Allahabad High Court
Smt.Keshar Kumari Alias Raj Kumari vs Krishna Prasad And Ors. on 8 August, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:46272
Reserved
Court No. -7
Case :- SECOND APPEAL No. - 113 of 2013
Appellant :- Smt.Keshar Kumari Alias Raj Kumari
Respondent :- Krishna Prasad And Ors.
Counsel for Appellant :- Sanjay Kumar,Amar Nath Dubey,Ankit Pande,H.K.Misra,Manoj Kumar Mishra,Ram Pratap Yadav,Shiv Murti Mishra,Umesh Kumar Pandey
Counsel for Respondent :- K.N.Shukla,Ankur Srivastav,Nalini Prakash Jain,Rajesh Kr. Pandey,Sanjay Tripathi,Shiv Kumar,Udai Bahan Pandey,Utkarsh Misra,Vikas Yadav
Hon'ble Jaspreet Singh, J.
1. Heard Shri Umesh Kumar Pandey, learned counsel for the appellant and Smt. Nalini Jain, learned counsel appearing for the respondents.
2. This is a defendant's second appeal assailing the judgment and decree dated 02.01.2013 passed by the Special Judge, SC/ST Act, Faizabad in Civil Appeal No.42 of 2012 which was dismissed, as a consequence, the judgment and decree dated 18.02.2012 passed by the 3rd Additional Civil Judge (Junior Division), Faizabad in Regular Suit No.185 of 1998 (whereby a suit for cancellation of sale deed was decreed) was affirmed and being faced by the concurrent judgments the instant second appeal has been preferred.
3. The instant second appeal was admitted on a solitary substantial question of law by a Co-ordinate Bench of this Court on 16.05.2013 which reads as under:-
"Whether a Civil Court can determine the question of title regarding agricultural property during pendency of consolidation proceedings in view of Section 5(2) and 49 of the U.P. Consolidation of Holdings Act 1953?"
4. In order to adjudicate the aforesaid issue, it will be relevant to take note of the facts giving rise to the instant appeal.
5. The original Suit No.185 of 1998 was instituted by Satya Narain (the original plaintiff who died during the pendency of the suit and is now represented by his legal heirs who are the respondents in this appeal) seeking a decree of cancellation of sale deed dated 19.08.1997 relating to Plot No.821 measuring one bigha, eight biswa and fifteen dhur, situate in gram Mubarakpur Umrahi, Pargana Pashchim Raath Milkipur, District Faizbad and registered before the Sub-Registrar in Book No.1, Khand-6, pages 279 to 296 at serial no.1228 on 20.09.97.
6. In the plaint, it was stated that the property in question belonged to Ram Balak Mishra. He had a wife and two sons. The plaintiff was one of the son whereas the other son, namely, Rudra Narain had pre deceased Ram Balak. Rudra Narain was issuless but he was survived his widow Smt. Keshar Kumari alias Raj Kumari who was the original defendant no.6 in the suit and the appellant before this Court.
7. It was further pleaded that Ram Balak in order to ensure that his widowed daughter-in-law and his wife are duly cared for after his death, hence he executed his Will dated 12.12.1982 in terms whereof, he provided that after his death, his entire estate comprising of his movable and immovable property would be inherited by his son Satya Narain, his wife Smt. Draupti Devi and his daughter-in-law Smt. Keshar Kumari alias Raj Kumari. He also provided for specific shares to the effect that his wife would get three aanas while his daughter-in-law would also get three aanas and six aanas share was bequeathed to his son Satya Narain.
8. It was also provided that both Smt. Dropdi Devi and Smt. Keshar Kumari alias Raj Kumari would have only a life estate and they could enjoy the property during their life time but they will not have any right to alienate and after their demise the entire property would vest with his son Satya Narain.
9. It was pleaded that Ram Balak expired on 13.03.1983 and thereafter Smt. Keshar Kumari alias Raj Kumari used to often visit her parental home and under their guidance she got her name mutated behind the back of the plaintiff, claiming half share in the property and thereafter she executed a sale deed on 19.08.1997 in favour of the defendants no.1 to 5 in respect of Plot No.281.
10. It is in the aforesaid context that the plaintiff filed a suit registered as Regular Suit No.185 of 1998, seeking cancellation of the sale deed dated 19.08.1997 on the ground that the defendant no.6 Smt. Keshar Kumari alias Raj Kumari did not have any right to execute the sale deed in light of the Will executed by Ram Balak dated 12.12.1982.
11. The defendants contested the suit and raised a defence that the alleged Will of Ram Balak dated 12.12.1982 was a fictitious document and it was not executed by Ram Balak. It was further pleaded that after the death of Ram Balak and Smt. Dropdi Devi, the property devolved on the plaintiff and the defendant no.6 (Smt. Keshar Kumari alias Raj Kumari being the widow of a pre deceased son) in two equal half shares.
