P.K. Mohanti, J.
1. The second appeal is by the defendant against a decree of affirmance.
2. The suit was for declaration of title, confirmation of possession and a permanent injunction restraining the defendant from disturbing the plaintiffs' possession.
3. The original plaintiff Fakir Prusty having died during the pendency of the suit, the present respondents have been substituted in his place as his legal representatives.
4. The case pleaded in the plaint was that late Fakir Prusty purchased the suit land from one Krushna Chandra Naik and was in possession of the same. Due to some ill feeling with his stepbrother Jogendra Prusty, he executed a nomial sale deed on 30-11-1962 (Ext. 1) in respect of the suit land in favour of Udayanath Mohanty without payment of consideration and he continued to possess the suit land as before notwithstanding the execution of the sale deed. After the death of Udayanath Mohanty, his widow Keli Dei executed a Nedabi deed (Ext. 2) in favour of Fakir Prusty and also made an endorsement on the back of the sale deed (Ext. 1) to the effect that no consideration passed thereunder and that possession of the suit land had never been delivered to her husband. Thus, the original plaintiff claimed to be the owner in possession of the suit land. His contention was that the defendant claiming himself to be the sister's son of Udayanath Mohanty laid a false claim over the suit land and removed the paddy crops standing thereon. Hence the suit was filed for the aforesaid reliefs.
5. The defendant-appellant took the stand that the sale deed (Ext. 1) was supported by consideration and it conveyed good title in favour of Udayanath Mohanty. He also contended that after the death of Udayanath Mohanty and his widow he inherited the suit land as their sole surviving heir.
6. Both the courts below came to the concurrent findings that the sale deed(Ext. 1) executed by Fakir Prusty in favour of Udayanath Mohanty was a sham transaction; that no consideration passed thereunder and possession of the suit land was never delivered and as such the defendant-appellant had no right, title or interest in the same.
7. During the pendency of this second appeal, the suit land came under the consolidation operation by virtue of a notification issued under Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972. On 27-10-1980, the learned counsel for the defendant-appellant filed a memo, stating therein that the suit and the appeal would stand abated in view of the provisions of Section 4 (4) of the said Act. The learned counsel for the respondents on the other hand contended that the suit is outside the scope of Section 4 (4) of the Act. He placed reliance on a decision reported in AIR 1973 SC 2451, Gorakh Nath Dube v. Hari Narain Singh and an unreported decision of this Court in Civil Revn. No. 389 of 1978, Gangadhar Mandal v. Shyamsundar Mandal decided on 1-11-1980.
8. In the Supreme Court case referred to above the claim of the plaintiff was that the sale of his half share by his uncle was invalid, inoperative and void. The plaintiff had prayed for cancellation of the sale deed to the extent of his half share. It was held that the suit was covered by the relevant provisions of the U. P. Consolidation of Holdings Act and the claim had to be adjudicated upon by the consolidation authorities. It was pointed out that there is a distinction between the 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. The latter category of cases were held to be outside the scope of the provisions relating to abatement of suits.
The present suit is a suit of the first category. The plaintiff's contention was that the sale deed was a sham transaction and did not convey any title in favour of the vendee. He did not ask for setting aside the sale deed but treated it as void and inoperative. Thus, the Supreme Court case instead of supporting the respondents goes against them.
The principle laid down in the Supreme Court case has been followed in the decision of this Court referred to above.
9. A perusal of the plaint makes it abundantly clear that the suit is for declaration of right, title and interest in lands. Since both parties adversely claim title to the suit lands, the claim should be put forward before the consolidation authorities so that they may determine who is the true owner. Thus, the suit is clearly covered by the provisions of Section 4 (4) of the Act.
10. In the result, the appeal and the suit out of which it arises shall stand abated. The decisions of the courts below are set aside.