Lakshman v. Gaon Sabha — 1981 DIGILAW 493 (ALL)

JUDGMENT I.B. Singh, Member - This is a defendants second appeal against judgement and decree dated 30-6-1980 passed by learned Additional Commissioner, Agra Division, Agra, dismissing Appeal No. 65 of 1979-80, Mathura confirming judgement and decree dated 15-11-1978 passed by S.D.O. Mathura, decreeing suit of Gaon Sabha Jamalpur filed under Section 163-A of Act I of 1951. 2. Gaon Sabha filed the suit with the allegations that Kalla and Kalicharan sold different area of plot No. 197.73 acre to the defendants in fragments, hence the suit after resolution dated 29-1-1973 against the vendees and vendors. 3. The suit was contested by Kalla and others alleging that the suit was bad for multifariousness and was abadi land and is not land as defined under Act I of 1951 and the suit was not maintainable. 4. I have heard the learned counsel for the parties and have perused the record. 5. It was argued that the suit was filed on 1-2-1973 and the sale deed is dated 22-1-1973 and the land was declared by S.D.O. that the land in suit was not being used for agricultural purposes and the order is dated 5-3-1973, hence it ceased to be land under the Z.A. Act and the provisions of Z.A. Act are not applicable, therefore, the revenue court had no jurisdiction. Reliance has been placed on 1966 R.D. page 203. 6. It was argued in reply that the suit was filed on 1-2-1973 and the rights of the parties will be adjudicated in respect of the date on which the suit was filed, that the declaration of the S.D.O. dated 5-3-1973 which is subsequent to the date of the filing of the suit and the provisions of U.P. Zamindari Abolition and Land Reforms Act may not be applicable from the date of declaration granted by S.D.O. on 5-3-1973 and no prior to it, therefore, both the Courts below rightly decreed the suit of the Gaon Sabha. 7. 7. Section 168-A of Act I of 1951 runs as follows: 168-A. TRANSFER OF FRAGMENT- (1) Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except there the transfer is in favour of tenure-holder who has plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder (the whole, or so much of the plot in which the person has bhumidhari rights which pertains in the fragment is hereby transferred. (2) The transfer of any land contrary to the provisions of sub-section (1) shall be void. (3) When a bhumidhari has made any transfer in contravention of the provisions of sub-section (1), the provisions of 167 1(XXX) shall, mutatis mutandis, apply". Any transfer of any land contrary to the provisions of sub-section (1) shall be void according to sub-section (2) of Section 168-A of Act I of 1951 and according to its sub-section (3) the provisions of Section 167 shall mutatis mutandis apply which provides that the consequences specified in clauses (a) to (c) of sub-section (2) of Section 163 shall ensue in respect of every transfer which is void by virtue of Section 166 with the substitution of references to the date of the order under Sub-section (1) of Section 163 by reference to the date of such transfer. Thus it is clear that any transfer of land made in contravention of Section 168-A (1) of Act I of 1951 is void from the date of the transfer and the transferor or the transferee both the liable to ejectment on the suit of the Gaon Sabha filed in the Court of Assistant Collector 1st Class and on the eviction of the transferee the right, title and interest of the bhumidhar in the land shall be extinguished. Since the transfer is void the transferee would acquire no interest in the subject matter of the transfer and his interest would become extinct. Thus both the transferor as well as transferee will be deprived of the holding. 8. Since the transfer is void the transferee would acquire no interest in the subject matter of the transfer and his interest would become extinct. Thus both the transferor as well as transferee will be deprived of the holding. 8. Section 143(2) of Act I of 1951 runs as follows: 143-(2) "Upon the grant of the declaration mentioned in sub-section (1), the provisions of this Chapter (other than this section) shall cease to apply to the bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. 9. Section 3(14) of Act I of 1951 as far as definition of the word "land" is concerned Section 143 of the Act has been specifically excluded. There is no provisions now for land automatically ceasing to be land if is covered by building as was the case under the U.P. Tenancy Act of 1939. On the contrary Section 143 of the Act makes elaborate provision whereby land can be declared to cease to be land and upon such declaration under Section 143 of Act I of 1951 the provisions of Chapter VIII of Act I of 1951 with respect to such land shall be ceased to apply to the bhumidhar and upon such declaration only he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. 