12. Smt. Keshar Kumari alias Raj Kumari having half share got her name mutated and thereafter she executed the sale deed in favour of the defendants no.1 to 5 on 19.08.1997, and as such the suit for cancellation was bad in the eyes of law. It was also pleaded that the suit preferred for cancellation of the sale deed was barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to Act of 1953).
13. Upon the exchange of pleadings, the trial court framed five issues. However, the relevant issues were 2, 3 and 4. The issue nos.2 and 3 related to the fact as to whether the sale deed dated 19.08.1997 relating to Plot No.821 was liable to be cancelled and whether the Plot No.674 of list A and land of list B and C could be transferred by the defendant no.6 as it is alleged by the plaintiff that she had no right to alienate. The other issue was as to whether the suit filed by the plaintiff was barred by Section 49 of the Act of 1953.
14. After the parties led evidence, the trial court deliberated over the issue no.2 and found that the Will executed by Ram Balak was proved in accordance with law. The trial court further noticed that since the Will was questioned by the defendant no.6, hence once the initial burden to prove the Will had been discharged by the plaintiff, then the onus shifted on the defendant no.6 to establish that the said Will was fabricated and forged.
15. In this regard, the trial court noticed the contentions as well as the statement of the witnesses and found that though they might have been natural variation in the statement of the witnesses who had entered into the witness box almost after two decades, hence as far as the factum of due execution and attestation is concerned, that was proved and no ground for holding the Will to have been fabricated could be proved. It further noticed that since the Will had been proved, consequently, the defendant no.6, who was only conferred with a limited estate in the Will, hence she did not have the right to transfer the disputed property, hence both the issue nos.2 and 3 were decided in favour of the plaintiff.
16. The trial court while dealing with the issue no.4 relating to the bar of jurisdiction in terms of Section 49 of the Act of 1953 is concerned, held that the said issue was not pressed by the defendant, hence it was decided accordingly and then in light of the findings returned while considering the issues no.2 and 3. The trial court by means of its judgment and decree dated 18.02.2012 decreed the suit in favour of the plaintiff against the defendants.
17. The defendants assailed the judgment and decree dated 18.02.2012 by filing the first appeal under section 96 CPC before the District Judge, Faizabad which was thereafter transferred to Special Judge SC/ST Act, Faizabad, registered as Civil Appeal No.42 of 2012 and the first appellate court also dismissed the appeal by means of judgment and decree dated 02.01.2013 prompting the appellant to approach this Court in second appeal.
18. Shri Umesh Kumar Pandey, learned counsel for the appellant while assailing the two judgments submitted that the suit preferred by the plaintiff and respondents was barred by Section 49 of the Act of 1953 elaborating his submissions, it was urged that the trial court while deciding the said issue incorrectly noticed that the defendants did not press the said issue. However, the said statement was incorrect and the defendants while filing the first appeal raised a ground in the memo of appeal to the aforesaid extent and as such the finding on issue no.4 was patently perverse.
19. Shri Pandey further submits that before the first appellate court he had moved an application under Order 41 Rule 27 CPC bringing on record certain documents relating to consolidation which was on going in the village in question where the disputed property was situate. It is further submitted that even though the said application was allowed, yet the first appellate court did not take note of the aforesaid documents and its consequential effect while deciding the first appeal as such this too vitiated the judgment of the first appellate court.
20. Shri Pandey further urged that once the consolidation operation commenced in the village and the fact which cannot be disputed by the plaintiff defendants, hence, for the period the consolidation operation were effective, the Civil Court would not have jurisdiction to entertain the suit as it would be barred in terms of Section 49 of the Act of 1953. Moreover, once in the consolidation operations, the name of Smt. Keshar Kumari alias Raj Kumari had been mutated, the same would constitute a bar for the Civil Court to re-agitate the said issue. In the mutation proceedings the right of Smt. Keshar Kumari alias Raj Kumari had been determined and it is in furtherance thereof that her name was mutated and for the said reason the issue which was not assailed before any consolidation authorities in appeal or revision would constitute a bar for the respondents to reagitate the same issue before the Civil Court, hence the bar was specific in nature and this aspect has not been considered by the two courts resulting in sheer miscarriage of justice.
21. In support of his submission, learned counsel for the appellant has relied upon the decision of the Apex Court in Sita Ram v. Chhota Bhondey 1990 All. L.J. 875 (HC). He has also relied upon a decision of a Co-ordinate Bench of this Court in Prakash Narain and others v. III Additional District Judge, Civil Misc. Writ Petition No.6260 of 1992 decided on 25.08.2010. He has further relied upon another decision of a Co-ordinate Bench of this Court in Prem Kumar and others v. Subhash Chand and others, Second Appeal No.512 of 2000, decided on 11.12.2024; Neutral Citation No.2024:AHC:193613
22. On the strength of the aforesaid decisions, it was submitted that once the consolidation operations had commenced the Civil Court would not have the jurisdiction to entertain the suit for cancellation of the sale deed, hence on the strength of the aforesaid dictum, it was submitted that this aspect has not been appropriately considered by the two courts, hence the second appeal deserves to be allowed after setting aside the concurrent judgment and decree under appeal.
