Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATGE JURISDICTION
CIVIL APPEAL NO.1078 OF 2009
(Arising out of SLP (C) No.14015 of 2006)
Madan Mohan Mishra … Appellant
Versus
Chandrika Pandey (Dead) by LRs. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Whether jurisdiction of the Civil Court is barred in respect of grant of
a relief for setting aside a deed of gift in terms of Section 49 of the U.P.
Consolidation of Holdings Act, 1953 (for short, ‘the 1953 Act’) is in
question in this appeal. It arises out of a judgment and order dated
26.5.2005 passed in CMWP No.1920 of 1999 passed by a learned Single
Judge of the High Court of Judicature at Allahabad.
2
3. The basic fact of the matter is not in dispute.
One Ram Baran Tewari was the owner of the property. He died on
12.7.1927 leaving behind two sons, Devki Nandan and Lalta Tewari as also
a daughter Bishundai. Lalta Tewari died on 4.3.1927 leaving behind his
widow, Bhagwanta Kunwar. Bhagwanta Kunwar died on 10.8.1949. Devki
Nandan died on 3.12.1952 leaving behind a daughter Parma Devi. Murli
Dhar Mishra, Madan Mohan Mishra and Akhilesh Mishra are her sons.
Bishundai died leaving behind her daughter Ghoora Devi. Respondent
Chandrika Pandey is her husband.
4. Bhagwanta Kunwar filed a suit for partition in the year 1949 in terms
of the provisions of U.P. Tenancy Act claiming half share in the properties
of the said Ram Baran Tiwari. The said suit was decreed by a judgment and
order dated 17.7.1954.
5. Questioning the legality or validity of the said decree, Madan Mohan
Mishra, appellant herein, filed a suit for cancellation of the said decree.
During the pendency of the said suit, Bhagwanta Kunwar executed a deed
of gift in favour of the respondent herein whereafter the plaint was
amended, inter alia, claiming for a decree for setting aside the said deed of
gift.
3
Indisputably, in the year 1972-73, consolidation proceedings started
in the village in terms of Section 5 of the 1953 Act. The suit was, in view
thereof, held to have abated. It is stated that the said order has attained
finality. It is furthermore stated that no objection was filed by the appellant
herein in the said consolidation proceedings. Akhilesh Mishra is stated to
have filed an objection before the Consolidation Officer which was rejected
on 31.7.1979. An appeal preferred thereagainst was dismissed on 5.8.1983.
A Revision Petition was filed thereagainst which was dismissed on
11.4.2002. It is stated that the writ petition has been filed thereagainst
before the Allahabad High Court which is said to have been pending.
6. Madan Mohan Mishra again filed a suit for a decree for injunction
and in the alternative for recovery of possession in the year 1994 which was
marked as suit No.510 of 1994. The learned Trial Judge held the said suit to
be barred under Section 49 of the 1953 Act. However, on an appeal
preferred thereagainst, the First Appellate Court reversed the said judgment
and order dated 14.12.1998.
By reason of the impugned judgment, the High Court has allowed the
writ petition filed by the respondents herein.
7. Mr. S.P. Singh, learned senior counsel appearing on behalf of the
appellant, would contend that keeping in view the fact that the purported
4
deed of gift executed by Bhagwant Kunwar not only consisted of
agricultural properties but also homestead properties, a suit for setting aside
the said deed as invalid is not barred under the provisions of the 1953 Act.
8. Our attention in this behalf has been drawn to the provisions of U.P.
Zamindari Abolition and Land Reforms Act, 1950 and, in particular, the
interpretation of the term ‘land’ as contained in Section 3(14) thereof as also
Section 143 to contend that by no stretch of imagination, non-agricultural
land could be brought within the purview of the provisions of the said Act
which was enacted only to consolidate the agricultural holdings. The
learned counsel would contend that jurisdiction of a Civil Court for passing
a decree for cancellation of a deed of gift is not barred as the same is void
and not voidable. It was furthermore urged that the jurisdiction of a Civil
Court in such matters should be upheld in order to avoid multiplicity of
proceedings. It was submitted that the High Court should have determined
the issue and should not have allowed the writ petition by a cryptic order.
9. Mr. S.R. Singh, learned senior counsel appearing on behalf of the
respondent, on the other hand, would contend that the orders dated
17.7.1973 passed in Civil Suit No.550 of 1969 having attained finality, the
impugned judgment warrants no interference.
