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2015 DIGILAW 668 (ALL)

Shyamrathi v. D. D. C.

2015-04-01

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Brijesh Chandra Naik for the petitioner and Sri K.S. Shukla for the contesting respondent-6. The writ petition has been filed against the order of Settlement Officer Consolidation dated 21.5.2008 allowing the appeal and setting aside the order of mutation and the order dated 31.12.2014 dismissing the revision of the petitioner filed against the aforesaid order. 2. On the basis of an agreement to sell dated 5.1.1995 as corrected by rectification deed dated 4.6.1997, the petitioner filed an application for mutation of his name under section 12 of the Act. It is alleged that the case was decided in terms of compromise by the order of Assistant Consolidation Officer dated 29.12.1997 and name of the petitioner was directed to be mutated. It is alleged that Deoo, father of respondents- 3 to 5 although survived upto the year 2000 but he did not challenge the order dated 29.12.1997 during his life time. After his death respondents- 2 to 5 filed a highly time barred appeal on 12.7.2006 along with delay condonation application against the order of Assistant Consolidation Officer. The appeal was heard by the Settlement Officer Consolidation who by the order dated 21.5.2008 condoned the delay and held that on the basis of agreement to sell the mutation proceeding was taken but which was not maintainable on the basis of agreement to sell. Deoo was person belonging to Scheduled Caste and there is no sale deed after taking permission of the Collector in favour of the petitioner. In such circumstances, the order of Assistant Consolidation Officer dated 29.12.1997 was found to be illegal and was set aside. The petitioner challenged the order in the revision which has been dismissed by the Deputy Director of Consolidation by order dated 31.12.2014. Hence this writ petition has been filed. 3. The Counsel for the petitioner submits that registered agreement to sell has been executed by Deoo in respect of the land in dispute. On the date of agreement to sell the possession was also delivered to the petitioner as mentioned in the agreement to sell. The plot number has been wrongly mentioned in the agreement as plot No. 271 which was corrected by another registered rectification deed dated 4.6.1997 executed by Deoo in which again the possession of the petitioner has been acknowledged. On the date of agreement to sell the possession was also delivered to the petitioner as mentioned in the agreement to sell. The plot number has been wrongly mentioned in the agreement as plot No. 271 which was corrected by another registered rectification deed dated 4.6.1997 executed by Deoo in which again the possession of the petitioner has been acknowledged. In view of the fact that Deoo had entered into the registered agreement to sell and he had delivered possession over the land in dispute, the right of the petitioner has been protected under section 53-A of the Transfer of Property Act 1882. Deoo did not challenge the order during his life time. The order of Assistant Consolidation Officer was based on the compromise entered into between the parties. After death of Deoo his sons had no right to challenge the order of Assistant Consolidation Officer otherwise also the right of sons of Deoo is barred under section 53-A of Transfer of Property Act and appeal filed by sons of Deoo was not maintainable. Ram Chandar one of the son of Deoo was also marginal witness in the agreement to sell as such the agreement was well within the knowledge of Ram Chandar from the very beginning. Even then Ram Chandar is denying the genuineness of agreement in the appeal in such circumstances the appeal was not maintainable but it has been illegally allowed, and the revision filed by the petitioner has also been dismissed. 4. I have considered the arguments of the Counsel for the parties and examined the records. The appeal has been allowed for two reasons i.e. firstly mutation proceeding was not maintainable on the basis of agreement to sell and secondly in view of clear restriction imposed under section 157-A which cannot be avoided by Deoo who was person of Scheduled Caste and no permission has been taken for selling the land in dispute nor any sale-deed was executed. Therefore in view of restriction imposed under section 157-A of UP Act No. 1 of 1951, name could not be mutated on the basis of agreement to sell and mutation of name is merely a collusive act. 5. Therefore in view of restriction imposed under section 157-A of UP Act No. 1 of 1951, name could not be mutated on the basis of agreement to sell and mutation of name is merely a collusive act. 5. So far as section 157-A is concerned, the Counsel for the petitioner submits that the burden was upon Deoo to obtain permission from the Collector and execute a sale deed as he had also agreed in the agreement to sell that he would execute a sale-deed after taking permission from the Collector therefore this argument is not available to the respondents. The land in dispute is a bhumidhari land. State of UP is necessary party in all the proceeding of title over it. The restriction imposed under section 157-A cannot be bye-passed by the recorded bhumidhar or transferee in collusion of each other. The benefit of section 53-A cannot be claimed against the State of UP. Thus the restriction under section 157-A is a substantive restriction and in view of the consequences as mentioned under section163 the sale-deed or any transfer of land in violation of the provisions of the Act could be void and no mutation proceeding can be taken on its basis. In such circumstances, the order of Settlement Officer Consolidation does not suffer from any illegality. 6. So far as the arguments raised by the Counsel for the petitioner that the appeal filed by sons of Deoo is not maintainable, is concerned, first question arises as to whether mutation application filed by the petitioner was maintainable. As found above the land in dispute is bhumidhari land and restriction imposed upon bhumidhar under UP Act No. 1 of 1951 cannot be avoided. There was no valid sale deed in favour of the petitioner as such mutation application filed by him was not maintainable and order passed by Assistant Consolidation Officer was illegal. Section 11-C of UP C.H. Act the consolidation authorities have been authorised to watch the interest of State of UP and in that case the appeal is treated as merely information to the consolidation authorities and on its ground the jurisdiction to pass the order of Settlement Officer Consolidation cannot be questioned. The writ petition has no merit, it is dismissed.