Om Dutta Sharma v. Board of Revenue — 1985 DIGILAW 107 (ALL)

ORDER B.L. Yadav, J. - The present petition under Article 226 of the Constitution of India is directed against the judgment and order of the Board of U.P. at Allahabad dated 5th April 1975 (Annexure 7) and that of the Additional Commissioner dated 23rd Oct. 1970 (Annexure 6') in a suit under 5.229-B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act for the purpose of brevity), filed by the petitioner for a declaration of Bhumidhari and sirdari rights which was decreed by the trial court vide its judgment and decree dated 22nd Jan. 1970 and the appeal by the contesting respondents was allowed and the Board of Revenue has dismissed the second appeal filed by the petitioner. The prayer is that the orders passed by the Additional Commissioner and the Board of Revenue may be quashed by issuing a writ of Certiorari. 2. The facts of the case are in a very narrow compass. The suit under S. 229-B of the Act was filed by the petitioner with the allegations that the petitioner was the bhumidhar on the basis of a gift-deed dated 7th Aug. 1963 executed by Smt. Phullo who had inherited the plots from her husband, namely, Hargulal, before the date of vesting and she had become bhumidhar thereof and was entitled to execute the gift-deed and she, for the sake of precaution, has also executed a will dated 15th June, 1964. It was alleged that the petitioner continued in peaceful possession as bhumidhar since the date of the execution of the gift-deed. In the alternative.he also alleged that he acquired sirdari rights under S. 210 of the Act and in any case he became Bhumidhar on the basis of will aforesaid. Smt. Phullo died later on and after her death the dispute arose when the consolidation operations commenced in the village. The objection was filed by Nanak Chand claiming to be entitled to the land in dispute as bhumidhar, being the real sister's son of the husband of Smt. Phullo and ultimately his name was ordered to be mutated in place of Smt. Phullo deceased. But those proceedings were under S. 12 of the U.P. Consolidation of Holdings Act. These proceedings under S. 12 of the Act are summary in nature and have nothing to do with the suit based on title. Hence the present suit was maintainable. 3. But those proceedings were under S. 12 of the U.P. Consolidation of Holdings Act. These proceedings under S. 12 of the Act are summary in nature and have nothing to do with the suit based on title. Hence the present suit was maintainable. 3. Sri Nanak Chand. Respondent No. 5, was defendant No. I He contested the suit alleging that the plaintiff did riot derive any title either on the basis of the gift-deed or the will rather his name was entered correctly being the real sister's son of the husband of Smt. Phullo the donor and the testator, in favour of the plaintiff-petitioner. He further alleged that the suit was barred by S 49 of the U.P. Consolidation of Holdings Act as his name was entered in the proceedings under S. 12 of the U.P. Consolidation of Holdings Act. On the death of Smt. Phullo the judgments of the consolidation authorities became final and would operate as res judicata and the petitioner could have no right to agitate the same controversy again. 4. The trial court vide its judgment and decree dated 26th Jan. 1970 decreed the suit holding that the suit was not barred by S. 49 of the U.P. Consolidation of Holdings Act and that the petitioner has acquired Bhumidhari rights and he continued in possession and in any case he becomes sirdar. 5. Respondent No. 5 preferred an appeal before the Additional Commissioner which was allowed vide its judgment and decree 23rd Oct. 1970 setting aside the findings recorded by the trial court and holding that the suit was barred by S. 49 of the U.P. Consolidation of Holdings Act. The petitioner's second appeal before the Board of Revenue failed. It is against these two last orders that the present petition has been filed in this Court. 6. The learned counsel for the petitioner has urged that the petitioner acquired bhumidhari rights on the basis of the aforesaid gift-deed dated 7-8-1963 and in any case the will dated 15-6-1964 and in the alternative he acquired sirdari rights under S. 210 of the Act and the suit was not barred by S. 49 of the U.P. Act. Consolidation operations were just mutation proceedings under S. 12 of the said Act having been initiated after the provisional consolidation scheme has been confirmed. Hence at that stage no dispute about the title could have been decided. 7. Consolidation operations were just mutation proceedings under S. 12 of the said Act having been initiated after the provisional consolidation scheme has been confirmed. Hence at that stage no dispute about the title could have been decided. 