- (1.) S. C. Verma, J. The petitioner has challenged the impugned order dated 10-4-1990 passed by the learned VII Additional District Judge, Azamgarh allowing the revision filed by the respondents and setting aside the order dated 5-10-1988 passed by the learned XVI Additional Munsif in O. S. No. 502 of 1984. and remanding the case for decision afresh oh merits.
(2.) THE plaintiff filed Suit No. 502 of 1984 alleging themselves to be the-Bhumidhars of the disputed land belong ing to one Ghure who had executed the registered sale-deed dated 24-6-1967 in favour of one Durjan. THE former tenure-holder Ghure had deposited ten times of rent to obtain Bhumidhari Sanad which was issued on 24-6-1967 and after the sale-deed was executed on the same day, muta tion proceedings were initiated and the-name of the former tenure-holder Ghure was deleted and the name of Durjan was recorded as the Bhumidhar of the disputed land. Later on heirs of Ghure filed a decla ratory suit No. 2099 of 1968 under Section 229-Bof the U. P. Zamindari Abolition and Land Reforms Act which was decided on 22-5-1971 by the learned S. D. M. , Phoolpur holding that the sale-deed was void ab-initio and fraudulent as the vendor had already died before the execution of the sale- deed. An appeal was preferred before the learned Commissioner, Gorakhpur against the aforesaid order dated 22-5-1971 passed by the S. D. M. During the pen dency of the appeal, consolidation proceedings started in the village on ac count of which the proceedings before the learned Commissioner abated and there after the findings of the revenue court were confirmed by the Consolidation Courts. THE Deputy Director of Consolidation by order dated 3-5-1979 upheld the decisions of the Consolidation Officer and the Settlement Officer of Consolida tion holding that the sale-deed was ob tained by fraud and because the vendor had already died before the execution of the sale-deed. The plaintiffs filed the present suit alleging that the consolidation courts had no jurisdiction to declare the sale-deed as fraudulent and void and the suit is main tainable by civil court. The plaintiffs took the stand that at the time of execution of the sale-deed Ghure was alive and the defendants had no concern with the disputed land but they are interfering with the rightful possession of the plaintiffs on the basis of wrong judgments of the Con solidation Courts. The plaintiffs prayed for cancellation of the order passed by the Deputy Director of Consolidation on 31-3-1979 and also for declaration that the sale-deed dated 24-6-1967 was genuine. The trial Court held that the suit was not maintainable and the Civil Court had no jurisdiction to consider the validity of the order of the Consolidation Courts and the void sale- deed. The contesting respondents filed a revision against the order dated 5-10-1988. The learned VII Additional District Judge by the impugned order dated 10-4-1990 set aside the order of the trial Court holding that the again relief sought by the plaintiff is for the cancellation of the order of the Deputy Director of Consolidation and declaration of the sale-deed as genuine and as such the suit was cog nizable by Civil Court and the validity of the sale-deed could also be adjudicated upon by the Civil Court. Assailing the order dated 10-4-1990 the petitioner has alleged that the respondents 2 and 3 did not place full and complete facts before the revisional Court as they had not dis closed that the order of the Deputy Direc tor of Consolidation dated 3-5-1979 was upheld by this Court, in writ petition No. 4738 of 1979 by order dated 14-9-1979. It was further alleged that the sale-deed having been held to be void the suit under Section 49 of the U. P. Consolidation of Holdings Act was barred by res judicata and the Consolidation Courts had rightly adjudicated upon the rights in favour of the petitioners. The petitioners also placed reliance upon the judgment of the Hon'ble Supreme Court reported in Smt. Dularia Devi v. Janardan Singh and others (1990 All CJ 278 ).
(3.) RELYING upon the decisions in Gorakh Nath Dube v. Hari Narain Singh and others (1974) 1 SCR 339) and Nanawwa v. Byrappa and others (1968) 2 SCR 797) the Hon'ble Supreme Court held that the document in question evidenced a void transaction, and not a mere voidable transaction, and the suit was, therefore, maintainable in view of the bar contained in Section 49 of the Act. The prayer of the plaintiffs for declaration for their rights could be adjudicated upon by the con solidation courts as the sale-deed was void. In my opinion the contention has substantial force; The order of the Deputy Director of Consolidation dated 31-3-1979 has been upheld by this Court and these findings have become final. The respondents 2 aid 3 had themselves filed the writ petition against the judgment of the Deputy Director of Consolidation and after the matter was adjudicated upon be tween the parties it was held that the sale- deed was void and the Consolidation Courts had rightly declared the plaintiff-petitioners to tie the tenure-holders. In view of the finality to these finding noth ing further was Required to be adjudicated upon by the Civil Court and the learned VII Additional District Judge committed manifest error of law in remanding the case and setting aside the order of the learned Munsif dated 5-10-1988. The learned Munsif has rightly held that the main relief is for declaration and was cog nizable by Revenue Court and thereafter the Consolidation Courts have rightly declared the eights of the plaintiff-petitioners treating the sale-deed to be void transaction. The reliance placed by the petitioners on the decisions in Om Prakash v. Janki (1965 ALJ 627) and Anirudh Rai v. Court of Revenue (1981 ALJ 1182) which apply to the case with full force. The decision of the Hon'ble Supreme Court in Smt. Dularia Devi (supra) has concluded the controversy and in the above circumstances the impugned order is liable to be set aside.;