JUDGMENT Shishir Kumar, J.
1. The present writ petition has been filed for quashing the orders dated 12.12.2000 and 25.5.2000 passed by the Courts below, Annexures- 2 and 4 to the writ petition and for issuing a writ of mandamus directing the respondents not to interfere in the peaceful possession of the property in dispute.
2. The case of the petitioners is that Original Suit No. 1366 of 1990 was filed I by respondent No. 2 on 31.5.1990 against the deceased father of the petitioners No. 1 to 3 in the Court of Munsif, Gorakhpur for cancellation of the sale-deed dated 15.12.1989 with an allegation that the plaintiff and defendant No. 2 were the real brothers and they were jointly Bhumidhars in possession of the land detailed in Schedule 'A' given at the foot of the plaint situate in village Phulwaria, Tehsil- Sadar, district- Gorakhpur. In the plaint it was pleaded that the plaintiff and defendant No. 2 (respondent No. 3) had half share each in the land in dispute. In the year 1985 when he was student of High School in Deoria and defendant No. 2 proceeded to Madhya Pradesh for service, respondent No. 2 was looking after their entire land for cultivation. In the month of march 1990 defendant No. 1 and his sons intended to take forcible possession of the property in dispute stating therein that he has obtained a sale-deed from defendant No. 2 (respondent No. 3). The plaintiff on coming to know regarding the execution of the aforesaid sale-deed when he examined the record in the Registrar's office, it was found that a fake sale-deed dated 14.12.1989 was obtained by the deceased Ram Dev Singh though no sale-deed was executed by the defendant No. 2 (respondent No. 3). No signature has been put on the sale deed. It has also been pleaded that the sale-deed in question was procured by impersonation in place of respondent No. 3 and on the date of execution of the sale-deed the plaintiff was major but in the sale-deed he was shown as minor. Therefore, there was no question of appointment of defendant No. 2 as his guardian for the purpose of execution of the sale-deed and no permission was taken from the consolidation authorities. In the plaint a relief to this effect was also sought for cancellation of the sale-deed dated 4.12.1989.
3. During the pendency of the suit the trial Court framed issue No. 1 regarding the jurisdiction of the civil Court. The petitioners moved an application under Section 5(2) of the U.P. Consolidation of Holdings Act (in short the Act) for abating the suit on the ground of operation of consolidation proceeding in the village. An objection to this effect was also filed. The trial Court after hearing parties by order dated 12.12.2000 has decided issue No. 1 that the suit is maintainable before the civil Court as in the present suit there is no relief of declaration of rights, title and interest or there is no involvement of adjudication and the question which has been raised in the present suit could not be raised in Consolidation Court because the Consolidation Courts have no jurisdiction to cancel the sale-deed. therefore, it has been held that the suit is not barred by Section 49 of the Act. Feeling aggrieved by the order passed by the trial Court the petitioners preferred a civil revision, which was numbered as Civil Region No. 26 of 2001. A specific ground to this effect was taken that the trial Court has not considered the settled principle of law and has held that the suit will not abate under Section 5(2) of the Act. The learned District Judge vide his judgment and order dated 25.5.2001 has dismissed the revision of the petitioners on the ground that the question of title is not involved. The only question requires to be decided is whether the sale-deed in the suit was obtained by impersonation and whether at the time of execution of the sale deed, the plaintiff was major? When the deed is voidable it is the civil Court, which has jurisdiction to decide the suit. The revisional Court has also dismissed the revision vide its order dated 25.5.2001. Aggrieved by the aforesaid orders the petitioners' have filed the present writ petition.
