Holding

Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 bars the civil court's jurisdiction to entertain the suit, and the suit is also barred by res judicata and Order II Rule 2 of the CPC.

Summary

The appellant, Madan Mohan Mishra, filed a suit in 1994 seeking to set aside a deed of gift concerning agricultural lands, alleging the deed was void. Earlier, a suit filed in 1969 concerning the same lands was abated by an order dated 17 July 1973 under the Uttar Pradesh Consolidation of Holdings Act, 1953, and the appellant made no objection in the consolidation proceedings. The Supreme Court examined whether the civil court retained jurisdiction to entertain the 1994 suit under Section 49 of the 1953 Act, considering the doctrine of res judicata and Order II Rule 2 of the CPC. It held that Section 49 bars civil court jurisdiction over matters that could or ought to have been dealt with under the consolidation Act, and the earlier abated suit precludes any subsequent suit on the same agricultural property. Consequently, the 1994 suit was barred both by Section 49 and by res judicata, leading to the dismissal of the appeal with costs.

Issues considered

The applicability of Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 to a civil suit seeking to set aside a deed of gift concerning agricultural land.
Whether the earlier suit abated by the consolidation proceedings bars the later suit under the doctrine of res judicata and Order II Rule 2 of the CPC.
The distinction between void and voidable documents and its relevance to the civil court's jurisdiction.

Legislation cited

Code of Civil Procedure, 1908s. Order II Rule 2
Specific Relief Act, 1963s. 31
Uttar Pradesh Consolidation of Holdings Act, 1953s. 49
Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950s. 122-B, s. 143, s. 3(14)

Subjects

Section 49Uttar Pradesh Consolidation of Holdings ActCivil court jurisdictionRes judicataAgricultural landGift deedConsolidation proceedingsVoid vs voidable documentSpecific Relief Act

Judgment

[2009) 2 S.C.R. 590

A MADAN MOHAN MISHRA
V.
CHANRIKA PANDEY (DEAD) BY LRS.
Civil Appeal No. 1078 of 2009
FEBRUARY 17, 2009
B
[S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Uttar Pradesh Consolidation of Holdings Act, 1953 :
!
s. 49 - Bar to civil court jurisdiction _,Suit seeking setting
c aside· of gift deed in respect of agricultural land - Abated in
view of initiation of consolidation proceedings - Plaintiff not
raising objection in the consolidation proceedings -
Subsequent suit by the plaintiff in respect of the same property
- Held: the suit is barred u/s. 49 as also by res judicata and 0.
D 2 r. 2 CPC - Code of Civil Procedure, 1908 - 0. r. 2 - Principle
of res judicata. l.-

The question for consideration before this court is
whether jurisdiction of a civil court in respect of grant of
relief for setting aside a gift deed in respect of agricultural
E land, is barred in terms of s. 49 of U.P. Consolidation of
Holdings Act, 1953.
Dismissing the appeal, the Court
HELD: 1.1 The jurisdiction of the Civil Court, is-clearly
F barred as it is evident that subject matter of both the suits
is agricultural lands only. The Schedule appended to the
said suit as also in averments made in the plaint do not
suggest that the same contained any homestead or non-
agricultural property. The order dated 17.7.1973 directing
G abatement of the suit filed by the appellant has attained
fiflality. Appellant did not question the correctness or
otherwise of the said order. He also did not file any
objection in the consolidation proceedings contending

H 590
MADAN MOHAN MISHRA V. 591
CHANRIKA PANDEY (DEAD) BY LRS.

