JUDGMENT Hon’ble Anjani Kumar Mishra, J.—Heard Sri D.P. Singh learned Senior Counsel for the petitioner and Sri Shyam Kumar Srivastava holding brief of Sri N.B. Nigam learned counsel for the respondents. 2. The instant petition arises out of an objection under Section 9-A (2) of the U.P. Consolidation of Holdings Act and is directed against the orders passed by the three Courts below namely the Consolidation Officer, Settlement Officer Consolidation and Deputy Director of Consolidation. 3. The dispute relates to Plot No. 232 which in the basic year was recorded in the name of the petitioner Moti Lal. The objection of the respondent No. 4 Harkishun was that the petitioner had executed a registered mortgage deed with possession of the plot in question in his favour on 26.2.1975 and therefore, the same amounted to a sale in view of Section 164 of the U.P. Zamindari Abolition and Land Reforms Act and the objector was therefore, liable to be recorded as its bhumidhar. 4. The petitioner contested the objection alleging that possession of the land was never transferred and that he had only transferred the crops in lieu thereof. It was stated in the mortgage deed that in case the petitioner returns the money within four years the land would be reconveyed. 5. It has been contended by learned counsel for the petitioner that in support of his contentions the petitioner had adduced documentary evidence in the form of Khasras of 1382 and 1383 Fasli corresponding to the years 1975-76. In these documents the petitioner was recorded in possession over the land in question. It has further been submitted that the contesting respondent in his cross-examination had admitted the fact that if the money was returned within a period of four years the mortgage would be redeemed. It is therefore, his contention that mere recital of delivery of possession in the mortgage deed did not amount to actual transfer of possession. The benefit of Section 164 of the U.P.Z.A. & L.R. Act could have been given to the objector only when he proved that he was in possession over the land in question. 6. It has lastly been submitted that the condition of re-conveyance within four years specified in the mortgage deed itself, was binding upon the parties. This period had not elapsed. This aspects have not been considered by the Courts below. 7. 6. It has lastly been submitted that the condition of re-conveyance within four years specified in the mortgage deed itself, was binding upon the parties. This period had not elapsed. This aspects have not been considered by the Courts below. 7. Learned counsel for the respondent, rebutting the submissions made by learned counsel for the petitioner has placed reliance on two judgments of the Apex Court namely Smt. Rama Devi v. Dilip Singh, AIR 2008 SC 2015 and Bai Hira Devi and others v. Official Assignee of Bombay, AIR 1958 SC 448 . 8. I have considered the submissions made by learned counsel for the parties and have perused the record. 9. All the Courts below have decided against the petitioner holding that the document in question categorically recorded that possession was transferred and therefore in view of Section 164, the same would amount to a sale. 10. In view of the submissions made the only point that arises for consideration is as to whether in view of the categorical recital contained in the mortgage deed that possession was being delivered to the mortgagee, whether any evidence could be led, and if led whether the same was liable to be considered, to show that in fact possession was never delivered to the mortgagee. 11. In the first case cited on behalf of the respondents it has been held that even if a transaction is alleged to be mortgage with conditional sale and there is refusal for re-transfer of land, the same, in view of the deeming provisions of Section 164, would be deemed to be sale and the mortgagor upon execution of the same would loose all his rights in the land in question. 12. Section 155 of the U.P.Z.A. & L.R. Act is absolutely categorical and reads as follows : ‘Mortgage of land by a bhumidhar—No bhumidhar shall have the right to mortgage any land belonging to him as such where possession of the mortgaged land is transferred or is agreed to be transferred in future to the mortgagee as security for the money advanced or to be advanced.’ 13. The consequence of a mortgage with possession is to be found in Section 164 which is extracted below : “Transfer with possession by a bhumidhar to be deemed a sale : Any transfer of any holding or part thereof made by a bhumidhar by 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 154 and 163 shall apply.” 14. The Apex Court, upon a consideration of Section 164 held that a mortgage with possession “would be deemed at all times and for all purposes to be sale to the transferee” and therefore, the statutory right of redemption under Section 60 of the Transfer of Property Act would not be available to the mortgagor in view of Section 164. 15. In view of the aforesaid decision as also Section 164 itself, it must necessarily be held that the deed in question was a transfer or sale. 16. The only point which now requires consideration is the contention of learned counsel for the petitioner that possession was never actually transferred to the respondents. In this context, it has been submitted that the khasras filed before but the Courts below have not been referred to and possession of the respondents has been assumed merely on the basis of the recital contained in the mortgage deed itself. 17. In my considered opinion the judgment cited by the respondents namely the case of Bai Hira Devi provides a complete answer to the submissions made on behalf of the petitioner. In this judgment the Apex Court has upon a consideration of Section 91, 92 and 99 of the Indian Evidence Act, held that Section 91 provides that where the terms of the contract or any other disposition of property, specially in any matter required by law to be reduced in the form of a document, no evidence shall be given in proof of the terms of such contract except the document itself. The document in question in the instant case is a registered agreement reduced to writing and duly registered. The document in question in the instant case is a registered agreement reduced to writing and duly registered. The same has been filed on record. Therefore, the contents of the document stands proved in view of Section 91. 18. Section 92, on the other hand, excludes any evidence of an oral agreement for the purpose of contradicting, varying, adding to, or subtracting from the terms of the contract in writing. Therefore, in view of Section 92 the oral testimony of the parties on the question of possession over the land in dispute stood categorically excluded. 19. Section 99 provides as to who is entitled to give evidence of an agreement varying the terms of a document. It provides that persons who are parties to a document, or their representatives in interest may not give evidence on a fact which amounts to varying the terms of the document. Such evidence may be lead only by one who is not a party to the document or is not a representative in interest of the parties to the document. It therefore, necessarily follows that parties to a document cannot give evidence to show a contemporaneous agreement varying the terms of the document. The parties in the instant case are parties to the document in question. 20. Under the circumstances, therefore, it would not be open for the petitioner to contend with the conditions enumerated in the document were either varied, added to, or subtracted from. It must therefore, necessarily be held that the parties are bound by the recitals contained in the document and they cannot adduce evidence to show that the terms and conditions in the document in question, had been varied. 21. In such view of the matter, the contention of learned counsel for the petitioner that possession was never handed over to the respondents mortgagee or that contrary to the terms of the deed itself, only the crops were given to him in lieu of a loan, cannot be accepted being contrary to the terms of the agreement itself. 22. The submissions of learned counsel for the petitioner therefore, are liable to be and are repelled. 23. Accordingly and in view of the discussion above, the writ petition fails and is dismissed. ——————