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2007 DIGILAW 862 (PAT)

Parmeshwar Singh v. Joint Director Consolidation

2007-05-01

AFTAB ALAM

body2007
Judgment Aftab Alam, J. 1. Heard Mr. Mahesh Prasad No. 2 counsel for the petitioner. No one appears for the private contesting respondent No. 4 despite service of notice. 2. This writ petition arises from a consolidation proceeding involving the question of title. 3. The disputes relates to R.S. Plot Nos. 225 with an area of 2.21 acres, 226 with an area of 35 decimals, 217 with an area of 38 decimals and 218 with an area of 12 decimals (total area being 3.06 acres) under Khata No. 48 situate at Village Bharatpatti, P.S. Aurai in the district of Muzaffarpur. 4. The petitioner before the court has lost before all the three authorities under the Consolidation Act. In regard to the disputed land the claim of the petitioner was confined only to its title. He admitted that the land was not under his possession but was under the possession and control of respondent No.4. The case of the petitioner was that the disputed plots were his ancestral land. He had taken a mortgage on the disputed land and on 22.7.1966 he had executed a registered deed of usufructurary mortgage bearing No. 5786 in favour of respondent No. 4. In 1975-76 he filed a petition under Sec.12 of the Money Lenders Act for statutory redemption on expiry of the period of seven years. His petition for redemption was, however, rejected by order dated 13.3.1978 passed by the Dy. Collector, Land Reforms, Muzaffarpur in M.L. Case No. 7 of 75-76. The order of the D.C.L.R. in the Money Lenders Case was produced before me from which it appears that he rejected the petition under Sec.12 of the Act mainly on the ground that it was filed before the expiry of the period of seven years from the date the possession of the land was handed over to respondent No. 4. From the order it appears that he held that the mortgage was partly simple and partly usufructuary and was, therefore, anomolous. The D.C.L.R. also upheld the case of respondent No. 4 that only part of the mortgage money was paid to the petitioner at the time of execution of the deed in the year 1966 and the balance amount was paid to him when the possession of the land was handed over in the year 1972. From 1972 the period of seven years not having expired the D.C.L.R. rejected the petition. 5. From 1972 the period of seven years not having expired the D.C.L.R. rejected the petition. 5. The petitioner took the matter in appeal but it was dismissed by the Collector by order dated 22.8.1979 in Appeal No. 7 M.A. of 1978-79. The petitioner further took the matter in revision before the Commissioner. 6. At the time of the proceeding under the Consolidation Act from which this writ petition arises the revision under the Money Lenders Act was pending before the Commissioner. 7. Later on, the Commissioner rejected the revision filed by the petitioner and against the orders passed under the Money Lenders Act the petitioner came to this Court in C.W.J.C. No. 7169 of 1991. In that writ petition by order dated 22.11.1991 the court directed for issuance of notice to respondent No. 5. But as a result of failure to comply with the order the writ petition was dismissed without any further direction or orders. 8. Coming back to the facts in the proceeding under the Consolidation Act, respondent No. 4 claimed both possession and title over the disputed land. He claimed to have come in possession over the disputed land by virtue of the mortgage deed, dated 22.7.1966. In addition to that he also claimed that on 5.2.1973 the petitioner had executed a deed of agreement for sale of the disputed land in his favour. The petitioner of course denied the execution of any agreement for sale. According to respondent No. 4 the petitioner had neither refunded to him mortgage money nor he had executed the sale deed in terms of the agreement. 9. It was on these facts and circumstances that the consolidation authorities, right from the Consolidation Officer to the Joint Director Consolidation upheld the claim of respondent No. 4 in regard to not only his possession but title over the disputed land and the Joint Director by his order dated 22.8.1979 directed that the name of respondent No. 4 be entered in the consolidation records in regard to the plots in dispute. 10. Mr. Mahesh Prasad, counsel for the petitioner submitted that the view taken by the consolidation authorities was completely bad and illegal. 10. Mr. Mahesh Prasad, counsel for the petitioner submitted that the view taken by the consolidation authorities was completely bad and illegal. Learned Counsel argued, it was understandable that respondent No. 4 might may be in possession of the disputed land on the basis of the mortgage but it was beyond comprehension how a usufructuary mortgage, coupled with an agreement for sale, can form the basis for the claim of title. It is basic and elementary that the title in any immovable property, such as agricultural land, cannot pass in the absence of a valid and legal deed of transfer. A usufructuary mortgage can never pass on the title to the mortgagee and the possession of the mortgagee can not be that of the owner. Similar is the case with an agreement for sale. In case the agreement for sale does not materialise in a sale deed duly executed and registered, no title in the subject matter of the agreement can pass to the other party. He therefore, contended that on the own showing of respondent No. 4 he could have no claim to the title in the disputed land and the title in the disputed land must be held to have remained with the petitioner even though he did not have any control and possession over it. The submission is well founded and it is fit to be accepted. 11. In light of what is stated above, I have no hesitation in finding that the order of the Consolidation Officer dated 15.1.1979 in Case No. 167/78, the order dated 23.3.1981 passed by the Dy. Director Consolidation, Muzaffarpur in Appeal No. 45/79 and the order dated 31.3.1989 passed by the Joint Director Consolidation in Revision Case No. 2114 of 1981 are completely illegal and untenable. All the three orders are accordingly set aside and it is directed that the name of the petitioner be entered in regard to the disputed land in the column of title with its possession being shown in the hands of respondent No. 4. 12. In the result, this writ petition is allowed but with no order as to costs.