23. Smt. Nalani Jain, learned counsel for the respondents has urged that undisputedly the property in question belonged to Ram Balak. It is also undisputed that the property was agricultural in nature and in this context once it was proved that Ram Balak had executed his Will then in terms thereof Smt. Keshar Kumari alias Raj Kumari would only inherit/be a legatee under the Will with a limited estate of three aanas with the stipulation that she will not sell the property. Thus, her right was confined and she could not transfer the property and moreover even if she did the vendee of Smt. Keshar Kumari alias Raj Kumari cannot got a better right then what was possessed by Smt. Keshar Kumari alias Raj Kumari hence the sale deed was voidable and in such a situation it was open for the plaintiff to seek the cancellation of such a sale deed and the power to cancel an instrument is vested only in the Civil Court, hence it cannot be said that the suit was barred by Section 49 of the Act of 1953.
24. It is further urged that before this Court there has been no attempt to assail the findings on the Will. Even though, the instant appeal was admitted on 16.05.2013 only on a solitary question of law relating to applicability of Sections 5 and 49 of the Act of 1953, yet the issue in context of Section 5 and 49 of the Act of 1953, is a mixed question of law and fact and since no evidence was led by the defendants before the trial court nor it was pleaded in the written statement when the notification under section 4 of the Act of 1953 was issued nor it was indicated when the notification under section 52 was issued and without proper pleadings and proof in this regard, the applicability of bar of Section 49 could not be successfully proved.
25. In this backdrop, the trial court was justified in deciding the issue no.4 against the defendants. Even before the first appellate court while certain documents were introduced by the defendant no.6 but once the validity of the Will had been upheld, the necessary consequence is that the defendant no.6 could not get any right in the property, hence any transfer made by her was voidable at the behest of the true owner i.e. Satya Narain (plaintiff) and he had a right to get the same sale deed cancelled and this relief could only be granted by the Civil Court as the consolidation authorities do not have a right to cancel an instrument.
26. In the aforesaid backdrop, it cannot be said that the bar of Section 49 is attracted and even on the strength of the alleged documents filed by the defendants before the first appellate court, no order of mutation or any order passed by the consolidation authorities, which could have translated in incorporation of the name of the defendant no.6 in the C.H. Form 41 and 45 could be justified, nor it was placed on record.
27. It is in the aforesaid circumstances that the first appellate court did not find any worthwhile evidence on behalf of the defendant no.6, hence no error can be said to have been committed by the two courts while decreeing the suit and in the aforesaid circumstances, the second appeal is concluded by concurrent findings of fact and it deserves to be dismissed with costs.
28. The Court has heard the learned counsel for the parties and also perused the material on record.
29. Certain facts which are undisputed and as they emerge from the record are:- (i) Undisputedly the disputed property belonged to Ram Balak. Admittedly, he had a wife and two sons. His younger son, namely, Rudra Narain expired on 23.11.1982 and at that time, he was issueless and was survived by his widow Smt. Keshar Kumari alias Raj Kumari (widowed daughter-in-law of Ram Balak); (ii) Admittedly Ram Balak died on 13.03.1983, thereafter his widow Smt. Dropdi Devi also died on 16.05.1990. Thus, it would be seen that on the date of death of Ram Balak i.e. on 13.03.1983, the succession to his estate opened. Since the property was agricultural in nature, hence the succession would be governed in terms of Section 171 of the U.P.Z.A. & L.R. Act 1950. In 1983, the property of Ram Balak would devolve on his son and widow. The widowed daughter-in-law would not have a right in presence of the widow of Ram Balak and Satya Narain son of Ram Balak. Thus, if at all, any right would accrue to the defendant Smt. Keshar Kumari alias Raj Kumari it could be only on account of a testamentary instrument.
30. The plaintiff had set up a Will of Ram Balak dated 12.12.1982 in terms whereof, he devised his property on 01.12.2006 bequeathing ten aanas share to his son Satya Narain and three aanas share equally to his widow Smt. Dropdi Devi and his widowed daughter-in-law Smt. Keshar Kumari alias Raj Kumari. In terms of the said Will, both Smt. Dropdi Devi and Smt. Keshar Kumari alias Raj Kumari were granted life estate without the right to sell the property and upon the death of Smt. Dropdi and Smt. Keshar Kumari alias Raj Kumari, their share under the Will would revert back to Satya Narain, who would then the full owner as vested remainder.
31. In paragraph-7 of the written statement filed by Smt. Keshar Kumari alias Raj Kumari, it was pleaded that Smt. Keshar Kumari alias Raj Kumari had inherited half share which belonged to her husband Rudra Narain. Since the suit was filed on 07.01.1998 seeking cancellation of the sale deed dated 19.08.1997, hence in terms of Section 49 of the Act of 1953, the Civil Court would not have jurisdiction to continue with the suit.
32. Before proceeding further, it will be relevant to notice certain provisions of the Act of 1953 and for the ease of the reference Section 5 and Section 49 of the Act of 1953 is being reproduced herein after:-
5. [ Effect of [notification under Section 4(2)]. -
(1) Upon the publication of the notification [under sub-section (2) of Section 4] in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or sub-section (1) of Section 6, as the case may be, ensue in the area to which the [notification under Section 4(2)] relates, namely -
(a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and the duty of maintaining the record-of-rights and preparing the village map, the field-book and the annual register of each village shall be performed by the District Deputy Director of Consolidation, who shall maintain or prepare them, as the case may be, in manner prescribed;
(b) [* * *] [Omitted by U.P. Act No. 21 of 1966.]
(c) notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950, no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall -
(i)use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming; or
(ii)[* * *] [Omitted by U.P. Act No. 30 of 1991] Provided that a tenure-holder may continue to use his holding, or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued [under sub- section (2) of Section 4] [Substituted by U.P. Act No. 12 of 1965 (w.e.f. 08.03.1963).].
(2) [ Upon the said publication of the notification under sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely -
(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending, stand abated :
Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard :
Provided further that on the issue of a notification under sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated;
(b) such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder.] [Explanation. - For the purposes of sub-section (2), a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, shall not be deemed to be a proceeding in respect of declaration of rights or interest, in any land.]
49. Bar to civil Courts jurisdiction.-
Notwithstanding anything contained in any other law for the time being in force, the declaration and adjudication of right of tenure-holder in respect of land lying in an area, for which a [notification] has been issued [under sub-section (2) of Section 4] or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act :] [Provided that nothing in this section shall preclude the Assistant Collector from initiating proceedings under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act.]
33. At this stage, it will also be relevant to notice the decisions which have been cited by the learned counsel for the appellant on the aforesaid point. In Sita Ram (supra), the issue before the Apex Court was as to whether a suit filed seeking a declaration that the order passed by the Deputy Director of Consolidation dated 13.05.1971 is without jurisdiction. It is in the aforesaid context that the Apex Court held that since the matter was falling within the scope of adjudicatory function assigned to the consolidation authorities, the jurisdiction of the Civil Court to entertain the suit in respect of the said matter was barred by Section 49 of the Act of 1953.
34. What is important to note that the facts of the case before the Apex Court is quite different to the facts of the instant case. Apparently from the plain reading of the decision of the Apex Court in Sita Ram (supra) would indicate that the appellant before the Apex Court had filed a suit seeking a declaration that the order of the Deputy Director of Consolidation dated 13.05.1971 is without jurisdiction.
35. It is absolutely correct to say that any matter which is within the adjudicatory functions of the consolidation authorities cannot be challenged in a Civil Court as their jurisdiction is barred in terms of Section 49 of the Act of 1953. It is not open for a party to contest the consolidation proceedings and thereafter challenge the orders passed by the competent consolidation authorities in the Civil Court. There is a complete hierarchy of courts as provided in the Act of 1953 i.e. to say that an order passed by the consolidation officer is appealable under Section 11 of the Act of 1953 and which is further amenable to a revision under Section 48 of the Act of 1953. All orders passed by the consolidation authorities if left unchallenged attained finality, of course, subject to the well settled principal of fraud which then are susceptible to challenge even in collateral proceedings.
36. It is in this view that the Apex Court in Sita Ram (supra) had upheld the bar of jurisdiction but in the instant case since the suit was filed for cancellation of a sale deed and admittedly the power to grant such relief is only vested in the Civil Court and not to the consolidation authorities, hence the said decision does not come to the aid of the appellant.
37. In Prakash Narain (supra), a Co-ordinate Bench of this Court also while dealing with Section 49 of the Act of 1953 held that all issues of the right/title in an agricultural holding should be raised before the consolidation authorities once the villages is notified under section 4 of the Act of 1953. In the said case, the father of the appellant who should have challenged the veracity of the sale deed as void and having failed to do so including by the appellant who was a signatory to the said sale deed, hence in such circumstances, the bar of Section 49 was upheld. The said authority does not in any manner states that a suit for cancellation of a sale deed, a power which is vested only in the Civil Court, looses its jurisdiction, if the said sale deed is not challenged before the consolidation authorities. As a fortiori, a sale deed which was not in the knowledge of the present plaintiff and as alleged by the plaintiff that the defendant no.6 did not have the right to execute such a sale deed, then such a deed being voidable, in circumstances, it was only the Civil Court which had the jurisdiction, hence the case of Prakash Narain (supra) is clearly distinguishable on facts, hence does not come to the aid for the appellant. Similarly even the decision of Prem Kumar (supra) does not come to the aid of the plaintiff-appellant.
38. Now it will also be relevant to notice certain decisions of this Court and the Apex Court on the issue of Section 49 of the Act of 1953.
39. In Ram Briksha v. Dy. Director of Consolidation; 2017 SCC OnLine All 4417, a specific issue relating to the bar of Section 49 of the Act of 1953 was referred to a Larger Bench and the same was decided with the following observations and the relevant portion of the decision of Ram Briksha reads as under :-
"Issue No. I
37. Whether use of words ''could or ought to have been taken'' in latter part of Section 49 of the Act, compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer, whose name is recorded in representative capacity, or they were willing to live jointly, due to situation of their family, i.e. (father and minor son), (mother and minor son), (brother and minor brother) and (some co-sharer was student and had gone abroad for study and fully depends upon other co-sharers) etc., to file an objection under Section 9 of the Act for separation of his share?
A. Because of the words ''could or ought to have been taken'' in latter part of Section 49 of the Act, same does not compulsorily forces the co-sharers, who are living jointly, peacefully and have no grievance against their father/brother/co-sharer whose name is recorded in representative capacity or they were willing to live jointly due to situation of their family and who have not filed an objection under Section 49 of the Act for separation of their share inasmuch as under the provisions of U.P. Consolidation of Holdings Act, 1953, it is the statutory obligation cast upon the authorities and the incumbent, who has been holding the property in question in the representative capacity to get the records corrected and in case in designed manner the obligation in question has not been discharged by Consolidation Authorities as well as by the incumbent holding the property in the representative capacity, then in such a situation Section 49 of the Act would not at all be attracted and such situation would be covered under the contingency of planned fraud to drop the name of other co-sharers from the revenue records.
Issue No. II
38. Whether by operation of law, the parties can be thrown into litigation against their will/need and by not raising claim to land or partition and separation of the chak their right to property can be taken away in spite of protection available under Article 19 (1) (f) and now Article 300-A of the Constitution?
A. The answer is that a party cannot be thrown in litigation against their will/need and by not raising claim to land of partition and separation of chak, their rights to property cannot be taken away under the protection provided for under Article 19(1)(f)/Article 300-A of the Constitution of India.
Issue No. III
39. Whether, in spite of well-settled legal principle in respect of joint property, right of a co-sharer will come to an end under Section 49 of the Act, on the notification under Section 52, due to not claiming partition of his share and separate chak in his name, although, there had been no ouster from joint property?
A. The rights of the co-sharers will not at all come to an end under Section 49 of the Act, on the notification under Section 52 due to not claiming partition of his share and separate chak in his name and till there is no ouster from the joint property his right in the property will continue to exist."
40. The jurisdiction of the consolidations and the Civil Court is settled that is to say that in case if a document is void which implies that right from its initiation, it is a nullity hence in such circumstances, the consolidation authorities would be within their rights to construe the same and if found to be void can ignore it and continue to decide the matter and in such circumstances if any right or title is adjudicated and decided by the consolidation authorities then the Civil Court would not have the jurisdiction to enter into the said questions which attained finality before the consolidation courts. However, things would be different in case if an instrument is voidable then in such circumstances the right to get the said document cancelled lies only with the Civil Court and not with the consolidation courts.
41. Applying the aforesaid principles to the facts of the instant case, it would reveal that the trial court while dealing with the issue no.4 clearly held that the defendant had not pressed the said issue. Though this was challenged by the appellant before this Court by saying that they had challenged the issue in the first appeal, however, from the perusal of the record, it indicates that in the memo of first appeal filed by the appellant, no such ground was taken. The memo of first appeal is bearing paper No. Ga 213/2 and that indicates that no ground was raised by the appellant that issue no.4 has wrongly been noticed by the Trial Court as having been not pressed.
42. Be that as it may, even if the said issue was not raised before the first appellate court and is being raised before this Court in second appeal, suffice to state that admittedly the jurisdiction to cancel an instrument lies only in the Civil Court and thus to that extent invoking the jurisdiction of the Civil Court for seeking cancellation of the sale deed dated 19.08.1997 cannot be said without jurisdiction.
43. The matter can also be examined from another angle and that is the property belonged to Ram Balak and upon his death, which occurred on 13.03.1983, no right of succession would vest with Smt. Keshar Kumari alias Raj Kumari, being the widowed daughter-in-law especially in presence of the plaintiff who was the son and also in presence of the widow of Ram Balak in terms of Section 171 of the U.P.Z.A. & L.R. Act. Even assuming that Smt. Dropdi Devi would have no right even then in presence of Satya Narain and Smt. Keshar Kumari alias Raj Kumari would not inherit the property. Thus, the basic contention of Smt. Keshar Kumari alias Raj Kumari that she had half share in the estate of Ram Balak does not flow from any provision of law of succession as applicable.
