SMT. GLAICHI Vs. BHOLA SHANKAR AND ORS.

JUDGEMENT

(1.) THIS first appeal from order is directed against the order of the lower appellate court by which it has set aside the judgment and decree passed by the trial court and has remanded the suit to it with a direction to readmit to its original number and decide it in accordance with law. The trial court had earlier by its order dated 1 -9 -76 ordered that the suit had abated under Section 5(2) of the U.P. Consolidation of Holdings Act.

(2.) THE facts relevant for the purposes of this appeal are that the Plaintiffs had filed a suit claiming to be entitled to certain properties in dispute which according to them had been wrongly got recorded in favour of the Respondent. When a sun under Section 229 -B of UP ZA and LR Act was filed against them, a fictitious compromise was got recorded on 28 -1 -74 adversely affecting the rights of the Plaintiffs. In para. 11 of the plaint, it was stated that the Plaintiffs and Defendant Nos. 2 and 3 v ho were minors had not entered into any compromise nor they had signed any such deed of compromise. It was further alleged that at the relevant time the Plaintiffs as well as the Defendant No. 2 and 3 were minors and neither they were consulted before entering into the compromise nor any sanction was obtained from the court. It was next pointed out that since the properly of the minor was being transferred under the compromise, the permission of the District Judge had to be' obtained and the same had not been taken. It is said that the compromise is not for the benefit of or in the interest of the minors and being collusive, it was not binding. On the ground that the decree had no binding effect on the rights of the Plaintiffs and Defendant Nos. 2 and 3, it was sought to be cancelled by the decree of the civil court as it was likely to create clouds on their rights. The Plaintiffs on these allegations prayed that the decree in case No. 1622 of 72 decided on 19 -1 -74 be cancelled

(3.) A reference was made to a Division Bench decision of this Court in Sheopal v. Sri Lekhpata : 1979 AWC 524 in which various authorities on this point have been reviewed and on a consideration of the principles evolved therefrom the court came to the conclusion that in a civil suit for cancellation if a sale deed had been obtained by mis -representation, but the fraudulent act related not to the contents of the document but to the nature of the document, the same was void and the consolidation courts could decide the rights of the parties by completely ignoring such a sale deed. In such circumstances, in view of Section 5(2) the suit pending in the civil court must abate. In this ease, Rasool Ahmad v. Beni Prasad, 1965 ALJ 70, Ram Nath v. Smt. Munna : 1976 AWC 412 and Baijnath v. Binda : 1978 AWC 52 were relied upon. The court also took into account the principles laid down in Gorakh Math Dubey v. Hari Narain Singh : AIR 1973 SC 2451.