- (1.) BY means of the aforesaid application the defendant-respondents have prayed that the aforesaid second appeal may be declared as abated under Section 5 (2) of the Consolidation of Holdings Act, 1953.
(2.) THE relevant facts, in brief, are that the plaintiff-appellant filed a Suit No. 887 of 1974 for the cancellation of the sale-deed on the ground that she wanted to execute a deed of Will in favour of her daughter but the defendant-respondent No. 3 by playing fraud upon her obtained her thumb impression on a sale-deed. THE suit was contested by the defendants who filed their written state ment and denied the allegations made in the plaint. THE trial court decreed the plaintiffs suit by holding that the sale- deed dated 10. 7. 1974 was procured by the defendants by playing fraud upon the plaintiff-appellant. THE lower appellate court," however, allowed the defendants' appeal and set aside the decree passed by the trial court and dismissed the plaintiff s suit. Aggrieved, the plaintiff-appellant has preferred the above noted second appeal in this court which is pending. It appears that consolidation operations started in the village in Oc tober, 1988 and the same was going on. Consequently, the present application has been filed by the defendant-respondents praying that the present second appeal be declared as abated under Section 5 (2) of the U. P. Consolidation of Holdings Act. The plaintiff-appellant has filed a counter affidavit to the said application and has taken the stand that though consolidation operations have commenced the second appeal will not abate as the provisions of Section 5 (2) of the Con solidation of Holdings Act will not be applicable in the facts of the present case. I have. heard learned counsel for the parties and have perused the record of the appeal. Learned counsel for the defendant- respondents has submitted that the subject-matter of the sale-deed was agricultural land and as the plaintiff had come with a case that the sale-deed has been obtained from her by playing fraud and misrepresentation and she had never agreed to execute any sale-deed, the document in question was void and the matter could be decided by the consolida tion courts and the second appeal should be declared as abated. Learned counsel for the plaintiff-appellant has, however, contended that the sale-deed in question was voidable and the suit for cancellation of that sale- deed is not liable to be abated under Section 5 (2) of the Consolidation of Holdings Act. Moreover, the revenue entries are in favour of the plaintiff who is also in possession of the land in question. The suit has been filed only to clear the cloud on the title of the plaintiff and the relief claimed was for cancellation simplicitor. Therefore, the suit has rightly been filed before the civil court and the same will not abate. He has also contended that in a part of plot No. 482, which is one of the plots men tioned in the disputed sale-deed, the plaintiff has her house. Besides, there are constructions made by certain other persons, therefore, also this plot has lost the character of agricultural land. Consequently, the suit was rightly filed before the civil court and it is only the civil court which could grant to the plaintiff the relief sought for in the plaint. Learned counsel for both the parties have sup ported their submissions by certain reported decisions.
(3.) BEFORE proceeding to consider the respective submissions made by learned counsel for the parties, it would be appropriate to quote Section 5 (2) of the U. P. Consolidation of Holdings Act under which the present application has been filed. The said section reads as follows:- "s. 5 (2) Upon the said publication of the notification under sub-section (2) of Section 4 the following further consequences shall ensue in the area to which the notification relates namely- (a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication for any other right in regard to which proceedings can or ought to be taken under this Act, pend ing before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated. . . . " From the aforesaid provisions quoted above, it would be evident that the ob ject of Section 5 (2) of the Consolidation of Holdings Act as it stands at present, is clearly to abate suits and other proceedings for correction of records, declaration of rights or interest in any land which are pending before any court or authority or in appeal or revision. Therefore, what emerges is that if a matter can be gone into in consolidation proceedings then a suit in respect of that matter must be abated under Section 5 (2) of the Consolida tion of Holdings Act. The question for consideration however, in the present matter before me is whether the words, of Section 5 (2) of the said Act is wide enough to cover suit for cancellation of sale-deed which was filed before the Civil Court prior to the commencement of the consolidation proceedings and is now pending in Second Appeal before this Court. The learned counsel for the plaintiff- appellant has referred to the relief sought in the plaint of the said suit and has contended that the same was a simple suit for cancellation of a sale-deed on the ground that the plaintiff wanted to execute a will in favour of her daughter but the defendant No. 3 by mis-representation and by playing fraud upon her got a sale-deed written and obtained the thumb impression of the plaintiff thereof. The cancellation of this deed was sought as the same cast a could on her right and title over the land and the property of which she was in possession and had her name recorded in the revenue records. She did not seek any declaration or any other ancillary reliefs regarding her rights and title, therefore, it was the Civil Court alone which could grant the relief to her and such a question could not be decided by the consolidation authorities. This being the position, the suit or the appeal cannot abate under Section 5 (2) of the said Act. Learned counsel has supported his sub missions by placing reliance upon the Full Bench decision of this Court in the case of Ram Padarath v. 2nda. D. J. Sultanpur, reported in 1988 (2) Select Civil Decisions 387 and also on the decision of the Supreme Court in the case of Smt. Bismillah v. Janeshwar Prasad reported in AIR 1990 SC 540. I have perused the aforesaid decisions. In the Full Bench decision of Ram Padarath (supra), the question referred for the consideration of the Full Bench was whether a suit for cancellation of a sale-deed was cognizable by the revenue court or the civil court keeping in view the provisions of Section 331 (1) of Zamidari Abolition and Land Reforms Act. Similarly, in the case of Smt. Bismillah (supra), the question before the Supreme Court was whether a suit before the Civil Court for cancella tion of sale-deed in respect of agricultural lands and for possessions was barred by the provisions of Section 331 of the U. P. Z. A. and L. R. Act. It is, therefore, evident that in both these cases which have been referred to by the learned coun sel for the plaintiff-appellant, the question of the abatement of the suit or ap peal under Section 5 (2) of the Consolidation of Holdings Act was not involved. It is well settled by a catena of decisions that the jurisdiction of the consolidation authorities is wider than the Civil and the revenue courts. Therefore, such decisions in which the question involved was regarding the jurisdiction of civil court or revenue court under Section 331 (1) of the U. P. Z. A. and L. R. Act could not be invoked for the purposes of deciding whether the pending suit was liable to be abated under Section 5 (2) of the Consolidation of Holdings Act. Even the Full Bench in the case of Ram Pradarath (supra) had observed as follows:- "the jurisdiction of the consolidation authoritis or courts is wider than that of the civil or revenue court and adjudication by them is final and cannot be responded by any civil or revenue court in view of bar for the same contained in Section 49 of the U. P. Consolidation of Holdings Act which even bars, the case which should have been raised before the consolidation authorities, but not raised. The decisions given under U. P. Consolidation of Holdings Act even in respect of void documents do not throw light conclusively regarding jurisdiction of civil court and revenue court with reference to Section 331 of U. P. Z. A. and L R Act. The provisions of Section 331 of the Act' cannot be interpreted with reference to the provisions of or language used in U. P. Con solidation of Holdings Act. It is sound principle of interpretation that provisions of another Act are not to be taken as guide for interpreting the provisions of another Act which are not in pari materia with the former Act. The cases under U. P. Consolidation of Holdings Act regarding the jurisdiction of consolidation authorities throw great light on the question of extent or exclusiveness of the jurisdiction of revenue and civil court but they do decide or resolve this controversy fully. ";