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1984 DIGILAW 844 (ALL)

Balbir Singh v. Raghubanshi

1984-10-12

K.P.SINGH

body1984
JUDGMENT K.P. Singh, J.- This writ petition arises out of proceedings under Section 9 (2) of the U.P. Consolidation of Holdings Act. 2. The petitioners claim Bhumidhari right in the disputed land on the basis of an alleged sale deed dated 7-4-1969. 3. The claim of the petitioners was contested on the ground that the contesting opposite party Shri Raghubanshi did not execute sale deed in favour of the petitioners and that there was an agreement for execution of a mortgage deed but the petitioners obtained a sale deed which is fictitious and void and on that basis the names of the petitioners should not be mutated over the disputed land. 4. All the consolidation authorities have negatived the claim of the petitioners. Aggrieved by their judgments the petitioners have approached this Court under Article 226 of the Constitution. 5. The learned counsel for the petitioners contends before me that on the findings recorded by all the consolidation authorities to the effect that the sale deed was obtained by fraud, the consolidation authorities had no jurisdiction to ignore the sale deed on the ground of fraud. 6. Second contention raised on behalf of the petitioners is that the consolidation authorities have approached the problem from wrong angle. They have placed onus on wrong shoulder. It was stressed that heavy burden lay upon the contesting opposite party to establish that the agreement between the alleged vendor and vendees was only to execute a mortgage deed but the consolidation authorities have thrown burden upon the vendees alone to establish the genuineness of the sale deed. 7. The learned counsel for the contesting opposite party has submitted in reply that on the facts and circumstances of the present case the deed relied upon by the learned counsel for the petitioner would be only a void document and the consolidation authorities had ample jurisdiction to deal with the question. He has also emphasised that the consolidation authorities have recorded categorical findings of fact that the alleged vendor continued in possession over the disputed land and that the agreement between the parties was only to execute a mortgage deed. Both the findings of fact cannot be challenged in writ jurisdiction and the writ petition deserve to be dismissed on the aforesaid ground. 8. I have considered the contentions raised on behalf of the parties and I have gone through the impugned judgments. Both the findings of fact cannot be challenged in writ jurisdiction and the writ petition deserve to be dismissed on the aforesaid ground. 8. I have considered the contentions raised on behalf of the parties and I have gone through the impugned judgments. I have a feeling that consolidation authorities have placed onus on wrong shoulder and they have also not read the alleged sale deed, hence their conclusions appear to be suffering from patent error of law. No doubt if the contesting opposite party succeeds in establishing by the evidence on record that there was an agreement for execution of a mortgage deed and the petitioners have succeeded in getting the sale deed executed, the document would be void and the consolidation authorities would be fully justified in ignoring the aforesaid document. In examining the aforesaid question really the burden would be upon the executant of the document to establish that there was an agreement to execute a mortgage deed and not a sale deed. The perusal of the impugned judgments does not indicate that the initial consolidation authorities have realised this aspect of the matter that the initial burden should be placed upon the contesting opposite party to establish his case. To me it appears that the consolidation authorities have wrongly placed the burden upon the petitioners to prove that there was an agreement to execute a sale deed and not a mortgage. It would be proper to mention here that there is a presumption about the official acts. The sale deed on the face of it indicates its tenor and the officer registering the document has indicated that the document is a sale deed and he has also mentioned that the sale deed was read over to the executant. In such a circumstance as heavy burden lay upon the contesting opposite party to establish his case that there was really an agreement to execute a mortgage deed and that the sale deed was executed under some misrepresentation or fraud. All the consolidation authorities have failed to examine the contents of the sale deed and the noting upon the document by the registering officer hence their conclusions appear to me suffering from patent error of law. All the consolidation authorities have failed to examine the contents of the sale deed and the noting upon the document by the registering officer hence their conclusions appear to me suffering from patent error of law. The ends of justice demand that the last court should be asked to re-examine the claim of the parties in the light of their pleadings and evidence on record as well as with reference to the alleged document. It would also be required of the revisional court to indicate how the sale deed was proved in the ease. 9. In view of the above discussions, it has become necessary to quash the impugned judgment of the revisional court and to ask the revisional court to re-examine the claims of the parties in the light of the above discussions. The revisional court would give due weight to the contents of the document and the notings by the registering officer on it and will also place initial burden upon the person challenging the document. It would also indicate how the petitioners have succeeded in proving the execution of the document relied upon by them. 10. In the result, the writ petition succeeds and the impugned judgment of the revisional court dated 23-11-1973 is hereby quashed and the revisional court is directed to examine the claim of the parties in the light of the observations made above. Since the case is a very old one the revisional court will deal with the claims of the parties expeditiously within a period of three months from the date of the receipt of the copy of this judgment. There would be no order as to costs.