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Allahabad High Court · body

1987 DIGILAW 145 (ALL)

Sheodan Singh v. Nepal Singh

1987-02-09

P.SINGH

body1987
JUDGMENT P. Singh, M. - This second appeal has been filed against the judgment and decree of Shri Vidhu Shekhar Trivedi, Additional Commissioner, Meerut Division, Meerut, dated 30-1-1981 in Appeal no. 243 of 1979, upholding the judgment and order of ahri B. D. Sharma, Sub-Divisional Officer, Bulandshahr, dated 31-3-79 in Case no. 261 of 1978. 2. Briefly, the facts of the case are that Sheodan Singh filed a suit under Section 229-B of U.P. Act I of 1951 against Nepal Singh and others, in respect of plots no. 254 and 234 (total area 5-11-5) of village Basendua, Pargana Barari, district Bulandshahr, alleging that old number of the plot in suit was 645, that during the consolidation operations an area of 1-8-5 of plot no. 645 was sold out by Smt. Dropa in favour of the plaintiff on 17-7-63 with the permission of the Sub-Divisional Officer and possession was also delivered to him, that, likewise, an area of 0-10-0 of plot no. 645 was sold out by Smt. Dropa on 2-12-64 in favour of the plaintiff, and that defendants, Nepal Singh and Bijendra Singh got their names wrongly recorded in the revenue records. Accordingly, the plaintiff claimed that he should be declared bhumidhar of plots no. 224 and 334 in respect of an area of 1-18-5, and his name should be recorded as a co-bhumidhar along with defendants Nepal Singh and Bijendra Singh. The suit was contested by Nepal Singh and Bijendra Singh on the allegations that they were bhumidhars of the land in suit and the plaintiff had no concern with the land, that the sale deeds were void in view of the provisions contained in Section 168-A of U.P. Act I of 1951, that the land in suit was purchased by defendants on 14-11-73 from Smt. Dropa, and that the suit was barred by the provisions of Section 49 of U.P. C. H. Act, The suit was dismissed by the trial court. Against that order of the trial court an appeal was filed by Sheodan Singh, plaintiff, before the learned Additional Commissioner, who also dismissed the appeal, holding that since the sale deeds were void in view of provisions contained in Section 168-A, the land vested with the Government free from all encumbrances, and that on the basis of those sale deeds no rights could accrue to the plaintiff. 3. 3. I have heard the learned counsels for the parties and perused the record. 4. The learned counsel for the appellant submits that the provisions contained in Section 168-A of U.P. Act 1 of 1951 were not applicable to a case in which permission was obtained from the Settlement Officer, Consolidation, that the learned lower appellate court failed to exercise jurisdiction vested in it by law in not deciding the other questions involved in the case, and that the view of the learned lower appellate court was wrong when it held that transfer was void and that the land vested with the State. The learned counsel for the respondents submits that the suit was barred by Section 49 of the U.P. C. H. Act, and that since transfer was hit by provisions of Section 168-A, no rights could accrue to the plaintiff on the basis of void sale deeds. 5. Section 168-A of U.P. Act I of 1951 reads as under :- "168-A. 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 where the transfer is in favour of tenure holder who has a 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 to the fragment, is thereby transferred." (2) The transfer of any land contrary to provisions of sub-section (1) shall be void, (3) When a bhumidhar has made any transfer in contravention of the provisions of sub-section (1), the provisions of Section 167 shall mutatis mutandis apply." 6. The provisions of Section 167 read as under :- "167. The provisions of Section 167 read as under :- "167. Consequences of void transfer - (1) The following consequences shall ensure in respect of every transfer which is void by virtue of Section 166, namely - (a) the subject-matter of transfer shall, with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances; (b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; (c) the transferee may remove other movable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed." (2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the Collector to take oyer possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession oi evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary." 7. From sub-clause (a) of sub-section (1) of Section 167, it is evident that with effect from the date of transfer the land shall be deemed to have vested in the State Government free from all encumbrances. Sub-section (2) provides that where any land or property has vested in the State Government under sub-section (1) of Section 167, the Collector is authorised to take over possession over such land or property and he should issue a direction any person occupying such land or property be evicted therefrom. For achieving this and, the Collector may use or cause to be used such force as may be necessary for evicting such unauthorised occupants. In view of this, the submission made by the learned counsel for the appellant cannot be said to be correct that the ejectment is to be done at the instance of the Gaon Sabha after filing a suit. The provisions contained in Section 168-A of U.P. Act I of 1951 have overriding effect. In view of this, the submission made by the learned counsel for the appellant cannot be said to be correct that the ejectment is to be done at the instance of the Gaon Sabha after filing a suit. The provisions contained in Section 168-A of U.P. Act I of 1951 have overriding effect. The words used in the section, "notwithstanding the provisions of any law for the time being in force", clearly indicate that any transfers made in contravention of the provision of Section 168-A shall be void even if any permission is taken from any appropriate authority for such transfer. Moreover, the consolidation operations took place in the village and bar of Section 49, C. H. Act was applicable to the suit of the plaintiff, 8. In view of the above, the appeal fails and is hereby dismissed.