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Allahabad High Court · body

2011 DIGILAW 571 (ALL)

MANSA TEWARI v. DEPUTY DIRECTOR OF CONSOLIDATION

2011-03-08

A.P.SAHI

body2011
JUDGMENT Hon’ble A.P. Sahi, J.—The petitioners have come up assailing the order of the Deputy Director of Consolidation dated 1st February, 1974 whereby the Deputy Director of Consolidation has reversed the order of the Consolidation Officer and the Settlement Officer, Consolidation that was in favour of the petitioners declaring them to be Sirdars of the plots in question. The petitioners claim Sirdari rights and in the alternative Bhumidhari rights over the said disputed land as against Vishwanath, Rama Shanker-respondent No. 5, Kashinath and Paras Nath. Their claim is two fold. Firstly, that two usufructuary mortgage deeds dated 10th August, 1985 and 21st August, 1984 were executed and the petitioners are in possession. Accordingly, in view of the provisions of Section 164 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ‘the U.P.Z.A. & L.R. Act’), they have perfected their title as Bhumidhars. The alternative plea set up by the petitioners is that since they are in possession, therefore, even otherwise, they are Sirdars of the said property and, therefore, the declaration given by the Consolidation Officer and affirmed by the Settlement Officer Consolidation did not deserve any interference. The order of the Deputy Director of Consolidation is, therefore, being assailed on the ground that the order remanding the matter is unjustified, inasmuch as, the consolidation authorities cannot enter into the validity or otherwise of the mortgage deeds and on facts the petitioners having been found alternatively Sirdars, the said finding being based on evidence could not have been reversed by the Deputy Director of Consolidation. 2. The respondent Nos. 2 to 4 claim that they had sale-deeds in their favour to the extent of the shares purchased by them from the recorded tenure holders Vishwanath, Rama Shanker, Kashinath and Paras Nath and it is they who are the owners of the plots in question, in which the petitioners have no right, title and interest. 3. On the advent of the consolidation operations objections were filed under Section 9A (2) of the U.P. Consolidation of Holdings Act, 1953. The objections were decided by the Consolidation Officer holding that the petitioners are the Sirdars of the said plots and accordingly they were entitled to get their name recorded as such. The said order was affirmed in appeal by the Settlement Officer, Consolidation. 4. The objections were decided by the Consolidation Officer holding that the petitioners are the Sirdars of the said plots and accordingly they were entitled to get their name recorded as such. The said order was affirmed in appeal by the Settlement Officer, Consolidation. 4. The contesting respondents, who have purchased the property through sale deeds from the recorded tenure holders, filed a revision whereby the orders have been set aside and the matter has been remanded back for decision afresh in the light of the observations made therein to record findings on the evidence led including the entries made, as also the mortgage deeds as set up by the petitioners. 5. Sri A.K. Mishra, learned counsel for the petitioners submits that the remand order was unjustified as the Consolidation Authorities have no jurisdiction to enter into the validity of the mortgage deeds and the Sirdari rights having been acknowledged by the Consolidation Officer, there was nothing for the Deputy Director of Consolidation to have reversed the same. 6. Sri Rajesh Ji Verma, learned counsel has been heard on behalf of the respondent Nos. 2, 3 and 4. No one has put in appearance on behalf of the respondent No. 5. 7. Sri Verma submits that the petitioners cannot claim any benefit of Section 164 of the U.P.Z.A. & L.R. Act, inasmuch as, the original vendors including Vishwanath, Rama Shanker, Kashinath and Paras Nath were themselves recorded as Sirdars and were not Bhumidhars. In this view of the matter, any claim on the basis of the mortgage deeds is absolutely erroneous as it is only a Bhumidhar who could have mortgaged the property and not Sirdars. He further contends that the possession of the petitioners, if any, was permissive in nature and, therefore, the provisions of Section 210 of the U.P.Z.A. & L.R. Act are also not attracted. Thus, on both counts, the petitioners do not have any lawful claim over the property and as a matter of fact, the Deputy Director of Consolidation ought to have allowed the revision in its entirety instead of having remanded the matter back. 8. Having heard learned counsel for the parties, the provisions of Section 164 of the U.P.Z.A. & L.R. Act clearly provide that the transaction of a mortgage will amount to sale only if has been entered into by a Bhumidhar. 8. Having heard learned counsel for the parties, the provisions of Section 164 of the U.P.Z.A. & L.R. Act clearly provide that the transaction of a mortgage will amount to sale only if has been entered into by a Bhumidhar. The said provision is not for any such transaction entered into by a Sirdar. The recorded tenure holders were not Bhumidhars and they were Sirdars. In such a situation, the Deputy Director of Consolidation has rightly set aside the orders of the Consolidation Officer and the Settlement Officer, Consolidation. 9. The second issue relating to the possession of the petitioners, suffice it to say that they themselves have set up their claim of possession through mortgage deeds. If that be so then the possession would be permissive. 10. Apart from this, a mortgage deed if it relates to a transaction of above Rs. 100/- has to be registered keeping in view the provisions of Section 58 of the Transfer of Property Act and the relevant provisions of the Indian Registration Act. There is no evidence as to whether the said mortgage deed was registered or unregistered. 11. The issue relating to the applicability of Section 164 is dependant on conditions being fulfilled as enumerated hereinafter read with Section 155 of the U.P.Z.A. & L.R. Act. The following conditions must be fulfilled: “(a) There must be a ‘transfer’ of any holding or part thereof, (within the meaning of Transfer of Property Act). (b) Such transfer must have been made by a bhumidhar (who should be a bhumidhar with transferable rights). The provision does not apply to a bhumidhar with non-transferable rights. (c) The transaction must result in transfer of possession to the transferee. (d) The transfer of possession must be for securing any payment of money advanced (or to be advanced) by way of loan etc.” 12. The authorities will have to determine as to whether all the aforesaid conditions are fulfilled or not. The Consolidation Officer and the Settlement Officer, Consolidation have not entered into these issues. 13. The contesting respondents, as a matter of fact, ought to have also assailed the order of the Deputy Director of Consolidation but since they have contended themselves by the remand order, it is no longer necessary to deal with the same which can be dealt with by the authorities before whom the matter has been remanded. 14. 13. The contesting respondents, as a matter of fact, ought to have also assailed the order of the Deputy Director of Consolidation but since they have contended themselves by the remand order, it is no longer necessary to deal with the same which can be dealt with by the authorities before whom the matter has been remanded. 14. I do not find any error so as to warrant exercise of jurisdiction under Article 226 of the Constitution of India to interfere with the impugned order for the reasons given hereinabove. 15. The writ petition lacks merit and is accordingly dismissed. No order as to cost. —————