Brahma v. Board of Revenue, U. P — 1985 DIGILAW 140 (ALL)

ORDER K.P. Singh, J. - This is a defendants' writ petition arising out of a suit under S. 229-B read with S. 209 of the U.P. Zamindari Abolition and Land Reforms Act. 2. Necessary facts giving rise to the present writ petition are that Ram Swarup, opposite ` party No. 9 in the present writ petition, was Bhumidhar of the disputed land. He executed an agreement to sell in favour of the plaintiffs opposite parties Nos, 6 to 8 in the present writ petition on 29-8-1977 and executed a sale deed on 7-10.1967 which was registered on 24-1-1969. IL appears that the aforesaid Ram Swarup had also executed an agreement to sell on 14-6-1967 in favour of the defendant petitioner Brahma and he executed a registered sale deed on 7-t 1-1967 in favour of the defendant petitioner. In the aforesaid circumstances the plaintiffs opposite parties had claimed Bhumidhari right in the disputed land and had also claimed relief of possession in the alternative. 3. The claim of the plaintiffs opposite parties has been contested by the defendant petitioner on various grounds, namely that the defendant petitioner had become Bhumidhar of the disputed land in view of the provisions of S. 164 of the U.P.Z.A. and L.R. Act and that the defendant petitioner was not a trespasser, rather he was in possession in pursuance of the provisions of S. 53-A of the T. P. Act and that unless sale in favour of the defendant was set aside, the plaintiffs could not get any relief in the suit and so on. 4. All the revenue courts have given judgments for the plaintiffs opposite parties. Aggrieved by their judgments the defendant petitioners has approached this court under Article 226 of the Constitution. 5. The learned counsel for the petitioner has contended before me that agreement to sell in his favour was dated 14-6-196' and he came into possession over the disputed land in pursuance of that agreement, hence the transfer of possession to him would make him bhumidhar of the disputed land in view of the provisions of S. 164 of the U.P.Z.A. and LR. Act. In this connection he has placed reliance upon the ruling reported in 1982 All WC 47, Smt. Bhagwatia v. Deputy Director of Consolidation at Deoria. Act. In this connection he has placed reliance upon the ruling reported in 1982 All WC 47, Smt. Bhagwatia v. Deputy Director of Consolidation at Deoria. No direct case has been cited before me that if transfer of possession has taken place in pursuance of an agreement to sell the person in whose favour agreement to sell was executed would become Bhumidhar under S. 164 of the U.P.Z.A. and L.R. Act. The bare perusal of the Section would indicate that it only covers the case of usufructuary mortgage in respect of a piece of land. The transaction of agreement to sell is not covered by the provisions of S. 164 of U.P. Act No. 1 of 1951 which reads as below. "Any transfer of any holding or part thereof made by a bhumidar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, . shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 1 54 and 163 shall apply." 6. The ruling relied upon by the learned counsel for the petitioner on this point and reported in 1982 All WC 47, Smt. Bhagwatiya v. Deputy Director of Consolidation, Deoria is inapplicable to the facts and circumstances of the present case. The aforesaid ruling dealt with usufructuary. mortgage of Bhumidhari land. To my mind the ruling relevant on the point would be the ruling reported in 1978 RD 307: (1978 All LJ 836), Kedar v. District Judge. The contention of the learned counsel for the petitioner on this point is devoid of merits. 7. Second contention raised on behalf of the petitioner is that the revenue courts have patently erred in decreeing the plaintiffs suit without giving benefit to the petitioner of the provisions of S. 53A of the T.P. Act. In my opinion, the petitioner is not entitled to take help of S. 53A of the T.P. Act against the plaintiffs opposite parties. Second contention raised on behalf of the petitioner is that the revenue courts have patently erred in decreeing the plaintiffs suit without giving benefit to the petitioner of the provisions of S. 53A of the T.P. Act. In my opinion, the petitioner is not entitled to take help of S. 53A of the T.P. Act against the plaintiffs opposite parties. If the sale deed in favour of the contesting opposite parties was a valid sale deed and conferred valid title upon the plaintiffs opposite parties and the, plaintiffs opposite parties were under no legal obligation to pay the money advanced to the tenure holder in pursuance of an agreement to 'sell in favour of the defendant petitioner nor the defendant petitioner had any claim of realising the amount paid to the tenure holder against the plaintiffs opposite parties. I think that the provisions of S. 53A of the T.P. Act are not at all attracted to the facts and circumstances of that present case. According to law, when a valid title has passed to the plaintiffs opposite parties, the possession of the defendant petitioner over the disputed land in pursuance of an agreement to sell executed by the tenure holder would be against the provision of law so far as the plaintiffs opposite parties are concerned and the retention of possession by the defendant Petitioner would be