JUDGMENT S.U. Khan, J.
1. At the time of argument no one appeared on behalf of the contesting respondents in these writ petitions hence only the argument of learned Counsel for the petitioners was heard.
2. The facts of both these writ petitions are that on behalf of Musharraf Ali respondent No. 3 in both the writ petitions, who was minor in the year 1964, his mother Smt Jannat Jahan Begum respondent No. 4 in both the writ petitions who was appointed as guardian of his property by the court, executed sale deeds of the agricultural property belonging to the respondent No. 3 in favour of different persons. One such sale deed was executed in favour of Abdul Qayyum petitioner of the first writ petition and the other in favour of Tausif Khan deceased father of the petitioners of the second writ petition. Thereafter in the year 1973 respondent No. 3 who was aged about 17 years at that time instituted suits before the Civil Court for cancellation of the said sale deeds. The suits were filed by the respondent No. 3 through his real sister Smt Ejaz Begum. The suit against the petitioner of the first writ petition was numbered as O.S. No. 5 of 1973 and against father of the petitioners of the second writ petition as O.S. No. 3 of 1973. Copies of the plaints are annexure 1 to both the writ petitions. In para 1 of the plaint, it was stated that the District Judge had appointed defendant No. 2 mother of the plaintiff as his guardian. It was further stated that for highly inadequate consideration the mother guardian executed the sale deed on 6.9.1964 and the purchasers had misled the guardian in getting the sale deed executed. It was further stated that the said sale deeds were not acceptable to the plaintiff and were not binding upon him. In the plaint, no detail of fraud, misrepresentation or undue influence had been given. It was also mentioned that the District Judge through order dated 13.12.1971, appointed Smt Ejaz Begum real sister of the plaintiff as his guardian.
3. The suits were abated under Section 5 of U.P Consolidation of Holdings Act by the trial court through orders dated 13.3.1974 passed in O.S No. 5 of 1973 and 3.4.1974 passed in O.S No. 3 of 1973. Thereafter proceedings were initiated before the consolidation courts. However, the consolidation courts held that they had no jurisdiction, as on the allegations made on behalf of Musharraf Ali, the sale deeds were voidable and not void. The last order was passed by S.O.C on 26.8.1977. Thereafter on 9.2.1978, plaintiff Musharraf Ali filed applications in both the suits for setting aside the order of abatement dated 13.4.1974 and 3.4.1974 and for readmitting the suits at their original numbers. The applications were registered as Misc. case No. 43 of 1978 in the suit filed against petitioner of the first writ petition and as Misc. Case No. 44 of 1978 in the suit filed against Tausif Khan father of the petitioners of the second writ petition. I Civil Judge, Meerut through order dated 25.8.1980, allowed the recall applications in the two suits in question as well as two other similar suits and all the suits were restored on their original numbers. Against the said order both the petitioners filed Civil Revisions being Civil Revision No. 321 of 1980 and Civil Revision No. 318 of 1980. II Additional District Judge, Meerut through similar but separate judgments dated 9.12.1985 dismissed the revisions, hence these writ petitions. Somewhat similar controversy had arisen in the case, which was ultimately decided, by the Supreme Court through judgment reported in AIR 1979 SC 1911 Avtar Singh v. Jagjit Singh. In the said case also earlier civil court held that it had no jurisdiction and only revenue court could decide the controversy, the pliant was therefore returned; thereafter revenue court held that it had no jurisdiction and only civil court could decide the matter. Thereafter fresh suit was instituted before the civil court. The Supreme Court held that the subsequent suit was barred by res judicata as civil court had already decided that it had no jurisdiction. Supreme Court further held that plaintiff should have moved the higher court against the order of the revenue court.
4. However, in a subsequent authority of the Supreme Court Isabella Jhonson v. M.A. Susai, it was held that the earlier authority of Avtar Singh was not good law in view of the earlier three judges authority of the Supreme Court M.P.B. Jaiswal v. D.N.B Jee Jee Bhoy. The authorities of 1979 and 1991 are by two Hon'ble Judges while that of 1971 is of three Hon'ble Judges. In the authority of 1991, it has been held that jurisdiction can not be conferred upon civil court by raising the plea of res judicata.
5. In view of the aforesaid 1991 authority of the Supreme Court, the question of jurisdiction had to be decided afresh by the civil court. Moreover, if the order of revival of suits and setting aside the earlier order of abatement under Section 5 of U.P. C.H Act is set aside then plaintiff would not be having any remedy to challenge the sale deed. The matter will continue to shuttle between the civil court and consolidation courts. A decision on question of jurisdiction by this court will settle the dispute between the parties and save the plaintiff from agony and frustration. He will be able to know precisely that which court will hear his grievance.
6. It is settled position of law that voidable documents cannot be ignored by revenue or consolidation courts. There is some controversy regarding jurisdiction in respect of void documents. However, in case of voidable document there is absolutely no controversy. Suit for cancellation of voidable document (voidable according to the pliant allegations) is maintainable only and only in civil court, as such a document requires specific order of setting aside and without that it can not be ignored by any court including revenue courts or consolidation courts.
7. In the plaint, allegations were that mother of the plaintiff was appointed as guardian by the District Judge. Under Section 29 of Guardians and Wards Act, 1890, a guardian appointed or declared by the court shall not without the previous permission of the court, transfer immovable property of his ward. However, under Section 30 of the said Act, it is provided as under:
A disposal of immovable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby.
8. Accordingly, if the plaint allegations are proved then sale deeds will be voidable.
9. In view of the above, it is only the civil court which has got the jurisdiction to try the suits.
10. Before parting with the case, it may be mentioned that the earlier orders of 13.4.1974 and 3.4.1974 passed by the Civil Judge abating the suit under Section 5 of U.P.C.H. Act have not been filed. It is not clear as to whether detailed reasons were given therein or not. In any view of the matter according to the aforesaid 1991 authority of the Supreme Court the earlier order will not operate as res judicata.
11. There is one more aspect of the matter, which requires consideration. Even though the orders of 13.4.1974 and 3.4.1974 have not been challenged through these writ petitions however prayer B in both the writ petitions is as follows:
This Hon'ble Court may be pleased to issue an order, direction or writ in the nature of mandamus commanding the respondents No. 1 and 2 (i.e. A.D.J Meerut and I Civil Judge, Meerut) not to proceed with suit No, 5 of 1973 (in the first writ petition) and suit No. 3 of 1973 (in the second writ petition) pending in the court of Civil Judge, Meerut.
12. In view of this prayer, it is quite permissible to judge the validity of the initial orders of April 1974 directing abatement of the suits. Such a prayer as above can be granted only if it is held that the orders of abatement passed in April 1974 were valid necessarily requiring the decision about the correctness or otherwise of the said orders.
13. Accordingly it is held that the suit is maintainable before the Civil Court. Both the writ petitions are therefore dismissed.