Smt. Madhuri Devi And Ors. vs The Deputy Director Of ...
2017 Latest Caselaw 3060 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 4
 

 
Case :- CONSOLIDATION No. - 388 of 2011
 

 
Petitioner :- Smt. Madhuri Devi And Ors.
 
Respondent :- The Deputy Director Of Consolidation Sitapur Camt At Kheri
 
Counsel for Petitioner :- Avadhesh Kumar
 
Counsel for Respondent :- C.S.C.,M.G.Misra,Vineet Kr. Pandey
 

 
Hon'ble Rajan Roy,J.

Heard learned counsel for the parties.

This is a writ petition under Article 226 of the Constitution of India challenging the order dated 18.02.2006 passed in proceedings under Section 9-A(2) rejecting the request of the petitioners for staying the Consolidation proceedings on the ground that a suit for cancellation of the sale deed dated 12.10.2004 was pending before the Civil Court. The revisional order dated 16.03.2011 passed by the Deputy Director of Consolidation affirming the order of the Consolidation Officer has also been challenged.

This Court while entertaining the writ petition had passed an interim order relying upon a judgment of a Single Judge Bench of this Court rendered in the case of Smt. Long Shri Devi Vs. Rajendra Singh and Ors. reported in 1978 RD 133, thereby staying the consolidation proceedings under Section 9-A (2) pending before the Consolidation Officer, consequently, the consolidation proceedings are held up.

The contention of Shri Avadhesh Kumar, learned counsel for the petitioners was that in view of the judgment of this Court in Smt. Long Shri Devi's case (supra), wherein, the judgment of the Supreme Court in Gorakh Nath Dube Vs. Narain Singh and Ors. reported in AIR 1973 SC 2451 as also the Full Bench decision in the case of Ram Nath Vs. Smt. Munna reported in 1976 RD 220 had been considered, the consolidation proceedings are liable to be stayed till disposal of the Civil Suit seeking cancellation of sale deed, as, the right, interest and title which are to be determined in the consolidation proceedings would have to be done keeping in mind the said sale deed.

Learned counsel for the petitioner has also invited the attention of the Court to Section 31 of the Specific Relief Act, 1963 and the decisions of the Supreme Court in the case of Dularia Devi Vs. Janaradan Singh and Ors. reported in 1990 (Supp) SCC 216 to contend that in the event the consolidation Courts are allowed to adjudicate the rights, title and interest in respect of the holding as also in respect of the sale deed in question, then, the bar of Section 49 will come into operation which would be incongruous as the jurisdiction to cancel the sale deed vests in the Civil Courts and not in the Consolidation Courts.

Learned counsel appearing for the contesting opposite parties on the other hand relied upon the decision of the Supreme Court in the case of Sardar Singh Vs. Deputy Director of Consolidation, Agra Camp, Mathura and Ors. reported in 1994 RD 409, wherein, according to him, it has been held that the Consolidation operation could not be stayed merely on account of pendency of Civil Suit challenging an instrument which could form the basis for determination of rights in the Consolidation proceedings. He also relied upon a Division Bench judgment of this Court reported in 1982 AWC 575; Ram Sewak Vs. Deputy Director of Consolidation, wherein, the judgment rendered by the Single Judge Bench in Smt. Long Shri Devi's case (supra) was considered and it was held that said judgment turned on the facts of the case, therefore, it was not applicable.

The facts of the case in brief are that one Shri Dwarika S/o Shri Khem Karan was the original tenure holder of Plots No. 345 and 349, which are the subject matter in issue in this proceedings. The said Dwarika S/o Shri Khem Karan executed a sale date dated 10.12.1971 in favour of one Shri Ayodhya Prasad S/o Shri Kedar Nath, who in turn executed another sale deed on 05.02.1974 in favour of Shri Guru Dayal S/o Shri Sudarshan, Shri Ganga Prasad S/o Shri Rameshwar Dayal and Shri Parmanand S/o Shri Radhey Shyam.

In pursuance to the aforesaid sale deed the Naib Tehsildar passed an order of mutation dated 10.10.1980 in favour of the vendees. On 14.10.1980 the order of mutation passed on 10.10.1980 was stayed by the Naib Tehsildar at the behest of Shri Mohan Lal on an application filed by him.