44. In the aforesaid backdrop, the other relevant aspect of the matter is that Ram Balak had executed his Will dated 12.12.1982 in terms whereof he had devised three aanas share, who his widow Smt. Dropdi and three aanas share to Smt. Keshar Kumari alias Raj Kumari his widowed daughter-in-law. In this context, both the ladies were conferred with only limited right of enjoying the property with a specific embargo that they could not sell the property. Since the plaintiff Satya Narain was the propounder of the Will, hence the initial burden to prove the Will was on the plaintiff.
45. In order to prove the Will, the plaintiff examined Har Bhan Dutt Mishra who was the scribe and he also examined Raja Ram Tiwari and Bhadai Yadav, who were the witnesses of the Will. The said Will was proved as per the mode prescribed under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act.
46. Another important aspect of the matter is that though Smt. Keshar Kumari alias Raj Kumari disputed that the Will had been forged but there were no clear pleadings in this regard except vague averments. The attempt of the defendant no.6 who challenged the Will dated 12.12.1982 on grounds which were not intrinsically related to the execution of the Will rather averments were made to cull out certain discrepancies in the statement of the witnesses examined to prove the Will.
47. This aspect of the matter has been considered both by the trial court as well as the first appellate court and both have returned clear findings of fact that as far as the execution and attestation of the Will is concerned, that was proved. The learned counsel for the appellant had tried to tempt this Court in entering into the arena of reappraisal of evidence by pointing out certain discrepancies in the statement of the witnesses. However, suffice to state that this Court in exercise of section 100 CPC does not enter into the arena of appraisal of evidence unless the findings are perverse. Slight discrepancies which do not impact the merit or the basic act of execution and attestation cannot be a ground for this Court to interfere.
48. Another aspect that needs to be seen that the alleged minor discrepancies are natural variation as the witnesses had entered into the witness box after about two decades and it is not expected that any witness would have a photographic memory, thus to that extent the endeavour of the learned counsel for the appellant does not succeed.
49. This Court further notices that the appellant could not demonstrate when the consolidation proceedings commenced as per Section 4 of the Act of 1953 nor could the date of notification of Section 52 of the Act of 1953 was informed. No order of Consolidation Authorities was placed on record or shown which could indicate that the rights of the parties had been adjudicated and how Smt. Keshar Kumari would get half share in the property of Ram Balak.
50. This position was recently considered by this Court in Salik Ram and others Vs. Deputy Director of Consolidation, Shravasti and others 2024 SCC OnLine All 7699 and in paras 18, 19, 20, 21, 22 it was held as under:-
"18. After hearing the parties, this Court finds that there are several contentious issues in between the parties. The impact of the sale deed executed by Ram Sudhi in favour of Parashu Ram in furtherance of ex parte decree dated 29.01.1996 viz-a-viz the sale deed dated 29.10.1986 allegedly executed by Ram Sudhi in favour of Bhagwati and Smt. Badka (the predecessor-in-interest of the petitioners). The date of commencement of consolidation operations and the fact whether any subsequent notification under Section 52 of U.P. Consolidation of Holdings Act, 1953 has been made or not is also an important issue, which ought to have been taken note of before considering the rights of the respective parties and when and which proceedings will abate. It may be true that the consolidation courts do not have the right to cancel an instrument but at the same time once a title 'lis' is before the Consolidation Authority, it is legally bound to consider the impact and give its finding thereon and determine whether the deed or instrument was a void or voidable document. Either way it is not appropriate or open for the DDC to have abated the proceedings as that is per se a jurisdictional error, which mars the judgment dated 27.08.2024.
19. This aspect of the matter was considered by a Full Bench of this Court in Ram Nath v. Munna, 1976 RD 220, wherein it was observed as under:--
"The Full Bench observed that the documents which are voidable can be cancelled by the civil court only and the consolidation authorities have no jurisdiction to ignore those documents, instead they are under a duty to give effect to these documents till they are cancelled by a competent court of law. If a sale deed or document of transfer is void the consolidation authorities have jurisdiction to disregard the same while determining title to the land but if the document is voidable then the consolidation authorities have no jurisdiction to disregard sale deed in that even the civil court is the only proper forum to adjudicate upon the validity of the sale deed and the consolidation authorities are bound to give effect to the sale-deed."
20. This was also noticed by this Court in Dharma Devi v. DDC, 1976 SCC OnLine All 259, wherein the Full Bench decision in the case of Ram Nath (supra) was followed and in para 8 and 9, it held as under:--
"8. In Ram Nath v. Munna, a Full Bench of this Court considered the effect of the Judgment of the Supreme Court. The Full Bench observed that the documents which are voidable can be cancelled by the civil court only and the consolidation authorities have no jurisdiction to ignore those documents, instead they are under a duty to give effect to these documents till they are cancelled by a competent court of law. The effect of the Full Bench judgment is that if a sale deed or document of transfer is void the consolidation authorities have jurisdiction to disregard the same while determining title to the land but if the document is voidable then the consolidation authorities have no jurisdiction to disregard sale deed in that event the civil court is the only proper forum to adjudicate upon the validity of the sale deed and the consolidation authorities are bound to give effect to the sale-deed. In Second Appeal No. 1909 of 1972 decided on 4th September, 1974, G.C. Mathur, J. expressed similar view. In Writ Petition No. 6035 of 1972 (Bind Basi V.D. D.C. Azamgarh), decided on 11th October, 1973, Ojha, J. also expressed a similar view.
