IMPORTANT POINT
The jurisdiction of the Civil Court is barred under Section 49 of U.P. Consolidation of Holdings Act, 1953.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. Whether jurisdiction of the Civil Court is barred in respect of grant of a relief for setting aside a deed of gift in terms of Section 49 of the U.P. Consolidation of Holdings Act, 1953 (for short, ‘the 1953 Act’) is in question in this appeal. It arises out of a judgment and order dated 26.5.2005 passed in CMWP No.1920 of 1999 passed by a learned Single Judge of the High Court of Judicature at Allahabad.

3. The basic fact of the matter is not in dispute.

One Ram Baran Tewari was the owner of the property. He died on 12.7.1927 leaving behind two sons, Devki Nandan and Lalta Tewari as also a daughter Bishundai. Lalta Tewari died on 4.3.1927 leaving behind his widow, Bhagwanta Kunwar. Bhagwanta Kunwar died on 10.8.1949. Devki Nandan died on 3.12.1952 leaving behind a daughter Parma Devi. Murli Dhar Mishra, Madan Mohan Mishra and Akhilesh Mishra are her sons. Bishundai died leaving behind her daughter Ghoora Devi. Respondent Chandrika Pandey is her husband.

4. Bhagwanta Kunwar filed a suit for partition in the year 1949 in terms of the provisions of U.P. Tenancy Act claiming half share in the properties of the said Ram Baran Tiwari. The said suit was decreed by a judgment and order dated 17.7.1954.

5. Questioning the legality or validity of the said decree, Madan Mohan Mishra, appellant herein, filed a suit for cancellation of the said decree. During the pendency of the said suit, Bhagwanta Kunwar executed a deed of gift in favour of the respondent herein whereafter the plaint was amended, inter alia, claiming for a decree for setting aside the said deed of gift.

Indisputably, in the year 1972-73, consolidation proceedings started in the village in terms of Section 5 of the 1953 Act. The suit was, in view thereof, held to have abated. It is stated that the said order has attained finality. It is furthermore stated that no objection was filed by the appellant herein in the said consolidation proceedings. Akhilesh Mishra is stated to have filed an objection before the Consolidation Officer which was rejected on 31.7.1979. An appeal preferred thereagainst was dismissed on 5.8.1983. A Revision Petition was filed thereagainst which was dismissed on 11.4.2002. It is stated that the writ petition has been filed thereagainst before the Allahabad High Court which is said to have been pending.

6. Madan Mohan Mishra again filed a suit for a decree for injunction and in the alternative for recovery of possession in the year 1994 which was marked as suit No.510 of 1994. The learned Trial Judge held the said suit to be barred under Section 49 of the 1953 Act. However, on an appeal preferred thereagainst, the First Appellate Court reversed the said judgment and order dated 14.12.1998.

By reason of the impugned judgment, the High Court has allowed the writ petition filed by the respondents herein.

7. Mr. S.P. Singh, learned senior counsel appearing on behalf of the appellant, would contend that keeping in view the fact that the purported deed of gift executed by Bhagwant Kunwar not only consisted of agricultural properties but also homestead properties, a suit for setting aside the said deed as invalid is not barred under the provisions of the 1953 Act.

8. Our attention in this behalf has been drawn to the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950 and, in particular, the interpretation of the term ‘land’ as contained in Section 3(14) thereof as also Section 143 to contend that by no stretch of imagination, non-agricultural land could be brought within the purview of the provisions of the said Act which was enacted only to consolidate the agricultural holdings. The learned counsel would contend that jurisdiction of a Civil Court for passing a decree for cancellation of a deed of gift is not barred as the same is void and not voidable. It was furthermore urged that the jurisdiction of a Civil Court in such matters should be upheld in order to avoid multiplicity of proceedings.