Swarupa v. Dy. Director of Consolidation UP — 1970 DIGILAW 108 (ALL)

ORDER M.H. Beg, J. - The Petitioners obtained a sale deed on 10-7-1962, from one Behari Lal, opposite party No. 4, in respect of plots Nos. 215, 216, 217 and 218, of chak No. 120 in village Bhandoli, in the district of Bulandshahr. The Petitioners then applied u/s 12 of the UP Consolidation of Holdings Act for the mutation of their names on the strength of the sale deed in their favour which had been executed after obtaining the permission of the Settlement Officer (Consolidation) u/s 5(c)(ii) of the Act. Behari, opposite party No. 4, contested on the ground that the sale deed had been obtained by fraud and that full consideration had not been paid for it so that possession was not handed over. One Sadhu Sahkari, opposite party No. 5, also objected on the ground that the plots held were subject to a charge for the payment of Rs. 700/- so that no mutation should De allowed until the amount had been paid to this objector. 2. The Consolidation Officer found that the vendor was a sirdar arid had deposited ten times the land revenue on 22-6-1962, u/s 134 of the UPZA and LR Act (hereinafter referred to as the Act) and that the bhumidhari sanad had been issued sometime between 25-6-1962 and 21-1-1963. The objector had, however, f died to prove when the bhumidhari sanad had been actually issued. The Consolidation Officer, relying upon the decision of Dwivedi, J. in Tikam Singh v. Chhatrapal Singh 1963 AWR 395 held that the transferor had no transferable right on the date of sale so that mutation could not be ordered. He also found that the consideration of Rs. 1150/- was not paid at the time of the registration of the deed but was shown in the deed to have been paid to the vendor earlier. The Consolidation Officer accepted the vendee objector's case that the sale price, for which no separate receipt could be produced, had not been fully paid up. He found the statement of a witness Devi Sahai, about issue of receipts for consideration, to be contradictory. The entries on the plots were, therefore, ordered by the Consolidation Officer to continue in favour of Behari Lal, opposite party No. 4. 3. He found the statement of a witness Devi Sahai, about issue of receipts for consideration, to be contradictory. The entries on the plots were, therefore, ordered by the Consolidation Officer to continue in favour of Behari Lal, opposite party No. 4. 3. On appeal, the Settlement Officer also held that the entries of the name of Behari Lal should continue over the four sirdari plots as the vendor had not acquired any bhumidhari right in these on the date of transfer. The entry with respect to plot No. 217 which was a bhumidhari plot, was also ordered to continue in favour of Behari Lal, as the transaction of sale could not be split up into parts in the opinion of the Settlement Officer. The result was that the decision given by the Consolidation Officer was maintained. The Settlement Officer had, however, held the view that the whole consideration for the sale had passed according to the statements in the deed the correctness of which did not seem to him to have been disproved. It maybe that, if the evidence and circumstance supporting the objection had been properly considered or were re examined, a contrary view, in agreement with the Consolidation Officer, more could more properly be taken. The Settlement Officer's finding on this question seems to me to have been recorded without a satisfactory discussion of the whole evidence. 4. The Petitioners then went up in revision u/s 48 of the Act. The Dy. Director held that mutation should be allowed in respect of the bhumidhari plot but not with regard to the Sirdari plots, as the vendor did not have transferable rights in these on the date of the sale. He did not record any finding on the question whether full consideration for the sale deed had passed evidently because the question of applicability of Section 43 of the Transfer of Property Act was not raised before him. The whole proceeding from the Consolidation Officer onwards seems to have taken place after 8-3-1963 so that the amended provisions of Section 48 of the UP Consolidation of Holdings Act applied. This meant that findings of fact could be recorded u/s 48 of the UP Consolidation of Holdings Act as amended. 5. The whole proceeding from the Consolidation Officer onwards seems to have taken place after 8-3-1963 so that the amended provisions of Section 48 of the UP Consolidation of Holdings Act applied. This meant that findings of fact could be recorded u/s 48 of the UP Consolidation of Holdings Act as amended. 5. The Petitioners have come up to this Court Under Article 226 of the Constitution on the ground that they were entitled to the benefit of Section 43 of the Transfer of Property Act. They allege that the opposite parties had fraudulently represented the plots to be bhumidhari plots and that, the Petitioners having acted upon that representation by paying up the sale price fully, the elements of a plea to "feed an estoppel" provided for by Section 43 of the Transfer of Property Act, had been made out. There is, however, no allegation in the petition that such a plea was raised before the Consolidation Authorities. The plea raises mixed questions of law and fact. It requires evidence of representations made and of passing of consideration. If the plea had been taken before the consolidation authorities and a patently erroneous decision had been given on it, it would have been possible for the Petitioners to raise this question in this Court Under Article 226 of the Constitution. But, a plea which requires abduction of evidence and findings thereon cannot be taken for the first time in this Court in proceedings Under Article 226 of the Constitution however obvious or good it may appear to be. Article 226 of the Constitution does not enable this Court to act as a Court of appeal. It confers power on this Court to correct the errors of authorities over which it exercises superintendence. It is not meant to enable parties to over-come the effects of their own omission and errors in not taking up the correct pleas before the authorities invested with the jurisdiction to decide question of fact. Even the Settlement Officer, who took the view that full consideration had passed, was not asked to determine the question from the point of view of the applicability of Section 43 of the Transfer of Property Act. If the question had been raised before the Dy. Even the Settlement Officer, who took the view that full consideration had passed, was not asked to determine the question from the point of view of the applicability of Section 43 of the Transfer of Property Act. If the question had been raised before the Dy. Director, findings of fact necessary to show whether Section 43 of the Transfer of Property Act applied could have been recorded by him under the amended provisions of Section 48 of the Act. I, therefore, do not think that this plea can be allowed to be raised in this Court for the first time. 6. Another question is also raised by the Petitioners. It submitted that this is a pure question of law which does not require examination of evidence of findings of fact afresh on any matter. This is that, the deposit of ten times the land revenue having been made before the execution of the sale deed on 10-7-1962, the vendor was competent to make the transfer. It has been contended that the language of Section 137(2) of the Act makes clear what the law was from the very commencement of the Act even though the clarification took place subsequently by Section 7 of the Amending UP Act XXI of 1962, which came into force on 4-12-1962. 7. The relevant part of Section 137, as it stands today, reads as follows: Section 137. Grant of certificate--(1)... (2) Upon the grant of the certificate, Under Sub-section (1) the sirdar shall, from the date on which the amount referred to in Sub-section (1) of Section 134 has been deposited. (a) become and be deemed to be a bhumidhar of the holding or the share in respect of which the certificate has been granted, and (b) be liable for payment of such reduced amount on account of land revenue for the holding or his share therein, as the case may be, as shall be one half of the amount of land revenue payable or deemed to be payable by him therefore on the date of application. The provision, as it stood before the amendment, was: Section 137. Grant of certificate--(1)... The provision, as it stood before the amendment, was: Section 137. Grant of certificate--(1)... (2) Upon the grant of the certificate Under Sub-section (1) the sirdar shall, from the date thereof-- (a) become and be deemed to be a bhumidhar of the holding or the share in respect of which the certificate has been granted, and (b) be liable for payment of such reduced amount on account of land revenue for the holding or his share therein, as the case may be, as shall be one half of the amount of land revenue payable or deemed to be payable by him therefore on the date of application. 8. Looking at this provision only, apart from Section 134 of the Act, it would appear that the law was actually changed and not merely clarified. The effect of this amendment apparently was to alter the date from which the sirdar who had deposited the amount would become a bhumidhar with the right to pay reduced land revenue as a bhumidhar. The amendments in Sections 134 and 137 of the Act do not expressly refer to the right to transfer or its retrospectivity. Learned Counsel for the contesting opposite party urged that retrospectivity of rights as a bhumidhar was for the limited purpose of payment of reduced land revenue after the amendment of Section 137(2) and not for all purposes. He submitted that if, on the date on which the transfer was made sale, the vendor was a sirdar and not a bhumidhar, the subsequent acquisition of bhumidhari right could not automatically convert a void transaction by a sirdar into a valid one unless the law expressly said so. The UP Land Laws' Amendment Act No. XXI of 1962 does not contain an express provision that previously void transactions of sale would become valid. There is not even a provision, as there is for amendments of some of the other provisions of the[UP ZA and LR Act, 1951, by other enactments, that the above-mentioned amendment of Section 137 will be deemed to exist from any date prior to the enforcement of the UP Act XXI of 1962. It is well recognised rule that all legislation affecting substantive rights is presumed to operate prospectively unless it is either expressly or by a necessary implication given retroactive effect. Thus, we find stated in Maxwell's "Interpretation of Statutes" (9th Edn. It is well recognised rule that all legislation affecting substantive rights is presumed to operate prospectively unless it is either expressly or by a necessary implication given retroactive effect. Thus, we find stated in Maxwell's "Interpretation of Statutes" (9th Edn. page 222): No rule of construction is more firmly established than this : that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. But, if the language is plainly retrospective it must be so interpreted. 