Heard Sri Prem Prakash (Sharma) learned counsel for the petitioner and Sri Prem Narayan Rai holding brief of Sri Shesh Nath Bhatt learned counsel for the respondents.
The present petition is directed against the orders dated 25.9.2013 and 07.07.2018 passed by the courts below whereby the Original Suit No. 97 of 1993 (Patiraji Vs. Vedmani) has been abated in view of the Section 5 (2) of the U.P. Consolidation of Holdings Act' 1953 (hereinafter referred as Act' 1953) i.e. as a consequence of the notification under Section 4(2) of that Act. The order impugned dated 25.09.2013 records that it was admitted to the parties that during pendency of the instant suit, the consolidation operations were conducted in the village wherein lies the land in dispute. A preliminary issue was framed by the trial court as to whether the suit was barred by the Act' 1953 with the issuance of the notification under section 4(2) of the Act' 1953. The trial court had opined that since the relief claimed in the suit was for cancellation of the sale deed and the same could not be granted by the consolidation court, the suit could not have been abated.
The said order was challenged in revision which was allowed remitting the matter back to the trial court. In the meantime, the village was de-notified under section 52(1) of the Act' 1953.
The submission of learned counsel for the petitioner is that with the abatement of the suit vide order dated 25.09.2014 passed under section 5(2) of the Act' 1953, the plaintiff has left with no remedy. There was no justification for abatement of the suit as village was de-notified prior to the abatement order dated 25.09.2013. After de-notification, admittedly no proceedings could be conducted before the consolidation courts. The submission, thus, is that the trial court and the revisional court both have erred in holding that the suit filed by the plaintiff for cancellation of sale deed shall stand abated. Reliance is placed upon the judgement of Apex Court in the case of Gorakh Nath Dube vs Hari Narain Singh & othders reported in 1973 (2) SCC 535 to state that the consolidation courts have no power to ignore a document, cancellation of which has been sought before the civil court. Further reference has also been made to the judgement of Apex Court in Shri Ram & another Vs. Ist Additional District Judge & others reported in 2001 SC 1258 to state that the suit for cancellation of sale deed lies in the Civil Court.
The prayer in the present petition is to set aside both the orders and maintain the suit as it is, in as much as, the petitioner/plaintiff has left with no remedy to seek redressal of his grievances before the consolidation courts.
Learned counsel for the respondent, on the other hand placing reliance upon the judgement of this Court in Sahab Verma & others Vs. Addl. District & Sessions Judge, VI Ballia & others reported in 2004 (97) RD 348 and the decision in Smt. Sumitra Devi & others Vs. Additional District Judge & others reported in 2000 RJ 42 submits that after consolidation proceedings had commenced, the jurisdiction of the civil court to decide the suit seeking cancellation of a document being void, is ousted, in as much as, the consolidation authorities could have ignored the said document so as to decide the rights of the parties. It is contended that the distinction has been drawn by the Apex Court in Gorakhnath Dube (Supra) between the document where it is wholly or partially invalid so that it can be disregarded by any court or authority without a decree of cancellation or getting it actually set aside and the document which cannot be ignored without cancellation by a competent court of law. In cases where documents are void, the court or authority can ignore it and for that reason, the jurisdiction of the consolidation courts to adjudicate is not ousted. But in case of voidable document, where it cannot be ignored by the court or any authority unless it is cancelled or declared void by a competent court, the civil court would have jurisdiction to entertain the suit seeking cancellation of such document.
Having heard learned counsels for the parties and perused the records.
Before taking note of the legal pronouncements pertaining to the field, the relevant provision of the Act' 1953 are required to be taken note of:
Section 4(1) (a) section 5(2) (a) and section 49 and 52(1), 52(1-A) and 52 (2) of the Act' 1953 are relevant to be reproduced here under:-
"[4. Declaration and notification regarding consolidation. - (1)(a) The State Government may, where it is of opinion that a district or part thereof may be brought under consolidation operations, make a declaration to that effect in the Gazette, whereupon it shall become lawful for any officer or authority who may be empowered in this behalf by the District Deputy Director of Consolidation -
(i) to enter upon and survey, in connection with rectangulation or otherwise, and to take levels of any land in such area;
(ii) to fix pillars in connection with rectangulation, and;
(iii) to do all acts necessary to ascertain the suitability of the area for consolidation operations.
