# Prakash Narain and another v. IIIrd Additional District Judge And others

- **Citation:** (2010) 2 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-25
- **Case number:** Civil Misc. Writ Petition No. 6260 of 1992
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-narain-and-another-v-iiird-additional-district-judge-and-others-41705
- **Pages:** 5

## Headnote

S.C.
Sri G.N.Verma

U.P.
Consolidation
of
Holdings
Act,
Section 49-suit for cancellation of sale
deed-on
basis
of
sale
deed
name
initiated-during consolidation operationthe
order
passed
by
consolidation
proceeding be questioned either by civil
or revenue court as per law laid down by
Full Bench in Bismillah Case.
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Held Para 11

Counsel for the petitioner has placed
reliance in the case of Jai Singh Vs. IInd
Additional District Judge, Muzaffarnagar
and others reported in 2001 (4) AWC
2826 which according to the petitioner
holds that a suit for cancellation would
lie in civil court only. In my opinion, the
judgement has no application in the
facts of present case inasmuch as it
deals with the proceedings initiated
under the U.P. Z.A & L.R. Act. As already
noticed above the Full Bench of this
Court in the case of Ram Nath (supra)
has specifically held that the jurisdiction
of
the
consolidation
authorities
in
respect of right, title and interest over
the agriculture land is much wider than
that of revenue courts and civil courts.
Case Law Discussed:
1989 (1) AWC 290 ,2004 (2) AWC 1274,1980 ALJ
NOC 134, (2001) 3 SCC 24, (1990) 1 SCC 207

## Text

2 All] Prakash Narain and another V. IIIrd Additional District Judge and others
867
he can not be expected to analyze the query
by himself and prepare the answer which is
prejudicial to his interest. Social and
economic pressure on a young boy in
today's society is a reality. The moral values
which are otherwise vanishing can not be
stretched beyond a limit. The virtues and
values in a candidate should be decided on a
practical apparatus. Realities of life can not
be wished away. In the present case, when
the petitioner was neither convicted nor
fined nor bound down nor prosecuted nor
debarred
from
appearing
in
any
examination, his answer to clause 12 as 'No'
can be read as near truth. The Inspector incharge Police Station-Unchahar as well as
the Superintendent of Police of the District
have verified his character as being good,
the certificate of good moral character has
been issued by the Village Pradhan. On
inquiry no adverse material has come out
against him nor any complaint was made to
the police by any of the villagers.

12. On the basis of the arguments and
the material on record, the Court is
convinced that the answer 'No' to the
composite question put in Clause 12 of the
'Verification Roll' does not amount to
supply of false information or suppression
of material facts as envisaged under Clause
-3 of the said Roll.

13. The order of termination has been
passed in very cursory and routine manner.
The
matter
has
not
been
seriously
considered from all angles. There is lack of
application of mind which can not be
appreciated. It deserves to be struck down.
It has also been informed that the petitioner
was sent back home despite service of the
interim order of this Court. This is a serious
matter The act touches the peripheries of
contempt. At the moment no cognizance is
being taken of this fact but it is expected of
a senior officer of a disciplined force to
show due respect to the orders of the Court.

14. Accordingly, the order dated
16.6.2010 resulting into the termination of
the petitioner's services w.e.f. 16.7.20010
passed by Commandant 8th Battalion, as
contained in Annexure-1 to the writ
petition, is set aside. The petitioner shall be
reinstated in service from the date the other
persons of his Batch have been assigned
their job in the department.

15. The writ petition is allowed.

16. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 6260 of 1992

Prakash Narain and another ...Petitioner
Versus
IIIrd Additional District Judge And
others

 ...Respondent

Counsel for the Petitioner:
Sri R.S. Maurya
Sri Kunwal Ravi Singh

Counsel for the Respondent:
S.C.
Sri G.N.Verma

U.P.
Consolidation
of
Holdings
Act,
Section 49-suit for cancellation of sale
deed-on
basis
of
sale
deed
name
initiated-during consolidation operationthe
order
passed
by
consolidation
proceeding be questioned either by civil
or revenue court as per law laid down by
Full Bench in Bismillah Case.
868 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Held Para 11

Counsel for the petitioner has placed
reliance in the case of Jai Singh Vs. IInd
Additional District Judge, Muzaffarnagar
and others reported in 2001 (4) AWC
2826 which according to the petitioner
holds that a suit for cancellation would
lie in civil court only. In my opinion, the
judgement has no application in the
facts of present case inasmuch as it
deals with the proceedings initiated
under the U.P. Z.A & L.R. Act. As already
noticed above the Full Bench of this
Court in the case of Ram Nath (supra)
has specifically held that the jurisdiction
of
the
consolidation
authorities
in
respect of right, title and interest over
the agriculture land is much wider than
that of revenue courts and civil courts.
Case Law Discussed:
1989 (1) AWC 290 ,2004 (2) AWC 1274,1980 ALJ
NOC 134, (2001) 3 SCC 24, (1990) 1 SCC 207

(Delivered by Hon'ble Arun Tandon,J. )

1. Petitioner before this Court is
plaintiff in Original Suit No. 141 of 1986
which was filed for cancellation of the sale
deed executed in respect of plot no. 111.

On behalf of the defendants an
objection was raised qua the jurisdiction of
the Civil Court to try the suit on the ground
that the suit property transferred under the
sale deed was an agricultural holding and the
suit was barred by Section 49 of the
Consolidation
of
Holdings
Act.
The
objection so raised was formulated as issued
no. 3 and has been decided as preliminary
issue. The Trial Court held that the suit as
presented was maintainable inasmuch as the
Civil Court alone had the jurisdiction to
cancel the sale deed.

2. Not being satisfied the defendants
filed Civil Revision N0. 08 of 1991. The
revision has been allowed under the
judgement and order of the Additional
District Judge dated 7.2.1992 and it has been
held that during consolidation operation,
mutation has directed on the strength of the
sale deed, the same has become final.
Reference has also been made to an
application made by the plaintiff's father
before the Sub-Divisional Magistrate giving
his consent for mutation of the name of the
defendants who were purchasers of the
property in question.

3. The Additional District Judge has
held that the sale deed has been executed
willingly and voluntarily without any fraud
or misrepresentation. It has, therefore, been
held that the suit was barred under Section
49 of the Consolidation of Holdings Act.

4. Challenging the order so passed by
the additional District Judge, counsel for the
petitioner submits that the issue pertaining to
cancellation of the sale deed cannot be a
subject matter of consideration during the
consolidation proceeding. Any mutation and
determination of rights which may have
taken place on the strength of the sale deed
during consolidation proceedings will not bar
the suit for cancellation of the sale deed.

Counsel
for
the
petitioner
with
reference to the Full Bench judgement of this
Court in the case of Ram Padarath vs.
Second Additional District Judge, Sultanpur
and others reported in 1989 (1) AWC 290 as
well as to the judgement of the Hon'ble
Single Judge in the case of Smt. Mangli Devi
vs. Kamlesh Kumar and others 2004 (2)
AWC, 1274, contends that where a plaintiff
approaches
the
Civil
Court
seeking
cancellation of a sale deed which may be
void or voidable, the issue as to whether the
name of the plaintiff is recorded or not is not
relevant and it is within the jurisdiction of the
civil court to try such a suit.
2 All] Prakash Narain and another V. IIIrd Additional District Judge and others
869

5. It is stated that in the facts of this
case the plaintiff's allegations were that the
sale deed has been obtained by fraud and
misrepresentation and, therefore, the suit for
cancellation of the sale deed could be tried
by the Civil Courts only.

6. I have heard counsel for the parties
and have examined the record of the present
writ petition.

7. The District Judge, Jalaun at Orai in
his order dated 7.2.1992 has recorded
following findings.

(a) Registered sale deed was executed
by the father of the petitioner in respect of
property on 12.7.1973 and the plaintiff was
one of the attesting witnesses. On the
strength of the sale deed, name of the
purchaser defendants was mutated in revenue
records and no objection was taken by the
father of the plaintiff, who was alive at the
relevant time. On the contrary, the father
gave his consent for mutation in favour of
the purchaser in proceeding on an application
made for the purpose in the court of S.D.M.
It has been found that the suit for cancellation
of the sale deed was barred by Section 49 of
the Consolidation of Holdings Act. It has
been recorded that on the basis of the sale
deed, the defendants have been recorded as
Bhumidhar in possession of the disputed
land in the revenue records. It has been
noticed that the sale deed is being questioned
by means of the suit filed in the year 1986
i.e. after 12 to 13 years of the execution of
the sale deed and after the village in question
was de-notified under Section 52 of
Consolidation of Holdings Ac. It has lastly
been recorded that neither the father of the
petitioner nor Prakash Narain claimed any
right as title in land in question during
consolidation proceedings. In view of the
judgement in the case of Ram Padarath vs.
Second Additional District Judge, Sultanpur
and others reported in 1989 (1) AWC 290, it
has been held that the rights of the parties
stand
determined
conclusive
during
consolidation proceedings and cannot be
reopened in suit before the Civil Court or
Revenue Court. Further reliance has been
placed upon the judgement in the case of
Archhey Lal and others vs. Bhunai and
others reported in 1980 ALJ NOC 134 for
holding that a suit for cancellation of a sale
deed where the purchaser has already been
recorded as Bhumidhar in revenue record is
barred by section 49 of U.P. Consolidation of
Land Holdings Act. To similar effect is the
judgement of this Court in the case of Zafar
Khan and others vs. Board of Revenue, U.P.
and others AIR 1985 SC 39 challenging the
finding so recorded.

8.

Counsel
for
the
petitioner
challenging
the
findings
so
recorded
vehemently contended that since the suit was
filed for cancellation of the sale deed civil
court alone had the jurisdiction to try the suit
and the bar of Section 49 of CH Act would
not be applicable. He placed reliance upon
the Full Bench judgement of this Court in the
case of Ram Padarath vs. Second Additional
District Judge, Sultanpur and others reported
in 1989 (1) AWC 290 as well as upon the
judgement of this court in the case of Ram
Nath vs. Smt. Munna reported in AWC 412
for the proposition that a suit for cancellation
of a voidable sale deed qua an agricultural
plot pending in civil court shall not abate
under section 5 of the Consolidation of
Holdings Act. Reference is also made to
judgement of Hon'ble Supreme Court in the
case of Sri Ram and another vs. Ist
Additional District Judge and others reported
in (2001) 3 SCC 24 wherein it has been held
that a recorded tenure holder having a prima
facie title and being in possession can file a
suit before the civil court for cancellation of
870 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

sale deed having been obtained by fraud or
impersonation he cannot be directed to file a
suit for declaration in the Revenue Court, the
reason being that in such a case, prima facie
the title of the recorded tenure holder is not
under cloud. He has also placed reliance
upon the judgement of the Hon'ble Supreme
Court in the case of Smt. Bismillah vs.
Janeshwar Prasad and others reported in
(1990) 1 SCC 207 wherein the judgement of
Full Bench of this court in the case of Ram
Padarath (supra) has been approved.

9. Suffice is to record that Full Bench
of this Court in the case of Ram Padarath
(supra) has specifically laid down as follows:

"We are of the view that the case of
Indra Dev v. Smt. Ram Pyari has been
correctly decided and the said decision
requires no consideration, while the Division
Bench case, Dr. Ayodhya Prasad v. Gangotri
Prasad is regarding the jurisdiction of
consolidation authorities, but so far as it
holds that suit in respect of void document
will lie in the revenue court it does not lay
down a good law. Suit or action for
cancellation of void document will generally
lie in the civil court and a party cannot be
deprived of his right getting this relief
permissible under law except when a
declaration of right or status and a tenure
holder is necessarily needed in which event
relief for cancellation will be surplusage and
redundant. A recorded tenure holder having
prima facie title in his favour can hardly be
directed to approach the revenue court in
respect of seeking relief for cancellation of a
void document which made him to approach
the court of law and in such case he can also
claim ancillary relief even though the same
can be granted by the revenue court."

