Smt. Satya Devi vs Ashok Kumar And Others
2019 Latest Caselaw 5199 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.37
 

 
Case :- SECOND APPEAL No. - 496 of 2006
 

 
Appellant :- Smt. Satya Devi
 
Respondent :- Ashok Kumar And Others
 
Counsel for Appellant :- Sah O.P. Agarwal,Dr. Vinod Kr Rai,Rohit Agarwal,Sankatha Rai,Vijai Kr Rai
 
Counsel for Respondent :- R.K. Srivastava,A.D.Saunders,Jagdish Pd.Tripathi
 

 
Hon'ble Siddhartha Varma, J.

The plaintiff-appellant filed a suit being Original Suit No.575 of 1994 with a relief for permanent injunction restraining the defendants therein from interfering with the suit property and also for a declaration that the will dated 21.6.1987 be declared a null and void document.

The plaintiff had claimed that she was bhumidhar with transferable rights of plot no.81 area 3 decimal, plot no.39 area 11 1/2 decimal of village Chamav, Pargana Athgavan, District Varanasi. Along with these plots, she had also claimed that she was bhumidhar with transferable rights of plot no.1 area 28 decimal, plot no.8 area 34 1/2 decimal, plot no.21 area 11 decimal, plot no.245 area 4 decimal, plot no.248 area 5 2/3 decimal of village Paschimpur, Pargana Athgavan, District Varanasi. Further, she had claimed that she was bhumidhar with transferable rights of plot no.108 area 8 1/3 decimal, plot no.111 area 9 1/3 decimal, plot no.270 area 13 1/3 decimal of village Koiran, Pargana Athgavan, District Varanasi. She had claimed being bhumidhar with transferable rights on account of the fact that her father Sankatha Prasad, who had inherited the above plots from his father Sri Deep Narain Lal, had gifted the property to her (plaintiff) on 13.6.1969. Thereafter she had got her name mutated on account of the gift deed in March 1970 and she was in possession over the suit property. She had claimed that the defendant no.1-Ashok Kumar in collusion with the other defendants had got an unregistered will dated 21.6.1987 prepared in his favour and after the plaintiff's father died, he had moved an objection before the Consolidation Officer, after the village was notified under section 4 of the U.P. Consolidation of Holdings Act, 1963. The defendants had contested the suit and thereafter the Trial Court after framing as many as six issues, decreed the suit in favour of the plaintiffs. The Appellate Court on the appeal being filed by the defendant no.1-Ashish Kumar, however, allowed the appeal stating that since the plaintiff had not proved the gift deed in accordance with law, the first appeal had to be allowed. The suit was, thereafter, dismissed.

The instant Second Appeal when it was filed, the following substantial questions of law were framed :-

"(1) Whether the Court below was justified in holding that the registered gift-deed dated 13-6-1969 was not proved?

(2) Whether the Court below was justified in holding that the Will in question executed by Sankatha Prasad has been proved in accordance with law?

(3) Whether the Court below after having found that the Will is void, was justified in dismissing the suit as the plaintiff was otherwise an heir of Sankatha Prasad, being the daughter?"

When final arguments commenced, on 1.5.2019 this Court passed the following order :-

"The plaintiff filed a suit being Suit No. 575 of 1994 in the year 1994. Simultaneously the respondent Ashok Kumar also filed his objection to the basic year entries when the village was notified for consolidation. On 1.7.1994, the Consolidation Officer found that the two sisters Satya Devi and Gulabo Devi were bhumidhars. However, the Revisional Court on 5.9.1997 remanded the matter to the Consolidation Officer after allowing the Revision and setting aside the order dated 1.7.1994.

The question, at this stage, therefore, for consideration would be :-

I. Whether the Civil Court on 9.2.2004 could have adjudicated the suit during the period the village was under consolidation.

II. Whether the Appellate Court could have entertained the Appeal at all.

Put up this case on 14.5.2019."

Thereafter when the counsel for the appellants and the respondents addressed the Court on 15.5.2019, they both submitted their "Dates & Events Chart" which were made a part of the record of the Second Appeal and it so transpired that section 4 notifications vide villages Chamav, Paschimpur and Koiran, district Varanasi were issued in the year 1992-93. Notification under section 52 of the Act was issued on 1.5.1997 for village Paschimpur; Notification under section 52 of the Act for village Chamav was issued on 27.7.2000, while for village Koiran the notification under section 52 was issued on 27.7.2000. The defendant Ashok Kumar had filed an objection under section 9-A(2) of the U.P. Consolidation of Holdings Act and had claimed that both the plaintiff and the defendant-Ashok Kumar who was the son of the sister of the plaintiff be entered in the revenue records.

On 1.7.1994, the objection of Ashok Kumar was allowed vide the properties in villages Chamav and Paschimpur. On 1.1.1998, Raj Kumari Devi, the mother of the plaintiff had also filed an objection under section 9A(2) of the U.P. Consolidation of Holdings Act vide village Koiran.