5
10. Appellant before us was plaintiff in both the suits. In the list of dates,
Bhagwant Kunwar, wife of Lalta Tiwari is said to have expired on
10.10.1949 which is not correct as she was impleaded as a party in suit
No.550 of 1969 as the first defendant. She, thus, must have expired after
1969. The said suit was in respect of certain ‘Araji’ properties which are
agricultural in nature. In paragraph 6 of the plaint, it has been accepted that
a final decree dated 17.7.1954 was passed in the aforementioned suit No.12
of 1949 in respect of the ‘Araji’ mentioned in Item No.(3) which was
allotted in her favour and Item No.(b) was allotted in the share of the
plaintiff and the defendant No.3.
One of the grounds taken in the plaint was that the first defendant
therein obtained final decree in respect of good and fertile lands in more
than what could be allotted in her share. Such a statement was evidently
made as the lands in suit were agricultural lands.
11. The reliefs prayed for in the said suit are as under :
“a. That this Hon’ble Court may be pleased to
pass a decree of declaration declaring that
the decree dated 6.6.51 and 17.7.54 passed
in the Suit No.12 under Section 49/59 of
Act No.17 of 1939; Most. Bhagwanta
Versus Murlidhar & Ors. passed by the
Court of J.O. Sahab, Ghosi, District
Azamgarh, and the Hibbanama dated 9.1.70
executed by Most. Bhagwanta Kunwar in
6
favour of Chandrika Pandey, Defendant
No.2 and in against of the plaintiff and the
defendant No.1 is null and void.
b. If due to any legal reason due to the
defendants it is proved in the court that the
plaintiff and the defendant No.3 has been
dispossessed from the Araji Property
mentioned in Item No. (a) then this Hon’ble
Court may be pleased to pass a decree of
possession over the Araji property
mentioned in item (a) in favour of the
plaintiff and the defendant No.3 and against
st
the defendants 1 party.
c. Cost of the litigation may be granted in
st
favour of the defendants 1 party.”
The Schedule appended to the said suit as also in averments made in
the plaint do not suggest that the same contained any homestead or non-
agricultural property.
12. The order dated 17.7.1973 directing abatement of the said suit has
attained finality. Appellant did not question the correctness or otherwise of
the said order. He also did not file any objection in the consolidation
proceedings contending that the same involved non-agricultural lands. It is
in the aforementioned premise, we may consider the nature of the suit filed
by the plaintiff in the year 1994 being suit No.510 of 1994, paragraph 2
whereof reads as under :
7
“That the plaintiff is the owner in possession of
the Plot Nos.15/1.260, 16/289, 82/600, 140/745,
274/67, 488/117, 489/68, 423,55, 439/489,
323/122, 14/30, 46/31, 148/325, 260/54, 491/115,
835/398 as co-khatedar and successor since prior
to the zamindari abolition and are cultivating the
land.”
13. It is not in dispute that the term ‘co-khatedar’ means ‘co-tenure
holder’. It is not only that for the first time in the plaint an averment was
made that deed of gift, inter alia, contained some house properties, further
averments made in the said plaint revealed that the name of the respondent
herein had been entered in the records of the consolidation proceedings in
respect of Plot No.153/08, 185/148, 504, 1.360, 611/304.
The reliefs prayed for therein are as under :
“(a) That this Hon’ble Court may graciously be
pleased to pass a decree of permanent
injunction in favour of the plaintiff and
against the defendant pertaining to the suit
property. The defendant may be ordered to
not transfer the Araji No.153/87, 185/148,
504, 1.360, 611/304 which is in possession
of the plaintiff.”
We have noticed hereinbefore that the Araji lands are agricultural
lands.
8
14. Suit No.510/94 covers the same property which was the subject
matter of Suit No.550 of 1969. As noticed hereinbefore, the said suit has
abated by an order dated 17.7.1973. Another suit by the appellant,
therefore, would not only be barred by res judicata but also under Order II
Rule 2 of the Code of Civil Procedure. Furthermore, appellant had not filed
any objection in the consolidation proceedings, which again go to show that
it was accepted that the lands in question were agricultural lands.
15. Section 49 of the Act reads as under:
“ 49. Bar to Civil Court jurisdiction —
Notwithstanding anything contained in any other
law for the time being in force, the declaration and
adjudication of rights of tenure-holders in respect
of land by the lying in an area, for which a
notification has been issued under Sub-section (2)
or 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 :
Provided that nothing in this section shall preclude
that Assistant Collector from initiating
proceedings under Section 122-B of the Uttar
Pradesh Zamindari Abolition and Land Reforms
Act, 1950 in respect of any land, possession over
which has been delivered or deemed to be
9
delivered to a Gaon Sabha under or in accordance
with the provisions of this Act.”