Thereafter, the predecessor in interest of the petitioners herein Shri Manohar Lal filed a suit under Section 229-B of the U.P. Zamindari Abolition & Land Reforms Act, 1950 claiming to have perfected his title on the basis of adverse possession, which was dismissed by the S.D.O. concerned on 30.10.1981 against which Shri Manohar Lal filed an appeal bearing No. 282/81-82 in the Court of Additional Commissioner, Lucknow Division, Lucknow who allowed the same vide order dated 06.10.1982 and set-aside the order passed by the S.D.M. on 30.10.1981, thereby decreeing the suit of Shri Manohar Lal declaring him to be the Bhoomidhar, however, on an application being filed by Shri Parmanand for impleadment and recall of the order dated 06.10.1982 the same was allowed on 16.08.1985. Being aggrieved Shri Manohar Lal filed a revision bearing No. 68 of 1982/85 before the Board of Revenue which was dismissed on 24.05.1994, consequently, the appeal which had been restored was heard and it was subsequently allowed on 05.05.1998 and the order of the S.D.O. dated 30.10.1981 was set-aside once again and the matter was remanded back to him for a decision afresh after impleadment of Shri Parmanand and hearing the parties. The proceedings before the S.D.M. were decided ex-parte. They were recalled at the behest of Shri Pramanand on 26.11.1999 against which Shri Manohar Lal filed a revision bearing No. 904 of 1999-2000 which was dismissed on 10.05.2000. The application for recall of the said order was also dismissed on 31.08.2002. A review application was also filed.

At this stage when the proceedings were still pending before the S.D.M. consequent to recall of ex-parte order on 26.11.1999 a notification under Section 4 of the U.P. Consolidation of Holdings Act, 1953 was published, whereupon the aforesaid proceedings abated. Consequently, objections were filed by Shri Pramanand before the Consolidation Officer under Section 9-A(2) of the Act, 1953.

It is at this stage that an application was filed by the petitioners herein before the Consolidation Officer in the proceedings under Section 9-A(2) seeking stay of the Consolidation Proceedings on the ground of pendency of Civil Suit at the behest of Shri Manohar Lal seeking cancellation of the sale deed dated 12.10.2004, which was rejected by the Consolidation Officer on 18.02.2006 and the said order was affirmed by the Deputy Director of Consolidation on 16.03.2011.

It is against the above mentioned background that this writ petition has come up before this Court.

Once Section 4 notification is published under the Act, 1953 then its consequences ensue as prescribed under Section 5 thereof and all rights and every proceeding for the correction of records and every suit and proceedings 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.

A joint reading of Sub-section 2 of Section 5 and Section 9-A leave no doubt that once consolidation operation starts on the publication of notification under Section 4, then, any right, interest and title in respect of any land which is the subject matter of such consolidation operations, is to be determined by the Consolidation Authorities and none else, however, as far as cancellation of deeds are concerned it is the prerogative of the Civil Courts and Consolidation Authorities do not have any jurisdiction to cancel instruments i.e. sale deed or gift deed etc., but, this does not mean that in proceedings under Section 9-A (2) the Consolidation Courts can not take into consideration such sale deeds etc. for the purposes of determination of rights, title and interest of the parties in the land in question. This question fell for consideration before the Supreme Court way back in 1970 itself in the case of Gorakh Nath Dube's case (supra), wherein the Supreme Court took note of a Division Bench Judgment of this Court in Jagarnath Shukla Vs. Sita Ram Pande and ors. reported in 1969 ALJ 768, wherein, the question whether a 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. The jurisdiction of the Consolidation Authorities to go into questions relating to the validity of the sale deeds, gift deeds and wills also fell for consideration. The Supreme Court after noticing the aforesaid judgment found therein a fairly comprehensive discussion of the relevant authorities of the Allahabad High Court, the preponderating weight of which was cast in favour of view that question relating to the validity of sale deeds, gift 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 the course of adjudication on rights or interests in land which are the subject matter of consolidation proceedings. The Supreme Court opined that a distinction can be made between cases where a document is wholly and 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. It held that an alienation made in excess of power to transfer would be, to the extent of excess of power, invalid. It further held that an adjudication on the effect of such purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to the 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 interest in land, to declare such documents effective or ineffective, but, where there is a document the legal affect 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 opined that 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 view of what was held by the Supreme Court the legal position which can be culled out is that the validity of sale deed can also be looked into by the Consolidation Authorities, although, they do not have the jurisdiction to cancel it. They can very well see as to whether the deed in question on the basis of which any right, title or interest is claimed is a void document, if so, then they can very well ignore it by declaring it to be ineffective, however, if the legality being pointed out in respect of the document is such that it would at best be voidable at the instance of the aggrieved party, then, in such an event the Consolidation Courts are bound to give effect to such documents, unless and until it is cancelled by a Court of competent Civil jurisdiction, meaning thereby, voidable documents can not be ignored by the Consolidation Courts. This is the crux of the legal position with regard to the jurisdiction of the Consolidation Courts in this regard.

