Hari Swarup, J. - (1.) (for self and for P. N. Bakshi & M. P. Mehrotra, JJ.) :- Two second appeals arising out of suits for cancellation of sale deeds came up before a learned single Judge of this Court. A writ petition arising out of consolidation proceedings concerning the same land in respect of which the sale deeds had been questioned also came up for hearing. The learned single Judge after hearing the learned counsel for the parties has referred the following two questions for our opinion ; "1.Whether a suit for cancellation of a voidable sale deed relating to an agricultural plot pending in civil court will abate under Section 5 (2) of the U. P. Consolidation of Holdings Act after issue of a notification under Section 4 of that Act with respect to that village. 2.If the sale deed relates to a house and also to agricultural plots and the answer to the first point is in the affirmative, what will happen to the case in so far as it relates to the sale of the house." The necessity of referring the question arose because of a decision of a Division Bench of this Court in J. N. Shukla v. S. R. Pande, 1969 AWR 435. In that decision it was laid down that a suit for cancellation of a sale deed whether it related to a void transaction or a voidable transaction was liable to be abated by reasons of section 5 of the U. P. Consolidation of Holdings Act. Subsequent to the decision of the Division Bench the Supreme Court gave its judgment in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451. Before the learned single Judge it was argued that this decision of the Supreme Court did not decide the question, about the application of section 5 of the U. P. Consolidation of Holdings Act to suits filed for cancellation of sale deeds in respect of voidable documents. We have therefore to see if the decision of the Supreme Court in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451 lays down any such law. If it does, then the answer to the question has to be in accordance with that judgment, and if it does not, then we will have to proceed to decide the matter on merits.
(2.) AFTER considering the judgment in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451, we are of opinion that it does declare the law about the applicability of section 5 of the U. P. Consolidation of Holdings Act to suits for cancellation of voidable documents. A suit had been instituted for the cancellation of a sale deed to the extent of a half share claimed by the plaintiff n fixed rate tenancy plots on a payment of Rs. 250/- or whatever sum the plaintiff may be found liable to pay and after cancellation of the sale deed to the extent of the plaintiff's share in an award of possession of the plaintiff's share. There was no prayer for partition and by asking for possession of his share the plaintiff could only be seeking joint possession after declaration of rights claimed. The trial court dismissed the plaintiff's suit. The first appellate court allowed the plaintiff's appeal and decreed the suit. Defendant went up in appeal. While the second appeal was pending in the High Court a notification under section 4 of the U.P. Consolidation of Holdings Act was issued. An application was moved under section 5 of the Act. But the High Court dismissed the application and decided the appeal on merits. The appeal was allowed with the result that the suit was dismissed. The plaintiff on special leave went up to the Supreme Court against the decree of the High Court. A preliminary objection was taken by the defendant to the effect that the suit was liable to be abated by reason of Section 5 of the U. P. Consolidation of Holdings Act. This plea was accepted by the Supreme Court and the suit was directed to be declared as abated. The Supreme Court has noticed in paragraph 3 that the High Court had held that section 5 did not apply to a case in which possession could be granted only after cancellation of a sale deed to the extent of half share before awarding possession. Thereafter the Supreme Court found that there was no decision of that court directly on the question whether a suit for cancellation of a sale deed which was pending on the date of the notification under Section 4 abated under Section 5 of the Act. It thereafter noticed the decision of this Court in J. N. Shukla v. S. R. Pande, 1969 AWR 435. After mentioning the points decided therein it was observed : ".........We think that 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. All 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 subject matter 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 interest 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 a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sate of his half share by his uncle was invalid, in-operative and void, such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagannath Shukla's case, 1969 AWR 435 that it is the substance of the claim and not its form which is decisive." A reading of this passage shows that the Supreme Court had not agreed with the decision of this Court in J. N. Shukla v. S. R. Pande's case, 1969 AWR 435 to the effect that both void and voidable instruments stood at par with reference to section 5 of the U.P. Consolidation of Holdings Act. It had round a distinction between the two types of documents. The void documents, it found, were invalid and were liable to be disregarded by the consolidation authorities. So far as the other class of documents, viz., the voidable documents was concerned, the observation of the Supreme Court is clearly to the effect that their legal effect can be taken away only by their being cancelled or set aside and that the documents could be cancelled only by a court having power to cancel them and that the documents remain binding so long as they were not cancelled. It is further clear from the judgment that consolidation authorities had no power to cancel such documents. These observations of the Supreme Court, in our opinion, are sufficient declaration of the law that the documents which are voidable can be cancelled by the Civil courts only and cannot be cancelled by consolidation authorities, and they remain effective till cancelled and liable to be given effect to by Consolidation authorities till they are cancelled by a competent court. In view of this law declared by the Supreme Court there can be no doubt that the suit in respect of cancellation of voidable sale deed will not abate under section 5 of the U. P. Consolidation of Holdings Act.
(3.) WE find that the Supreme Court had before it the specific question for decision about the applicability of section 5 of the U. P. Consolidation of Holdings Act to suits for canellation of voidable sale deeds. It disagreed with the view of this Court in the Division Bench case of J. N. Shukla v. S.R. Pande, 1969 AWR 435 where the voidable and void documents had been put at par with reference to section 5 of the U.P. Consolidation of; Holdings Act and it pointed out the distinction between the two types of documents and had also given the reasons why a document which was only voidable was effective till cancelled by a court competent to cancel the same. After laying down this law the Supreme Court applied it to the facts of the case before it and came to the conclusion that the document was pleaded to be void and for that reason held that the suit was liable to be abated. This judgment of the Supreme Court came up for consideration before a learned single Judge of this Court in Ram Bharose Lal v. Sukhdei, AIR 1975 Allahabad 90. It was held that the effect of the Supreme Court's decision in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451 was that a voidable transfer could only be avoided in a civil suit and could not be avoided in consolidation proceedings. This view was expressed by one of the learned Judges who had given the judgment in the case of J. N. Shukla v. S. R. Pande, 1969 AWR 435.;