that the same involved non-agricultural lands. [Paras 11, A
12 and 19] [ 600-8; 595-F, G, H]
. . Audhar a_nd Ors. v. Chandrapati and Ors. 200;3 (11) SCC
458; Narender Singh and Ors. v. Jai Bhagwan and Ors. 2005
(9) sec 157 - relied on.
B
2. Suit filed in 1994 covers the same property vvhich
was the subject matter of Suit filed in 1969. As the suit
filed in 1969 has abated by an order dated 17.7.1973,
another suit by the appellant, therefore, would not only
be barred by res judicata but also under Order II Rule 2
CPC. Furthermore, appellant had not filed any objection C
in the consolidation proceedings, which again go to show
that it was accepted that the lands in question were
agricultural lands. [Para 14] [596-G]
3. Jurisdiction of the Civil Court not only in respect 0
of the matters which are specifie.d u/s. 49 of U.P.
Consolidation of Holdings act, 1953. but also the matters
which could and ought to have been the subject matter
of the proceedings under the said Act is barred. [Para 16]
[597-F]
E
Gorakh Nath Dube v. Hari Narain Singh and Ors. 1973
(2) SCC 535; Prem Singh and Ors. v. Birbal and Ors. 2006 (5)
SCC 353; Smt. Du/aria Devi v. Janardan Singh and Ors. AIR
1990 SC 1173 - referred to.
Case Law Reference F
1973 (2) sec 535 Referred to. Para 15
2006 (5) sec 353 Referred to. Para 15
AIR 1990 SC 1173 Referred to. Para 15
G
2003 (11) sec 458 Relied on. Para 19
'!'
2005 (9) sec 157 Relied on. Para 19
CIVIL APPELLATGE JURISDICTION : Civil Appeal No.
--(
1078 of 2009
H
592 SUPREME COURT REPORTS [2009] 2 S.C.R.

A From the final Judgement and Order dated 13.9.2006 of
the High Court of Punjab and Haryana at Chandigarh in Civil
Revision Nos. 6473, 6588 & 6589 of 2005.

Jayant Bhushan, Sarwa Mitter, Sanstosh Gupta and Amit
Gupta (for ~/s. Mitter & Mitter Co.), with him for the Appellant.
B
Rakesh Dwivedi and V.C. Mahajan, Manoj Swarup, Akshat
Goel, Rohit Sohgaura, D.S. Khurana, M. Choudhary, Pretika
Dwivedi, Adarsh Upadhaya (for Kamal Mohan Gupta), Nikhil
Nayyar and Sanjiv Nirwani (for Kishan Datta), with them for the
c Respondent.

The Judgement of the Court was delivered by

5.8. SINHA, J.
1. Leave granted.
D
2. Whether jurisdiction of the Civil Court is barred in respect '-
of grant of a relief for setting aside a deed of gift in terms of
Section 49 of the U. P. Consolidation of Holdings Act, 1953 (for
short, 'the 1953 Act') is in question in this appeal. It arises out of
E a judgment and order dated 26.5.2005 passed in CMWP
No.1920 of 1999 passed by a learned Single Judge of the High
Court of Judicature at Allahabad.

3. The basic fact of the matter is'not in dispute.

F One Ram Baran Tewari was the owner of the property. He
died on 12.7.1927 leaving behind two sons, Devki Nandan and
Lalta Tewari as also a daughter Bishundai. Lalta Tewari died
on 4.3.1927 leaving behind his widow, Bhagwanta Kunwar.
Bhagwanta Kunwar died on 10.8.1949. Devki Nandan died on
G 3.12.1952 leaving behind a daughter Parma Devi. Murli Dhar
Mishra, Madan Mohan Mishra and Akhilesh Mishra are her sons. -1
Bishundai died leaving behind her daughter Ghoora Devi.
Respondent Chandrika Pandey is her husband.
)
4. Bhagwanta Kunwar filed a suit for partition in the year
H
,,/

{
MADAN MOHAN MISHRA V. 593
CHANRIKA PANDEY (DEAD) BY LRS. [S.S. SINHAJ.]
.. t 1949 in terms of the provisions of U. P. Tenancy Act claiming
half share in the properties of the said Ram Baran Tiwari. The
A

said suit was decreed by a judgment and order dated 17. 7 .1954.
5. Questioning the legality or validity of the said decree,
Madan Mohan Mishra, appellant herein, filed a suit for
cancellation of the said decree. During the pendency of the said B
suit, Bhagwanta Kunwar executed a deed of gift in favour of the
respondent.herein whereafter the plaint was amended, inter alia,
claiming for a decree for setting aside the said deed of gift.
Indisputably, in the year 1972-73, consolidation c
proceedings started in the village in terms of Section 5 of the
1953 Act. The suit was, in view thereof, held to have abated. It
is stated that the said order has attained finality. It is furthermore
stated that no objection was filed by the appellant herein in the
said consolidation proceedings. Akhilesh Mishra is stated to
D
have filed an objection before the Consolidation Officer which
was rejected on 31. 7 .1979. An appeal preferred thereagainst
was dismissed on 5.8.1983. A Revision Petition was filed
thereagainst which was dismissed on 11.4.2002. It is stated
that the writ petition has been filed thereagainst before the
Allahabad High Court which is said to have been pending. E

