Patna High Court
Jaleshwar Tiwary And Ors. vs Suresh Tiwary And Ors. on 1 July, 1985
Equivalent citations: 1986(34)BLJR378
JUDGMENT S.K. Choudhuri, J.
1. This civil revision application was heard and the result dismissing the application was announced. Accordingly, the reasons for dismissing the revision application are given below.
2. This revision application has been referred by a learned single Judge of this Court to a Division Bench by order dated 25-3-1983.
3. The defendants-first party has filed this revision application under Section 115 of the Code of Civil Procedure against the order dated 31-5-1982 passed by the First Subordinate Judge, Arrah in Title Suit No. 14 of 1980 holding that the suit has abated under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act XXII of 1956) (hereinafter called 'the Act'). The plaintiffs-opposite party filed a suit for declaration of title in respect of Schedules I and II lands of the plaint alleging them to be ancestral properties, and that the deed of gift dated 19th April, 1965 executed by Jai Ram Tiwary, who was the original owner of the property was forged, fraudulent and fabricated document and should be set aside or cancelled.
4. During the pendency of the suit, an application was filed by the defendants-petitioners under Section 4(c) of the Act. A rejoinder was filed to that application by the plaintiffs-opposite party who contested the said application alleging therein that the Consolidation Court had no jurisdiction to cancel or set aside the deed of gift in question and as the point involved in the suit cannot be decided by the Consolidation Court, the application under Section 4(c) of the Act has no merit.
5. It is not disputed that the consolidation proceeding is going on in the village in which the suit lands are situated.
6. As the court below has rejected the said application the present civil revision application has been filed by the defendants-petitioners.
7. Learned Counsel for the petitioners has contended that in the plaint it has been specifically pleaded that the deed of gift executed by Jai Ram Tiwary from whom the plaintiffs derived title in the suit lands, is void ab initio and, therefore the Consolidation Court has jurisdiction to entertain the suit. It appears that the contention of learned Counsel for the petitioners has no substance as the plaint, reading as a whole, indicates that the allegation was that the deed or gift was executed by Jai Ram Tiwary by practising fraud and undue influence. Apart from the allegation that it was a forged and inoperative document and never read and explained to said Jai Ram Tiwary, the further allegation was that he was not in a disposing state of mind when the said deed was executed and was sufficiently old having little understanding faculty. The further allegation in the plaint was that he was a patient of blood pressure and Asthma and his mind had gone wrong and his memory was lost as well. It is, therefore clear that the relief for cancellation of the deed of gift or its setting aside was prayed for on the ground of fraud practised upon Jai Ram Tiwary the executant of the deed of gift. Such a document cannot be said to be a void document, but is a voidable one. This view is supported by an unreported Bench decision of this Court in the case of Jiawan Pandey and Ors. v. Mahendra Rat Civil Revision No. 30 of 1981 disposed of on 5-3-1984. In that case also a deed of gift was alleged to be forged, fabricated and collusive document. Specific allegation was that the defendant got the said document executed by the plaintiff when the latter was in a state of intoxication loosing complete sense of understanding. On these grounds the document was pleaded to be a void document. After discussing various decisions, it was decided by the Division Bench in that case that such a document was voidable one and required to be set aside by a Competent Court and as the consolidation officer had no jurisdiction to set aside or cancel such a document, the suit did not abate The principle laid down in that case fully applies in the present case The conclusion of this unreported decision is based on the Full Bench decision in Most. Rupia v. Bhatu Mahton A.I.R. 1944 Pat 17 (F.B) This Court, therefore, finds no difficulty in applying the principle laid down in this unreported Bench Decision in Jiawan Pandey's case (supra).
8. In the result, there is no merit in the application. It is accordingly, dismissed, but in the circumstances of the case there will be no order as to costs.