The same Full Bench in paragraph 21
has further specifically held as below:-

"21.
The
jurisdiction
of
the
consolidation authorities is wider than civil
and revenue courts. Section 5(2) of U.P.
Consolidation of Holdings Act provides that
any suit pending in the trial court or in appeal
before any appellate court in which right, title
and interest over land is involved will stand
abated. In view of the said provision of any
appeal, may it be a special appeal, pending
before Hon'ble Supreme Court would abate.
Adjudication of right, title and interest over
'land' by the consolidation authorities is final.
Section 8 of the U.P. Consolidation of
Holdings Act provides for revision of the
village map after provisional consolidation
Scheme for unit is prepared. Sec. 8-A of the
said Act provides for preparation of
Statement of Principles, while Sec. 9
provides for issue of extracts from records
and statements and publication of records
mentioned in Section 8 and Section 8-A and
issue of notice for inviting objection. Section
9-A provides for disposal of cases relating to
claim to land and partition of joint holding.
The order passed by the consolidation officer
is subject to appellate and revisional
jurisdiction. Even if rights are claimed on the
basis of void sale-deed or questioned before
the
consolidation
authorities,
the
consolidation authorities, after recording a
finding on the same that it was void saledeed can determine the rights, title and
interest in the land in accordance with law
ignoring the said deed on the ground that it
was void. The entries are to be corrected by
the consolidation authorities themselves and
one has not to approach the authorities under
U.P. Land Revenue Act after decision by
civil or revenue court to correct the papers in
accordance with their judgement and decree.
If a document is cancelled by civil court then
entry is to be made by the registering officer
on the copy as provided in Section 31(2) of
the Specific Relief Act, which gives seal to
the legal ineffectiveness of the said
2 All] Head Constable 92 A.P.Madan Pal Singh V. State of U.P. and others
871
document. But after determination by
consolidation authorities the right, title of the
parties taking into consideration void
document, the entries will be corrected. After
consolidation operations are over, the
question cannot be raised or raked up before
any civil or revenue court thereafter in view
of Section 49 of U.P. Consolidation of
Holdings Act which puts a bar on the
jurisdiction of civil or revenue court not only
to adjudicate such right and title or interest
over land adjudicated by consolidation
authorities or which could have been raised
before them, but was not raised. The
jurisdiction of consolidation authorities is
thus wider than that of civil court and
revenue court."

10. In view of the legal position as
aforesaid, which has since been approved by
the Hon'ble Supreme Court in the case of
Smt. Bismillah (supra) what logically
follows is that all issues of right/title in an
agriculture holding should be raised before
the consolidation authorities once the village
is notified under Section 4 of the CH Act.
The father of the petitioner should have
therefore claimed before the consolidation
authorities that the sale deed was void
document. No such plea, which was
available, was raised before the consolidation
authorities by the father or by the petitioner
himself who was a attesting witness to the
sale deed so executed. This Court holds that
rights over the land with reference to the sale
deed in the facts of the stood closed with the
de-notification of the village and the suit as
filed for cancellation of the sale is barred by
Section 49 of the Consolidation of Holdings
Act. The order of the Consolidation
authorities treating the land in dispute to be
that the purchaser, can not be reopened in a
suit as filed by the plaintiff.

11. Counsel for the petitioner has
placed reliance in the case of Jai Singh Vs.
IInd
Additional
District
Judge,
Muzaffarnagar and others reported in 2001
(4) AWC 2826 which according to the
petitioner holds that a suit for cancellation
would lie in civil court only. In my opinion,
the judgement has no application in the facts
of present case inasmuch as it deals with the
proceedings initiated under the U.P. Z.A &
L.R. Act. As already noticed above the Full
Bench of this Court in the case of Ram Nath
(supra) has specifically held that the
jurisdiction of the consolidation authorities in
respect of right, title and interest over the
agriculture land is much wider than that of
revenue courts and civil courts.

12. Writ petition is dismissed. Interim
order is vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2010

BEFORE
THE HON'BLE ANIL KUMAR, J.

Civil Misc. Writ Petition No. 8843 of 2002

Head Constable 92 A.P Madan Pal
Singh

 ...Petitioner
Versus
State Of U.P. & others ...Respondents

Counsel for the Petitoner:
Sri Chandra Bahadur Yadav
Sri S.K.Mishra
Sri Rakesh Tripathi

Counsel for the Resapondents:
C.S.C.

Constitution of India Art 226-Judicial
Review-discretion
exercised
by
disciplinary
authority-under
writ
jurisdiction-limited
to
scrutiny
of
decision making process only in the light