Read Time: 11 minutes

Synopsis

The Supreme Court has said a “voidable” document would continue to be in force until it is set aside and such a document can only be set aside by a competent civil court.

A bench of Justices Sudhanshu Dhulia and Ahsanuddin Amanullah said consolidation authorities do not have the jurisdiction and power to cancel a document, which is required to be set aside or cancelled and the document will continue to be valid till it is cancelled by a competent court i.e. a civil court.

"If the document is void, it would be open for the consolidation authorities to disregard such a document and in such a case, they would get the exclusive jurisdiction to proceed with the matter. But if the document is voidable, the civil court is vested with the jurisdiction to declare the same to be voidable. In the case of voidable documents, not only would the consolidation authorities have no power to cancel such documents, but even the proceedings pending before any competent civil court would not abate," the bench said.

In a petition filed by Khursheed and another, the court dealt with a question related to the bar on jurisdiction of the Civil Court under Section 5 (2) (a) read with Section 49 of the UP Consolidation of Holdings Act, 1954.

The question was whether, by virtue of Section 5 (2) (a), upon publication of the notification under Section 4 of the Consolidation Act, any pending civil suit for cancellation of a sale deed executed by fraud and impersonation, stands abated and the jurisdiction of the Civil Court to try such a suit is ousted in terms of Section 49 of the Consolidation Act.

The petitioners-defendants assailed the correctness of the order of August 02, 2019, passed by the High Court of Uttarakhand, whereby writ petition filed by the respondent plaintiff Shaqoor was allowed holding that a suit for cancellation of a “voidable” sale deed relating to agricultural land pending in a civil court would not stand abated in terms of Section 5 (2) (a) of the Consolidation Act and the bar on jurisdiction of the civil court’s under Section 49 of the Consolidation Act would not be applicable when the suit is for cancellation of a “voidable document”; as opposed to a “void document”. 

The dispute in this petition related to certain parcels of agricultural land, situated at village-Basedi Khaadar, Pargana-Manlore, Tehsil-Laskar, District Haridwar. 

A civil suit praying for the relief of cancellation of the sale deed of August 09, 2016 was then filed by the respondent herein before the Civil Judge (Junior Division), Laksar. The mother of petitioner No 1 Haneefa and petitioner No 2 Jodh Singh, who had purchased the property were impleaded as Defendant Nos 1 and 2 respectively in the suit.

On September 09, 2016, an application came to be filed by Petitioner No 2 herein before the civil court praying for an order that suit stands abated as per Section 5 (2) (a) of the Consolidation Act.

The application was allowed by the civil court.

"What weighed in with the civil court, while allowing the application was that the dispute which it had to adjudicate in the civil suit filed by the Respondent is pending consideration before the Consolidation authorities. In view of the fact that the village where the property is situated has been notified under Section 4 (1) (a) of the Consolidation Act, thus, civil suit filed by the respondent-plaintiff would stand abated, in terms of Section 5 (2) (a) of the Act," the court noted.

Aggrieved by the order of the civil court, by which his suit stood abated, the respondent-plaintiff filed a miscellaneous civil appeal under Section 96 of the Code of Civil Procedure, 1908 before the Additional District Judge, Laksar, District-Haridwar. 

The respondent’s appeal was dismissed by order on November 22, 2018.

Invoking the extra-ordinary writ jurisdiction of the High Court under Article 226/227 of the Constitution, the respondent challenged the 2018 order of the Additional District Judge, Laksar by filing a writ petition before the High Court of Uttarakhand. 

The single judge of the High Court, by passing the order on August 02, 2019 allowed the writ petition filed by the respondent and set aside the 2018 order of the Additional District Jugde, Laksar and consequently ordered that the civil suit filed by the respondent be restored to the file of the Civil Judge (Junior Division), Laksar, District-Haridwar. 

The single judge came to the conclusion that as the allegation is that the sale deed was executed by playing fraud and by impersonation, it would be a “voidable” document and thus, any suit, for cancellation of a voidable sale deed will not abate by virtue of Section 5 (2) (a) of the Consolidation Act. 

Referring to Ram Sakal Singh Vs Mosamat Monako Devi (1997), the bench said the court previously held that the consolidation authorities do not have the jurisdiction and power to cancel a document, which is required to be set aside or cancelled and the document will continue to be valid till it is cancelled by a competent court i.e. a civil court.

In view of the law laid down, the bench said the sale deed of August 09, 2016 will be binding on the consolidation authorities unless it is set aside by a competent civil court and there would be no bar on jurisdiction of the Civil Court to try a suit for cancellation of such a sale deed.