16. Jurisdiction of the Civil Court not only in respect of the matters
which are specified therein but also the matters which could and ought to
have been the subject matter of the proceedings under the said Act is barred.
The words of the said section are absolutely clear and unambiguous.
We have, however, no doubt in our mind that the distinction between
the void and voidable document as has been noticed by this Court in Gorakh
Nath Dube v. Hari Narain Singh & Ors. [(1973) 2 SCC 535] cannot be lost
sight of. {See Prem Singh & Ors. v. Birbal & Ors. [(2006) 5 SCC 353]}.
But for the purpose of attracting the said distinction, clear averments were
required to be made in the plaint. We have noticed hereinbefore the
averments made in the suit.
19. Mr. S.P. Singh, relied upon a decision of this Court in Smt. Dularia
Devi v. Janardan Singh & Ors. [AIR 1990 SC 1173], wherein this Court
held that when a representation has been made in regard to the character of a
document, the deed would be totally void. We are not concerned with such
a question before us.
10
In Audhar & Ors. v. Chandrapati & Ors. [(2003) 11 SCC 458], a
Division Bench of this Court upon noticing Section 49 of the 1953 Act,
opined that Section 49 of the 1953 confers exclusive jurisdiction under the
Act and the jurisdiction of the Civil Court is barred, stating :
“The Authorities under the Consolidation Act of
1953 could justifiably conclude their proceedings
under that Act despite pendency of second appeal
against the order of the first appellate court
declaring the proceedings in the civil suit to have
abated.
We find that the main issue on fact is concluded
against the appellants. The lands in the khatas in
question are found to be tenancy lands of the
classes “ bhumidhari ” and “ Sirdari ”. They are not
sir or khudkasht lands. Under the special mode of
succession provided under the tenancy law widow
th
Akashi inherited absolute title to 1/4 share of her
husband and she could execute a valid gift deed in
favour of her daughters.
The present legal position as it stands during
pendency of the second appeal before the High
Court is that the civil court’s decree declaring the
gift deed as invalid has not attained finality
because during pendency of proceedings under the
Consolidation Act of 1953 had commenced and
the jurisdiction of the civil court stood ousted.
We, therefore, find no merit in any of the
contentions advanced on behalf of the appellants.”
Yet again in Narender Singh & Ors. v. Jai Bhagwan & Ors. [(2005) 9
SCC 157], this Court, upon noticing GND (supra), stated the law, thus :
11
“The learned counsel for the respondents is right
in his reply that the lands being exclusively
recorded in the name of the father, the sons who
claim joint ownership in the lands could and ought
to have approached the authorities under the Act
for getting them jointly recorded in the revenue
papers. Such proceedings for recording them as
joint owners having not been initiated under the
Act of 1953, the High Court was right in invoking
bar against such plea in the suit in accordance with
Section 49 of the Act. We find that the contention
advanced and accepted by the High Court gets full
support from the following observations of this
5
Court in the case of Sita Ram :
‘13. In the instant case Respondent 1 was
claiming an interest in the land lying in the
area covered by notification issued under
Section 4(2) on the basis that he is the son
of Chhota, brother of Nanha and that the
lands were recorded in the name of Nanha
in a representative capacity on behalf of
himself and his other brothers. This claim
which fell within the ambit of Section 5(2)
had to be adjudicated by the consolidation
authorities. Since it was a matter falling
within the scope of adjudicatory functions
assigned to the consolidation authorities
under the Act the jurisdiction of the civil
court to entertain the suit in respect of the
said matter was expressly barred by Section
49 of the Act and the suit of the appellant
was rightly dismissed on that ground.’
The argument that revenue entry in the name of
the father should have been treated as in
representative capacity for the sons is misleading.
Whether the father was karta and manager of the
family and as such could be recorded in
representative capacity for all co-owners in the
family was also a question of title which fell
12
within exclusive jurisdiction of the authorities
under the Act.”
The jurisdiction of the Civil Court, therefore, is clearly barred as it is
evident that subject matter of both the suits is agricultural lands only. It is
not, therefore, necessary for us to go into the question with regard to the
effect of a prayer made in a suit for setting aside the deed of gift in terms of
Section 31 of the Specific Relief Act, 1963 or otherwise.
20. In view of the aforementioned findings, it is not necessary for us to
enter into other contentions raised by Mr. S.N. Singh.
21. The appeal is dismissed with costs. Counsel’s fee assessed at
Rs.10,000/- (Rupees ten thousand only).
...………………………J.
[S.B. Sinha]
...………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
February 17, 2009