(b) The District Deputy Director of Consolidation shall cause public notice of the declaration issued under clause (a) to be given at convenient places in the said district or part thereof.
[Section 5(2)(a):- Upon the said publication of the notification under sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely -
(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated :
Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard :
Provided further that on the issue of a notification under sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated;
49. Bar to civil Courts jurisdiction. - Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a [notification] has been issued [under sub-section (2) of 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 :
52. Close of consolidation operations. - (1) As soon as may be, after fresh maps and records have been prepared [under sub-section (1) of Section 27], the State Government shall issue a notification in the Official Gazette that the consolidation operations have been closed in the [unit and the village or villages forming a part of the unit] shall then cease to be under consolidation operations :
[Provided that the issue of the notification under this section shall not affect the powers of the State Government to fix, distribute and record the cost of operations under this Act.] [52(1-A) The notification issued under sub-section (1) shall be published also in a daily newspaper having circulation in the area and in such other manner as may be considered proper] [52-(2) Notwithstanding anything contained in sub-section (1), any order passed by a Court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases of proceedings pending under this Act on the date of issue of the notification under sub-section (1), shall be given effect to by such authorities, as may be prescribed and the consolidation operation shall, for that purpose, be deemed to have not been closed."
Before considering rival submissions, it would further be appropriate to go through the pronouncement of the Apex Court and this Court to crystallize the legal position with regard to the jurisdiction of civil court vis-a-vis consolidation courts. In Gorakhnath Dube (supra), the Apex Court taking note of the earlier decision in Ram Adhar Singh v. Ramroop Singh & Ors reported in AIR 1968 SC 714 it has been held that the language of Section 5 of Act' 1953 is wide enough to cover suits for possession involving declaration of rights and interest in land which can be the subject matter of decision in consolidation proceedings. The whole object of this provision of the Act was to remove from the jurisdiction of ordinary civil and revenue courts, for the duration of consolidation operations, all disputes which could be decided in the course of consolidation proceedings before special courts governed by special procedure. Such adjudications by consolidation authorities were considered more suitable, just, and efficacious for speedy decisions which had to be taken in order to enable consolidation operations to be finalized within a reasonable time.
The question before the Apex Court in Gorakhnath Dube (supra) was whether the suit for cancellation of a sale deed which was pending on the date of notification under Section 4 of the Act, abates under section 5(2) of the Act. It was held that where an adjudication on the effect of the sale deed would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings, the suit before the civil court would stand abated. It was thus observed as under:-
"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 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 be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests 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 be binding on them so long as it is not cancelled by a court having the power to cancel it."
In Ram Padarath & others Vs. Second Additional District Judge & others reported in 1989 (1) AWC page 290 taking note of the judgment of the Apex Court in Gorakhnath Dube (Supra), it was held that the jurisdiction of the consolidation authorities or the courts is wider than that of civil or revenue courts and adjudication by them is final and cannot be responded by any Civil or revenue Court, in view of the bar for the same contained in Section 49 of Act' 1953 which even bars the claims which should have been raised before the consolidation authorities, but not raised. Section 5(2) of Act' 1953 provides that any suit pending in the trial court or appeal before any appellate court, in which right, title and interest over land is involved, will stand abated.
In view of the said provision, any appeal, may it be a special appeal or appeal pending before the Apex Court would abate. Adjudication of right, title and interest over land by the consolidation authorities is final. It rights are claimed on the basis of void sale deed or questioned before the consolidation authorities, the consolidation authorities, after recording a finding on the same that it was a void sale deed can determine the right, title and interest in the land, in accordance of the law, ignoring the said deed on the ground that it was void. After consolidation operations are over, all questions relating to right and title or interest over the land, not only adjudicated by the consolidation authorities but which could have been raised before them but was not raised, cannot be raised before any civil or revenue courts in view of the bar under section 49 of the Act' 1953.
