NARAIN Vs. ADDL DISTRICT JUDGE AZAMGARH

JUDGEMENT

(1.) S. C. Verma, J. The petitioner has challenged the impugned order dated 10-4-1990 passed by the learned VII Additional District Judge, Azamgarh allowing the revision filed by the respondents and setting aside the order dated 5-10-1988 passed by the learned XVI Additional Munsif in O. S. No. 502 of 1984. and remanding the case for decision afresh oh merits.

(2.) THE plaintiff filed Suit No. 502 of 1984 alleging themselves to be the-Bhumidhars of the disputed land belong ing to one Ghure who had executed the registered sale-deed dated 24-6-1967 in favour of one Durjan. THE former tenure-holder Ghure had deposited ten times of rent to obtain Bhumidhari Sanad which was issued on 24-6-1967 and after the sale-deed was executed on the same day, muta tion proceedings were initiated and the-name of the former tenure-holder Ghure was deleted and the name of Durjan was recorded as the Bhumidhar of the disputed land. Later on heirs of Ghure filed a decla ratory suit No. 2099 of 1968 under Section 229-Bof the U. P. Zamindari Abolition and Land Reforms Act which was decided on 22-5-1971 by the learned S. D. M. , Phoolpur holding that the sale-deed was void ab-initio and fraudulent as the vendor had already died before the execution of the sale- deed. An appeal was preferred before the learned Commissioner, Gorakhpur against the aforesaid order dated 22-5-1971 passed by the S. D. M. During the pen dency of the appeal, consolidation proceedings started in the village on ac count of which the proceedings before the learned Commissioner abated and there after the findings of the revenue court were confirmed by the Consolidation Courts. THE Deputy Director of Consolidation by order dated 3-5-1979 upheld the decisions of the Consolidation Officer and the Settlement Officer of Consolida tion holding that the sale-deed was ob tained by fraud and because the vendor had already died before the execution of the sale-deed.

(3.) RELYING upon the decisions in Gorakh Nath Dube v. Hari Narain Singh and others (1974) 1 SCR 339) and Nanawwa v. Byrappa and others (1968) 2 SCR 797) the Hon'ble Supreme Court held that the document in question evidenced a void transaction, and not a mere voidable transaction, and the suit was, therefore, maintainable in view of the bar contained in Section 49 of the Act. The prayer of the plaintiffs for declaration for their rights could be adjudicated upon by the con solidation courts as the sale-deed was void.