10. When a declaration has been issued under sub-section (1) of Section 143 of Act I of 1951 the consequences that shall ensue or that provisions of Chapter VIII of Act I of 1951 shall not apply to the land in respect whereof the declaration was issued. Till the time bhumidhar does not get requisite declaration he continues to be governed by the provisions of U.P.Z.A. Act. No. 1 of 1951 irrespective of the fact as to whether he uses his land for purposes connected with agriculture, horticulture, etc. or not. 11. In Alauddin alias Makki v. Hamid Khan 1971 R.D. 160 (H.C.). It has been held as follows by his Lordship Mr. C.S.P. Singh, J: "On reading Section 143 Zamindari Abolition Act it appears that till such time that a declaration is not granted under sub-clause (2) of the above section the results set out in this sub-section do not follow. In Alauddin alias Makki v. Hamid Khan 1971 R.D. 160 (H.C.). It has been held as follows by his Lordship Mr. C.S.P. Singh, J: "On reading Section 143 Zamindari Abolition Act it appears that till such time that a declaration is not granted under sub-clause (2) of the above section the results set out in this sub-section do not follow. The contention that even though no declaration has been granted under Section 143 sub-clause (2) inasmuch as the land in dispute was not being used for a purpose connected with agriculture, horticulture etc. it had ceased to be land as defined in Section 3(14) of Zamindari Abolition Act and the embargo imposed against letting out of land did not apply to land which did not answer the description of land as contained in Section 3(14) does not appear to be sound. It is plain that till such time that a Bhumidhar does not get the requisite declaration he continues to be governed by the provisions of the U.P. Zamindari Abolition and Land Reforms Act irrespective of the fact as to whether he uses his land for purposes connected with agriculture horticulture etc. or not." 12. In the present case the transfer was made in contravention of the provisions of sub-section 168-A (1) of Act I of 1951 on 22-1-1973 and 13 sale deeds were executed by bhumidhars of plot No. 197.73 acres, all in fragments of the area of the disputed plot which is clear from the perusal of the sale deeds on the file, all the transfers were void under sub-section (2) of Section 168-A from the date of the sale deeds. 13. The suit by the Gaon Sabha was filed on 31-1-1978. The declaration was granted by the S.D.O. under Section 143 (1) of Act I of 1951 by the S.D.O. on 5-3-1973, therefore, at best the provisions of Chapter VIII of Act I of 1951 would become inoperative only from 5-3-1973 and not prior to it. The suit was filed on 31-1-1978 and the sale deeds were void according to sub-section (2) of Section 168-A read with Section 167 and 168 according to sub-section (3) of Section 168-A from the date of the sale deed i.e. from 22-1-1973. The suit was filed on 31-1-1978 and the sale deeds were void according to sub-section (2) of Section 168-A read with Section 167 and 168 according to sub-section (3) of Section 168-A from the date of the sale deed i.e. from 22-1-1973. Therefore, subsequent declaration made by the S.D.O. cannot be of any avail either to the transferor or to the transferee and the ruling relied upon on behalf of the appellants Raghubir Singh v. S.D.O. & S.O.C., Tahsil Ghatampur, District Kanpur and others 1966 R.D. 203. which laid down as follows is not at all applicable to the present case: "On the position arrived at is that, there was a declaration, made under Section 143 of the Act, after due enquiry, then by virtue of sub-section (2) thereof the conclusion is inascapable that the provisions of the whole of Chapter VIII other than of Section 143 would become wholly inapplicable. Section 137-A and Section 199 both fall within this Chapter and, therefore, no authority will, after a declaration has been made under Section 143 of the Act, have any jurisdiction to entertain an application under Section 198(2)." In that case the declaration was granted on January 13, 1962 thereupon on March 31, 1962 the Pradhan of the Gaon Samaj and moved an application under Section 198 of the Act i.e. after the grant of declaration under Section 148 (1) of the Act when the provisions of Chapter VIII of Act I of 1951 had ceased to apply to such land then the application shall be moved the Pradhan of the Gaon Sabha. In that connection it was held as mentioned above. In the present case the situation is just opposite. The sale deed was void from the date of the execution of the sale deeds of fragments of plot No. 197 the suit was filed prior to the alleged declaration by S.D.O. under Section 143 of Act I of 1951. Therefore, it was rightly held by both the Courts below that the sale deed was void from its very inception, hence the suit of the Gaon Sabha was rightly decreed by both the Courts below. The subsequent declaration under Section 143 of Act I of 1951 is of no avail in cases of void sales hit by Section 168-A of Act I of 1951. The subsequent declaration under Section 143 of Act I of 1951 is of no avail in cases of void sales hit by Section 168-A of Act I of 1951. It cannot make the provisions of Chapter VIII of Act I of 1951 ceases to be operative regarding suit filed prior to such declaration by the S.D.O. Therefore, there is no force in this appeal which is liable to be dismissed with costs and the judgements and decrees passed by both the Courts below are liable to be confirmed. 14. In view of the above, this appeal is hereby dismissed with costs and the judgements and decrees passed by both the Courts below are hereby confirmed.