Upon coming to know of the decisions in the objections filed by respondent no.1 and respondent no.4 (who had died before the Second Appeal was filed), the plaintiff filed an appeal being Appeal No.3441 of 1994 (Satya Devi Vs. Ashok Kumar) which came to be dismissed on 25.2.1997 which resulted in the filing of a Revision being Revision No.1056/1516. So far as the objection of Raj Kumari Devi was concerned, a Revision being Revision No.1073/1534 was filed by Raj Kumari Devi. Both the Revisions filed by Satya Devi and the Revision filed by respondent no.4 Raj Kumari Devi were disposed of on 15.9.1997 by the Deputy Director of Consolidation, Varanasi and the matter was remanded back to the Consolidation Officer for a fresh decision.

The above narration makes it clear that while one objection had been filed by Ashok Kumar, another was filed by the respondent no.4-Raj Kumari Devi who as per the Dates & Events Chart had been substituted after her death by the defendant Ashok Kumar.

Since the issues which were to be decided in the instant Second Appeal were also such issues which were to be decided by the Consolidation Courts, Sri R.C. Gupta, learned counsel appearing for the respondents submitted that upon the notification of the three villages namely Chamav, Paschimpur and Koiran, the suit ought to have abated. He further submits that after the Revisional Court had remanded the matter to the Consolidation Officer who was seized with the objection filed by respondent no.1-Ashok Kumar and of the respondent no.4-Raj Kumari Devi which were with regard to plot no.81 area 3 decimal, plot no.39 area 11 1/2 decimal of village Chamav, Pargana Athgavan, District Varanasi; plot no.1 area 28 decimal, plot no.8 area 34 1/2 decimal, plot no.21 area 11 decimal, plot no.245 area 4 decimal, plot no.248 area 5 2/3 decimal of village Paschimpur, Pargana Athgavan, District Varanasi and plot no.108 area 8 1/3 decimal, plot no.111 area 9 1/3 decimal, plot no.270 area 13 1/3 decimal of village Koiran, Pargana Athgavan, District Varanasi, then it would have been in the interest of justice that the suit along with the instant Second Appeal was ordered to be abated and the matter was directed to be heard by the Consolidation Officer. Learned counsel for the respondents relied upon 1961 RD 261 : Kamta Singh & Ors. Vs. Ganesh Prasad Dube & Ors.; 1969 RD 429 : Jagarnath Shukla Vs. Sita Ram & Ors.; 1973 RD 423 (SC) : Gorakh Nath Dube Vs. Hari Narain Singh & Ors. and 1995 RD 361 : Smt. Gulabi Vs. Ram Autar & Ors. and submitted that as per section 5(2) of the U.P. Consolidation of Holdings Act the Suit along with the Second Appeal had to abate. Since, learned counsel for the respondents had brought to the notice of the Court section 5(2) of the U.P. Consolidation of Holdings Act, the same is being reproduced here as under :-

"5(2). 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;

(b) such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under an in accordance with the provisions of this Act and the rules made thereunder.

[Explanation.-- For the purposes of sub-section (2), a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 shall not be deemed to be a proceeding in respect of declaration of rights or interest, in any land.]

Learned counsel for the appellant, in reply, however, submitted that since the matter had been adjudicated upon by the Trial Court and also by the First Appellate Court and since now the Second Appeal was to be decided on merits and the sole question which had to be decided was as to whether the gift deed was validly executed or not, the Second Appeal may not be abated and be heard on merits.

Having heard learned counsel for the parties and after having perused the decisions cited by them and also upon going through the provisions of section 5(2) of the U.P. Consolidation of Holdings Act, I am convinced that when the villages being Chamav, Paschimpur and Koiran were notified under section 4 of the U.P. Consolidation of Holdings Act, then the suit which was filed by the plaintiff ought to have been abated and the findings arrived at by the Consolidation Court alone should be given finality.

Under such circumstances, the Second Appeal being Second Appeal No.496 of 2006 along with the Suit No.575 of 1994 stands abated. Any finding which might have been arrived at in the judgment and decree dated 4.5.2006 passed in the Civil Appeal No.18 of 2004 and in the judgment of the Trial Court passed on 23.2.2004 in Suit No. 575 of 1994 shall not influence the Consolidation Courts in any manner whatsoever and they shall decide the objections which are pending before them independent of any finding which might have been arrived at in the Civil Suit. It may be noted that even though the notification under section 52 of the U.P. Consolidation of Holdings Act had been made with regard to the three villages namely Chamav, Paschimpur and Koiran, the objections which were still pending before the Consolidation Officer, shall be decided on merits.

The Second Appeal along with the Suit stands abated.

Order Date :- 30.05.2019

GS

(Siddhartha Varma, J.)