A suit for redemption of mortgage and delivery of possession does not abate under Section 4 (c) of the Consolidation Act where the primary question is whether an auction sale of the suit land was obtained by fraud, as this is a matter to be determined by a competent civil court and not by the consolidation authorities.

B. S. Sinha, J.

This application by the defendants in the suit is directed against the ORDER :dated the 7th October, 1977 passed in Title Appeal no. 15 of 1975 by Shri R. C. Jain, Subordinate Judge, Buxar, by this ORDER :the lower appellate court has held that the lower appellate court has held that the appeal has not abated under Section 4 (c) of the Bihari Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Consolidation Act)

2. The relevant facts are that the plaintiff opposite party filed a suit for redemption of two mortgage bonds and delivery of possession as well as means profits. The suit was dismissed on 3.5.1976 against which the plaintiffs appealed which has been numbered as Title Appeal 15 of 1975. In this appeal on 27.9.1977 the defendants filed an application stating that the appeal had abated under Section 4 (c) of the Consolidation Act, as the village in which the lands were situate has been subject to a notification under Section 3 (1) of the Consolidation Act. By the impugned ORDER :the learned Subordinate Judge has held that the appeal has not abated.

3. Mr. Angad Ojha in support of this application has urged that in view of the wide terms in which Section 4 (c) of the Consolidation Act is stated, the suit has abated. For this, submission; learned counsel relied upon two decisions. It is undoubtedly true that Section 4 (c) is couched in very wide terms and proceedings in respect of declaration of rights or Interest in any land lying in the area in which consolidation proceedings have started stand abated. In the case of (1) Ram Adhar Singh V. Ramroop Singh and others (A. I. R. 1968 Supreme Court 714) dealing with the scope of Section 5 of the U. P. Consolidation of Holdings Act 1953 (as amended by U. P. Act 21 of 1966) the Supreme Court observed that the expressions "every suit and proceeding in respect of declaration of rights or interest in any lands are comprehensive enough to take in suits for possession of land, because before a claim for possession is accepted, the court will have necessarily to adjudicate upon the right or interest of the plaintiff, in respect of the disputed property taking into account the claim of the Opposite party. This decision was relied upon by a Bench of this court in the case of (2) Bijali Thakur and others V. Rameshwar Thakur and others (1977 P. L. J. R. 410) where it was held that Section 4 (c) of the Consolidation Act is in very wide terms and the reliefs of possession and means profits amount to a declaration of the right of interest in land on the basis of which the prayer is made. Therefore such suit would abate.

4. From what I have stated above the submission of Mr. Ojha that the present case suing a suit for redemption and possession will be corrected to section 4 (c) to be plausible and attractive. However, on a closer scrutiny the submission cannot be stained in the instant case.

5. In the case before me the specific case of the plaintiffs; i.e. opposite parties, here was that their suit for redemption was only maintainable on a declaration that an auction sale on 5.3.1915 with regard to the suit land had been obtained by fraud. In other words, the plaintiff's case was that their suit for redemption of the mortgage and for delivery of possession could succeed on the declaration that an auction sale held with regard to the suit land in 1915 was an act of fraud.

6. In the case of (3) Gorakh Nath Dube V. Hari Narain Singh and others, reported in A. I. R. 1973 Supreme Court, 2451 it was pointed out that there is distinction between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cases to have legal effect. Therefore, an alienation made in excess of power to transfer would be to the extent of the power, invalid which by implication would be a dispute involving claim to rights and interest in land.