Mohammad Amin v. U. P. Sanchalak Chakbandi (Dy. Director Consolidation)
1985-10-04
B.L.YADAV
body1985
DigiLaw.ai
JUDGMENT B.L. Yadav, J. - This Writ Petition Under Article 226 of the Constitution of India is directed against the orders of the Deputy Director of Consolidation dated 22.1.1972 and 13.04.1972. 2. In the present writ petition the dispute is about khata Nos. 5, etc. of village Dariyaopur, Pargana and Tahsil Paui, District I ratapgarh. The plots of these khatas were recorded in the name of Ori son of Chain and after his death in the name of his son Bhuar who died leaving behind his son Dargahi who was minor at the time of. his death and his mother Smt. Duija was appointed as the guardian. Smt. Duija being the guardian appointed by the court, applied for obtaining the permission of the District Judge to make the transfer in accordance with the provisions of Section 29 of the Guardian and Wards Act, 1890 (hereinafter referred to as the Act) and that the permission was granted on 07.03.1964 and in pursuance thereof registered sale-deed was executed on 04.05.1964 in favour of Respondent No. 11 Sri Jai Karan alias Jagat Pal in respect of Khata No. 5. Thereafter the consolidation operations commenced and a dispute arose in respect of khata no 5. Respondent No. 11 etc. filed an objection u/s 9A(2) of the U.P. Consolidation of Holdings Act claiming to be entered in the revenue papers as bhumidhar on the basis of the registered sale deed executed by Smt. Duija, guardian of the minor Dargahi after obtaining the permission u/s 29 of the Act. He also claimed rights as sirdar in the alternative u/s 210 of the U.P. Zamindari Abolition and Land Reforms Act. 3. The Petitioner, on the other hand filed an objection in reply to that of Respondent No. 11 etc. alleging that he was another vendee and the sale-deed in favour of Respondent No. 11 was illegal and the name of the Petitioner may be entered as bhumidhar. Despondent Nos. 6 and 7 Brijlal and Jhagru claimed to be the co-tenure holders in khata No. 5. 4. The Consolidation Officer decided the case against the Petitioner and held the other persons including Brijlal, Jhagru etc. to be co-tenants of the land in dispute by order dated 01.04.1971. The parties preferred different appeals. The appeal of the Petitioner was allowed and he was held to be a co-tenant by order dated 24.09.1971.
4. The Consolidation Officer decided the case against the Petitioner and held the other persons including Brijlal, Jhagru etc. to be co-tenants of the land in dispute by order dated 01.04.1971. The parties preferred different appeals. The appeal of the Petitioner was allowed and he was held to be a co-tenant by order dated 24.09.1971. Respondent No. 11 Jai Karan alias Jagat Pal preferred a revision which has been allowed by order dated 22.01.1972. The Deputy Director of Consolidation held the Respondent No. 11 to have no right on the basis of order for permission of sale or sale deed matured sirdari rights u/s 210 of the U.P. Zamindari Abolition and Land Reforms Act. 5. The learned Counsel for the Petitioner has urged that as the Deputy Director of Consolidation has held the minor to have become major on the date when the permission was granted u/s 29 of the Act for making the sale in view of the procedure laid down u/s 31(2) of the Act, hence the permission itself was fraudulent and on the basis of such a permission no sale deed could have been executed in favour of Respondent No. 11. The sale deed in favour of Respondent No. 11 was accordingly illegal and the vendee Respondent No. 11 was not in possession for more than the prescribed period and he could not have become sirdari u/s 210 of U.P. Zamindari Abolition and Land Reforms Act. 6. The learned Counsel for the Respondents, on the other had has urged that the permission was granted in pursuance of the procedure provided u/s 31(2) of the Act and the mother was already appointed as the guardian of the minor on the date of the application u/s 29 of the Act and was not removed from the guardianship. Further the vendee was not a party to those proceedings and he had no knowledge about the proceedings pertaining to the grant of permission for making sale, nor did he attribute any motive in the proceedings for obtaining the permission to sell. Hence it could not be said that in obtaining the permission he committed any fraud. As the sale was not set aside within three years from the date of its execution on behalf of the minor after minor attained majority in view of Article 59 of the Limitation Act, 1963, his claim was barred by time and principles of estoppels.
