A suit for cancellation of a forged deed of gift abates under Section 4 (C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956.

S. B. Sinha, J.

1. - This application is directed against an order dated 26-7-1988 passed by the Additional Munsif, 2nd Court at Aurangabad in title Suit No.16 of 1986 whereby and whereunder the said learned court rejected an application filed on behalf of the petitioner purported to be under Sections 4 (B) and 4 (C) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to the said Act ).

2. The fact of the matter lies in very narrow compass.

3. The plaintiff filed Title Suit No.16 of 1986 for a declaration that a deed of gift executed in favour of defendant-petitioner No.1 was a sham and void documents. According to the plaintiff-opposite party, he is the owner of said property. The defendant-petitioner No.2 was the legally wedded wife of his son Naimuddin and defendant-petitioner no.1 was his grandson.

4. It is further the contention of the plaintiff that the defendant-petitioner No.2 and her father with the help of their friends got a deed of gift dated 16-2-1984 drawn up in favour of petitioner No.1 showing him to be under the guardianship of the petitioner of No.2. It was further alleged that on the aforementioned deed of thumb impression of the opposite party was purported to have been put which was really a forged one. According to the plaintiff some person had impersonated him.

5. The plaintiff further stated that he is still in possession of the lands in question and the deed of gift being a forged document, the same does not affect his right title and interest in the lands in question.

6. The petitioners filed a written statement alleging intet alia therein that the deed of gift was a genuine document wich was executed in presence of various witnesses.

7. The petitioners filed an application on 13-7-1988 which is contained in annexure-1 to the Civil Revision Application wherein inter alia it was contended that upon coming into force of the said Act, the suit has abated.

8. The plaintiff filed a rejoinder to the said application on 15-7-1988 (Annexure-2 ). By reason of the impugned order the learned court below held that as the parties are required to lead evidence with regard to the issue as to whether the document in question is a genuine one or not the suit cannot be said to have abated in terms of Sec.4 (C) of the said Act.

9. The learned counsel appearing on behalf of the petitioner submitted that from the reliefs claimed by the plaintiff it would appear that the decree has been prayed for a declaration that the aforementioned deed of gift dated 16-2-1984 is a forged document, and thus it must be held that in the event, the plaintiff succeeds, the same will have to be declared to be a void document and in that view of the matter the Consolidation Authorities will have jurisdiction to decide the said issue and in that view of the matter the suit must be held to have abated.

10. The learned counsel further submitted that the impugned order is vitiated in law inasmuch as the learned court below has merely rejected the prayer of the petitioner on the ground that both the parties would have to adduce evidence on the aforementioned issue.

11. The learned counsel appearing on behalf of the opposite party, on the other hand, submitted that as in view of the pleadings of the parties;-it is evident, that the issue which requires consideration at the hands of the learned court below it with regard to the genuineness of the document and as such the suit filed by the plaintiff cannot be said to have abated.

12. Learned counsel in this connection has placed strong reliance upon decision of this court in Chhote Gope V/s. Kail Gope, 1983 BBCJ 124.

13. In Chhote Gapes case (supra) a learned Single Judge of this court relied upon the decision of the Supreme Court in Gorakh Nathv. Hari Narain Singh, AIR 1973 SC 2451 wherein it has been held as follows :

"there is distinction between cases where a document is wholly or partially invalid so that it can be disregarded by any cou