1. Heard Shri S.C. Sitapuri, learned counsel for the petitioners and Shri Sudhir Kumar Mishra, learned counsel for the opposite parties.
2. This writ petition has been filed under Article 226 of the Constitution of India for a Writ of Certiorari for quashing the judgment and order dated 05.07.2005 passed by the Deputy Director of Consolidation, Sitapur (here-in-after referred as DDC, Sitapur) in Revision No.302/283/270/266/204/80//66, Cheddu and Others Vs. Bharat and Others, under Section 48 of the Consolidation of Holdings Act, 1953 and for a writ of mandamus to the opposite parties not to disturb the petitioners' possession over the disputed land i.e. Gata No.408 (Khata No.120).
3. The land in dispute was originally owned by late Aziz Khan S/o Pahelwan Khan .He sold the land to the petitioners namely Bharat Prasad, Ram Pal, Bhagwan Deen, Ramhetu and Raja Ram through a registered sale deed on 03.09.1982. In pursuance thereof the petitioners filed a mutation case which was decided in their favour and the names of the petitioners were recorded. One Israr, claiming him to be nephew of late Aziz Khan, filed a suit bearing no.423 of 1982 for cancellation of sale deed dated 03.09.1982 before the Munsif, Sitapur. The suit was dismissed by means of the order dated 29.05.1984. Israr filed a Civil Appeal No.83 of 1984 against the said order which was dismissed by means of the order dated 13.03.1985 holding that the suit was not triable by the civil court and it could have only been instituted before the Revenue Court. It was also held that the findings drawn by the learned Munsif will have no effect on the right, title and interest of the parties of the suit as the same was without jurisdiction. It appears that Israr had not filed any suit thereafter before the Revenue Court. However, one late Cheddu filed an objection under Section-9A(2) of the U.P. Consolidation of Holdings Act, 1953 (here-in-after referred as the Act) before the Assistant Consolidation Officer in the year 1993 stating that the suit was filed under Section 229-B by him for declaration. The suit was abated on account of start of the consolidation proceedings. The objection was allowed by the Consolidation Officer, Sitapur by means of the order dated 26.11.1998. The petitioners filed an appeal under Section 11(1) of the Act before the Settlement Officer of Consolidation which was allowed by means of the order dated 06.02.1999. Hence the opposite parties no.2 to 5 filed a revision under Section-48 of the Act before the D.D.C., Sitapur. The revision was allowed by means of the order dated 05.07.2005 hence the present writ petition has been filed.
4. Learned counsel for the petitioners had submitted that the petitioners are the recorded tenure holders of the land in dispute on the basis of registered sale deed executed by late Aziz Khan. In mutation proceedings, on the basis of said sale deed, no objection was filed by the opposite parties. Israr or anybody else had not filed any application for mutation on the basis of succession. The suit filed by Israr was dismissed by the civil court on merit after considering the pleadings and evidence adduced before it. The appeal was dismissed on the ground that the suit can be filed before the Revenue Court. The said order was not challenged. There is no evidence that any suit was filed before the Revenue Court. He further submitted that the sale deed in favour of the petitioners has been questioned on the ground of impersonation by some other person in place of late Aziz Khan, therefore the Revenue Court has no jurisdiction to cancel it or declare void. It can be cancelled or declared void only by the civil court.
5. He further submitted that the objection under the Act was filed during consolidation proceedings by late Cheddu, father of all the opposite parties no.2 to 6 but no objection was filed by Israr. There is no evidence that the father of the opposite parties no.2 to 6 was the nephew of late Aziz Khan, though he has been treated by the criminal court but that can not have been relied without any proof in view of the fact that Israr had claimed himself the only nephew of late Aziz Khan in the proceedings before the civil court. There is no finding on possession but the revision was allowed. He further submitted that Israr had claimed that his father has only two brothers, late Aziz Khan and Ali Sher Khan and he was son of Ali Sher Khan whereas in the proceedings before the Consolidation Officer, five brothers have claimed but the pedigree was not proved.
6. On the basis of above, learned counsel for the petitioners had submitted that the impugned order has been passed without application of mind in an arbitrary and illegal manner. Therefore it is not sustainable in the eyes of law and liable to be quashed. Learned counsel for the petitioners relied on Indra Pal & Others Vs. Jagannath & Others; 1993 (11) LCD P.45, Sumesar & Others Vs. Smt. Mangla; 1993 (11) LCD P.533 and Tej Bhan Singh & Others Vs. II Additional District Judge, Jaunpur; ACJ 1994 P.911.
7. Per contra, learned counsel for the opposite parties had submitted that the sale deed, on the basis of which the petitioners are claiming, was a void document as it was got executed by some other person in place of late Aziz Khan therefore it was a void document and the same could have been challenged and declared void by the Revenue Court. It is settled proposition of law that after publication of notification under Section-4 of the Act all the powers vest in the consolidation courts who can consider all the questions including the void document. Accordingly, considering the same the Consolidation Officer and the revisional court have rightly decided the case in favour of the opposite parties by concurrent finding. There is no illegality or error in the impugned orders.
8. On the basis of above, learned counsel for the opposite parties had submitted that the writ-petition is misconceived and lacks merit and is liable to the dismissed. Learned counsel for the opposite parties relied on Smt. Dularia Devi Vs. Janardan Singh & Others; 1990 AIR 1173, Kamla Prasad and Others Vs. Sri Krishna Kant Pathak and Others; (2007) 4 SCC 213 and Smt. Ramdei (Dead) through LRs & Others Vs. Rampati @ Rupa Devi and Another; 2005 (23) LCD 829.
9. I have considered the submissions of learned counsel for the parties and perused the record.
10. The name of the petitioners was recorded on the basis of sale deed executed by late Aziz Khan by the order dated 17.01.1983 passed by the Naib Tehsildar. There is no evidence that any appeal was filed against the said order. One Israr had filed a suit for cancellation of sale deed dated 03.09.1982 executed in favour of the petitioners. Israr had given a pedigree in suit in which he had shown that the Pahelwan Khan had two sons namely Aziz Khan and Ali Sher Khan and Israr was the son of Ali Sher Khan. However, it appears that during evidence he had stated that Pahelwan Khan had three other successors but he could not prove that he was nephew of late Aziz Khan. The suit was dismissed on merit after evidence by means of the judgment and order dated 29.05.1984. The civil appeal filed by Israr was dismissed by the District Judge on the ground that the remedy lies before the Revenue Court. Israr had not filed any suit before the Revenue Court because no evidence was adduced at any stage in this regard or filing of suit by any body else. Only an assertion was made during consolidation proceedings in the objection filed on 15.03.1993 by the father of the opposite parties no.2 to 6 late Cheddu and one another showing a different pedigree but no objection was filed by Israr or any body else. The pedigree was also not proved. The Consolidation Officer allowed the objection by means of the order dated 26.11.1998. The said order has not been filed before this Court.
11. The petitioners filed an appeal before the Settlement Officer of Consolidation. The Appellate Authority recorded that the main issue in the case to be decided is as to whether the name of the petitioners, on the basis of sale deed, has rightly been recorded or not. The Appellate Authority held that unless the sale deed is cancelled by the competent court, the same can not be treated to be ineffective. No evidence has been filed which may prove that the sale deed has been cancelled by the competent court. The name of the petitioners has been mutated on the basis of sale deed. The sale deed was proved by the marginal witnesses therefore it could not be disbelieved. It has further been recorded that the order passed by the civil court will have no bearing on this case because it has been held by the Additional District Judge that the civil court has no jurisdiction to cancel the sale deed. Therefore, the expert opinion of thumb impression given therein has no relevance. The appeal was allowed and the order passed by the Consolidation Officer was set-aside and it was provided that the entries made in the revenue record in favour of the petitioners shall continue.