As regards the Single Judge Bench decision in Smt. Long Shri Devi's case (supra) the same fell for consideration before a Division Bench of this Court in the case of Ram Sewak (supra) and the Division Bench opined that the decision in Smt. Long Shri Devi's case (supra) turned on the facts of the case. It can not be urged as a matter of law that in every case where a suit for cancellation of sale deed or gift deed is pending or a suit for specific performance has been filed the consolidation authorities should stay their hands. The facts of a particular case may justify that order. Finalization of consolidation proceedings do not effect the suit for cancellation or specific performance etc. In case consolidation proceedings are finalized in favour of ''A' on strength of sale deed but the same is cancelled or suit for specific performance is decreed in favour of ''B' no difficulty can arise and the name of ''B' can be substituted in place of ''A' and possession be delivered under Rules. It opined therefore that normally proceedings before the consolidation authorities should not be stayed. It went on to observe that it would be inequitable to do so because an unscrupulous litigant may file a frivolous suit in Civil Courts which may take ten years or even more years to be decided inclusive of appellate proceedings arising therefrom causing grave prejudice to the other side.

Apart from the above, way back in 1994 this issue came up before the Supreme Court in the case of Sardar Singh (supra) wherein the specific question was as to whether Consolidation proceedings under Section 9-A (2) should be held up merely on account of proceedings for cancellation of gift deed before the Civil Court and the Supreme Court after noticing the statutory provisions held that Consolidation proceedings under the Act are in respect of agricultural land, whereas, the Civil Court adjudicates rights of the parties in respect of the property other than agricultural land. It was conscious of the possibility of contrary judgment between Civil Court and the Consolidation Authorities, yet, keeping in the view the nature of the Consolidation operations it held that the staying of the Consolidation proceedings in respect of the part of land may have an adverse affect on the consolidation operations in the whole of the area. It further went on to observe that the Consolidation operations under the Act include the determination of an area for extension of abadi including the site for harijans and landless persons, area for other public purposes and the preparation of the scheme. It opined that the consolidation operations under the Act would not be smoothly completed if the proceedings in respect of a part of the land are stayed. Even the scheme of the Act makes it clear that the authorities under the Act have no power to stay the consolidation proceedings once the said proceedings are commenced by way of a notification under Section 4 of the Act. It was therefore of the view that the High Court fell into the error in staying the Consolidation proceedings to await the decision in the civil proceedings, wherein, the gift deed was under challenge. In the facts of the said case the Supreme Court ordered that on final conclusion of the civil proceedings the judgment of the civil Court which achieves finality may be placed before the Director of Consolidation who shall thereupon, if necessary, reopen the proceedings under Section 48 of the Act and pass a fresh order after taking into consideration the findings of the civil court.

