HAVALDAR SINGH Vs. ADITYA SINGH

JUDGEMENT

(1.) THE plaintiffs-opposite parties filed a suit for cancellation of the sale deed dated 8-12-1969 on the allegation that it had been obtained by practicing fraud. According to the plaintiffs they intended to execute a sale deed covering some land in favour of Bechan Nai of their village. THE defendants by practicing fraud got a sale deed executed in their favour covering certain other land. During the pendency of this suit the village in question came under consolidation operations. THE defendants moved an application under S. 5 of the U. P. Consolidation of Holdings Act for abating the suit. THE trial Court took the view that S. 5 of the Consolidation of Holdings Act was attracted and consequently the suit was abated. THE learned Additional District Judge allowed the revision filed by the plaintiffs taking the view that the sale deed sought to be cancelled was a voidable document and the civil Court alone had jurisdiction to grant the declaration prayed for by the plaintiffs.

(2.) THE learned counsel for the applicants contended that the sale deed involved in the suit was a void and not a voidable document and the suit should have been abated. It is no longer in dispute, in view of a decision of a Full Bench of this Court in Ram Nath v. Smt. Munna (1976 R D 220) that a suit for cancellation of a voidable sale deed relating to agricultural land pending in civil court will not abate under S. 5 (2) of the U. P. Consolidation of Holdings Act, but the suit would abate if it is for cancellation of a void sale deed. THE question for consideration in the present case is whether the sale deed in question is a voidable document or is altogether void. THE learned counsel contended that on the allegations in the plaint the executant of the sale deed never applied their mind to execute a deed of sale in favour of the defendants and it must be held that the document was altogether void. Reliance was placed on Ningawwa v. Byrappa Shiddappa Hirekurabar (AIR 1968 SC 956). This case instead of supporting the applicants goes against them. THE Supreme Court laid down the law thus (at p. 958) :- " It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded."