# Brijendra Singh and others v. The Third Additional District & Sessions Judge, Agra and others

- **Citation:** (2005) 2 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-04-01
- **Case number:** Civil Misc. Writ Petition No. 6544 of 1984
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijendra-singh-and-others-v-the-third-additional-district-sessions-judge-agra-40457
- **Pages:** 5

## Headnote

U.P. Consolidation of Holding Act 1953-S.
49-void
document-validity
can
be
adjudicated-by consolidation authorities
earlier the objection under S.-9 of the
Act-rejected-upheld
by
High
Court
subsequent civil suit rightly held barred
by Section 49 of the Act.

Held- Para 11 & 12

The proposition laid down by the Full
Bench judgment is well settled. The
document in view of the authority of the
Full Bench above quoted, which are void
can be adjudicated and decided by the
consolidation courts. As observed above
the
sale
deed
in
question
whose
declaration has been sought by the
plaintiffs in the civil courts on own
pleadings of the plaintiffs is a void
document. The consolidation courts had
every jurisdiction to adjudicate with
regard to sale deed in question and in
fact objection under Section 9-A (2) of
the U.P. Consolidation of Holdings Act
was
filed
by
Smt.
Surya
Kumari
challenging
the
right
of
Smt.
Chandrawali on the agricultural land on
the ground that she had no right. The
objection was rejected which order was
upheld upto the High Court.

In view of the forgoing discussions the
revisional court has rightly taken the
view that the suit filed by the plaintiffspetitioners is barred under Section 49 of
the U.P. Consolidation of Holdings Act.
No error has been committed by the
revisional court in allowing the revision
filed by the respondent no. 2. I do not
filed any merit in the writ petition.
Case law discussed:
1976 AWC-412
AIR 1973 SC-2451
AIR 1968-SC-956
1976 AWC-412

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2005

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 6544 of 1984

Brijendra Singh and others ...Petitioners
Versus
The Third Additional District & Sessions
Judge, Agra and others ...Respondents

Counsel for the Petitioners:
Sri G.N. Verma
Sri J.S. Baghel
Sri Shailendra Kumar Singh
Sri A.N. Verma

Counsel for the Respondents:
Sri Satya Prakash
Sri V.S. Mishra
Sri Nrapendra Chaturvedi
S.C.

U.P. Consolidation of Holding Act 1953-S.
49-void
document-validity
can
be
adjudicated-by consolidation authorities
earlier the objection under S.-9 of the
Act-rejected-upheld
by
High
Court
subsequent civil suit rightly held barred
by Section 49 of the Act.

Held- Para 11 & 12

The proposition laid down by the Full
Bench judgment is well settled. The
document in view of the authority of the
Full Bench above quoted, which are void
can be adjudicated and decided by the
consolidation courts. As observed above
the
sale
deed
in
question
whose
declaration has been sought by the
plaintiffs in the civil courts on own
pleadings of the plaintiffs is a void
document. The consolidation courts had
every jurisdiction to adjudicate with
regard to sale deed in question and in
fact objection under Section 9-A (2) of
the U.P. Consolidation of Holdings Act
was
filed
by
Smt.
Surya
Kumari
challenging
the
right
of
Smt.
Chandrawali on the agricultural land on
the ground that she had no right. The
objection was rejected which order was
upheld upto the High Court.

In view of the forgoing discussions the
revisional court has rightly taken the
view that the suit filed by the plaintiffspetitioners is barred under Section 49 of
the U.P. Consolidation of Holdings Act.
No error has been committed by the
revisional court in allowing the revision
filed by the respondent no. 2. I do not
filed any merit in the writ petition.
Case law discussed:
1976 AWC-412
AIR 1973 SC-2451
AIR 1968-SC-956
1976 AWC-412

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri G.N. Verma, learned
senior Advocate and Sri Satya Prakash
appearing for the respondents.