4. The sole question involved in the present writ petition is that whether the suit which was filed for cancellation of the sale-deed upon the operation of the U.P. Consolidation of Holdings Act whether the same will abate or not? The petitioners submit that in view of the provisions of Section 5(2)(a) of the Act the proceedings before any Court stood abated if the village in question or where the property in dispute is situate, is notified under the aforesaid Act. It has been submitted that the Courts below have not taken the correct view that only the civil Court has the jurisdiction and Consolidation Courts will have no jurisdiction and the proceedings will not abate It has further been submitted that as to whether respondent No. 3 had any right or title to sell, out the entire disputed land by way of sale-deed in favour of the deceased Rain Deo Singh is a question involving right and title and in view of the consolidation operation and bar of Section 49 of the Act the suit is liable to be abated but the Courts below have not taken into consideration the aforesaid fact. The jurisdiction of the consolidation authorities is wider than the civil and revenue Courts and in view of Section 5(2) of the Act the suit pending in the trial Court or in appeal before any appellate authority in which title and interest over land are involved, will stand abated. The suit of the plaintiff was clearly barred by Section 49 of the Act.
5. Reliance has bean placed by the petitioners on a Division Bench judgment of this Court in Sheopal v. Lakhpata A.W.C. 1979 Page 524 and has referred to paras 11 and 13 of the said judgment which are reproduced below:
11. The question that now arises is whether the suit which has given rise to this revision application will abate under Section 5(2) of the U.P. Consolidation of Holdings Act or the relief can be granted by the Civil Court. The settled view of this Court is that the allegations in the plaint determine the jurisdiction of the Court. A close scrutiny of the plaint would indicate that the allegations made are in regard to fraudulent representation as respects the nature of the document and not in regard to the contents of the document. If the fraudulent act alleged was in respect of the contents of the document then the document will hold the field unless it was set aside. In that event the suit would lie in the civil Court as the relief for the cancellation of the sale deed cannot be granted by the Consolidation Courts. If on the other hand, the relief claimed is in regard to the fraudulent act as respects the nature of the document, the document would be void as in the eye of law no such document was executed by the executant. Since the element of consent to the document set up is lacking, the deed can be ignored as the transaction which the document purports to effect is essentially different in substance or in mind from the transaction intended. In such an eventuality, the sale deed can be ignored on the ground that it is void and the consolidation Courts can ignore she document and determine the rights of the parties. In our opinion, the allegations in the plaint are such that the relief can be granted by the Consolidation Courts. We find support for our view from a full bench decision of this Court in Ram Nath v. Munna 1976 AWC 412. The observations of full Bench may be quoted as follows:-
We are, therefore, of the opinion that the supreme Court has laid down the law, in Gorakh Nath 's case that suits in respect of void documents abate by reason of Section 5(2) of the U.P. consolidation of Holdings Act, but the suits for cancellation of voidable deeds do not abate.
13. One of the allegations in the plaint is that at the time of the execution of the so-called sale-deed the plaintiff was a minor. During the period of her minority no guardian was appointed and without a guardian any deed executed by her is not binding upon her. Section 11 of the Contract Act provides that every person is competent to contract who is of the age of majority according to the law to which he is subject. This provision contained in Section 11 of the contract Act if converted into a negative proposition would mean that no person is competent to contract who is not of the age of majority according to the law to which he is subject. This provision contemned in Section 11 of the Contract Act if converted into a negative proposition would mean that no person is competent to contract who is not of the age of majority according to law he is subject. In Mohari Bibee v. Dhurmodas Ghose 30 Indian Appeals 114, the Privy Council held that under the Contract Act, the contracting parties should be competent to contract. A person who by reason of his minority is incompetent to contract cannot make a valid contract. Since the transaction of sale is the result of a contract such a transaction if entered into by a minor would be void at page 123, their Lordships discussed various provisions of the Contract Act and at page 124 of the above report, they remarked as follows:
Their Lordships are satisfied that the Act makes it essential that all contracting parties should be "competent to contract", and expressly provides that a person who by reason of infancy is incompetent to contract cannot make contract within the meaning of the Act.
Their Lordships further observed as follows:
The question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the act, and cannot arise in the case of an infant.
Their Lordships further remarked as follows:
It is beyond question that an infant falls within the class of persons here referred to as incapable of entering into a contract; and it is clear from the Act that he is not to be liable even for necessaries, and that no demand in respect thereof is enforceable against him by law....
