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2017 DIGILAW 1672 (ALL)

ANIRUDDH SINGH v. D. D. C.

2017-07-18

RAJAN ROY

body2017
JUDGMENT Hon’ble Rajan Roy, J.—Heard counsel for the parties. 2. These are writ petitions under Article 226 of the Constitution of India challenging an order dated 31.3.1986 passed by the Deputy Director of Consolidation (hereinafter referred to as ‘the DDC’) under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as ‘the Act, 1953’) upturning the judgments of the Settlement Officer Consolidation and the Consolidation Officer which were in favour of the petitioners and ruling in favour of Shri Shanti Swaroop. 3. Writ Petition No. 5049(Cons.) of 1986 has been filed by Satish Kumar whose legal heirs have been substituted in his place and the other Writ Petition bearing No. 2843(Cons.) of 1986 has been filed by the persons who purchased the land in question from him. Shri Shanti Swaroop is respondent in both the writ petitions. 4. The facts of the case in brief are as under : The land in question bearing Gata No. 221 situated at Village-Chandibhanpur. It is an admitted fact that the land in question alongwith other lands in other villages including village Bhanpur was recorded in the name of common ancestor Shri Jagannath Prasad from whom it devolved upon his two sons, namely, Kunwar Bahahdur and Gulshan Rai and from them it devolved upon Shri Satish Kumar (opposite party No. 3) in Writ Petition No. 2843(Cons.) of 1986 and Shri Shanti Swaroop (opposite party No. 2) therein. 5. Consolidation proceedings started in Village Chandibhanpur in 1978. In Basic year Khatauni Gata No. 221 was recorded in the name of Shri Shanti Swaroop as well as Shri Satish Kumar. During ‘partal’ the petitioners of Writ Petition No. 2843(Cons.) of 1986 were found to be in possession i.e. Anirudh Singh and Sobaran Lal, who claim to have purchased the share of Shri Satish Kumar vide sale-deed dated 2.6.1973. Shri Shanti Swaroop filed objections under Section 9-A (2) of the Act, 1953 claiming title over the entire Gata No. 221 based on a compromise said to have been entered into with Shri Satish Kumar on 22.9.1973 in consolidation proceedings relating to Village Bhanpur in proceedings under Section 9-A(2). 6. Shri Shanti Swaroop filed objections under Section 9-A (2) of the Act, 1953 claiming title over the entire Gata No. 221 based on a compromise said to have been entered into with Shri Satish Kumar on 22.9.1973 in consolidation proceedings relating to Village Bhanpur in proceedings under Section 9-A(2). 6. The Consolidation Officer rejected the objections of Shri Shanti Swaroop on 18.8.1980 holding that the alleged compromise/family arrangement was illegal and it had not been registered, which was mandatory, as, the subject-matter of the compromise included lands other than those of Village Bhanpur where the consolidation operation was taking place and that in view of the denial of the said compromise by Shri Satish Kumar the same was required to be proved by Shri Shanti Swaroop, which had not been done. It was also held that the alleged compromise/family arrangement was inequitable and as a consequence of it Shri Shanti Swaroop got much more land than Shri Satish Kumar. 7. Being aggrieved Shri Shanti Swaroop filed an appeal under Section 11(1) before the Settlement Officer Consolidation (hereinafter referred to as ‘the SOC’) but the said appeal was also dismissed on 25.3.1983 affirming the judgment of the Consolidation Officer. Shri Shanti Swaroop filed a revision under Section 48 before the DDC, who allowed the same by the impugned order holding that the compromise was in the nature of family arrangement and was not required to be registered and also that the finding of the Courts below that as a result of compromise Shri Shanti Swaroop had got more land than Shri Satish Kumar was presumptuous, as, the details of the land of other villages, the arrangement in respect thereof was not dealt with. He also observed that Shri Satish Kumar had never challenged the compromise, in appeal. 8. The moot point for consideration herein is as to whether there was a lawful and valid compromise/family arrangement or consent order dated 22.9.1973 which bound the parties thereof and whether it had been acted upon. If so, then Shri Satish Kumar could not have sold his share of Gata No. 221 at Village Chandibhanpur which according to such compromise had been given to Shri Shanti Swaroop. 9. The contention of Shri Shanti Swaroop and his legal heirs is that the compromise was lawful and binding upon the parties. If so, then Shri Satish Kumar could not have sold his share of Gata No. 221 at Village Chandibhanpur which according to such compromise had been given to Shri Shanti Swaroop. 9. The contention of Shri Shanti Swaroop and his legal heirs is that the compromise was lawful and binding upon the parties. Shri Shanti Swaroop had even given notice to the purchasers for not entering any sale transaction in respect of the land in question, yet, it was done, therefore, the benefit of Section 41 was also not available. It was contended that objections were filed under Section 9 at Village Bhanpur by Shri Satish Kumar himself, therefore, he could not resile from the compromise entered in the said proceedings which had been duly verified. 10. The learned counsel for Shri Satish Kumar and those claiming through him asserted that such a compromise or family arrangement was mandatorily registrable under Section 17 of the U.P. Registration Act, 1908 (hereinafter referred to as ‘the Act, 1908’) and not having been so done, the effect of non registration vide Section 49 thereof read with Section 91 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act, 1872’) was to be given, but, the DDC erred on this aspect by holding that the compromise was a family arrangement not liable to be registered compulsorily. Moreover, it was contended that as a consequence of the alleged family arrangement Shri Shanti Swaroop got land measuring 10.04 acres in excess of what was given to Shri Satish Kumar, which was apparently inequitable. This was apart from the assertion that no such compromise had been entered. 