6. Madan Mohan Mishra again filed a suit for a decree for
injunction and in the alternative for recovery of possession in
the year 1994 which was marked as suit No.510 of 1994. The.
learned Trial Judge held the said suit to be barred under Section F
49 of the 1953 Act. However, on an appeal preferred
thereagainst, the First Appellate Court reversed the said
judgment and order dated 14.12.1998.
By reason of the impugned judgment, the High Court has
allowed the writ petition filed by the respondents herein. G
t
7. Mr. S.P. Singh, learned senior counsel appearing on
behalf of the appellant, would contend that keeping in view the
fact that the purported deed of gift executed by Bhagwant Kunwar
not only consisted of agricultural properties but also homestead
H
594 SUPREME COURT REPORTS [2009] 2 S.C.R.
',...,,;;

I
A properties, a suit for setting aside the said deed as invalid is
· not barred under the provisions of the 1953 Act.
8. Our attention in this behalf has been drawn to the
provisions of U.P. Zamindari Abolition and Land Reforms Act,
1950 and, in particular, the interpretation of the term 'land' as
B contained in Section 3(14) thereof as also Section 143 to
contend that by no stretch of imagination, non-agricultural land
could be brought within the purview of the provisions of the said
Act which was enacted only to consolidate the agricultural
holdings. The learned counsel would contend that jurisdiction of
c a Civil Court for passing a decree for cancellation of a deed of
gift is not barred as the same is void and not voidable. It was
furthermore urged that the jurisdiction of a Civil Court in such
matters should be upheld in order to avoid multiplicity of
proceedings. It was submitted that the High Court should have
determined the issue and should not have allowed the writ
0
petition by a cryptic order.
9. Mr. S.R. Singh, learned senior counsel appearing on
behalf of the respondent, on the other hand, would contend that
the orders dated 17. 7.1973 passed in Civil Suit No.550of1969
E having attained finality, the impugned judgment warrants no
interference.
10. Appellant before us was plaintiff in both the suits. In the
list of dates, Bhagwant Kunwar, wife of Lalta Tiwari is said to
v
have expired on 10.10.1949 which is not correct as she was
F impleaded as a party in suit No.550 of 1969 as the first
defendant. She, thus, must have expired after 1969. The said
suit was in respect of certain 'Araji' properties which are
agricultural in nature. In paragraph 6 of the plaint, it has been
accepted that a final decree dated 17.7.1954 was passed in
G the aforementioned suit No.12 of 1949 in respect of the 'Araji'
mentioned in Item No.(3) which was allotted in her favour and
Item No.(b) was allotted in the share of the plaintiff and the
defendant No.3.
One of the grounds taken in the plaint was that the first
H defendant therein obtained final decree in respect of good and
MADAN MOHAN MISHRA V. 595
CHANRIKA PANDEY (DEAD) BY LRS. [S.B. SINHA J.]

f-
fertile lands in more than what could be allotted in her share. A
Such a statement was evidently made as the lands in suit were
agricultural lands.
11. The reliefs prayed for in the said suit are as under :

"a. That this Hon'ble Court may be pleased to pass a B
decree of declaration declaring that the decree dated
6.6.51and17.7.54 passed in the Suit No.12 under

•
./
f Section 49/59 of Act No.17 of 1939; Most.
Bhagwanta Versus Murlidhar & Ors. passed by the
Cou11 of J.O: Sahab, Ghosi,· District Azamgarh, and c
the Hibbanama dated 9.1 :70 executed by Most.
Bhagwanta Kunwar in favour of Chandrika Pandey,
Defendant No.2 and in against of the plaintiff and the
defendant No.1 is null and void.
D
b. If due to any legal reason due to the defendants it is
proved in the court that the plaintiff and the defendant
No.3 has been dispossessed from the Araji Property
mentioned in Item No. (a) then this Hon'ble Court
may be pleased to pass a decree of possession
over the Araji property mentioned in item (a) in favour
E
of the plaintiff and the defendant No.3 and against
the defendants 1st party.