The Full Bench of this Court in Ram Padarath (supra) while dealing with the controversy of the jurisdiction of civil court and revenue court in entertaining a suit seeking relief of cancellation of sale deed and permanent injunction regarding agricultural land, has held that it is the "real cause of action" which determines the jurisdiction of the court to entertain particular action notwithstanding the language used in the plaint or the relief claimed. The strength on which the plaintiff comes to the court does not depend upon the defence or relief claimed which could determine the forum for the entertainment of claim and grant of relief. It is the pith and substance which is to be seen and not the language used which may even have been so used to oust the jurisdiction of the particular court.
It is further observed that a revenue court may grant a relief in present but so far as the relief for future is concerned, the revenue court may not be in a position to grant such a relief as the same may travel beyond the relief which could be granted by it mentioned in Schedule-II of the U.P.Z.A. & L.R. Act. It is the alleged injury or apprehended injury or cloud on the right and title of a person by some action on the part of any other person, or interference or attempt to encroach upon the right and title of a person over a particular property by any positive or negative act or declaration etc., which gives a suitor cause of action to approach a court of law for relief or reliefs against the same. Thus, the dispute as to jurisdiction arises when more than one reliefs are claimed in an action on the same cause of action one of which can be granted by a civil court.
The real test is that if the principal or real relief can be granted by the revenue court, then the ancillary relief which flows out from the principal relief can also be granted by the revenue court notwithstanding that all the reliefs can be granted by the civil court. However, if the things are in reverse direction that all the reliefs can be granted by the civil court, but if so called main relief is redundant or mere surplusage then it is the real relief involved in the matter which may or may not have been claimed as ancillary relief will determine the jurisdiction of the court which is to entertain a particular action.
It was held that even if a plaint or application is couched in such a language so as to oust the jurisdiction of the particular court then it is the cause of action and relief flowing out of such cause of action which would determine the forum for entertaining the said action and not the so-called relief claimed. Thus, the real test to determine the jurisdiction of the Civil Court vis-a-vis revenue court is the cause of action and the principal or the real relief flowing out of the said cause of action.
It is well settled that a provision for ousting the jurisdiction of a civil court must be strictly construed.
At the same time, the jurisdiction of the consolidation authorities is wider than civil and revenue courts. Adjudication of rights, title and interest over land by the consolidation of authorities is final.
In Smt. Dularia Devi Vs. Janardan Singh & others reported in AIR 1990 SC 1173 taking note of the law laid down in Gorakhnath Dube (supra), the Apex Court has held that the suit seeking cancellation of the sale deed on the ground that it was an act of mischief played upon the plaintiff was not maintainable before the civil court by reasons of the bar contained in section 49 of the Act' 1953, as the dispute therein was of a case of fraudulent misrepresentation as to the character of the document executed by the plaintiff and not merely as to its content or as to its legal effect. It was held that the remedy of the plaintiff lies in the proceedings pending before the consolidation authorities and it was open for the parties to approach the consolidation authorities for appropriate relief.
Learned Single Judge of this Court in the Sumitra Devi (supra) and Sahab Verma (supra) has held that the consolidation authority will have jurisdiction to decide the suit involving cancellation of a void sale deed and in view of the provision contained in section 5(2) of the Act' 1953, the suit filed before the civil court shall stand abated.
There is no dispute about the fact that for abatement of suit under section 5(2)(a) of the Act' 1953, an order is required to be passed after hearing the parties, and that no such order can be passed without giving notice to the parties. There is no automatic abatement of the suit as the order of abatement passed by the court concerned can be challenged by the aggrieved party before the higher court to examine the correctness thereof. Reference may be made to the judgement of this Court in Thakur Ram Janki Ji Virajman Mandir & others Vs. Board of Revenue U.P. & others reported in RD 2016 131 30 and Ram Charittar Singh Vs. Deputy Director of Consolidation, Azamgarh & others reported in 1992 RD 100.
Having gone through the legal pronouncement as noted above, the legal position regarding jurisdiction of the civil court vis-a-vis consolidation courts is culled out as under:-
(1) The jurisdiction of the consolidation authorities in adjudicating a dispute relating to right, title and interest over the land in an area under consolidation, is wider than the ordinary revenue courts.
(2) In a matter relating to adjudication of right and interest in land, lying in an area, which is covered by the notification under section 4 of the Act' 1953, the jurisdiction of the Civil Court and revenue Court is ousted by the language of Section 5(2) read with Section 49 of the Act' 1953, as a suit involving declaration of such right and interest in such land can only be subject matter of decision of consolidation proceedings.
