A suit for cancellation of a voidable sale deed does not abate under Section 5(2) of the U.P. Consolidation of Holdings Act.

Hari Swarup, J.

1. (For self and for P. N. Bakshi and M. P. Mehrotra, JJ.) :- Two second appeals arising out of suits for cancellation of sale deeds came up before a learned single Judge of this Court. A writ petition arising out of consolidation proceedings concerning the same land in respect of which the sale deeds had been questioned also came up for hearing. The learned single Judge after hearing the learned counsel FOR the parties has referred the following two questions for our opinion :

"1.Whether a suit for cancellation of a voidable sale deed relating to an agricultural plot pending in civil court will abate under Section 5 (2) of the U. P. Consolidation of Holdings Act after issue of a notification under Section 4 of that Act with respect to that village.

2. If the sale deed relates to a house and also to agricultural plots and the answer to the first point is in the affirmative, what will happen to the case in so far as it relates to the sale of the house."

The necessity of referring the question arose because of a decision of a Division Bench of this Court in J. N. Shukla v. S. R. Pande, 1969 AWR 435. In that decision it was laid down that a suit FOR cancellation of a sale deed whether it related to a void transaction or a voidable transaction was liable to be abated by reasons of section 5 of the U. P. Consolidation of Holdings Act. Subsequent to the decision of the Division Bench the Supreme Court gave its judgment in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451. Before the learned single Judge it was argued that this decision of the Supreme Court did not decide the question, about the application of section 5 of the U. P. Consolidation of Holdings Act to suits filed for cancellation of sale deeds in respect of voidable documents. We have therefore to see if the decision of the Supreme Court in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451 lays down any such law. If it does, then the answer to the question has to be in accordance with that judgment, and if it does not, then we will have to proceed to decide the matter on merits.

2. After considering the judgment in Gorakh Nath v. H. N. Singh, AIR 1973 SC 2451, we are of opinion that it does declare the law about the applicability of section 5 of the U. P. Consolidation of Holdings Act to suits for cancellation of voidable documents. A suit had been instituted for the cancellation of a sale deed to the extent of a half share claimed by the plaintiff n fixed rate tenancy plots on a payment of Rs. 250/- or whatever sum the plaintiff may be found liable to pay and after cancellation of the sale deed to the extent of the plaintiff's share in an award of possession of the plaintiff's share. There was no prayer for partition and by asking for possession of his share the plaintiff could only be seeking joint possession after declaration of rights claimed. The trial court dismissed the plaintiff's suit. The first appellate court allowed the plaintiff's appeal and decreed the suit. Defendant went up in appeal. While the second appeal was pending in the High Court a notification under section 4 of the U.P. Consolidation of Holdings Act was issued. An application was moved under section 5 of the Act. But the High Court dismissed the application and decided the appeal on merits. The appeal was allowed with the result that the suit was dismissed. The plaintiff on special leave went up to the Supreme Court against the decree of the High Court. A preliminary objection was taken by the defendant to the effect that the suit was liable to be abated by reason of Section 5 of the U. P. Consolidation of Holdings Act. This plea was accepted by the Supreme Court and the suit was directed to be declared as abated. The Supreme Court has noticed in paragraph 3 that the High Court had held that section 5 did not apply to a case in which possession could be granted only after cancellation of a sale deed to the extent of half share before awarding possession. Thereafter the Supreme Court f