REPORTABLE

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

J U D G M E N T

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.   

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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

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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.

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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

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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 :

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“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.

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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

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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.

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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 :

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“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

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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; February 17, 2009

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