7. The learned counsel for the contesting respondent has urged that the petitioner was neither a bhumidhar nor sirdar and the suit was barred by S. 49 of the U.P. Consolidation of Holdings Act and the Additional Commissioner and the Board of Revenue were justified in dismissing the suit. 8. I have heard the learned counsel for the parties and considered their respective arguments. The first question which falls for consideration is whether Smt. Phullo has validity executed the gift-deed in favour of the petitioner. It is clear that Smt. Phullo has executed a gift-deed of her entire property, particularly bhumidhari land as she wanted to give her entire bhumidhari land in favour of the petitioner. This fact has been stated in the gift-deed (Annexure 1) at page 20 of the writ petition). She has stated in the gift-deed as also it was clear from other evidence that she had delivered possession to the petitioner, hence he stepped in the shoes of Smt. Phullo, the donor and continued in peaceful possession since then. The will executed subsequently by her was just for the sake of precaution and there was no necessity to execute the same as after the valid and legal gift-deed she has no right left in the property. The consolidation authorities in the proceedings under S. 12 of the U.P. Consolidation of Holdings Act might have discussed or might have decided the validity of the gift-deed. But in the present suit which was based on title the legality or otherwise of the gift-deed can be validly adjudicated upon. The only point on which the gift-deed was not relied upon in the proceedings under 5.12 of the U.P. Consolidation of Holdings Act appears to be that no permission of the Settlement Officer (Consolidation) was obtained. But it is settled by now by a number of Full Bench decisions on the point that if the entire share or property held by a tenure-holder was transferred or gifted, the permission of the Settlement Officer was not required as contemplated by section 5(1)(c)(ii) of the U.P. Consolidation of Holdings Act. But it is settled by now by a number of Full Bench decisions on the point that if the entire share or property held by a tenure-holder was transferred or gifted, the permission of the Settlement Officer was not required as contemplated by section 5(1)(c)(ii) of the U.P. Consolidation of Holdings Act. This controversy has already been set at rest in Smt. Ram Rati v. Gram Samaj 1974 All LJ 501: ( AIR 1974 All 106 ) (FB), Smt. Ashrafunisa v. Deputy Director of Consolidation AIR 1971 All 87 (`FB') and Smt. Rajeshwari v. Deputy Director of Consolidation 1970 Rev Dec 130 ('FB'). The first relevant decision of this Court on the point is reported in Munna Lal Shukla v. Deputy Director of Consolidation 1966 All WR (HC) 818. In this decision G.D. Sehal, J. held that in case the whole holding was transferred or the entire share of the tenure- holder was transferred, there was no necessity to obtain permission of the Settlement Officer (Consolidation) and the permission was required when the transfer was.made only in respect of the part of the holding of the tenure- holder or the vendor. This decision was affirmed in a special appeal in Ram Behari Shukla v. Munna Lal Shukla 1968 All LJ 223. Thereafter the aforesaid Full Bench cases also affirmed the same view. The case of Smt. Ram Rati v. Gram Samaj 1974 All U.P. 501 : ( AIR 1974 All 106 ) (supra) was a five Judges Full Bench in which the controversy was as to whether Hindi version should prevail or the English version of the Gazette and this Court held that the English version of S. 5(1)(c)(ii) of U.P. Consolidation of Holdings Act should prevail over the Hindi version and the view taken in this connection about obtaining permission of the Settlement 'Officer (Consolidation) in respect of the transfer of the whole holding of the tenure-holder was considered. It is accordingly clear that in case the entire holding of a tenure-holder or his entire share was transferred, there was no necessity of obtaining the permission of the Settlement Officer (Consolidation). In the instant case Smt. Phullo executed the gift- deed in respect of her entire property and bhumidhari holdings, hence there was no necessity to obtain the permission of the Settlement Officer (Consolidation) and the gift-deed was valid. In the instant case Smt. Phullo executed the gift- deed in respect of her entire property and bhumidhari holdings, hence there was no necessity to obtain the permission of the Settlement Officer (Consolidation) and the gift-deed was valid. On the basis of this valid and legal gift-deed the petitioner acquired bhumidhari rights and he continued in peaceful possession since the date of gift-deed in his favour. 9. The other contentions of the learned counsel for the petitioner as to whether the petitioner could acquire bhumidhari rights on the basis of the will in favour of the petitioner or whether the petitioner did acquire sirdari rights under S. 210 of the Act are not necessary to be considered in view of the aforesaid discussion that the petitioner acquired rights on the basis of the gift-deed alone which was validly executed in his favour. It is also pertinent to mention that even after the execution of the gift-deed dated 7-8-1963 by Smt. Phullo no suit for cancellation of the gift- deed was filed by Respondent No. 5 within a period of three years, hence he cannot challenge the legality of the gift-deed. 10. In view of the discussions made above, the gift-deed in favour of the petitioner was legal and valid. The Additional Commissioner and the Board of Revenue committed a manifest error apparent on the face of the record in holding that the petitioner did not acquire bhumidhari rights simply on the ground that the gift-deed was executed without the permission of the Settlement Officer (Consolidation). The learned Additional Commissioner appears to have overlooked the string of decisions of Full Bench and Division Bench of this Court referred in preceding paragraphs to the effect that in case the entire holding or the entire share of a tenure-holder was transferred or gifted no permission of the Settlement Officer (Consolidation) was required. The Additional Commissioner has illegally held the gift-deed to be invalid on account of lack of permission (on page 46 of the paper book, vide Annexure 6). 