12. The Revisional Authorities, on the basis of evidence of late Cheddu Khan and Salik Ram, held that late Aziz Khan had put his thumb impression on Takabi Register while taking loan which was not tallied by the thumb impression of late Aziz Khan on Register No.8 of the Sub-Registrar's office by the finger print expert, who found that they are different and also on the basis of findings recorded by the Civil Court and Criminal Court held that the sale deed was got executed by impersonation therefore they are not entitled for title, right and interest on the basis of said sale deed. However it appears that the said registers were neither produced nor got proved by the person competent i.e. who keeps it and before whom the thumb impressions were put in due course of functioning. The revisional court recorded a finding that the Consolidation Officer has not committed any error or illegality in recording the name of the revisionist who are the nephew of late Aziz Khan without any evidence or proof that they are the nephew of late Aziz Khan. It is also apparent that the original file of civil court was summoned, perused and considered because after writing it, the same was deleted, while in view of order of Additional District Judge the same could not have been considered. Therefore the findings recorded by the revisional court are not sustainable.
13. The name of the petitioners was recorded on the basis of registered sale deed, which has been questioned by the opposite parties on the ground that it is void document because it was got executed by impersonation. But the sale deed was not challenged by late Aziz Khan and it was challenged only by Israr showing the pedigree in which his father had only two brothers, whereas before the consolidation court five brothers have been claimed but nothing could be shown before this Court that the pedigree was proved by the opposite parties in any manner and it was also not proved that the opposite parties were the nephew of late Aziz Khan. The objection was also filed by only late Cheddu and one another. The civil court had also in the suit for cancellation found that Israr had failed to prove that he was nephew of late Aziz Khan though the Additional District Judge in civil appeal held that the finding drawn by the learned Munsif will have no effect on the title, right and interest of the parties to the suit as the findings are without jurisdiction. But in such situation it was required to be proved by cogent evidence that the objectors were the nephew and legal heirs of late Aziz Khan. The said order was not challenged whereas the suit for cancellation of sale deed, on the ground of impersonation, can be filed only before the civil court and the civil court has only jurisdiction to decide the suit for cancellation of sale deed. The same can not be cancelled under Section 229-B because the suit under Section 229-B can be filed for a declaration of his rights against the State Government and Gaon Sabha whereas the civil court has jurisdiction of all civil suits of civil nature except those which are ignored or barred under any law. Therefore if the State Government or the Gaon Sabha disputes the title of the claimant as Bhumidhar or Sirdar the suit under Section 229-B can be filed. But in case the title is denied by a person other than State Government or Gaon Sabha the Revenue Court will have no jurisdiction and the jurisdiction will lie before the civil court.
14. This Court considered the issues in the case of Indra Deo and Others Vs. Ram Pyari; Manu/UP/1126/1982, 1982 (8) ALR 517 and held that a decree for declaration is not an effective or alternative relief which may be claimed in substitution of the relief for cancellation of sale deed because the suit under Section 229-B would be necessary only if the State Government or Gaon Sabha dispute the title of plaintiff but if some other person disputes, the remedy would be before the civil court. The paragraph-21 is extracted below:-
"21. From the above it is clear that Section 229-B(3) contemplates a suit for declaration by a Bhumidhar or Sirdar against the State Government and the Gaon Sabha. Such a suit would be necessary when the plaintiffs' title is not recognised either by the State Government or by the Gaon Sabha. The occasion for filing such a suit will not arise when the title of the plaintiff is denied by a person other than the State Government and the Gaon Sabha. Therefore, under the provisions of the Act itself, the jurisdiction of the Civil Court would not be barred when declaration is sought against a person who has transferred agricultural property which the plaintiff comes to be his. Section 229-B does not compete all / oil kinds of declaratory suits. It deals with declaratory suits of the specific type herein before mentioned. The section came up for interpretation before a Division Bench of this Court in Parsottam v. Narottam and Another MANU/UP/0255/1970; 1970 R.D. 2016. The Division Bench observed as follows:--
"Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act is the only section which deals with declaratory suits relating to agricultural land. The question arises as to whether this section covers declaratory suits of all kinds or is limited only to suits of a particular category. Sub-Section (1) of Section 229-B provides for a suit for declaration by an Asami against the land holder and says in Sub-section (2) that in such a suit any other person claiming Asami rights in the land in suit shall be impleaded as a defendant, sub-section (3) of that section makes the provision of sub-sections (1) and (2) applicable mutatis mutandis to a suit by a Bhumidhar or Sirdar with the amendment that instead of the land holder "State Government and Gaon Sabha" shall be substitutes in other words a suit for the declaration of Bhumidhari or Sirdari rights is to he filed against the State Government and the Gaon Sabha and any other person who claims Bhumidhari or Sirdari rights in such land has also to be impleaded as a party. The suit contemplate by the provisions of Section 229-B is directed primarily against the State Government and the Gaon Sabha. Now such a suit would be necessary only if the State Government of the Gaon sabha disputes the plaintiff's title as a Bhumidhar or Sirdar. If the State Government or the Gaon Sabha does not dispute the claim of the plaintiff such a suit would not lie under Section 229-B of the Act merely because some other person disputes the plaintiff's claim."
