights in
such land or with respect to any other matters for which a proceeding could or
ought to have been taken under this Act :
Provided that nothing
in this section shall preclude that Assistant Collector from initiating
proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 in respect of any land, possession over which has been
delivered or deemed to be 9 delivered to a Gaon Sabha under or in accordance
with the provisions of this Act."
16.
Jurisdiction
of the Civil Court not only in respect of the matters which are specified
therein but also the matters which could and ought to have been the subject
matter of the proceedings under the said Act is barred.
The words of the said
section are absolutely clear and unambiguous.
We have, however, no
doubt in our mind that the distinction between the void and voidable document
as has been noticed by this Court in Gorakh Nath Dube v. Hari Narain Singh
& Ors. [(1973) 2 SCC 535] cannot be lost sight of. {See Prem Singh &
Ors. v. Birbal & Ors. [(2006) 5 SCC 353]}.
But for the purpose
of attracting the said distinction, clear averments were required to be made in
the plaint. We have noticed hereinbefore the averments made in the suit.
19. Mr. S.P. Singh,
relied upon a decision of this Court in Smt. Dularia Devi v. Janardan Singh
& Ors. [AIR 1990 SC 1173], wherein this Court held that when a representation
has been made in regard to the character of a document, the deed would be
totally void. We are not concerned with such a question before us.
10 In Audhar &
Ors. v. Chandrapati & Ors. [(2003) 11 SCC 458], a Division Bench of this
Court upon noticing Section 49 of the 1953 Act, opined that Section 49 of the
1953 confers exclusive jurisdiction under the Act and the jurisdiction of the
Civil Court is barred, stating :
"The Authorities
under the Consolidation Act of 1953 could justifiably conclude their
proceedings under that Act despite pendency of second appeal against the order
of the first appellate court declaring the proceedings in the civil suit to
have abated.
We find that the main
issue on fact is concluded against the appellants. The lands in the khatas in
question are found to be tenancy lands of the classes "bhumidhari"
and "Sirdari". They are not sir or khudkasht lands. Under the special
mode of succession provided under the tenancy law widow Akashi inherited
absolute title to 1/4th share of her husband and she could execute a valid gift
deed in favour of her daughters.
The present legal
position as it stands during pendency of the second appeal before the High
Court is that the civil court's decree declaring the gift deed as invalid has not
attained finality because during pendency of proceedings under the
Consolidation Act of 1953 had commenced and the jurisdiction of the civil court
stood ousted.
We, therefore, find
no merit in any of the contentions advanced on behalf of the appellants." Yet
again in Narender Singh & Ors. v. Jai Bhagwan & Ors. [(2005) 9 SCC
157], this Court, upon noticing GND (supra), stated the law, thus :
11 "The learned
counsel for the respondents is right in his reply that the lands being
exclusively recorded in the name of the father, the sons who claim joint
ownership in the lands could and ought to have approached the authorities under
the Act for getting them jointly recorded in the revenue papers. Such
proceedings for recording them as joint owners having not been initiated under
the Act of 1953, the High Court was right in invoking bar against such plea in
the suit in accordance with Section 49 of the Act. We find that the contention
advanced and accepted by the High Court gets full support from the following
observations of this Court in the case of Sita Ram5 :
`13. In the instant
case Respondent 1 was claiming an interest in the land lying in the area
covered by notification issued under Section 4(2) on the basis that he is the
son of Chhota, brother of Nanha and that the lands were recorded in the name of
Nanha in a representative capacity on behalf of himself and his other brothers.
This claim which fell within the ambit of Section 5(2) had to be adjudicated by
the consolidation authorities. Since it was a matter falling within the scope
of adjudicatory functions assigned to the consolidation authorities under the
Act the jurisdiction of the civil court to entertain the suit in respect of the
said matter was expressly barred by Section 49 of the Act and the suit of the
appellant was rightly dismissed on that ground.' The argument that revenue
entry in the name of the father should have been treated as in representative
capacity for the sons is misleading.
Whether the father
was karta and manager of the family and as such could be recorded in
representative capacity for all co-owners in the family was also a question of
title which fell within exclusive jurisdiction of the authorities under the
Act."
The jurisdiction of
the Civil Court, therefore, is clearly barred as it is evident that subject
matter of both the suits is agricultural lands only. It is not, therefore,
necessary for us to go into the question with regard to the effect of a prayer
made in a suit for setting aside the deed of gift in terms of Section 31 of the
Specific Relief Act, 1963 or otherwise.
20. In view of the
aforementioned findings, it is not necessary for us to enter into other
contentions raised by Mr. S.N. Singh.
21. The appeal is
dismissed with costs. Counsel's fee assessed at Rs.10,000/- (Rupees ten
thousand only).
..............................J.
[S.B. Sinha]
..............................J.
[Dr. Mukundakam Sharma]
New
Delhi;
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