IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.964 of 2006 RISHIKESH THAKUR Versus RAM NARESH THAKUR & ORS ----------- 4 14.11.2008 Heard Mr. Atul Kumar Pandey learned counsel for the petitioner and Mr. Nityanand Mishra learned Counsel for the opposite parties. In the opinion of this Court, the Court below has committed an apparent jurisdictional error in passing the impugned order that the suit in hand would abate in terms of Section 4(c) of the Bihar Consolidation of Holidays and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as „the Act‟). From a reading of the entire plaint including its prayer, it would be clear that the suit was out and out for declaring a deed of gift to be void and inoperative and not binding on the plaintiff. The consequential relief of partition is wholly dependent on the aforementioned main relief. Counsel for the petitioner, therefore, seems to be correct in contending that such suit will not abate and the power of Civil Court to try such suit is not taken away in terms of Section 4(c) of the aforesaid Act. The reliance placed by the learned counsel of the petitioner on a judgment of Division Bench of this Court in the case of Shivajee Rai Vs. Rajendra Rai & Anr. reported in 1992 (2) PLJR 678 and a subsequent judgment of this 2 Court relying the aforementioned Division Bench judgment in the case of Sabha Pati Singh @ Sabha Singh & Ors. Vs. Girja Devi & Ors. reported in 1995 (1) PLJR 606 seems to be also well founded. Opposing the aforementioned submissions, learned Counsel for the opposite parties has tired to defend the impugned order by taking a plea that the suit in hand in fact was a partition suit and declaration against the dead of gift was sought by way of a camouflage. He has also gone to submit that when there was no prayer for setting aside the deed of gift in the plaint by the petitioner-plaintiff, a mere declaration sought to the effect that the deed of gift is fraudulent and inoperative and thus not binding on him, cannot be really made subject matter of a proceeding before the Civil Court and that can be easily adjudicated by the consolidation authorities. He would in this context place reliance on the judgment of the Apex Court in the case of Ram Sakal Singh Vs. Mosamat Monako Devi (Dead) & Ors. reported in 1997 (2) Current Civil Cases 88 (SC). This Court on perusal of the plaint and the relief prayed therein, would find that the entire suit proceeds on only one presumption and basis that the deed of gift dated 4.8.1969 executed by Thag Hazam was Farzi, Farebi and fraudulent. To make the things clear, this 3 Court would quote the relief portion which is as follows:- ^^1- ;g fd mijksDr ckrksa ij fopkj djds ;g fu.kZ; dj fn;k tk; fd lsrdjkjh lEifr eqnbZ dh gS c['kh'kukek tkfgjk ufoLrs Bx gtke cuke eqnkyge rk0 4&8&69 egr QthZ] Qjsoh QzkmMyh oks csvlj gS mldh dksbZ ikcUnh eqnbZ ij ugha gSA 1- ¼d½ ;g fd okn rtcht nknjlh la-1 eqnbZ dk l;rdjkjh esa vk/kk fgLlk ckaVdj ctfj;s dfe'kuj eqnbZ dk tqnxkuk n[ky dCtk djk fn;k tk,A 2- &&&&&&& 3- &&&&&&** Thus from the aforementioned prayer read with the contents of the plaint which is Anenxure-1 to this application, would leave nothing for speculation that the plaintiff has claimed the relief against that the said deed of gift by explaining it to be a voidable document. It was this aspect of the matter which was considered by the Division Bench of this Court in the case of Shivajee Rai (Supra) and the Division Bench of this court had gone to hold that the Consolidation Officer can only adjudicate upon those facts which make the transaction void but has no jurisdiction to adjudicate in relation to the facts which would make the transaction voidable. Apparently, it is not the case of the counsel for the opposite party that the deed of gift is void or was claimed so by the plaintiff-petitioner. He has rather sought to find support himself on some observations in the judgment in the Apex Court in the case of Ram 4 Sakal Singh (supra) that the authorities under the Act will still have the jurisdiction and the Civil Court will not be required to decide an issue if there is no prayer to the effect of setting aside the deed of gift or the document in question. In the considered opinion of this Court, such reliance on the aforesaid judgment of the Apex Court in Ram Sakal singh (supra) by the learned counsel for the opposite party seems to be wholly misplaced inasmuch as in that very judgment had held that “it is for the court to declare such document effective or ineffective and the legal effect would hinge upon such a declaration.” (underlined by the Court). From the underlined portion of the judgment of the Apex Court, it would be thus clear that the test for maintainability of a suit before the Civil Court is not in the essence of the relief rather as to whether the document in question is void of voidable. This is also clear from paragraph no.7 of the same judgment which in the context of this case becomes also relevant and needs to be quoted below : - “Therefore, the civil Court gets jurisdiction to declare the document to be voidable. In consequence, the notification under Section 3(1) does not have the effect of abatement under Section 4(1)(c) of the Act. If the document is void, there would be no need 5 to set aside or cancel the document/deed. Then the Consolidation authorities get exclusive jurisdiction to deal with all questions relating to declaration of a right or interest in any land or for declaration or adjudication of any other right in regard to such proceedings. The Court or authority before whom any suit etc. is pending should record that the suit or proceedings to avail of the remedy under the Act.” This Court therefore, is satisfied that the suit in hand was out and out for a declaration that the deed of gift was a voidable document. Such suit in terms of Section 4(1)(c) of the Act is clearly maintainable before the Civil Court and the Court below has in effect committed a jurisdictional error in passing the impugned order. The aforesaid view taken by this court also finds support from the two division bench judgments of this court in the case of Shivaji Rai (supra) and Sabhapati Singh (supra). In the result, this application is allowed. The impugned order is set aside and the matter is remitted back to the Court below to decide the suit on merit within a period of one year from today. Rsh (Mihir Kumar Jha, J.)