c. Cost of the litigation may be granted in favour of the
defendants 1st party." . F
The Schedule appended to the said suit as also in
averments made in the plaint do not suggest that the same
contained any homestead or non-agricultural property.
12. The order dated 17. 7 .1973 directing abatement of G
the said suit has attained finality. Appellant did not question the
t correctness or otherwise of the said order. He also did not file
any objection in the consolidation proceedings contending that
the same involved non-agricultural lands. It is in the aforemen-
tioned premise, we may consider the nature of the suit filed by H
596 SUPREME COURT REPORTS [2009] 2 S.C.R.

A the plaintiff in the year 1994 being suit No.510 of 1994,
paragraph 2 whereof reads as under:
1

"That the plaintiff is the owner in possession of the Plot
Nos.15/1.260, 16/289, 82/600, 140/745, 274/67, 488/117,
489/68, 423,55, 439/489, 323/122, 14/30, 46/31, 148/
B 325, 260/54, 491 /115, 835/398 as co-khatedar and
successor since prior to the zamindari abolition and are
cultivating the land."
~

13. It is not in dispute that the term 'co-khatedar' means --.,

c 'co-tenure holder'. It is not only that for the first time in the plaint
an averment was made that deed of gift, inter alia, contained
some house properties, further averments made in the said
plaint revealed that the name of the respondent herein had been
entered in the records of the consolidation proceedings in
respect of Plot No.153/08, 185/148, 504, 1.360, 611/304.
D
The reliefs prayed for therein are as under : ..
"(a) That this Hon'ble Court may graciously be pleased
to pass a decree of permanent injunction in favour of
the plaintiff and against the defendant pertaining to
E
the suit property. The defendant may be ordered to
not transfer the Araji No.153/87, 185/148, 504, 1.360,
611/304 which is in possession of the plaintiff."
We have noticed hereinbefore that the Araji lands are ')·

F agricultural lands.
14. Suit No.510/94 covers the same property whi~h was
the subject matter of Suit No.550 of 1969. As noticed
hereinbefore, the said suit has abated by an order dated
17.7.1973. Another suit by the appellant, therefore, would not
G only be barred by res judicata but also under Order II Rule 2 of
the Code of Civil Procedure. Furthermore, appellant had not
~
filed any objection in the consolidation proceedings, which again
go to show that it was accepted that the lands in question were
agricultural lands.
H
MADAN MOHAN MISHRA V. 597
CHANRIKA PANDEY (DEAD) BY LRS. [S.B. SINHAJ.]

15. Section 49 of the Act reads as under: A
' t
"49. Bar to Civil Court jurisdiction- Notwithstanding
anything contained in any other law for the time being in
force, thE~ declaration and adjudication of rights of tenure-
holders in respect of land by the lying in an area, for which
B
a notification has been issued under Sub-section (2) or
Section 4, or adjudication of any other right arising out of
~ ~
co"nsolidation 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 c
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 that D
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
E
with the provisions of this Act."

16. Jurisdiction of the Civil Court not only in respect of the
matters which are specified therein but also the matters which
could and ought to have been the subject matter of the F
proceedings under the said Act is barred.

The words of the said section are absolutely clear and
unambiguous.

We have, however, no doubt in our mind that the distinction G
between the void and voidable document as has been noticed
t- by this Court in Gorakh Nath Dube v. Hari Narain Singh & Ors.
[(1973) 2 SCC 535] cannot be lost sight of. {See Prem Singh &

. Ors. v. Birbal & Ors. [(2006) 5 SCC 353]}. But for the purpose
H
598 SUPREME COURT REPORTS [2009] 2 S.C.R.