2. By this writ petition the
petitioners have prayed for quashing the
order dated 6th March, 1984 passed by the
3rd Additional District Judge allowing the
revision filed by the respondent no. 2
against the judgment and order dated
14.11.1979
passed
by
the
Munsif,
Fatehabad in Original Suit No. 273 of
1973. The original suit No. 273 of 1973
was filed by the petitioners impleading
the respondent No. 2 as the defendant No.
3 and other defendants praying for a
decree of declaration that the sale deed
dated
3.3.1966
executed
by
Smt.
Chadrawali in favour of the defendant no.
3 Bishan Lal is null and void. Before the
trial court issue No. 4 was framed to the
effect that "whether the suit is barred by
Section 49 of the Consolidation of
2 All] Brijendra Singh & others V. The 3rd Addl. District & Sessions Judge, Agra & another 381
Holdings Act?" Learned Munsif decided
the issue in favour of the plaintiffs and
held that the suit is not barred. A revision
was filed by the respondent no. 3 Bishan
Lal which has been allowed by the
revisional court. The revisional court has
held that the suit is barred under Section
49 of the U.P. Consolidation of Holdings
Act. The order of the revisional court
dated
6th
March,
1984
has
been
challenged in this writ petition.

3.

Brief
facts
necessary
for
appreciating the controversy raised in the
writ petition are that the land in question
was
taken
under
consolidation
proceedings under the provisions of the
U.P. Consolidation of Holdings Act,
1953. The village was published under
Section 9 of the U.P. Consolidation of
Holdings Act on 25.2.1964 and a time
barred objection was filed by Smt. Surya
Kumari on 13.5.1966 claiming that the
name of Smt. Chandrawali is wrongly
recorded. It was further stated that Smt.
Chandrawali was not entitled to execute
any sale deed. The land in dispute was
recorded originally in the name of one
Agent Singh. Smt. Savitri Devi was his
widow and Smt. Chandrawali was the
widowed mother. Both Smt Savitri Devi
and Smt. Chandrawali executed the sale
deed. Smt. Surya Kumari was vendee
from Smt. Savitri Devi and an objection
under Section 9 of the U.P. Consolidation
of Holdings Act was taken by Smt. Savitri
Devi against Smt. Chandrawali. The case
was that Smt. Chandrawali did not inherit
after the death of Agent Singh and her
name has been wrongly recorded and the
sale deed executed by her was without
any right. The objection of Smt. Surya
Kumari was rejected and an objection
under Section 11 (1) of the U.P.
Consolidation of Holdings Act was filed
by Smt. Surya Kumari which was
dismissed by the Settlement Officer of
Consolidation on 8.5.1967. A revision
was filed before the Deputy Director of
Consolidation which revision was also
dismissed. A writ petition No. 2291 of
1969 was filed by Smt. Surya Kumari
which writ petition was also dismissed by
the order of this Court dated 15.12.1972.
After dismissal of the above writ petition
suit No. 273 of 1973 was filed by the
petitioners seeking declaration that the
sale deed dated 3.3.1966 is null and void.

4. Sri G.N. Verma, learned senior
Advocate appearing for the petitioner
raised following two submissions:-

(i) the sale deed in question was voidable
sale deed and it was only the civil
court who had jurisdiction to decide
the issue and the suit was not barred
under
Section
49
of
the
U.P.
Consolidation of Holdings Act.

(ii) Consolidation courts had not decided
any issue after taking the evidence no
findings have been rendered by the
consolidation courts that the sale deed
is void. The issue having not been
decided by the consolidation courts,
the civil court had jurisdiction to
entertain the suit and decide the
matter.

5. Reliance has also been placed on
the judgment of the apex Court in A.I.R.
1968 Supreme Court 956 Ningawwa
Versus
Byrappa
Shiddappa
Hireknrabar and others and the Full
Bench judgment of this Court in 1976
A.W.C. 412 Ram Nath Versus Smt.
Munna.
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2005

I have considered the submissions
and perused the record.

6. The orders passed by the
consolidation officer, Settlement Officer
of Consolidation as well as this Court in
writ petition filed by the petitioners
against the orders of the consolidation
authorities are on record. The objection
was filed by Smt. Surya Kumari under
Section 9 A-s of the U.P. Consolidation of
Holdings Act which was barred by time.
In the objection the case of the objectors
was that Smt. Chandrawali had no right to
execute the sale deed and entry of her
name was a fictitious entry. The objection
was rejected as barred by time which
order was upheld all the courts below.