9. It is necessary to keep in mind that the respondent Tribhuwan Nath himself raised objection to the jurisdiction of the civil court and his objection was upheld as a result of which Smt. Dharam Devi challenged the sale deed before the consolidation authorities. Admittedly, both the parties produced oral and documentary evidence before the consolidation authorities in support of their case. The Settlement Officer (Consolidation) recorded finding that the sale deed was vold for want of consideration. In revision the Deputy of Consolidation did not consider of record any finding on that question, He did not consider the evidence produced by the parties, nor he recorded any finding as to whether the sale deed was vold or voidable. He set aside the order of the Settlement Officer (Consolidation) on the ground that the consolidation authorities had no jurisdiction to disregard the sale dead. As already discussed the consolidation authorities have jurisdiction to disregard a vold sale deed but if the sale deed is voidable they have no jurisdiction to ignore the same. The Deputy Director of Consolidation failed to appreciate this aspect of the question. The Settlement Officer (Consolidation) had already recorded a finding that the sale deed was vold for want of consideration. The Deputy Director of Consolidation should have considered that finding on merits on appreciation of evidence. Since he failed to do that, his order is liable to be quashed."
21. This issue was once again considered by this Court in Madhuri Devi v. DDC Sitapur Campt, 2017 SCC OnLine All 6407 and in para 13 to 15, it held as under:--
"13. Once Section 4 notification is published under the Act, 1953 then its consequences ensue as prescribed under Section 5 thereof and all rights and every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any Court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the Court or authority before whom such suit or proceeding is pending stand abated.
14. A joint reading of Sub-section 2 of Section 5 and Section 9-A leave no doubt that once consolidation operation starts on the publication of notification under Section 4, then, any right, interest and title in respect of any land which is the subject matter of such consolidation operations, is to be determined by the Consolidation Authorities and none else, however, as far as cancellation of deeds are concerned it is the prerogative of the Civil Courts and Consolidation Authorities do not have any jurisdiction to cancel instruments i.e. sale deed or gift deed etc., but, this does not mean that in proceedings under Section 9-A (2) the Consolidation Courts can not take into consideration such sale deeds etc. for the purposes of determination of rights, title and interest of the parties in the land in question. This question fell for consideration before the Supreme Court way back in 1970 itself in the case of Gorakh Nath Dube's case (supra), wherein the Supreme Court took note of a Division Bench Judgment of this Court in Jagarnath Shukla v. Sita Ram Pande, 1969 All LJ 768, wherein, the question whether a suit for cancellation of a sale deed, which was pending on the date of notification under Section 4 of the Act abates under Section 5(2) of the Act. The jurisdiction of the Consolidation Authorities to go into questions relating to the validity of the sale deeds, gift deeds and wills also fell for consideration. The Supreme Court after noticing the aforesaid judgment found therein a fairly comprehensive discussion of the relevant authorities of the Allahabad High Court, the preponderating weight of which was cast in favour of view that question relating to the validity of sale deeds, gift deeds and wills could be gone into in proceedings before the Consolidation authorities because such questions naturally and necessarily arose and had to be decided in the course of adjudication on rights or interests in land which are the subject matter of consolidation proceedings. The Supreme Court opined that a distinction can be made between cases where a document is wholly and 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 cease to have legal effect. It held that an alienation made in excess of power to transfer would be, to the extent of excess of power, invalid. It further held that an adjudication on the effect of such purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to the rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction by the necessary implication of their statutory powers to adjudicate upon such rights and interest in land, to declare such documents effective or ineffective, but, where there is a document the legal affect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it opined that 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.
15. In view of what was held by the Supreme Court the legal position which can be culled out is that the validity of sale deed can also be looked into by the Consolidation Authorities, although, they do not have the jurisdiction to cancel it. They can very well see as to whether the deed in question on the basis of which any right, title or interest is claimed is a void document, if so, then they can very well ignore it by declaring it to be ineffective, however, if the legality being pointed out in respect of the document is such that it would at best be voidable at the instance of the aggrieved party, then, in such an event the Consolidation Courts are bound to give effect to such documents, unless and until it is cancelled by a Court of competent Civil jurisdiction, meaning thereby, voidable documents can not be ignored by the Consolidation Courts. This is the crux of the legal position with regard to the jurisdiction of the Consolidation Courts in this regard."