15. This Court, in the case of Smt. Rasheedan Vs. Amar Singh and Others; 1997 (3) AWC 1695, has held that if the deed is void on the face of it, it requires no cancellation or declaration as being void, the Revenue Court, in such a case, could proceed to determine the rights of the parties. But when a deed is not void and it becomes void only on proof of certain facts, the intervention of the civil court is necessary for a decision declaring it void because it can be made by the civil court only. In the present case the validity of the sale deed executed in favour of the petitioners has been questioned on the ground of impersonation which can be examined only by the civil court after evidence. In the case of impersonation, it is required to be proved by cogent evidence that the sale deed has not been executed by person, having right, title or interest and by any other person. In the present case the registered sale deed has been proved by the marginal witnesses in the mutation proceedings which was not challenged by anybody.
16. In the case of Indra Pal and Others Vs. Jagannath and Others (Supra), it has been held that the essence of matter in deciding whether the suit is cognizable by the civil court or the revenue court is whether Section 331 of U.P. Zamindari Abolition and Land Reforms Act is attracted to the facts of the case. If in substance, the main question involved relates to declaration of right or title, then the suit would lie in the revenue court and not in the civil court. But it is not the case in the present case.
17. This Court, in the case of Sumesar and Others Vs. Smt. Mangla (Supra), has held that a suit for cancellation of sale deed did lay in civil court. The relevant paragraph nos.16 to 18 are extracted below:-
"16. Considering the provisions of Section 31 Specific Relief Act and Section 331 of U.P.Z.A. & L.R. Act, this court, in the cases of Indra Deva V. Ram Pyari, reported in (1982 ALJ 1308) and the case of Ram Padarath v. II Additional. District Judge (1988 (6) LCD 565) has laid down the law to the effect that the suit for cancellation of sale deed whether void or voidable is maintainable in the Civil Court. Their Lordships in Ram Padarath (Supra) have laid down the law to the following effect:
"We are of the view that the case of Indra Deva v. Smt. Ram Pyari, 1982 ALJ 1308 has been correctly decided and said decision requires no consideration, while Division Bench Case in Dr. Ayodhya Prasad V. Gangotri is regarding the jurisdiction of consolidation authorities but so far as it holds that suit in respect of void documents will lie in Revenue Court it does not lay down a god law. Suit and Action for cancellation of void documents will generally lie in Civil Court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right of status is necessarily needed in which even relief for cancellation will be surplusage and redundant . A recorded tenure holder having prima-facie title in his favour can hardly be directed to approach the Revenue Court in seeking relief for cancellation of void document which made him to approach the Court of law and in such case he can also claim ancillary relief even though the same can be granted by the Revenue Court."
17. In the case of Mst. Bismillah v. Janeshwar Prasad reported in [1990 (11) LCD 536 (SC)] the Supreme Court has followed with affirmance the view and law laid down in Ram Padarath's case.
