M.P.Singh, J. - (1.)This Civil Revision has been filed by the plaintiff of title suit No. 4 of 1976 against the decision of the 1st Additional District and Sessions Judge, Gaya, dated 8th June, 1979, holding that the suit and appeal have abated by reason of the provisions of Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as "the Act"). The suit was for a declaration that the registered deed of gift dated 20th Nov., 1973, executed jointly by the plaintiff Surajmani Devi and defendant No. 2 Hiramani Devi in favour of the defendant No. 1 Shanti Devi, was illegal, void, fraudulent, invalid and for cancellation and also for a declaration of title.
(2.)It is contended on behalf of the petitioner that the consolidation authority can have no power to cancel the deed of gift on the ground of fraud and hence the Civil Court should be held to have jurisdiction to decide the case. It is submitted that the decision of the lower appellate Court to the effect that the suit and appeal have abated is wholly wrong and should be set aside. In my opinion the contention is sound. In the case of Janak Sahi v. Jamuna Sahi (1980 BBCJ 544): (AIR 1981 Pat 62) it was observed that it is the main or primary relief that will determine the nature of the suit and not the ancillary relief, that if the main relief does not fall within the mischief of the Act the reliefs flowing from that relief can hardly be hit by the consolidation scheme. If that principle is applied to the facts of the case, it is clear that the main relief Which is sought in the present case does not fall within the mischief of the Act. The main relief is that the registered deed of gift dated 20th Nov., 1973. is illegal and void on account of fraud practised upon the executants. The relief regarding the declaration of title flows from that relief. It is not an independent relief. In an un-reported decision in Civil Revn. No. 1481 of 1977 (Jagarnath Dubey v. Ram Kripal Tewary) decided on 19th March 1979, 1979 Pat LJR 330 by a single Judge of this Court, it was held that the suit for redemption of the mortgage bond after a declaration that the auction sale with regard to the suit land was not null and void is not covered by Section 4 (c) of the Act. The learned counsel for the opposite party relied on Gorakh Nath Dube v. Hari Narain Singh, AIR 1973 SC 2451, but that decision is of no help to him. There the claim of the plaintiff was that the sale of his half share by his uncle was invalid, inoperative and void and he had prayed for cancellation of the sale deed executed by his uncle to the extent of his half share. On those facts it was held that the suit was covered by the relevant provision of U. P. Consolidation of Holdings Act and the claim could be adjudicated upon by the consolidation Court. It may be noticed that it was clearly pointed out in that case that there is a distinction between the 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. The latter class of cases was held to be outside the scope of the provision relating to abatement of the suit. In the present case the document is sought to be cancelled on the ground of fraud. Such a document is binding upon the parties unless set aside by the Court. It cannot be held to be void ab initio. It is a voidable document and has to be set aside and therefore, it comes under the latter class of cases pointed out by the Supreme Court in the aforesaid case. Another case relied upon by the opposite party is the decision in Civil Revn. No. 351 of 1978, decided by a single Judge of this Court on 12th Nov., 1980. That was a case where a suit was filed for partition of certain property with a futher prayer that the earlier decree was void altogether. It was held that the suit had abated under Section 4 (c) of the Act. That case also cannot assist the opposite party. In that case it was found that the previous partition decree was void altogether. It was observed: "I have examined the plaint in this case and I find that the plaintiffs have again and again asserted in clear and unambiguous terms that the earlier partition decree was void altogether". That was not a case where the decree was sought to be set aside on the ground of fraud. No question of fraud arose in that case. It is not known from the judgment on what ground the previous partition decree had been challenged. That case is, therefore, distinguishable. It has been said earlier that the present plaint was based entirely upon the allegation of fraud. From the discussions mentioned above I have no doubt in my mind that the present ease is not covered by Section 4 (c) of the Act and, therefore, it must be held that neither the suit nor the appeal have abated. The decision of the lower appellate Court is wholly wrong and must be set aside.
(3.)In the result the revision is allowed. The decision of the lower appellate Court dated 8th June, 1979, is set aside. It is held that the suit and appeal have not abated. The lower appellate Court is accordingly directed to dispose of the title appeal No. 56/0977/18/1978 in accordance with law. There shall be no order as to costs.
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