22. Lately, the Apex Court in Khursheed v. Shaqoor, 2024 SCC OnLine SC 2929 in paras 9 to 11 held as under:--
"9. Invoking the extra-ordinary writ jurisdiction of the High Court under Article 226/227 of the Constitution of India, the respondent challenged the order dated 22.11.2018 of the Additional District Judge, Laksar by filing a Writ Petition before the High Court of Uttarakhand. The learned Single Judge of the High Court, by passing the impugned order dated 02.08.2019 allowed the Writ Petition filed by the Respondent & set aside the order dated 22.11.2018 of the Additional District Jugde, Laksar and consequently ordered that the Civil Suit filed by the Respodent be restored to the file of the Civil Judge (Junior Division), Laksar, District-Haridwar. The learned Single Judge, after placing his reliance upon a judgment of this Court in Gorakh Nath Dube v. Hari Narain Singh, (1973) 2 SCC 535, came to the conclusion that as the allegation is that the sale deed was executed by playing fraud and by impersonation, it would be a "voidable" document and thus, any suit, for cancellation of a voidable sale deed will not abate by virtue of Section 5(2)(a) of the Consolidation Act. The distinction between 'void' and 'voidable' documents was made by this Court in the case of Ningawwa v. Byrappa, (1968) 2 SCR 797 and this is what was held:
4............................ 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 the matter which they may enforce against the party defrauded. "The fact that the contract has been induced by fraud does not make the contract void or prevent the property from passing, but merely gives the party defrauded a right on discovering the fraud to elect whether he shall continue to treat the contract as binding or disaffirm the contract and resume the property. If it can be shown that 'the party defrauded' has at any time after knowledge of the fraud either by express words or by unequivocal acts affirmed the contract, 'his' election is determined for ever. The party defrauded may keep the question open so long as he does nothing to affirm the contact." (Clough v. L. & N.W. Ry.) [[L.R.] 7 Exch. 26, 34].
5. The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable.
(emphasis supplied)
10. This Court, in Dularia Devi v. Janardan Singh, 1990 Supp SCC 216 : AIR 1990 SC 1173 relying upon the law laid down in Ningawwa (supra) and Gorakh Nath Dube (supra) had held that a "voidable" document continues to be in force until it is set aside and such a document can only be set aside by a competent civil court. Further, such documents were held to be binding upon the Consolidation Authorities so long as they are not cancelled or set aside by a Court vested with the jurisdiction to do so. Moreover, in Ram Sakal Singh v. Mosamat Monako Devi, (1997) 5 SCC 192 this Court has held that the consolidation authorities do not have the jurisdiction and power to cancel a document, which is required to be set aside or cancelled and the document will continue to be valid till it is cancelled by a Competent Court i.e. a Civil Court. This court also held that if the document is void, it would be open for the Consolidation Authorities to disregard such a document & in such a case, they would get the exclusive jurisdiction to proceed with the matter. But if the document is voidable, the Civil Court is vested with the jurisdiction to declare the same to be voidable. In the case of voidable documents, not only would the Consolidation Authorities have no power to cancel such documents, but even the proceedings pending before any competent Civil Court would not abate.
11. The allegation here is that the fraudulent misrepresentation was by petitioner No. 1's mother, who executed the sale deed dated 09.08.2016 by impersonation, it would make the sale deed voidable, but not void. As such, in view of the law laid down by this Court in Gorakh Nath Dube (supra), the Sale Deed dated 09.08.2016 will be binding on the Consolidation Authorities unless it is set aside by a competent Civil Court and there would be no bar on jurisdiction of the Civil Court to try a suit for cancellation of such a sale deed."
51. In light of the aforesaid discussions, the fact remains that Smt. Keshar Kumari alias Raj Kumari did not have any right of succession in the property of Ram Balak and then to state that Smt. Keshar Kumari alias Raj Kumari had inherited half share is not correct. Thus, as per succession Smt. Keshar Kumari alias Raj Kumari would have no right and if the Will which has been proved is taken into consideration then she would only have a right of enjoyment of the property and would not have a right to alienate hence on this ground as well, she would have no right to alienate the property. In such circumstances, the plaintiff was justified in filing the suit before the Civil Court as the said sale deed was voidable at the behest of the plaintiff . Therefore, the plaintiff rightly invoked the jurisdiction of the Civil Court and the trial court as well as the first appellate court after having found that the Will of Ram Balak was proved. The necessary consequence would be that Smt. Keshar Kumari alias Raj Kumari would have no right to sell the property, hence the suit was rightly decreed by the trial court and the first appeal also has rightly dismissed the appeal. Accordingly, the question as framed stands answered.
52. The Court finds that the second appeal is without merit and is accordingly dismissed. The judgment and decree passed by the trial court dated 18.02.2012 passed in Regular Suit No.185 of 1998 as well as the judgment and decree passed by the first appellate court in Civil Appeal No.42 of 2012 are affirmed. No order as to costs. Record of the trial court be returned forthwith.
Order Date :- 8th August, 2025 ank/-