DEO NANDAN Vs. CHHOTE

JUDGEMENT

(1.) IN this second Appeal, plaintiff-appellant, Deo Nandan, has moved an application stating that consolidation proceedings have commenced in the village and as such the suit and the appeal arising therefrom deserve to abate. On March 10, 1981 three weeks' time was allowed to the learned Counsel for respondent to file a counter-affidavit. No counter-affidavit has been filed but he has appeared to oppose the application orally.

(2.) ON behalf of the respondent, it is not disputed that consolidation proceedings have commenced in the village. The only point raised on his behalf is that the suit and this second appeal arising therefrom cannot be said to have abated under Section 5, U. P. Consolidation of Holdings Act. Since the Sale Deed, relating to agricultural land was impugned by the plaintiff on the ground that it was fraudulent. It is submitted that a sale deed which is alleged to have been obtained by practising fraud is voidable and not void. In these circumstances, it is contended that the Civil Court alone is competent to finally adjudicate the controversy between the parties. ON behalf of the appellant, however, it is urged that on the allegations made in the plaint, the sale deed is ab initio void and not voidable. Learned Counsel for the appellant submits that the question as to whether the sale deed impugned in the suit was void or not can only be gone into by the consolidation authorities. Thus the short controversy between the parties is whether on the facts alleged m the plaint, the sale deed is claimed to be void or only voidable. Parties are agreed that if the allegations made in the plaint amount to an averment that the sale deed is void, then the only course open for this Court is to record an order that the suit and the second appeal arising therefrom has abated.

(3.) IN the former case, the Supreme Court was considering the question of limitation. It cited with approval the following passage from the decision in Foster v. Mackinnon, (1869) 4 CP 704 (Para 5 of AIR) : "it (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign the contract to which his name in appended. . . . . . . . . . . The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the 'actual contents' of the instrument".