Chhote Gope and others vs Kali Gope

S. Sham ml Hasan, J.—This application is directed against the order dated 25.7.1980 by which the prayer of the petitioner--defendants that the suit had abated has been disallowed. The relief sought for in the plaint by the plaintiff was that the deed of gift dated 16.1.1980 is invalid, inoperative and should not be acted upon.

The contention of the petitioners is that part of the land involved in the deed of gift is situated in a village where consolidation proceeding is not in operation, and therefore, the suit cannot abate. Their further contention is that in view of the relief sought the suit cannot abate and the matter has to be decided by Civil Court. In support of the above submissions reliance has been placed on a Full Bench decision of this court in the case of Ram Krit Singh v. State of Bihar 1979 PLJR 161 : 1979 B.B.C J. 258 : AIR 1979 Pat 250 (F.B.) as also in a deci-sion of the Supreme Court in Gorakh Nath Dube Vs. Hari Narain Singh and Others, . It will be useful to quote the relevant portion from placitum of the decision of the Supreme Court :

There is distinction between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be to the extent of the excess of power, invalid. An adjudication on the effect of such purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. But where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it can be said that the consolidation authorities have no power to cancel the deed and therefore it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it.

I have examined the plaint. Clearly, in substance, the prayer is for cancellation of the deed of gift, the ground being the manner of its procurement, details of which are set out in the plaint. In this situation the dispute comes within the category of cases which the Supreme Court has held triable by a Civil Court.

In the above view of the matter there is no merit in this application and it is accordingly, dismissed, but, without costs. A petition has been filed on behalf of the opposite party praying that the plaintiff may be examined immediately in view of his age and illness. No order need be passed on this petition. If so advised, the opposite party may file such a petition before the trial court and in case it is so filed, the court below will dispose it of on merit in accordance with law.