11. The next submission which requires consideration is as to whether the present suit under S. 229-B of the Act was barred by S. 49 of the U.P. Consolidation of Holdings Act. It. The Additional Commissioner has illegally held the gift-deed to be invalid on account of lack of permission (on page 46 of the paper book, vide Annexure 6). 11. The next submission which requires consideration is as to whether the present suit under S. 229-B of the Act was barred by S. 49 of the U.P. Consolidation of Holdings Act. It. goes without saying that a suit under S. 229-B of the Act is a suit based on title and the proceeding, under S. 12 of the U.P. Consolidation of Holdings Act which commenced after the confirmation of the Provisional Consolidation Scheme and the allotment of chaks in the name of Smt. Phullo, were just mutation proceedings which are fiscal in nature and no title can be adjudicated upon in those proceedings as the title proceedings are over much before the stage of S. 23 of the U.P. Consolidation of Holdings Act. This fact is admitted to the parties that in proceedings under Sections 9 and 9-A of the U.P. Consolidation of Holdings Act Respondent No. 1 or the other respondents did not deny or contest the claim of Smt. Phullo in the plots in dispute. Hence the entries in her name continued in the consolidation papers during the consolidation operations. When the allotment of the chak proceedings were over and the provisional Consolidation Scheme was confirmed, Smt. Phullo died and thereafter the proceedings for mutation started and Respondent No. 5 claimed to be her real sister's son of the husband of Smt. Phullo whereas the petitioner claimed as a donee on the basis of the aforesaid gift-deed and in any case as legatee and it was held by the consolidation authorities that as the permission of the consolidation authorities was not obtained, the gift in favour of the petitioner was invalid and the petitioner's name cannot be mutated in revenue papers in place of deceased. 12. 12. The learned counsel for the petitioner in this connection placed reliance on Smt. Bhuria v. Board of Revenue 1970 Rev Dec 466 wherein it was held by this Court that in case the mutation proceedings started after the Provisional Consolidation Scheme has been confirmed and the controversy was as to who was the heir of the deceased and a decision taken either way by the Consolidation authorities, would not bar the suit and such a suit cannot be held to be barred by S. 49 of the U.P. Consolidation of Holdings Act. Reliance was also placed on Suba Singh v. Mahendra Singh AIR 1974 SC 1657 on Tapeshwar v. Sheo Pujan 1974 Rev Dec 20 and also on Karbalai Begum v. Mohd. Sayeed 1980 Rev Dec 300: (1980 All LJ 902) (SC). 13. The learned counsel for the respondents, on the other hand, placed reliance on Prahlad v. Bhavi Chand 1974 All WR (HC) 209 and urged that an (on) order passed in proceedings under S. 12 of the U.P. Consolidation of Holdings Act even after the finalisation and confirmation of the Consolidation Scheme the bar of S. 49 of the Act would apply. 14. In the instant case title was claimed by Nanak Chand, Respondent No. 5, after confirmation of Consolidation Scheme in favour of Smt. Phullo. Cause of action for the claim of Nanak Chand, Respondent No. 5, accrued after the proceedings under Sections 7 and 9 of the U.P. Consolidation of Holdings Act had been completed and thus investigation into this claim by the consolidation authorities was barred by S. 12 of the U.P. Consolidation of Holdings Act. Consequently, S. 49 of the U.P. Consolidation of Holdings Act could not bar adjudication of such a claim in the regular course. 15. Suba Singh v. Mahendra Singh AIR 1974 SC 1657 (Supra) applies on all fours to the facts of the present case inasmuch as the facts of that case bereft of details were that one of the plaintiff-appellants claimed that he was son of Ram Chandra Bhajan who was predeceased son and the question on which the parties joined issue was as to whether the appellant was the An of Ram Chandra Bhajan. In the proceedings before the consolidation authorities his claim for mutation was upheld. In the proceedings before the consolidation authorities his claim for mutation was upheld. It was contended by the party in whose favour mutation was obtained that the Civil Court or the Revenue Court has no jurisdiction in view of S. 49 of the U.P. Consolidation of Holdings Act. The relevant observation of their Lordships of the Supreme Court is set out below : "S. 49 which excludes jurisdiction of the Civil Court must be construed strictly. It bars a civil suit in respect of matters arising out of consolidation proceedings and matters in regard to which suit and application could he filed under the provisions of U.P. Consolidation of Holdings Act. The question whether B was heir of A which was involved in the suit did not arise before consolidation proceedings but after their completion and hence the suit was not barred under the first part of S. 49, that the application for mutation that was filed by B on the basis of inheritance which after the completion of consolidation proceedings was not a matter in regard to which an application could be filed under the provisions of the Act and jurisdiction of the Civil Court to investigate and adjudicate upon the title to the land and heirship of B was not barred even under the latter part of S. 49 of the Act." The Supreme Court approves the cases of Smt. Natho v. Board of Revenue 1966 All LJ 563 and Smt. Bhuri v. Sunder 1973 All LJ 352. 