RAM ASREY SINGH Vs. STATE OF U P

JUDGEMENT

(1.) The present writ petition has been filed for quashing the orders dated 12.12.2000 and 25.5.2000 passed by the Courts below, Annexures- 2 and 4 to the writ petition and for issuing a writ of mandamus directing the respondents not to interfere in the peaceful possession of the property in dispute.

(2.) The case of the petitioners is that Original Suit No. 1366 of 1990 was filed I by respondent No. 2 on 31.5.1990 against the deceased father of the petitioners No. 1 to 3 in the Court of Munsif, Gorakhpur for cancellation of the sale-deed dated 15.12.1989 with an allegation that the plaintiff and defendant No. 2 were the real brothers and they were jointly Bhumidhars in possession of the land detailed in Schedule 'A' given at the foot of the plaint situate in village Phulwaria, Tehsil- Sadar, district- Gorakhpur. In the plaint it was pleaded that the plaintiff and defendant No. 2 (respondent No. 3) had half share each in the land in dispute. In the year 1985 when he was student of High School in Deoria and defendant No. 2 proceeded to Madhya Pradesh for service, respondent No. 2 was looking after their entire land for cultivation. In the month of march 1990 defendant No. 1 and his sons intended to take forcible possession of the property in dispute stating therein that he has obtained a sale-deed from defendant No. 2 (respondent No. 3). The plaintiff on coming to know regarding the execution of the aforesaid sale-deed when he examined the record in the Registrar's office, it was found that a fake sale-deed dated 14.12.1989 was obtained by the deceased Ram Dev Singh though no sale-deed was executed by the defendant No. 2 (respondent No. 3). No signature has been put on the sale deed. It has also been pleaded that the sale-deed in question was procured by impersonation in place of respondent No. 3 and on the date of execution of the sale-deed the plaintiff was major but in the sale-deed he was shown as minor. Therefore, there was no question of appointment of defendant No. 2 as his guardian for the purpose of execution of the sale-deed and no permission was taken from the consolidation authorities. In the plaint a relief to this effect was also sought for cancellation of the sale-deed dated 4.12.1989.

(3.) During the pendency of the suit the trial Court framed issue No. 1 regarding the jurisdiction of the civil Court. The petitioners moved an application under Section 5(2) of the U.P. Consolidation of Holdings Act (in short the Act) for abating the suit on the ground of operation of consolidation proceeding in the village. An objection to this effect was also filed. The trial Court after hearing parties by order dated 12.12.2000 has decided issue No. 1 that the suit is maintainable before the civil Court as in the present suit there is no relief of declaration of rights, title and interest or there is no involvement of adjudication and the question which has been raised in the present suit could not be raised in Consolidation Court because the Consolidation Courts have no jurisdiction to cancel the sale-deed. therefore, it has been held that the suit is not barred by Section 49 of the Act. Feeling aggrieved by the order passed by the trial Court the petitioners preferred a civil revision, which was numbered as Civil Region No. 26 of 2001. A specific ground to this effect was taken that the trial Court has not considered the settled principle of law and has held that the suit will not abate under Section 5(2) of the Act. The learned District Judge vide his judgment and order dated 25.5.2001 has dismissed the revision of the petitioners on the ground that the question of title is not involved. The only question requires to be decided is whether the sale-deed in the suit was obtained by impersonation and whether at the time of execution of the sale deed, the plaintiff was major? When the deed is voidable it is the civil Court, which has jurisdiction to decide the suit. The revisional Court has also dismissed the revision vide its order dated 25.5.2001. Aggrieved by the aforesaid orders the petitioners' have filed the present writ petition.