Hence it could not be said that in obtaining the permission he committed any fraud. As the sale was not set aside within three years from the date of its execution on behalf of the minor after minor attained majority in view of Article 59 of the Limitation Act, 1963, his claim was barred by time and principles of estoppels. u/s 48 of the Act it has been provided that except for the result of the appeal being preferred u/s 47, any other order made Under the Act (including an 14-Rep.-1986 order u/s 29, having been obtained for making sale by the guardian of the minor), became final and cannot be questioned later on during the consolidation proceedings. It was also urged that the rights u/s 210 have been correctly liven to the vendees in the alternative and findings in this regard are findings of fact. 7. Having heard the learned Counsel for the parties the first point for consideration is as to whether the permission having been obtained u/s 29 of the Act by the guardian to make the sale can be challenged later on account of the alleged fraud when in fact the vendee Respondent, No. 11 was not a party to those proceedings nor there was any evidence on record of the case indicating any motive attributable to him about the proceedings for grant of permission. The second point is whether the claim of the Respondent No. 11 was barred in view of Article 59 of the Limitation Act and the third point was as to what is the effect of Section 48 of the Act and whether the permission can be challenged by a separate suit or in some other proceedings and the fourth point is as to whether Respondent No. 11 matured rights u/s 210 of the U.P. Zamindari Abolition and Land Reforms Act and whether those findings are findings of fact. 8. As regards the first point it is clear that Smt. Duija applied u/s 29 of the Act for grant of permission in accordance with the procedure prescribed. The vendee Respondent No. 11 was not made a party, nor he has any knowledge nor he had done anything in obtaining the permission nor was any motive attributed to him in respect of the commission of the fraud, if any.
The vendee Respondent No. 11 was not made a party, nor he has any knowledge nor he had done anything in obtaining the permission nor was any motive attributed to him in respect of the commission of the fraud, if any. It cannot be said that Respondent No. 11 was responsible for obtaining the permission u/s 2v. Even in the application Dargahi was shown as minor. Lateran it is not open to the Petitioner to challenge the permission obtained by the guardian. There is no evidence bid by him to show that Respondent No. 11, the vendee, was either a party to the proceedings u/s 29 nor there was any evidence to indicate that fraud was committed by the vendee in obtaining the permission, hence it is not open to the Petitioner to challenge the same after the commencement of the consolidation operation. The vendee, Respondent No. 11, has relied upon the order of the Court dated 07.03.1964 granting permission for making sale and he had no reasons to doubt the proceedings for grant of permission. 9 Further u/s 114(e) of the Indian Evidence Act, 1872 there is a presumption that all the judicial and official acts have been regularly performed. There is no reason to assume or hold that Respondent No. 11 (vendee) ought to have doubted the order of the District Judge granting permission. In such matters it is the duty of the Court to which an application is made u/s 29 for sanction of the sale of a minor's properly to satisfy itself by inquiry that the transaction is necessary and for the benefit of the minor and creditor or a vendee is entitled to rely on the order of sanction as evidence that the court had satisfied itself that the transaction is a proper one. See R.M. Raman Chettiar v. Tirugnanasambandan Pillai AIR 1927 Mad. 233 DB', Buddhoo alias Gulab Dass Vs. Sheo Charan and Bhagwan Dass, AIR 1924 All 875 , Ganga Pershad Sahu v. Maharani Bibi 12 IA 47 PC, Ram Bhajan Kasodhan v. Mathar Ram AIR 1936 All. 41 and Balaji Vasudeo Athawala v. Sadashiv Kashinath Lavate, 165 1C 530. 10.