(3) The jurisdiction of ordinary civil and revenue courts is thus removed for adjudication of all such disputes which could be decided in the course of consolidation proceedings by the consolidation courts governed by Act' 1953.
(4) The suit pending in any civil or revenue court on the notification under section 4(1)(a) bringing the area wherein the land-in-question lies, under consolidation will stand abated under section 5(2) of the Act' 1953, on an order passed by the court concerned and the abatement in any case is not automatic, as the party aggrieved would be entitled to assail the said order before the higher court.
(5) Section 49 of the Act' 1953 bars the jurisdiction of the civil or revenue court not only to adjudicate such right and title or interest over such land, adjudicated by consolidation authorities but also on such questions which could or ought to have been raised before them, but were not raised.
(6) In a suit where cancellation of a document is sought, a distinction has to be drawn as to whether an adjudication on the effect of such a purported alienation would necessarily imply the decision of the dispute involving conflicting claims to right or interest in the land which are the subject matter of the consolidation proceedings.
(7) As has been held in Gorakhnath Dube (Supra), the Court has to identify the cases where a document can be disregarded by the consolidation authorities and those which cannot be avoided without cancellation by a competent court of law i.e. between void and voidable document.
(8) The document, if found void, shall be disregarded by the consolidation authorities being of no legal effect or consequence, the consolidation authorities by necessary implication would be having statutory powers to adjudicate upon rights and interest in the land, by declaring such document ineffective. Whereas the voidable document, legal effect of which can be taken away only by it being cancelled or set aside by a Court having power to cancel it, the consolidation authorities will have no power to cancel or ignore such a document, as it shall remain binding so long as it is not cancelled.
(9) A suit seeking cancellation of a voidable document will not abate under Section 5 of the Act' 1953 as it will only be cognizable by a civil court.
(10) It is the real cause of action which determines the jurisdiction of the Court to entertain a particular action and not the language used in the plaint or the relief claimed or the defence taken.
In otherwords, it is the principal or real relief flowing out of a particular cause of action which would determine the forum for entertaining the said action and not the so-called relief claimed.
(11) If the difficulty arises when more than one reliefs are claimed in a suit on the same cause of action, one of which can be granted by a civil court, then it is to be seen that if the principal or real relief can be granted by the consolidation court, the ancillary relief or the relief which flows from the principal relief can also be granted by it.
(12) Thus in conclusion, in a case where the principal relief can be granted by the consolidation court and the determination of dispute involves decision on conflicting claims to right or interest in land which was subject matter of consolidation, the jurisdiction of civil or revenue court is ousted by virtue of Section 49 of the Act' 1953, which not only applies where adjudication has been made by the consolidation authorities but to those rights or claims which could have or ought to have been raised before the consolidation authorities for adjudication.
(13) After de-notification under section 52 of the Act' 1953, the proceeding, if any, pending before the consolidation court or a higher court under the Act' 1953 shall continue as the consolidation operations in respect of such proceedings would be deemed to be in force.
In the instant case, once the civil court has reached at the conclusion that the document, cancellation of which has been sought before it, has been termed as a void document being executed by an imposter, the question necessarily falls within the jurisdiction of the consolidation court. As the adjudication on the effect of such alienation would necessarily imply decision of a dispute involving conflicting claims to right and interest in land which was subject matter of consolidation proceedings, the question necessarily falls within the jurisdiction of the consolidation court.
In such a situation, the suit before the civil court will have to be dismissed in view of bar of Section 49 read with Section 5(2) of the Act' 1953. The fact that the village has been de-notified under Section 52 of the Act' 1953 during the pendency of the suit, would be of no consequence in view of the bar of Section 49 of the Act' 1953.
Further any dispute, if had been raised before the consolidation authorities and was pending on the date of notification under section 52 of the Act' 1953, would continue, as in that case, the consolidation operations would be deemed to continue in view of sub-section (2) of Section 52 of the Act' 1953.
For the above discussion, no infirmity is found in the orders impugned. The present petition is, accordingly, dismissed.
Order Date :- 27.10.2018 Himanshu