7. A copy of the plaint has been filed
as Annexure-1 to the writ petition. As
noted above the relief claimed in the
plaint itself was that the sale deed dated
3.3.1966 executed by Smt. Chandrawali
be declared as null and void. Relevant
averments
made
in
the
plaint
are
contained in paragraphs 2 to 7. The
pleadings in the above paragraphs of the
plaint are that one Agent Singh was cosharer in plots No. 311, 315 and 316 with
Om Prakash, Renuka and Sukhdei. Agent
Singh died in the year 1952 leaving
behind his widow Smt. Savitri Devi and
mother Smt. Chandrawali. It was pleaded
in paragraph 5 that Smt. Chandrawali had
no right and she was not heir of Agent
Singh. It was further pleaded that the
name of Smt. Chandrawali was wrongly
mutated in the records and on the basis of
the said entry Smt. Chandrawali executed
sale deed on 3.3.1966 in favour of the
defendant no. 3. The submission of the
counsel for the petitioners is that the sale
deed is voidable. From the pleadings as
notes above it was clear case of the
plaintiff that Smt. Chandrawali had no
right in the land in dispute and the sale
deed executed by her was beyond her
right.
It
is
well
settled
that
the
consolidation courts/revenue courts had
jurisdiction to adjudicate and ignore a
deed which is void. It is only voidable
deed which requires declaration in the
civil court. The legal position is well
settled by the judgment of the apex Court
in A.I.R. 1973 SC 2451 Gorakh Nath
Versus H.N. Singh.

8. The judgment of the apex Court
in A.I.R. 1968 Supreme Court 956
Ningawwa versus Byrappa Shiddappa
Hireknrabar and others relied by the
counsel for the petitioner was a case with
regard to character of document based on
fraudulent misrepresentation. The apex
Court
held
that
fraudulent
misrepresentation regarding character of
the
document
makes
the document
voidable. Following was laid down in
paragraph 4:-

"(4) On behalf of the respondents
Mr. Naunit Lal, however stressed the
argument that the trial court was wrong
in holding that the gift deed was void on
account of the perpetration of fraud. It
was submitted that it was only a voidable
transaction and the suit for setting aside
the gift deed would be governed by Article
95 of the Indian Limitation Act. In our
opinion, the proposition contended for by
Mr. Naunit Lal must be accepted as
correct. It is well established that a
contract or other transaction induced or
tainted by fraud is not void, but only
voidable at the option of the party
defrauded. Until it is avoided, the
transaction is valid, so that third parties
without notice of the fraud may in the
meantime acquire rights and interests in
2 All] Brijendra Singh & others V. The 3rd Addl. District & Sessions Judge, Agra & another 383
the matter which they may enforce against
the party defrauded."

9. The above case was a case which
was considering a document which was
based on fraudulent misrepresentation
with regard to character of document
which was a voidable document. The
facts of the present case are to the
opposite. In the present case the pleadings
of the plaintiff-petitioners are to the effect
that Smt. Chandrawali had no right to the
agricultural land since she was not the
heir of Agent Singh and the sale deed
executed by her was without authority and
thus void. The above judgment of the
apex Court does not help the petitioner.

10. The judgment of the Full Bench
relied by the counsel for the petitioner in
the case of Ram Nath versus Smt.
Munna reported in 1976 A.W.C. 412 was
a case in which the issue considered was
as to whether the suit for cancellation of
voidable
sale
deed
relating
to
an
agricultural plot will abate under Section
5 (2) of the U.P. Consolidation of
Holdings Act. The Full Bench held that
the suit in respect of void document abate
by reasons of Section 5 but the suit for
cancellation of voidable deed do not
abate. Following was laid down in
paragraph 9:-

"9. Shri H.N. Tilharfi contended
that the use of the words "it could be
urged" appearing in the Supreme Court's
judgment means that their Lordships were
not
giving
any
decision
but
only
mentioning a plausible argument. In our
opinion, this cannot be the meaning of
these words in the context in which they
have been used. These words only mean
that it could be validly urged that the
Consolidation authorities had no power
to cancel the deed. The subsequent part of
the sentence to the effect "it must be held
to be binding on them so long as it is not
cancelled by a court having the power to
cancel it" makes it clear that the
Lordships of the Supreme Court intended
to declare the law in respect of voidable
documents. We are, therefore, of the
opinion that the Supreme Court has laid
down the law in Gorakh Nath's case,
A.I.R. 1973 SC 2451 that suits in respect
of void documents abate by reason of
section 5 of the U.P. Consolidation of
Holdings
Act,
but
the
suits
for
cancellation of voidable sale deeds do not
abate."