9. It was, however, contended for the Petitioners that the clear meaning of the deeming provision was that a sale even by a sirdar, who became a bhumidhar by obtaining a certificate subsequent to the sale, must be held to be a sale by a bhumidhar if the sale was after the deposit mentioned in Section 134 of the Act. It was urged that the deeming provision must be carried to its logical consequences so that the certificate would convert the sirdar into bhumidhar restrospectively from the date of the deposit for all purposes. Three cases were cited on behalf of the Petitioner which support the contention that the amendment of the law in 1962 merely clarified the position which was not altered. Gases cited by the sides may now be discussed. 10. Tikam Singh's case (supra), as I read it, is a clear authority for the proposition that Section 137(2), before the law was amended, has the effect of converting sirdari rights into bhumidhari rights only from the date of the gram of certificate and not earlier. Making of the deposit provided by Sections 134(1) and 135 of the Act was dealt with as a first step in the process by which a sirdar became a bhumidhar. The acquisition of Bhumidhari right could not, therefore, date back to the deposit which was held only to "entitled" a subsequent acquisition. 11. Making of the deposit provided by Sections 134(1) and 135 of the Act was dealt with as a first step in the process by which a sirdar became a bhumidhar. The acquisition of Bhumidhari right could not, therefore, date back to the deposit which was held only to "entitled" a subsequent acquisition. 11. In Niau v. Kunwar Sen 1966 RD 35 , on which learned Counsel for the Petitioners placed strong reliance, my learned brother H.C.P. Tripathi resolved what appeared to be an inconsistency between the provisions of Section 134 and Section 137(2) of the UP Act I of 1951, before the amendment and held that bhumidhari right accrues in favour of the sirdar from the date of the deposit. It was held there that the word 'thereof used in Section 137(2) of UP Act I of 1951, before its amendment, did not refer to the date of the certificate but to the date of the deposit. 12. In Abdul Latif v. Abdul Hakim Khan 1967 RD 72 my learned brother S.N. Singh held that the bhumidhari rights are acquired from the date of deposit and not from the date of the sanad. In this case, the deposit was made on 19-2-1954 and the sanad was granted on 26-2-1954. Here, the applicability of the principle laid down in Tikam Singh's case (supra) was held to be confined to cases in which even the grant of the sanad did not confer any right. Reliance was, however, also placed here upon the decision of Gangeshwar Prasad, J., in Jagat Narain v. Laljee 1964 AWR 646 , where the transferee obtained the benefit of Section 43, Transfer of Property Act. Now, the application of Section 43 itself presupposes that the transferor did not have a transferable right on the date of transfer, but acquired it subsequently. In Abdul Latif's case (supra), however, the amendment made in Section 137(2)(a) of UP Act I of 1951 was also held to be a method by which the legislature resolved a controversy and thereby clarified but did not really alter the law as it already existed. This was in line with the view of H.C.P. Tripathi, J., in Niau's case (supra). This was in line with the view of H.C.P. Tripathi, J., in Niau's case (supra). In other words, retrospectivity was given to the right to transfer as a bhumidhar provided the transferor was a sirdar at the time of the sale who had made the deposit as required by Section 134 of the Act. 13. In Anis Ahmad v. State of UP 1967 RD 75 , Desai, C.J. and Lakshmi Prasad, J., have held, even in a case to which the amended provisions of Section 137(2) of UP Act I of 1951 were sought to be applied, as follows: It is clear from the language of Sub-sections (1) and (2) of Section 137 that a sirdar becomes a bhumidhar only upon the grant of the certificate : he becomes a bhumidhar with retrospective effect from the date of his depositing ten-times the rent but he becomes so upon the grant of the certificate. If by a certain date no certificate has been granted, he is not a bhumidhar on that date even though he may be entitled to the certificate and to be bhumidhar with effect from a prior date. 14. It is true that it was held in Anis Ahmad's case (supra), on facts, that no certificate was actually granted. If, however, the principle, even under the amended provisions, is that rights accrue only on the grant of a certificate, the Petitioners in the instant case had to establish the grant of a certificate which they did not produce before the consolidation authorities. The date of the grant as well as the grant itself had to be properly proved. All that the Petitioners can rely upon is a finding by the Consolidation Officer that the bhumidhari certificate itself was granted some time between 25-6-1962 and 21-1-1963. I do not know how this finding was reached. No evidence is discussed. Under the Evidence Act, the principles of which should be applied by consolidation authorities, secondary evidence of contents of a document is only permissible on certain conditions which were not shown to exist here. 15. I do not know how this finding was reached. No evidence is discussed. Under the Evidence Act, the principles of which should be applied by consolidation authorities, secondary evidence of contents of a document is only permissible on certain conditions which were not shown to exist here. 15. In Bankey Singh v. Dharamdeo Singh 1967 RD 114 , it was held by S.N. Singh, J. inter alia, relying on the earlier decision in Abdul Latif's case (supra), that the right of a person obtaining a bhumidhari certificate to transfer bhumidhari rights accrues from the date of the deposit and not from the date of the grant of the sanad itself. In this case, the decision was placed on the footings : "The sale deed having been executed after the deposit of ten times the revenue, it could not be challenged on the ground of non-transfer-ability." 