See R.M. Raman Chettiar v. Tirugnanasambandan Pillai AIR 1927 Mad. 233 DB', Buddhoo alias Gulab Dass Vs. Sheo Charan and Bhagwan Dass, AIR 1924 All 875 , Ganga Pershad Sahu v. Maharani Bibi 12 IA 47 PC, Ram Bhajan Kasodhan v. Mathar Ram AIR 1936 All. 41 and Balaji Vasudeo Athawala v. Sadashiv Kashinath Lavate, 165 1C 530. 10. As regards the other point as the permission was granted in favour of the vendor, the guardian and as discussed above no fraud is proved, or there was any evidence to indicate that any element of fraud can be made attributable to the vendee Respondent No. 11, and once a permission was obtained and sale deed has been executed, that becomes final. 11. There is no appeal provided against an order granting permission to make sale. Whereas the order refusing permission to make sale u/s 28 or Section 29 has been made appeasable in view of Section 47(e) of the Act. An order granting permission to make the sale on behalf of the minor, on the other hand, has not been made appeasable. 12. In Gladstone v. Bower (1960) 3 All. E.R. 353 it was observed that the Court will always allow the intention of a statute to over rise the defects of wording. I am of the opinion that the legislature wants that once permission to make sale has been granted that should not be disturbed. Even if the Petitioner wanted to challenge the order granting permission to make sale he should have done it much before the commencement of the consolidation operations and now it is too late in the day to challenge the said order. Further limitation Under Article 59 of the Limitation Act was only three years and that expired long ago. 13. Now the next point to be considered is as to whether in view of Section 48 of the Act the validity of the order of the District Judge granting permission for making sale can be challenged during consolidation operations or not. It is convenient to set out the statutory provisions of Section 48 of the Act: 48. Finality of other orders: Save as provided by the last foregoing section and by Section 622 of the Code of Civil Procedure, an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise. 14.
It is convenient to set out the statutory provisions of Section 48 of the Act: 48. Finality of other orders: Save as provided by the last foregoing section and by Section 622 of the Code of Civil Procedure, an order made under this Act shall be final and shall not be liable to be contested by suit or otherwise. 14. It is, thus clear that except as provided in Section 47 for filing an appeal against the order u/s 7 appointing or declaring or refusing to appoint a guardian, Section 9 returning an application Section 25 making or refusing to make an order for the return of the ward to the custody of his guardian and Under Sections 28 and 29 refusing permission to guardian to do an act referred to in the Section, no appeal can be filed. It means that if the permission has been refused to a guardian to make a sale of the property of the minor, in that case appeal would be filed and similarly other orders have been made appeasable to the High Court u/s 47, but the order granting permission to make the sale has not been made appeasable. Hence it was clear that the legislature was conscious that once an order has been passed for making sale (vide Sections 31 and 29) that should become final and no appeal was provided under the provisions of Section 48. Hence once the permission was granted to make a sale that order could not be challenged by filing any suit or in any collateral proceedings. But in the instant case during consolidation operations by filing an objection the Petitioner was challenging the order granting permission to make sale which could not be done in view of the provision of Sections 48 and 47 being read together. It is, therefore, clear that the Petitioner has no right to challenge the order granting the permission for making the sale either by filing separate suit or in any collateral proceedings. 15 Now there remains the last point that whether finding about Respondent No. 11 having matured rights u/s 210 of the U.P. Zamindari Abolition and Land Reforms Act are correct. There is no doubt that in the alternative he would be deemed to be in possession otherwise than in accordance with the provision of law and against the consent of true owner.
There is no doubt that in the alternative he would be deemed to be in possession otherwise than in accordance with the provision of law and against the consent of true owner. Respondent No. 11 has been held by the Dy. Director of Consolidation to have matured his rights u/s 210 of the U.P. Zamindari Abolition and Land Reforms Act. The findings about the continuous possession against the consent of the true owner and otherwise than in accordance with law for more than the period prescribed for maturing rights u/s 210 of the U.P. Zamindari Abolition and Land Reforms Act are finding of fact and need rot be interfered with in writ jurisdiction of this Court under Article 226 of the Constitution of India. 16. In view of what has been discussed above, the petition lacks merits and deserves to be dismissed. 17. In the result, the petition fails and it is accordingly dismissed However m lie circumstances of the case I refrain from making any order regarding costs'.