11. The proposition laid down by the
Full Bench judgment is well settled. The
document in view of the authority of the
Full Bench above quoted, which are void
can be adjudicated and decided by the
consolidation courts. As observed above
the
sale
deed
in
question
whose
declaration has been sought by the
plaintiffs in the civil courts on own
pleadings of the plaintiffs is a void
document. The consolidation courts had
every jurisdiction to adjudicate with
regard to sale deed in question and in fact
objection under Section 9-A (2) of the
U.P. Consolidation of Holdings Act was
filed by Smt. Surya Kumari challenging
the right of Smt. Chandrawali on the
agricultural land on the ground that she
had no right. The objection was rejected
which order was upheld upto the High
Court.

12. In view of the forgoing
discussions the revisional court has
rightly taken the view that the suit filed by
the plaintiffs-petitioners is barred under
Section 49 of the U.P. Consolidation of
Holdings
Act.
No
error
has
been
384 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
committed by the revisional court in
allowing the revision filed by the
respondent no. 2. I do not filed any merit
in the writ petition. The writ petition is
dismissed. Parties shall bear their own
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2005

BEFORE
HON'BLE AJOY NATH RAY, CJ.
HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 296 of 2005

Gyan Pratap Singh

...Appellant
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Appellant:
Sri Dr. R. Dwivedi
Sri V.S. Dwivedi
Sri R.B. Singhal

Counsel for the Respondents:
Sri A. Kumar
S.C.

U.P. Panchayat Raj Rules 1947-rule 165
(4) and (5)- Prohibition on appointment
of certain relatives of village Pradhan-as
mentioned in S.-165-Selection of the
appellant
cancelled-only
reasons
for
cancellation disclosed-at that material
time the appellant was the son of the
brother in laws son of a lady village
Pradhan-explanation 'nephew'-does not
include a brother in law's son-a legal
restricted meaning of nephew should be
given
rather
than
a
Special
wide
meaning-prohibition has to be clear and
accurate-accordingly-cancellation
of
appointment held-illegal.

Held: Para 14

On the basis of these materials we have
to
take
a
decision
whether
the
explanation to Rules 165 prohibits a
brother-in-law's son by prohibiting a
nephew. We are unable to opine that in
that explanation nephew includes a
brother-in-law's son. We give a legally
restricted meaning to the word nephew
rather than give it a socially wide
meaning; where people's rights are
involved and curtailment of the eligibility
to
appointment
in
a
Panchayat
is
concerned, the prohibition has to be
clear and accurate before a person can
be barred from entering into a Panchayat
service.

(Delivered by Hon'ble Ajoy Nath Ray, CJ)

1. This appeal is taken up and
disposed of.

2. It is from an order of an Hon'ble
Single Judge dated 10.2.2005 wherein his
Lordship has quashed the selection and
appointment of one Gyan Pratap Singh,
who was respondent no. 5 in the Court
below. The only reason for quashing is his
relationship to the Village Pradhan. It is
an admitted case that the appellant at the
material time was the husband's brother's
son, i.e. the brother-in-law's son of the
Village Pradhan, who was a lady.

3. The only provision of law which
is material for our consideration, is the
explanation of sub-rule (5) of Rule 165 of
the U.P. Panchayat Raj Rules, 1947. Subrule (4) prohibits the appointment of a
Panchayat member's ''Relation" to any
post (menial servants excepted).

The said explanation is set out
below:-
"Explanation--The word "relation"
in the proviso means father, grand-father,
father-in-law, maternal or paternal uncle,