RAM NATH Vs. MUNNA

JUDGEMENT

(1.) (for self and for P. N. Bakshi & M. P. Mehrotra, JJ.) :- Two second appeals arising out of suits for cancellation of sale deeds came up before a learned single Judge of this Court. A writ petition arising out of consolidation proceedings concerning the same land in respect of which the sale deeds had been questioned also came up for hearing. The learned single Judge after hearing the learned counsel for the parties has referred the following two questions for our opinion ;

(2.) AFTER considering the judgment in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451, we are of opinion that it does declare the law about the applicability of section 5 of the U. P. Consolidation of Holdings Act to suits for cancellation of voidable documents. A suit had been instituted for the cancellation of a sale deed to the extent of a half share claimed by the plaintiff n fixed rate tenancy plots on a payment of Rs. 250/- or whatever sum the plaintiff may be found liable to pay and after cancellation of the sale deed to the extent of the plaintiff's share in an award of possession of the plaintiff's share. There was no prayer for partition and by asking for possession of his share the plaintiff could only be seeking joint possession after declaration of rights claimed. The trial court dismissed the plaintiff's suit. The first appellate court allowed the plaintiff's appeal and decreed the suit. Defendant went up in appeal. While the second appeal was pending in the High Court a notification under section 4 of the U.P. Consolidation of Holdings Act was issued. An application was moved under section 5 of the Act. But the High Court dismissed the application and decided the appeal on merits. The appeal was allowed with the result that the suit was dismissed. The plaintiff on special leave went up to the Supreme Court against the decree of the High Court. A preliminary objection was taken by the defendant to the effect that the suit was liable to be abated by reason of Section 5 of the U. P. Consolidation of Holdings Act. This plea was accepted by the Supreme Court and the suit was directed to be declared as abated.

(3.) WE find that the Supreme Court had before it the specific question for decision about the applicability of section 5 of the U. P. Consolidation of Holdings Act to suits for canellation of voidable sale deeds. It disagreed with the view of this Court in the Division Bench case of J. N. Shukla v. S.R. Pande, 1969 AWR 435 where the voidable and void documents had been put at par with reference to section 5 of the U.P. Consolidation of; Holdings Act and it pointed out the distinction between the two types of documents and had also given the reasons why a document which was only voidable was effective till cancelled by a court competent to cancel the same. After laying down this law the Supreme Court applied it to the facts of the case before it and came to the conclusion that the document was pleaded to be void and for that reason held that the suit was liable to be abated.