A of attracting the said distinction, clear averments were required ,,_
to be made in the plaint. We have noticed hereinbefore the 1 '·
averments made in the suit. .
~

19. Mr. S.P. Singh, relied upon a decision of this Court in
Smt. Dularia Devi v. Janardan Singh & Ors. [AIR 1990SC1173],
B
wherein this Court held that when a representation has been
made in regard to the character of a document, the deed would
)
be totally void. We are not concerned with such a question
before us. -r
·'i"--

c In Audhar & Ors. v. Chandrapati & Ors. [(2003) 11 SCC \.

458], a Division Bench of this Court upon noticing Section 49 of
the 1953 Act, opined that Section 49 of the 1953 confers
exclusive juris·diction under the Act and the jurisdiction of the ...
Civil Court is barred, stating :
D
"The Authorities under the Consolidation Act of 1953 could
justifiably conclude their proceedings under that Act despite \,..

pendency of second appeal against the order of the first
appellate court declaring the proceedings in the civil suit
to have abated.
E
We find that the main issue on tact is concluded against
the appellants. The lands in the khatas in question are
found to be tenancy lands of the classes "bhumidharf'
and "Sirdan". They are not sir or khudkasht lands. Under
y
F the special mode of succession provided under the tenancy
law widow Akashi inherited absolute title to 114th share of
her husband and she could execute a valid gift deed in
favour of her daughters.
The present legal position as it stands during pendency of
G
the second appeal before the High Court is that the civil
court's decree declaring the gift deed as invalid has not
-t
attained finality because during pendency of proceedings
under the Consolidation Act of 1953 had commenced and
the jurisdiction of the civil court stood ousted. We, therefore,
·.·
H
"
MADAN MOHAN MISHRA V. 599
CHANRIKA PANDEY (DEAD) BY LRS. [S.S. SINHA J.]
..... -t find no merit in any of the contentions advanced on behalf A
of the appellants."
Yet again in Narender Singh & Ors. v. Jai Bhagwan &
Ors. [(2005) 9 SCC 157], this Court, upon noticing GND (supra),
stated the law, thus :
B
"The learned counsel for the respondents is right in his
+ reply that the lands being exclusively recorded in the name
,,. of the father, the sons who claim joint ownership in the
lands could and ought to have approached the authorities
under the Act 'for getting them jointly recorded in the revenuec
papers. Such proceedings for recording them as joint
owners having not been initiated under the Act of 1953,
the High Court was right in invoking bar against such plea
in the suit in accordance with Section 49 of the Act. We
find that the contention advanced and accepted by the
.,J D
High Court gets full support from the following observations
of this Court in the case of Sita Ram 5 :
'13. In the instant case Respondent 1 was claiming an
interest in the land lying in the area covered by notification
issued under Section 4(2) on the basis that he is the son E
of Chhota, brother of Nanha and that the lands were
recorded in the name of Nanha in a representative capacity
,,(
on behalf of himself and his other brothers. This claim
which fell within the ambit of Section 5(2) had to be
.
__.
adjudicated by the consolidation authorities. Since it was F
a matter falling within the scope of adjudicatory functions
assigned to the consolidation authorities under the Act
the jurisdiction of the civil court to entertain the suit in
respect of the said matter was expressly barred by Section
49 of the Act and the suit of the appellant was rightly
G
~ dismissed on that ground.'
The argument that revenue entry in the name of the father
should have been treated as in representative capacity
for the sons is misleading. Whether the father was kat1a
and manager of the family and as such could be recorded H
600 SUPREME COURT REPORTS [2009] 2 S.C.R.

A in representative capacity for all co-owners in the family
was also a question of title which fell within exclusive
jurisdiction of the authorities under the Act."
The jurisdiction of the Civil Court, therefore, is clearly
barred as it is evident that subject matter of both the suits is
8 agricultural lands only. It is not, therefore, necessary for us to go
into the question with regard to the effect of a prayer made in a
suit for setting aside the deed of gift in terms of Section 31 of
the Specific Relief Act, 1963 or otherwise.
c 20. In view of the aforementioned findings, it is not
necessary for us to enter into other conten-tions raised by Mr.
S.N. Singh.
21. The appeal is dismissed with costs. Counsel's fee
assessed at Rs.10,000/- (Rupees ten thousand only).

K.K.T. Appeal dismissed.