18. In this view of the matter there is no substance in this contention of the learned counsel for the appellant, and I hold that the suit for cancellation of sale deed did lay in Civil court and that section 331 of U.P. Z.A. & L.R. Act did not bar it. Learned counsel further contended that the finding of the court below that the deed has been obtained by misrepresentation and fraud and that the plaintiff did not execute the sale-deed with full understanding is incorrect and is liable to be set aside and that learned court below wrongly held that the sale deeds were without consideration and further that they were not read over and explained to the plaintiff vendor. This is a question of appreciation of evidence.
18. This Court, in the case of Tej Bhan Singh and Others Vs. II Additional District Judge, Jaunpur (Supra), has also passed order relying on the judgment of full Bench in the case of Ram Padarath and Others v. II Additional District Judge, Sultanpur; 1988 (6) LCD 565. Similar view has been taken by this Court in the case of Smt. Ramdei (dead) through Lrs and Others Vs. Rampati @ Rupa Devi and Others (Supra). The relevant paragraph 14 is extracted below:-
14. There are two kinds of deeds, whose validity is normally challenged, namely, void and voidable. Hon'ble Supreme Court in Dhurandhar Prasad Singh v. Jai Prakash University and Ors.2001 (Suppl) RD 342, has elaborately dealt with distinction in two types of deeds. In Paragraph 20 of the said judgment the expression 'void' has been said to have several facets, amongst which one type is of those void acts, transactions, decrees which are wholly without jurisdiction. Such acts and transactions etc are void ab initio and for avoiding them no declaration is necessary as it can be disregarded in collateral proceeding as the law does not take notice of it. Hon'ble Supreme Court has observed that there may be other type of void acts which may not be nullity but for avoiding the same a declaration has to be made. An example has also been cited. The relevant portion of Para 20 is extracted herebelow for ready reference:
"The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab-initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoidable, e.g., if a suit is filed for declaration that a document is fraudulent and/or forged and fabricated. It is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day, it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable."
19. The Hon'ble Supreme Court, in the case of Kamla Prasad and Others Vs. Sri Krishna Kant Path
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ak and Others (Supra), has held in paragraph 14, 15 and 16 as under:- "14. In this connection, the learned counsel for the appellant rightly relied upon a decision of this Court in Shri Ram & Anr. v. Ist Addl. Distt. Judge & Ors., (2001) 3 SCC 24. In Shri Ram, A, the original owner of the land sold it to B by a registered sale deed and also delivered possession and the name of the purchaser was entered into Revenue Records after mutation. According to the plaintiff, sale deed was forged and was liable to be cancelled. In the light of the above fact, this Court held that it was only a Civil Court which could entertain, try and decide such suit. The Court, after considering relevant case law on the point, held that where a recorded tenure holder having a title and in possession of property files a suit in Civil Court for cancellation of sale deed obtained by fraud or impersonation could not be directed to institute such suit for declaration in Revenue Court, the reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land." 20. The Hon'ble Supreme Court in the case of Smt. Dulariya Devi Vs. Janardhan Singh and Others (Supra) has held that a voidable document is one which remains in force until set aside and such a document can be set aside only by a competent civil court. A suit for that purpose would, therefore, be maintainable. A claim that a transaction is void is, however, a matter which can be adjudicated upon by the consolidation court. 21. In view of above and considering the overall facts and circumstances of the case, this court is of the view that unless the sale deed is set aside by a competent civil court the right, title and interest can not be denied and it cannot be set aside or ignored by the revenue or consolidation courts. Therefore the impugned order is not sustainable and liable to be quashed with a direction to the revisional court to reconsider and pass a fresh order in accordance with law on the basis of pleadings and evidence adduced before it. 22. The writ petition is, accordingly, partly allowed. The judgment and order dated 05.07.2005 passed by the Deputy Director of Consolidation, Sitapur in Revision No.302/283/270/266/204/80//66 is quashed. The Deputy Director of Consolidation, Sitapur i.e. the opposite party no.1 is directed to pass a fresh order in accordance with law and the observations made here-in-above in this order. No order as to costs.