16 Learned Counsel for the contesting opposite party cited : Ramdeo v. Dy. Director 1967 AWR 578 . In this case, the bhumidhari sanad was issued on 29-3-1965. The deposit was made on 6-11-1962, a day prior to the sale deed. A distinction was made here by my learned brother Satish Chandra, between the effect of mere deposit which conferred only an incohate right or constituted an "entitlement" or a qualification for the acquisition of bhumidhari right and the bhumidhari certificate itself, which, operating retrospectively, converted the incohate right into a bhumidhari right. It was held here that the person who acquires a bhumidhari certificate remains a sirdar until he actually obtains the certificate so that, if he died before the grant of the certificate, the purchaser could not rely on the grant of the certificate to the heir so as to cure the defect in his title on the date of sale. In other words, a sale by him in the period during which the vendor remained a sirdar was only a sale by a sirdar. 17. In such cases, the section which could really come to the aid of the transferee, on equitable grounds, is Section 43 Transfer of Property Act where its requirements are fulfilled. If, for any reason, this provision cannot be applied, the transferee cannot invoke any equity in his favour although he may succeed on the strength of the law as found in Section 437(2) after its amendment. If, for any reason, this provision cannot be applied, the transferee cannot invoke any equity in his favour although he may succeed on the strength of the law as found in Section 437(2) after its amendment. In Ramdeo's case (supra) it was held that even the equitable principle could only be invoked against the transferor himself who had made an incorrect representation and not against his successor. 18. It may be possible to justify a distinction on facts, between the decisions of this Court in Tikam Singh's case (supra), Anis Ahmad's case (supra) and Ramdeo's case (supra) in which the sanad itself was not valid or not proved and cases in which the transferor was held, as he was held in Niau's case (supra) and in Abdul Latif's case (supra) and in Bankey Singh's case (supra), to have sold the property after the deposit and then to have himself obtained a valid sanad. But, the decision in even the latter type of cases rests on the assumption that the sale was not invalid for some other reason, such as failure of consideration and that the grant of the bhumidhari certificate, subsequent to a sale made after the deposit and had also been duly proved. 19. In the instant case, the findings recorded by the Dy. Director seem to me to preclude the application of even the line of cases beginning with Niau's case (supra). The Dy. Director held :"As the law stood at the time of transfer, the opposite parties could not effect any transfer unless the bhumidhari sanad was issued in their favour." It is true that this finding is not very clear or explicit. But, its meaning, on the face of it, is that the Petitioners had not proved the grant of the sanad itself to their transferor. If the Petitioners had applied to the consolidation authorities, u/s 38(1)(b) of the UP Consolidation of Holdings Act, the original certificate, if issued at all, or, in the event of the failure of their vendor to produce it, the record of the proceedings for its issue could be summoned and the grant of the certificate, if there was one and its date, could have been easily established. As no such step appears to have been taken, the Dy. Director could certainly record the finding that the grant of the sanad itself was not proved. As no such step appears to have been taken, the Dy. Director could certainly record the finding that the grant of the sanad itself was not proved. Indeed, this could be the only proper finding where neither the bhumidhari certificate is forthcoming nor any reason for allowing secondary evidence of its contents is shown. The meaning of the passage from the Dy. Director's order, quoted above, could at least reasonably be that the grant of the certificate itself to the vendor had not been proved. Such a finding could not be held to be patently erroneous. The mere fact that it could, by some stretch of imagination, have a meaning other than its prima facie meaning does not mean that there is a patent error of law in the Dy. Director's order. There is no assertion even in the writ petition that a bhumidhari certificate was obtained by Beharilal, opposite party No. 4. I am, therefore, unable to infer that a bhumidhari certificate had been granted to the vendor at any time. At any rate, such a grant was not proved. 20. On the finding recorded by the Dy. Director, according to its apparent meaning, the ratio decidendi of the division Bench decision in Anis Ahmad's case (supra) was applicable. In that case too it was held that the actual grant of the certificate had not been proved. On this view of the case the Petitioner could neither rely on Section 43 of the Transfer of Property Act nor on the amended provisions of Section 137(2) of the Act. For this reason, the hypothetical argument, on the assumption that the bhumidhari certificate was obtained after the amendment of Section 137(2) of the Act came into force on 4-12-1962, need not be considered at all. The question whether the Petitioners could acquire any bhumidhari rights, under the provisions of Section 137(2) of the Act, before its amendment, which is being referred by me today in Ram Sarup v. Dy. Director of Consolidation Civil Misc Writ No. 3477 of 1964 for decision by a Division Bench, in view of conflicting opinions expressed by my learned brethren on this question, need not also stand in the way of a decision of this case. 21. I, therefore, dismiss this writ petition with costs.