Reference may also be made to a Single Judge Bench judgment of this Court reported in 1986 RD 184; Smt. Hafiza Vs. D.D.C. and Ors., wherein a similar opinion as aforesaid was expressed. The said Bench also noticed that the judgment in Smt. Long Shri Devi's case (supra) was not approved by the Division Bench in Ram Sewak's case (supra). The decision of the Consolidation Officer to stay the proceedings under Section 9-A of the Act, 1953 until final decision in the civil suit for cancellation of sale deed was held to be manifestly erroneous. Reference was made therein to another judgment of this Court in the case of Mithan Singh Vs. Chandra Pal Singh and Ors. reported in 1982 ALJ 1445, wherein, a similar opinion had been expressed relying upon the Full Bench decision in the case of Ram Nath's case (supra). It is fruitful to quote relevant paragraph of the judgment in Smt. Hafiza (supra):-

"5. It thus appears fairly well settled that if the sale deed is challenged on the ground that it is void then the Consolidation authorities can determine that question but if the sale deed has been challenged before the Consolidation authorities on the ground that it is voidable, the Civil Court would have jurisdiction to decide the suit. If sale deed, as per pleading, contained in the Civil suit for cancellation of the sale deed filed in the civil court has been challenged on the ground that it is void, then the proceedings in the Civil suit would itself deserve to be abated under Section 5(2) of the Act. But if the sale deed has been challenged on the ground that it is voidable for the reasons stated in the plaint the same would deserve to be decided on merits, but the pendency of such a suit in the civil court would not require the proceedings under Section 9(2) or under Section 12 of the Act filed before the Consolidation Officer to be stayed. The consolidation authorities need not wait for the decision of the civil court. If the sale deed is not void but voidable the names of the vendees will be recorded on the land in dispute on the basis of the impugned sale deed by the consolidation authorities and if the objector will ultimately succeed in getting the sale deed cancelled through the competent civil court, his name will then be recorded in place of the vendees on the basis of the order passed in the Civil suit. If the sale deed has, however, been challenged on the ground that it is void, the consolidation authorities would go into that question on merits and determine the title of the parties. Thus the Consolidation authorities are not required to stay the proceedings till the decision of a suit cancellation of sale deed filed in the Civil Court challenging it either on the ground that it is voidable or void. If in the Civil suit the sale deed has been challenged on the ground that it is void, the proceedings in the suit would abate and in such a case there would be no question of staying proceedings in the objection pending before the consolidation authorities but even if the sale deed or gift deed has been challenged in the civil court on the ground of voidable, the consolidation authorities are in law not bound to stay the proceedings in the pending case before it because there is no specific provision either in the Act or in the Rules, to that effect. The proceedings contemplated by that Act are to be expeditiously determined to achieve the purpose provided in the Consolidation of Holdings Act and therefore, to hold that the Consolidation proceedings should be held until the Civil suit is finally decided would nullify the purpose for which the Act was enacted. In this view of the matter I am of opinion that the order dated May 19, 1978 passed by the Consolidation Officer staying the proceedings on the aforesaid second application until final decision in the suit for cancellation of the sale deed suffers from manifest error of law and deserves to be set aside. The order dated November 20, 1978 passed by the Deputy Director of Consolidation confirming the order passed by the Consolidation Officer also suffers from manifest error of laws and cannot be sustained."

Reference may also be made to another decision of this Court dated 28.10.2013 rendered in Writ-B No. 11487 of 2010; Narendra Bahadur Vs. Deputy Director of Consolidation and Ors., wherein similar view has been taken relying upon the decision in Gorakh Nath Dube (supra), the Full Bench decision of this Court in Ram Nath (supra) and other decisions on the subject.

In view of the above discussion, none of the arguments of Shri Awadhesh Kumar, learned counsel for the petitioner or the decisions cited by him come to his aid.

In view of the above discussion, there is absolutely no reason for this Court under Article 226 of the Constitution of India to allow the stay order to continue any further or to grant the relief claimed herein for staying the consolidation operation during pendency of the suit before the civil court. The writ petition lacks merit. The interim order is discharged. If there is no other legal impediment the Consolidation Officer shall now proceed to conclude the proceedings under Section 9-A(2), with expedition but as per law, say, within a period of eight months from the date a certified copy of this order is submitted. As the contesting opposite parties are present before the Court they may appear before the Consolidation Officer to facilitate the disposal of the case.

The parties herein shall not alienate the holding in question till the disposal of the proceedings under Section 9-A(2).

It is made clear that this Court has not considered the merits of the issues pending before the Consolidation Officer.

With these observations, the writ petition is dismissed.

 
Order Date :- 8.8.2017
 
R.K.P.					         (Rajan Roy,J.)