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Judgment
No one is present on behalf of opposite parties. A statement has been made by Shri H.S. Sahai that he is no more appearing in this case on behalf of opposite parties and the file has been taken away by the clients. This case pertains to the year 1981. The matter is pending since long. If the file was taken away by the opposite parties, it was their duty to have engaged another counsel. If they have not chosen to engage another counsel, then the Court process cannot be allowed to be misused.
In the aforesaid circumstances, I propose to decide this case finally.
Heard the learned counsel for the petitioners.
The petitioners feeling aggrieved with the order passed by the Deputy Director of Consolidation dated 19101981 contained in annexure No.5 to the writ petition have preferred this writ petition.
The facts giving rise to the present petition are that Baldeo, opposite party No.2, obtained permission to sell the chak from Settlement Officer Consolidation on 571975 and executed a registered sale deed dated 1871975 in favour of petitioner No.4 Banarasi Lal and he was put in possession and his name was ordered to be recorded in the mutation proceedings. Banarasi Lal also obtained similar permission to sell the chak and executed a registered sale deed for Rs.15,000/ in favour of petitioner Nos. 1 to 3 and put them in possession on chak. The loan of Rs.4000/ outstanding towards the Land Development Bank was also paid by the petitioner Nos. 1 to 3 in settlement of the sale consideration amount. Banarasi Lal filed an application for mutation under Section 12 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the ''Act'' for short), which was opposed by Baldeo, opposite party No.2, on the ground that the sale deed has been obtained by misrepresentation and fraud and therefore the name of Banarasi Lal cannot be recorded. In the meantime, Banarasi Lal executed a sale deed in favour of petitioner Nos. 1 to 3 and they also filed an application under Section 12 of the Act for mutation. Both the applications and the objections were ultimately consolidated and tried together. A notice was also issued by the Consolidation Officer to the Land Development Bank to ascertain as to whether any amount has been deposited by the petitioner Nos. 1 to 3. The Consolidation Officer allowed the claim of the petitioners and allowed mutation of the petitioners and objection filed by opposite party No.2 was rejected. Feeling aggrieved with the same, opposite party No.2 filed an appeal before the Settlement Officer Consolidation but the said appeal also met with the same fate. Thereafter, opposite party No.2 filed a revision before the Deputy Director of Consolidation who allowed the same, against which the present writ petition has been filed.
The main thrust of the argument of the learned counsel for the petitioners is that the sale deed in question cannot be termed as void and is voidable document and therefore the mutation could not have been refused by the Deputy Director of Consolidation. The Deputy Director of Consolidation while hearing the matter has recorded a specific finding to the effect that the sale deed was executed by practicing fraud upon the executant.
Further submission of the learned counsel for the petitioners is that looking to the aforesaid finding, the document in question falls in the category of voidable documents. He also submits that the fact of voidable document cannot be ignored and thus cancellation has to be sought by way of regular suit in appropriate proceedings. The opposite party No.2 has not filed any regular suit and as such the right and title of the petitioners stands perfected and the name of the petitioners is liable to be mutated.
In support of his contention, the learned counsel for the petitioners has relied upon a Full Bench decision reported in 1988(6) LCD 565 [Ram Padarath and others v. 2nd Addl. D.J., Sultanpur and others] and specifically on paragraph9 of the said judgment, which reads as under :
"So far as voidable documents like those obtained by practising coercion, fraud, misrepresentation, undue influence etc., are concerned, their legal effect cannot be put to an end without its cancellation. But a void document is not required to be cancelled necessarily. Its legal effect, if any, can be put an end to by declaring it to be void and granting some other relief instead of cancelling it. Once it is held to be void it can be ignored by any court or authority, being of no legal effect or consequence. A document executed without free consent or one which is without consideration or the object of which is unlawful or executed by a person not competent to contract like a minor or in excess of authority, would be a void document. In case it is in excess of authority it would be void to that extent only. There is presumption of due registration of a document and correctness of the facts mentioned in the same, but the said presumption is not conclusive and can be dislodged."
To buttress and give force to his argument, the learned counsel for the petitioners has relied upon 1976 RD 220 [Ram Nath v. Smt. Munna]. In this case also this Court drew a distinction between void and voidable documents and came to the conclusion that voidable documents require cancellation from appropriate court and their legal effect can be taken away only by their being cancelled or set aside.
In another case reported in 2007 (102) RD 304 : (2007 (2) ALT 332) [Abdul Qayyum v. II Addl. District Judge, Meerut and others] while dealing with the same question, it was held as under :
"7. It is settled position of law that voidable documents cannot be ignored by Revenue or Consolidation Courts. There is some controversy regarding jurisdiction in respect of void documents. However, in case of voidable document there is absolutely no controversy. Suit for cancellation of voidable document (voidable according to the plaint allegations) is maintainable only and only in Civil Court, as such a document requires specific order of setting aside and without that it cannot be ignored by any Court including Revenue Courts or Consolidation Courts."
The learned counsel for the petitioners has also relied upon division bench decision reported in 1973 RD 423 : (AIR 1973 SC 2451) [Gorakh Nath Dube v. Hari Narain Singh and others]. In the said case, it has been observed as under :
".........Here, we find a fairly comprehensive discussion of the relevant authorities of the Allahabad High Court the preponderant weight of which is cast in favour of the view that questions relating to the validity of sale deeds, gift deeds and wills could be gone into proceedings before the consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudications on rights or interests in land which are the subjectmatter of consolidation proceedings. We think that a distinction can be made 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 a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subjectmatter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged 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 court having the powers to cancel it....."
I have gone through the order passed by the Deputy Director of Consolidation, who has come to the conclusion that the sale deed in question was obtained by practicing fraud. This category of sale deed does not fall in the category of void document and is voidable document. The law being settled by this Court, the matter requires no further investigation and adjudication.
In view of the aforesaid law and reasoning, the order passed by the Deputy Director of Consolidation cannot be sustained.
In the result, the writ petition is allowed. The order dated 19101981 passed by the Deputy Director of Consolidation is hereby set aside and the name of the petitioners are directed to be mutated. However, it is open for the opposite parties to adopt appropriate remedy as available under law.
There shall be no order as to costs.