bad in law in view of the provisions of S. 209 of the U.P.Z.A. and L.R. Act. Therefore, the second appellate court was fully justified in repelling the plea of S. 53- A T.P. Act raised on behalf of the petitioner. The ruling relied upon by the learned counsel for the petitioner and reported in AIR 1977 SC 1517 , Ranchhoddas Chttaganlal v. Devaji Supdu Dorik, is not at all relevant on the point under my consideration because in the present case the plaintiffs opposite parties appear to have acquired valid title through the sale deed in their favour executed by the tenure holder who had executed earlier agreement to sell in favour of the defendant petitioner. The defendant petitioner can realise his amount from the tenure holder and he is not at all entitled to retain possession of the disputed land against the plaintiffs opposite parties in view of the provisions of S. 209 of the U.P.Z.A. and L.R. Act. The defendant petitioner can realise his amount from the tenure holder and he is not at all entitled to retain possession of the disputed land against the plaintiffs opposite parties in view of the provisions of S. 209 of the U.P.Z.A. and L.R. Act. The retention of possession over the disputed land by the petitioner against the claim of the plaintiffs opposite parties is illegal and the defendant petitioner was rightly evicted from the disputed land at the instance of the plaintiffs opposite parties. 8. The other contention raised on behalf of the petitioner is that unless the sale deed executed by the tenure-holder in favour of the petitioner is set aside, the plaintiffs opposite parties could not maintain the suit. Since the sale deed was executed in favour of the plaintiffs opposite parties on 7-10-1967 by the tenure holder and the tenure-holder executed a registered sale deed in favour of the defendant petitioner on 7-11-1967 but when the sale deed in favour of the plaintiffs opposite parties was registered on 241-1969 it became enforceable in law from the date of execution, i.e. 7-10-1967 and by virtue of the sale deed in favour of the defendant petitioner on 7-11-1967 no valid title passed to the defendant petitioner. Therefore, the sale deed in favour of the petitioner is a void document and it needed no cancellation and its validity could be examined by revenue courts and they have rightly ignored the sale deed in favour of the defendant petitioner against the sale deed in favour of the plaintiffs opposite parties in the circumstances of the present case. The rulings relied upon by the learned counsel for the contesting opposite parties and reported in AIR 1954 All 595 , Union Bank Ltd. Utraula v. Mst. Ram Rati as well as AIR 1941 Pat 247, Jeo Narayan Mahto v. Bhudhan Mahto do help his contention that the plaintiffs opposite parties had acquired valid title to the disputed land because the sale deed executed in his favour was earlier in point of time than the sale deed in favour of the defendant petitioner though it was registered later. 9. The learned counsel for the petitioner had relied upon the ruling reported in 1970 All WR (HC) 189, Smt. Marjadi v. Umapati and 1970 All WR 204, Batasar v. Udit Narain Upadhyaya. 9. The learned counsel for the petitioner had relied upon the ruling reported in 1970 All WR (HC) 189, Smt. Marjadi v. Umapati and 1970 All WR 204, Batasar v. Udit Narain Upadhyaya. that sale needed cancellation and the revenue consorts could not decree the plaintiffs suit but I think that those rulings are distinguishable and inapplicable to the facts and circumstances of the,resent case and the relevant rulings applicable to the facts and circumstances of the present case are reported in AIR 1980 All 89 and 1981 All LJ 647. 10. During the course of argument the learned counsel for the petitioner also placed reliance upon the ruling reported in 1974 RD 382 , Our Charan v. Deputy Director of Consolidation and has contended that the possession of the petitioner is in lieu of money paid to the transferor, hence his possession would be with the consent of the tenure holder and, therefore, the plaintiffs suit could not be decreed against the defendant petitioner. The aforesaid ruling deals with the question of mortgagee's possession. In the present case the possession of the defendant petitioner is in pursuance of an agreement to sell executed by the tenure holder who executed a valid sale deed in favour of the contesting plaintiffs opposite parties. Therefore, the retention of possession by the defendant petitioner over the disputed land against the plaintiffs opposite parties is the retention of possession over the disputed land against the provision of law specially when the plaintiffs opposite parties are under no legal obligation to pay the amount paid by the defendant petitioner to the original tenure holder. I think that the provisions of S. 209 of the U.P.Z.A. and L.R. Act are attracted to the facts and circumstances of the present case on the date of the suit and the claim of the plaintiffs opposite parties was rightly decreed by all the revenue courts. 11. In view of the above discussion all the points raised on behalf of the petitioner fail and the writ petition is devoid of merits and deserves dismissal. 12. In the result, the writ petition fails and accordingly dismissed but I make no order as to costs.