Orissa High Court
Pranakrushna Sahu And Ors. vs Raghunath Sahu And Ors. on 17 January, 1994
Equivalent citations: AIR 1995 ORISSA 41, (1994) 77 CUT LT 653
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. The judgment rendered by the learned single Judge in First Appeal No. 214 of 1977 dismissing the suit and the appeal arising from it as having abated under Section 4(4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, "the Act") is assailed in this appeal.
2. The core question that falls for determination in this case is whether the suit as laid abates under the aforementioned provision of the Act. To put it differently, the question is whether the reliefs sought in the suit are available to be granted by the authorities under the Act. If the question is answered in the affirmative, then it is to be held that the suit and the appeal arising from it abates if on the other hand, the question is answered in the negative, then the appeal is to be disposed of on merit.
3. The appellants filed O. S. No. 19/74 in the court of the Subordinate Judge, Puri against the respondents seeking the following reliefs:
To cancel the sale deeds executed by defendant No. 1 - Balabhadra Sahu (since deleted from the appeal) in favour of defendants 2 to 6; for partition of the properties described in schedule 'K.a' of the plaint and other consequential reliefs. Plaintiffs 1 and 2 are sons of defendant No. 1 and plaintiff No. 3 is wife of defendant No. 1. The other defendants are purchasers of portions of suit property from defendant No. 1. The case of the plaintiffs was that the suit 'Ka' schedule properties are ancestral properties of the parties; defendant No. 1 who is addicted to liquor and other intoxicants executed sale deeds in favour of the defendants 4 to 6 in respect of portions of ancestral properties without receiving any consideration and without any necessity, and the sale deeds executed without consideration and without family necessity are invalid and void. The plaintiffs having learnt about illegal transfer of their ancestral properties filed the suit seeking the reliefs noted earlier.
4. Defendant No. 1 did not contest the suit. Defendants 2 to 6 in their written statement admitted that the suit properties are ancestral properties of the parties, but denied the other material allegations in the plaint. They denied that the sale deeds in question are vitiated by fraud and coercion practised by the purchasers or that the transfers were made without consideration or without family necessity. According to the defendant No. 1 as Karta/ Manager of the family sold the properties in Kha schedule for family maintenance.
5. On the pleadings of the parties, the trial court framed five issues of which issue No. 4 is whether the alienation by defendant No. 1 in favour of defendant No. 2 to defendant No. 6 in respect of 'Kha' schedule properties is legal, valid and for benefit of the minors or for legal necessities of the family of the plaintiffs and defendant No. 1. The learned trial Judge on assessing the evidence on record held that the transfers are void having been transacted without legal necessity except the one covered under Ext. 8 and that none of the alienations would bind the family. The suit was decreed preliminarily for partition of the suit properties as described in schedule Ka, Kha and Ga excluding the land covered under Ext. 8. The contesting defendants filed first appeal against the decision of the trial court.
6. At the hearing of the case it was contended on behalf of the appellants that the consolidation scheme having been enforced in the area in which the suit lands are situated and the relief of partition being available to be granted by authorities under the Act the suit and the appeal arising from it are to abate under Section 4(4) read with Section 51 of the Act and order to that effect should be passed. On merits of the case, the finding of the trial court that the sale deeds executed by defendant No. 1 in favour of defendants 2 to 6 were without legal necessity and therefore invalid was assailed. The learned single Judge accepted the first contention raised on behalf of the appellants regarding abatement of the suit and the appeal and on that ground vacated the judgment and decree of the trial court. In view of the finding regarding abatement of the suit and the appeal he did not find it necessary to consider the merit of the case. Therefore the only question that has been argued and falls for determination in this appeal relates to correctness of the finding recorded by the learned single Judge that in the facts and circumstances of the case the suit and the appeal arising from it have abated under Section 4(4) of the Act.
7. The principles of law which have to be taken as settled and which were also not disputed before us may be summed up thus: for determining the question of abatement of suit under Section 4(4) of the Act, the substance of the plaint has to be considered and for that purpose the plaint is to be read as a whole; if the case made out and the grounds of challenge stated in the plaint show that the document in question is void, then authorities under the Act can ignore the document and decide the question of right, title and interest of the land and in such a case the suit is to be held to abate under Section 4(4); if on the other hand the case stated in the plaint shows that the document being voidable has to be avoided then the competent forum to annul the document is the Civil Court and authorities under the Act cannot declare the document null and void, in such a case the suit is maintainable in the Civil Court.
8. A few decisions of the apex Court as well as of this Court in which the question of abatement of suit has been considered may be noticed at this stage.
In the case of Gorakh Nath Dube v. Hari Narain Singh, reported in AIR 1973 SC 2451 the apex Court ruled 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 cease to have legal effect; an alienation made in excess of power to transfer would be to the extent of the excess of power invalid; an adjudication on the effect of such purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings; but where there is a document the legal effect of which cart only, be taken away by setting it aside or its cancellation, the consolidation authorities have no power to cancel the deed and therefore 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.[ In the case of Ningawwa v. Byrappa Shiddappa Hirakhrabar, reported in AIR 1968 SC 956, the apex Court held that a contract or other transaction induced or tainted by fraud is not void; but only voidable at the option of the party defruaded; 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 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 Court observed that 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 was held that the transaction is void while in the case of the latter, it is merely voidable.
In the case of Raghubanchmani Prasad Narain Singh v. Ambica Prasad Singh, reported in AIR 1971 SC 776 the apex Court ruled that an alienation by the manager of the joint Hindu family even without legal necessity is voidable and not void.
The question of abatement and other allied matters were considered by a Full Bench of this Court in the case of Duruju Mallik alias Duruyodhan Swain v. Krupasindhu Swain, reported in (1984) 58 Cut LT 359 : (AIR 1985 Orissa 202). The principles laid down therein may be summed up thus:
(i) If the matter can be gone into by the consolidation authorities, then the suit in respect of the same would abate under Section 4(4) of the Act. The intention of the legislature is quite clear and is in conformity with the well recognised principle that two forums should not be dealing with the same matter, as in that case there is likelihood of inconsistent situation arising.
(ii) It is well known that a party cannot be non-suited when under the law he does not have any alternative forum for the redressal of his grievances. When his rights are of civil nature, the reliefs which flow from such rights and which he is entitled to get should be available from the civil court where the officer or authority has not been empowered to grant the same.
(iii) Where the grant of injunction depends upon the determination of the right or interest in any land situated within the consolidation area, the suit for permanent injunction may not be maintainable. In order to determine whether the suit for injunction simpliciter is maintainable, or not the substance of the pleadings has to be looked into and not merely the form of pleadings of the plaintiff alone or the prayer made by him. Each case is to be decided in the facts of its own.
In the case of Sridhar Mohanty v. Kamal Kumar Agarwalla, reported in (1984) 57 Cut LT 417 this Court interpreting Sections 4(4) and 51 of the Act held that the Consolidation Act takes away the jurisdiction of the Civil Court in respect of all matters in respect of which an officer or authority empowered under that Act is competent to decide. Besides the abatement of the suit under Section 4(4) of the Act is not automatic but depends on an order being passed to that effect by the court. It was further held that an exclusion of jurisdiction of the civil court is not readily to be inferred unless such exclusion is either expressly spelt out in the special statute or clearly implied. The consolidation authorities were held to have no power to cancel or set aside a document and it is the civil court which is to adjudicate upon as to whether the document is required to be set aside. ;
In the case of Gangadhar Mandal v. Shyam-sundar Mandal, reported in (1981) 51 Cut LT 61: (AIR 1981 NOC 67) it was held that if the alienation were made without legal necessity, they would be voidable at the instance of the plaintiffs, the alienations have to be actually set aside before they can cease to have legal effect; the sale deeds are binding on the plaintiffs unless they are set aside; the question of validity of the sale deeds cannot be adjudicated upon by the consolidation authorities. In that case the view taken by the learned Subordinate Judge that the suit did not abate under Section 4(4) of the Act and that it was maintainable in the civil court was upheld.
We shall next discuss a decision of this Court which, in our view, is similar in all material aspects to the present case. In the case of Pramod Kumar Dash v. Praveen Kumar Dash, reported in (1992) 34 Orissa JD 256 (Civil) the alienation by the manager of a joint family was challenged as without legal necessity as well as on the ground that it was without consideration. Undisputedly in the former case the transaction is voidable while in the latter it is void. This Court took the view that in such a case the suit is maintainable in the civil court and it could not abate under Section 4(4) of the Act. This Court expressed its views in the following words :
"......In the present case the plaintiffs have challenged the sale deed executed by the defendant No. 5 on the ground of fraud, non-passing of consideration and not being for legal necessity. From the averments made in the plaint, a copy of which was submitted in the court during the course of hearing it is difficult to ascertain as to whether the fraud complained of was in relation to the character of the document or as to its contents. But even then, the plaintiffs have further alleged that the sale deed was without any legal necessity and no consideration had passed thereunder. Following the view expressed by their Lordships in the case reported in AIR 1971 SC776 (supra) it must be held that alination by the manager without legal necessity does not render the document void and that it is voidable which until avoided is a valid transaction. Thus the consolidation authorities will have no jurisdiction to direct avoidance of the same which the civil court can alone do."
Regarding construction of the averments in the plaint in that case this Court observed :
"Mr. Mohanty, learned counsel appearing for opposite parties has placed reliance on the averments made in para 9 of the plaint where it has been alleged that the document in question is a sham and fictitious sale deed. According to him, a sham document is one under which no title could pass and such a document need not be avoided. Similar is his argument with relation to fictitious document. The aforesaid argument giving emphasis on a particular sentence of the plaint does not impress me for the reason that the plaint as a whole must be read in order to appreciate the grounds on which the document have been challenged and not a particular sentence or paragraph to be read in isolation. The plaintiff's latter challenged the execution and effect of the document on various grounds some of which if approved would make the document void while the others will render it voidable. In such a case also it is the Civil Court which is the proper forum to adjudicate the dispute and not the consolidation court as it cannot adjudicate upon all the grounds of attack and it is not permissible to challenge the legality of a document in two forums on different grounds."
Coming to the case at hand, on a reading of the plaint in its entirety it is clear to us that the plaintiffs have challenged the sale deeds executed by defendant No. 1 both on the grounds of want of legal necessity (family necessity) and non-passing of consideration. As noted earlier, in the former case the transactions are voidable and are to be avoided whereas in the latter case the transaction would be void and can be ignored by the authorities under the Act while determining the right, title and interest of the parties. Undisputedly the relief of partition is available to be granted by the consolidation authorities. Issue No. 4 framed, by the trial court is whether the alienations by defendant No. 1 in favour of defendants 2 to 6 in respect of Kha schedule properties are legal, valid and for the benefit of the minors or for legal necessities of the family of the plaintiffs and defendant No. 1. The court answered the issue holding that all the alienations are void having been transacted without any legal necessity except the one covered under Ext. 8 and that none of those would bind the family. In such circumstances it cannot be said that the ground of challenge against the alienations on the ground of want of legal necessity was irrelevant or superfluous or unnecessary. Applying the principle laid down by this Court in (1992) 34 Orissa JD 256 (Civil) (supra) with which we are in Tespectful agreement, in the present case where the alienations in question are challenged on several grounds, some of which if accepted, would render them voidable while others would render them void and it is difficult to say decisively, on mere perusal of the plaint that the alienations are ab initio void and need no avoidance it is the Civil Court which is competent to entertain the suit and the suit filed in the Civil Court would not abate under Section 4(4) of the Act. We are therefore, unable to accept the view taken by the learned single Judge that on the pleadings and on the facts and circumstance of the case the grounds of challenge render the alienations in question void and not voidable. It is our considered view that the learned single Judge erred in holding that the suit abates under Section 4(4) of the Act. The judgment has therefore to be set aside and since the appeal has not been considered on merit it has to be remitted for disposal on merit. It is ordered accordingly.
9-10. The appeal is disposed of on the aforesaid terms. There will be no order for cost.
S.K. Mohanty, J.
11. I agree.