6. Another judgment relief upon by the Counsel for the petitioners is Gorakh Nath v. H.N. Singh and has referred to para 5 of the said judgment which is reproduced below:
5. There is no decision of this Court directly on the question whether a suit for cancellation of a sale-deed, which was vending on the date of 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 Jagannath Shukla v. Sita Ram Pande 1969 All.I.J. 768 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, if 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 he course of adjudications on rights or interests in law 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 the 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 he necessarily implied in the decision of a dispute involving conflicting claims to rights or interest 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 he binding on them so long as it is riot canceled 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 agreement with the view expressed by the division bench of the Allahabad High Court in Jagarnath Shukla's case 1969 All. U (Supra) that it is the substance of the claim and not its form which is decisive.
Another Full Bench judgment of this Court on which the petitioners have placed reliance is 1989 A.W.C. Page 290 in the case of Ram Padarath and Ors. v. Second Additional District Judge has placed reliance upon paras 18 and 36 of the said judgment and has submitted that the Civil Court would not have jurisdiction as the case if first involved declaration of rights as tenure holders which could be granted only by the revenue Court and thereafter relief could have granted only if he was held to be tenure holder by succession. Reliance has also been placed by the Counsel for the petitioners on 1995 A.W.C. Page 1094, Smt. Gulabi v. Ram Autar and Ors.
7. On the other hand the Counsel for the respondents has submitted that from the relief claimed in the plaint it is clear that there was no dispute regarding the rights and title of the property in dispute. The suit was only for cancellation of a sale deed, which was alleged to have been executed by respondent No. 2 by playing fraud and by impersonation. Therefore, in view of the provisions of Section 5(2) of the Act only the Civil Court, has jurisdiction and the Consolidation Courts have no jurisdiction to cancel the sale-deed. The reliance has been placed by Counsel for the respondents upon a judgment of the Apex Court reported in A.I.R. 1990 SC. Page 540, Smt. Bismilla v. Janeshwar Prasad and Ors. and has referred to paras 5 and 6 of the said judgment and has submitted that the cases relied upon by the petitioner Gorakh Nath Dubey (Supra) has been considered and has submitted that the Apex Court has considered regarding the jurisdiction of the Civil Court, has held that where there is a document the legal effect of which can only be taken away by setting aside or cancellation, therefore, the consolidation authorities have no power to cancel the deed.
8. I have considered the rival submissions made on behalf of the parties and have perused the record as well as the decisions cited above. From the perusal of the record and the plaint it is clear that regarding the rights and title of the property, as there was no dispute that the plaintiff was not a co-sharer in the property in dispute. The sale-deed has been got executed by impersonation. There is no dispute to this effect that plaintiff-respondent was not a co-sharer of the property in dispute. Therefore, the Court was justified in holding that the relief sought in the plaint can only be decided by the Civil Court and the Revenue Court will have no jurisdiction. The revisional Court has also considered that the grounds for relief of cancellation contained in the plaint that if the same is voidable and there is no dispute of title in the land in question, the relief of cancellation of sale-deed was triable by the civil Court only. The regional Court has also considered that I am opinion when there is no dispute of title of the land in question, the relief of cancellation of sale-deed was triable by the Civil Court only," The question which ' requires to be decided is whether the sale-deed was obtained by impersonation and at the time of execution of the sale-deed the plaintiff was major but wrongly shown as minor coupled with the other grounds, therefore, when the deed is voidable it is only the Civil Court, which has jurisdiction to decide the dispute.
9. I have considered the Apex Court judgment cited on behalf of the respondents. From the aforesaid judgment it is clear that the Apex Court has clearly held that in such types of cases where the rights or title are not involved and the question involved is cancellation of deed, it is the civil Court only which has jurisdiction to proceed with the suit and cancel the said document. No other Court will have any jurisdiction in this regard.
10. In view of the aforesaid fact and the findings recorded by both the Courts below and in view of the Apex Court judgment, the findings recorded by the both the Courts below need no interference and the writ petition is liable to be dismissed and is hereby dismissed.
11. No order as to costs.