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PETITIONER: GORAKH NATH DUBE

       Vs.

RESPONDENT: HARI NARAIN SINGH & ORS.

DATE OF JUDGMENT07/08/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: 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  conso- lidation   operations.    Consequently,   the    defendants- appellants filed an application under s.5 of the Act in  the second  appeal.  The High Court by its judgment  dated  5-5- 1967 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

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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]

JUDGMENT: 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,

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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’ 28-9- 1912, 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  conse- quences  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  appro- priate  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,

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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

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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

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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. 344