IMPORTANT POINT
Cancellation of sale deed – A “voidable” document continues to be in force until it is set aside by a competent civil court – Consolidation authorities do not have jurisdiction and power to cancel a document.

ORDER :

1. The question which arises in this petition for our determination relates to the bar on jurisdiction of the Civil Court under Section 5 (2) (a) read with Section 49 of the U.P. Consolidation of Holdings Act, 1954 (hereinafter referred to as ‘Consolidation Act’).

2. 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?

3. The Petitioners-Defendants, assail the correctness of the Order dated 02.08.2019, passed by the High Court of Uttarakhand, whereby Writ Petition (M/S) No. 93/2019, filed by the Respondent-Plaintiff 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”.

4. The dispute in this petition relates to certain parcels of agricultural land bearing Khata Nos. 154 and 154A, situated at village-Basedi Khaadar, Pargana-Manlore, Tehsil-Laskar, District-Haridwar. The facts which have given rise to this dispute are as follows:

i. One Illahibaksh the owner of the aforementioned parcels of land had three sons-Shafi, Gafoor and Shaqoor (Respondent herein). Upon the death Ilahibaksh, the land devolved upon the three sons equally and they each acquired 1/3rd share in the land. His son Shafi had 3 daughters & one of them (Haneefa) is the mother of the Petitioner No.1 herein.

ii. The other son, Gafoor did not have any children and therefore, his share devolved upon his wife, namely Vakila. Her name was accordingly mutated in the revenue records. Later, Vakila married the Respondent herein, i.e. Shaqoor.

iii. In the year 2003, the property in dispute was brought under consolidation proceedings and a notification to that effect was published in the Gazette.

iv. It is averred by the Respondent herein that after the death of his wife-Vaqila in 2009, the mother of Petitioner No.1 (Haneefa) fraudulently claimed to be the daughter of Gafoor and by impersonation, inherited the property which had devolved upon Vakila and got herself recorded as the co-tenure holder of the property on 03.08.2016

v. Thereafter, it is alleged that mother of Petitioner No. 1 (Haneefa) executed a Sale Deed dt. 09.08.2016 in favour of Petitioner No. 2 and in this way, alienated and sold the property, to which she had no title or any transferable right in respect thereof.

5. A Civil Suit praying for the relief of cancellation of the Sale Deed dated 09.08.2016 was then filed by the Respondent herein before the Civil Judge (Junior Division), Laksar (hereinafter referred to as ‘the Civil Court’). 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.

6. On 09.09.2016, 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, which reads as under:

(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 of any other right in regard to which proceeding can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference