KHURSHEED & ANR.versusSHAQOOR

           [2024] 9 S.C.R. 963 : 2024 INSC 764

                       Khursheed & Anr.
                              v.
                           Shaqoor
       (Special Leave Petition (C) No. 26454 of 2019)
                       10 September 2024
[Sudhanshu Dhulia and Ahsanuddin Amanullah, JJ.]


                     Issue for Consideration
Whether by virtue of s.5(2)(a) upon publication of Notification u/s.4 of
the U.P. Consolidation of Holdings Act, 1954, any pending civil suit
for cancellation of sale deed executed by fraud and impersonation,
stands abated and the jurisdiction of the Civil Court to try such a
suit is ousted in terms of s.49 of Consolidation Act.

                             Headnotes†
U.P. Consolidation of Holdings Act, 1954 – s.5(2)(a) and s.49 –
Respondent herein filed a civil suit for cancellation of the Sale
Deed before the Civil Judge – Petitioner No.2 herein filed an
application stating that suit stands abated as per s.5(2)(a) of
the Consolidation Act – The said application was allowed by
the Civil Court and appeal against the same was dismissed –
However, the High Court 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 – Correctness:
Held: It is settled 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 are
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 – It is also settled 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 – 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
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       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 – In the instant case, 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 – 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. [Paras 10, 11]

                                Case Law Cited
       Ningawwa v. Byrappa [1968] 2 SCR 797 : (1968) 2 SCR 797 –
       relied on.
       Gorakh Nath Dube v. Hari Narain Singh [1974] 1 SCR 339 : (1973)
       2 SCC 535; Dularia Devi v. Janardan Singh & Ors. [1990] 1 SCR
       799 : AIR 1990 SC 1173; Ram Sakal Singh v. Mosamat Monako
       Devi [1997] 2 SCR 357 : (1997) 5 SCC 192 – relied on.

                                  List of Acts
       UP Consolidation of Holdings Act 1954; Code of Civil Procedure,
       1908; Constitution of India.

                               List of Keywords
       Section 5(2)(a) of the UP Consolidation of Holdings Act, 1954;
       Section 49 of the UP Consolidation of Holdings Act, 1954; Article
       226/227 Constitution of India; void document; Voidable document;
       Jurisdiction; Competent civil court; Cancellation of sale deed;
       Consolidation Authorities; Fraud; Misrepresentation; Impersonation;
       Abate.

                              Case Arising From
       CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) No.
       26454 of 2019
       From the Judgment and Order dated 02.08.2019 of the High Court
       of Uttarakhand at Nainital in WPMS No. 93 of 2019
[2024] 9 S.C.R.                                                           965

                      Khursheed & Anr. v. Shaqoor


                         Appearances for Parties
     Ravindra Kumar Raizada, Sr. Adv., Sarthak Raizada, Ms. Divya
     Roy, Advs. for the Petitioners.
     Ansar Ahmad Chaudhary, Md. Anas Chaudhary, Mohd. Sharyab
     Ali, Ms. Shehla Chaudhary, Advs. for the Respondent.

                Judgment / Order of the Supreme Court

                                   Order

1.   The question which arises in this petition for our determination relates
     to the bar on jurisdiction of the Civil Court under Section 5(2) (a)
     read with Section 49 of the U.P. Consolidation of Holdings Act, 1954
     (hereinafter referred to as ‘Consolidation Act’).
2.   Whether, by virtue of Section 5(2) (a), upon publication of the
     Notification under Section 4 of the Consolidation Act, any pending
     civil suit for cancellation of a sale deed executed by fraud and
     impersonation, stands abated and the jurisdiction of the Civil Court to
     try such a suit is ousted in terms of Section 49 of the Consolidation
     Act?
3.   The Petitioners-Defendants, assail the correctness of the Order dated
     02.08.2019, passed by the High Court of Uttarakhand, whereby Writ
     Petition (M/S) No. 93/2019, filed by the Respondent-Plaintiff was
     allowed holding that a suit for cancellation of a “voidable” sale deed
     relating to agricultural land pending in a Civil Court would not stand
     abated in terms of Section 5(2) (a) of the Consolidation Act and the bar
     on jurisdiction of the Civil Court’s under Section 49 of the Consolidation
     Act would not be applicable when the suit is for cancellation of a
     “voidable document”; as opposed to a “void document”.
4.   The dispute in this petition relates to certain parcels of agricultural
     land bearing Khata Nos. 154 and 154A, situated at village-Basedi
     Khaadar, Pargana-Manlore, Tehsil-Laskar, District-Haridwar. The
     facts which have given rise to this dispute are as follows:
     i.    One Illahibaksh the owner of the aforementioned parcels of
           land had three sons- Shafi, Gafoor and Shaqoor (Respondent
           herein). Upon the death Ilahibaksh, the land devolved upon the
           three sons equally and they each acquired 1/3rd share in the
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              land. His son Shafi had 3 daughters & one of them (Haneefa)
              is the mother of the Petitioner No.1 herein.
       ii.    The other son, Gafoor did not have any children and therefore,
              his share devolved upon his wife, namely Vakila. Her name
              was accordingly mutated in the revenue records. Later, Vakila
              married the Respondent herein, i.e. Shaqoor.
       iii.   In the year 2003, the property in dispute was brought under
              consolidation proceedings and a notification to that effect was
              published in the Gazette.
       iv.    It is averred by the Respondent herein that after the death of
              his wife-Vaqila in 2009, the mother of Petitioner No.1 (Haneefa)
              fraudulently claimed to be the daughter of Gafoor and by
              impersonation, inherited the property which had devolved upon
              Vakila and got herself recorded as the co-tenure holder of the
              property on 03.08.2016
       v.     Thereafter, it is alleged that mother of Petitioner No. 1 (Haneefa)
              executed a Sale Deed dt. 09.08.2016 in favour of Petitioner No.
              2 and in this way, alienated and sold the property, to which she
              had no title or any transferable right in respect thereof.
5.     A Civil Suit praying for the relief of cancellation of the Sale Deed
       dated 09.08.2016 was then filed by the Respondent herein before the
       Civil Judge (Junior Division), Laksar (hereinafter referred to as ‘the
       Civil Court’). The mother of petitioner No. 1-Haneefa and petitioner
       No. 2-Jodh Singh, who had purchased the property were impleaded
       as Defendant Nos. 1 and 2 respectively in the suit.
6.     On 09.09.2016, an application came to be filed by Petitioner No. 2
       herein before the Civil Court praying for an order that suit stands
       abated as per Section 5(2) (a) of the Consolidation Act, which reads
       as under:
              (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
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                       Khursheed & Anr. v. Shaqoor


           rights or interest in any land lying in the area, or for
           declaration or adjudication of any other right in regard to
           which proceeding 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 proceedings 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 there under.
7.   The application filed by petitioner No. 2 was allowed vide Order
     dated 26.09.2016, passed by the Civil Court. What weighed in with
     the Civil Court, while allowing the application was that the dispute
     which it had to adjudicate in the Civil Suit filed by the Respondent is
     pending consideration before the Consolidation authorities. In view
     of the fact that the village where the property is situated has been
     notified under Section 4(1) (a) of the Consolidation Act, thus, civil
     suit filed by the Respondent-Plaintiff would stand abated, in terms
     of Section 5(2) (a) of the Act.
8.   Aggrieved by the order of the Civil Court, by which his suit stood
     abated, the Respondent-Plaintiff filed a Miscellaneous Civil Appeal
     under Section 96 of the Code of Civil Procedure, 1908 before the
     Additional District Judge, Laksar, District-Haridwar. The Respondent’s
     appeal was dismissed vide Order dated 22.11.2018.
9.   Invoking the extra-ordinary writ jurisdiction of the High Court under
     Article 226/227 of the Constitution of India, the respondent challenged
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       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 Judge,
       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.)
            [(1871) LRs 7 Ex 26, 34] .
            5. The legal position will be different if there is a
            fraudulent misrepresentation not merely as to the
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                      Khursheed & Anr. v. Shaqoor


           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 & Ors. 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.
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12. In view of the aforesaid, we see no reason to interfere with the
    impugned order dated 02.08.2019 passed by the High Court of
    Uttarakhand. The Special Leave Petition, accordingly, stands
    dismissed.
13. Pending application(s), if any, shall stand disposed of.

       Result of the Case: Special Leave Petition Dismissed.



       †
           Headnotes prepared by: Ankit Gyan