16. In Karbalai Begum v. Mohd. Sayeed 1980 Rev Dec 300: (1980 All LJ 902) (Supra) their Lordships of the Supreme Court have again considered the scope of Section 49 of the Act in connection with the mutation proceedings and approved the earlier decision. 17. In Suba Singh v. Mahendra Singh AIR 1974 SC 1657 the following observations were made : "It was thus abundantly clear that an application for mutation on the basis of inheritance when cause of action arises after the finalisation and publication of the scheme under S. 28, is not a matter in regard to which an application could be filed under the provisions of this Act within the meaning of cl. (2) of S. 49. Thus the other limb of S. 49 is also not attracted. (2) of S. 49. Thus the other limb of S. 49 is also not attracted. The result is that the plea of bar of Civil Court's jurisdiction to investigate and adjudicate upon the title to the land rather the son ship of the plaintiff has no substance..... it is well settled that unless there is an expression barring a suit on the basis of the title the court cannot infer bar of the suit. In view of the clear decision of this Court referred to above the High Court erred in law in holding that the present suit was barred by S. 49" 18. In view of the discussions made above, it is clear that the view taken by this Court in Smt. Bhuri v. Sunder 1973 All LJ 352 and in Smt. Natho v. Board of Revenue 1966 All LJ 563 has been approved by their Lordships of the Supreme Court in the aforesaid decisions. It is thus abundantly clear that (when) mutation proceedings started after the confirmation of the Consolidation Scheme any decision given or conclusion arrived at would not bar a civil or revenue suit which could be filed after the close of consolidation operations and S. 49 of the U.P. Consolidation of Holdings Act would accordingly not act as a bar to the filing of such civil or revenue suit. 19. In Prahlad v. Bhavi Chand 1974 All WR (HC) 209 (Supra) referred to by the learned counsel for the respondents this Court held that in such a situation where the suit was filed after an order having been passed in the proceedings under S. 12 of the Act, S. 49 operates as bar. Even though I have profound respect for the view taken by this Court in Prahlad v. Bhavi Chand 1974 All WR (HC) 209 (Supra), but in view of clear pronouncements of their Lordships of the Supreme Court in the cases of Suba Singh ( AIR 1974 SC 1657 ) (supra) and Smt. Karbalai Begum (1980 All LJ 902) (supra) I am constrained to say that the view taken in that case (Prahlad v. Bhavi Chand) (supra) is no longer a good law. 20. In view of the above discussions, I am unable to agree with the contentions raised by the learned counsel for the respondents. 21. It is also a fact that since 17th Aug. 20. In view of the above discussions, I am unable to agree with the contentions raised by the learned counsel for the respondents. 21. It is also a fact that since 17th Aug. 1963, the date of the gift-deed, neither the suit for cancellation of the gift-deed was filed by the contesting respondents nor any suit for ejectment of the petitioner was filed. The petitioner entered into possession immediately after the execution of the gift-deed (Annexure 1'). Hence the petitioner matured rights in any case under S. 210 of the Act. The finding of the trial court to this effect was correct that the plaintiff acquired rights on the basis of the gift deed. In any case, the Additional Commissioner did not reverse the finding of the trial court on the acquisition of the rights by the petitioner. Rather the appeal was allowed just on the basis that the suit was barred by S. 49 of the U.P. Consolidation of Holdings Act. The orders of the Additional Commissioner and that of the Board of Revenue are manifestly erroneous in law inasmuch as it was held by them that the suit of the petitioner was barred by S. 49 of the U.P. Consolidation of Holdings Act even though during the consolidation operations it was only an order which was passed in mutation proceedings after the finalisation of the consolidation scheme which was challenged by filing the suit under S. 229-B of the Act. 22. For the discussions made hereinbefore, I am satisfied that the petitioner was entitled to the right of sirdari and the orders of the Additional Commissioner and the Board of Revenue deserves to he quashed. 23. In the result, the petition succeeds and is accordingly allowed. The impugned orders of the Additional Commissioner dated 23rd Oct. 1970 and that of the Board of Revenue dated 5th April 1975 are hereby quashed. In the peculiar circumstances of the case, the petitioner is entitled to his costs throughout.