Ram Sevak Sahni v. Motilal Paswan & Ors.

Patna High Court CWJC No.202 of 2012 (10) dt.02-07-2013 in operation in view of notification under section 3(1) of the Act. The suit, being Title Suit No. 15/2000 appears to have been filed for declaring the sale deeds dated 02-06-1952 and 09-09-1999 in favour of the petitioner as void document and also for permanently restraining the petitioner from alienating or creating third party interest in the property and changing the physical features of the property. This is not in dispute that consolidation proceedings are in operation in the area in which the land in dispute is situated. It is also not in dispute that although at the time of filing of the Title Suit the consolidation proceedings were made dormant but subsequently by Government notification dated 15-03-2004 the said proceedings were re-implemented. In such background, it is submitted by learned counsel for the petitioner that in view of Section 4(c) of the Act, the Civil Court has no jurisdiction to entertain such dispute and the suit proceeding abated by virtue of the said provision. Reference to Section 37 of the Act has also been made which restrains the Civil Court from entertaining such proceeding during the operation of the notification. From reading of the impugned order, it appears that learned court below dismissed the petition seeking abatement of the suit on the ground that Section 4(c) had no application as the Patna High Court CWJC No.202 of 2012 (10) dt.02-07-2013 suit was filed for declaration of sale deeds dated 02-06-1952 and 09-09-1999 as illegal, wrong, inoperative and not binding on the plaintiff along with declaration of title and decree for recovery of possession of suit land. Learned court below, on the basis of relief sought for in the plaint, was of the view that as the documents were sought to be declared voidable and as consolidation authority did not have jurisdiction to declare them illegal, the suit shall not abate. Learned counsel for the petitioner in support of his contention has placed reliance on a Supreme Court judgement reported in AIR 1998 SC 277 (Ram Sakal Singh v. Mosmat Monako Devi) to contend, with reference to relief prayed for in the plaint, that there was no prayer for setting aside the sale deeds and prayer is only for declaring the sale deeds void. He submits that the finding of the court below to the effect that since the sale deeds were voidable in nature, Section 4(c) of the Act will not apply is erroneous. Reference has been made in this regard to paragraphs 8 and 9 of the Supreme Court judgement in case of Ram Sakal Singh V. Mosmat Monako Devi (supra):- “8 It is thus settled law that if the document is invalid, it can be disregarded by the Court or the authority and it may proceed to consider declaration or adjudication of any Patna High Court CWJC No.202 of 2012 (10) dt.02-07-2013 other right in regard to which proceedings can or ought to be taken under the Act. Since we have in the present case proceedings before the Consolidation authorities, it would necessarily imply in the adjudication of a dispute involving conflicting claims in respect of rights or interests in land which is subject matter of the proceedings before the consolidation authorities but if a dispute relating to the land was in respect of the land and was based upon a document where its validity is impugned, it is for the Court to declare such document effective or ineffective and the legal effect would hinge upon such a declaration. Based thereon, document requires to be set aside or cancelled, the Consolidation authorities under the Act have no power to cancel such deed. Therefore, the proceedings would not abate. As held, but if the document is void, the proceedings pending in any Court or authority stand abated.

9. Therefore, the civil Court gets jurisdiction to declare the document to be voidable. In consequence, the notification under Section 3(1) does not have the effect of abatement under Section 4(1)(c ) of the Act. If the document is void, there would be no need to set aside or cancel the document/deed. Then the Consolidation authorities exclusive jurisdiction to deal with all questions relating to Patna High Court CWJC No.202 of 2012 (10) dt.02-07-2013 declaration of a right of interest in any land or for declaration or adjudication of any other right in regard to such proceedings. The Court or authority before whom any suit etc. is pending should record the suit or proceedings have abated leaving it to the parties to avail of the remedy under the Act.” In view of aforesaid submission as also the fact that the plaintiff has admittedly not sought for any relief for cancelling or setting aside the sale deeds, the suit shall abate and the order of the court below cannot be sustained. The impugned order dated 13-04-2011 passed by the court of learned Munsif II Hajipur, Vaishali in T. S. No. 15/ 2000 is set aside. This writ application is, accordingly, allowed. (Chakradhari Sharan Singh, J) BKS/-