11. The bar of Section 154 of the U.P. Zamindari Abolition & Land Reforms Act, prohibiting tenancy in respect of the agriculture land in excess of 12.5 hectares was also asserted. 12. This was apart from the assertion that no such compromise had been entered. 11. The bar of Section 154 of the U.P. Zamindari Abolition & Land Reforms Act, prohibiting tenancy in respect of the agriculture land in excess of 12.5 hectares was also asserted. 12. On a perusal of the order of the Consolidation Officer, the Court finds that on a reading of the written compromise which had been allegedly submitted before the Consolidation Officer in proceedings under Section 9 of the Act, 1953 bearing joint signatures of Shri Shanti Swaroop and Shri Satish Kumar as also the order passed by the Consolidation Officer thereon, it opined that the same was compulsorily registrable under Section 17 of the Act, 1908, as, the same was not only in respect of the land under consolidation, but, also the land falling in Chandibhanpur which was not under consolidation operation and this not having been done, the same was not admissible in evidence. The factum of such compromise having been denied by Shri Satish Kumar the same was required to be proved as per law by Shri Shanti Swaroop, but, this was also not done. 13. The Consolidation Officer found that Gata No. 221 was recorded in the name of both the tenure holders and during ‘partal’ the purchasers Shri Anirudh Singh and Shri Sobran Lal were found in possession. During partal each Gata was found in two parts. It was also of the opinion that the compromise could also be treated as family arrangement, but, then it has to be equitable, whereas, after going through the records pertaining to the other villages, it was found that as a result of such compromise Shri Shanti Swaroop had got much more land than Shri Satish Kumar, whereas, both of them had equal share, therefore, relying upon various decisions he opined that the family arrangement was not valid in law nor acceptable. Before the Consolidation Officer one of the questions framed was as to whether benefit of Section 41 was available to Shri Anirudh Singh and Shri Sobran Lal. Consequent to the finding aforesaid they were also held to be the bona fide purchasers. 14. The SOC also concurred with the view of the Consolidation Officer. Before the Consolidation Officer one of the questions framed was as to whether benefit of Section 41 was available to Shri Anirudh Singh and Shri Sobran Lal. Consequent to the finding aforesaid they were also held to be the bona fide purchasers. 14. The SOC also concurred with the view of the Consolidation Officer. The SOC under took an exercise to verify the land which have been given to Shri Shanti Swaroop vis-a-vis Shri Satish Kumar in various Villages and found that Shri Shanti Swaroop had got much more land than what had been given to Shri Satish Kumar. This of course was assuming the veracity of such a compromise. It was also mentioned that the SOC also opined that the compromise/family arrangement had neither been registered nor it had been proved and also that Shri Shanti Swaroop had got much more land as compared to Shri Satish Kumar who had got little much less land. 15. The DDC summoned the records of Section 9 proceedings of Village Bhanpur and found that though the portion of the compromise where both the parties has signed were torn off, but, back of it bore the signatures of Shri Shanti Swaroop and Shri Satish Kumar, therefore, he concluded that it was a valid compromise and it being in the nature of family arrangement was not required to be registered. He also opined that the view taken by the Courts below that the arrangement was inequitable and lopsided in favour of Shri Shanti Swaroop, was without proper inquiry into the question as to the lands given to the two persons in various villages, which had not been disclosed. Accordingly, based on the family arrangement dated 22.9.1973 he upturned the order of the Courts below and held that the sale-deed executed by Shri Satish Kumar was in excess of the title vested in him based on such compromise and therefore, ignoring it ordered that the Gata No. 221 in its entirety be recorded in the name of Shanti Swaroop and the name of Satish Kumar be deleted and records be corrected accordingly. 16. After hearing learned counsel for the parties and perusing the records the first and foremost issue to be considered is as to whether the compromise/family arrangement or order of the Consolidation Officer under Section 9 was required to be registered or not? 17. 16. After hearing learned counsel for the parties and perusing the records the first and foremost issue to be considered is as to whether the compromise/family arrangement or order of the Consolidation Officer under Section 9 was required to be registered or not? 17. The compromise dated 22.9.1973 and the order passed thereon under Section 9 are on record. The document is titled the deed of compromise. It does not speak of any family arrangement having been given effect earlier. It is not in the form of memorandum of something which had already happened. Moreover, such compromise/family arrangement was reduced in the form of a document and filed in the proceedings under Section 9-A(2), wherein, questions of title are to be adjudicated, as, they are in a suit and based thereon it was prayed that Gata No. 92 of village Bhanpur be recorded in its entirety in the name of Shri Satish Kumar striking off the name of Shri Shanti Swaroop in whose name the said Gata was recorded. 18. The said document also states that as per the arrangement Shri Satish Kumar would have no right in respect of the land falling in village Chandibhanpur (the land which was not part of the consolidation operations in village Bhanpur under Section 9). Thus, by the said document the right of Shri Shanti Swaroop in respect of Gata No. 92 at village Bhanpur, which was recorded entirely in his name, was extinguished and in lieu thereof his right was created in respect of the entire Gata No. 221 at Chandibhanpur, wherein, he otherwise had only half share, thus, correspondingly the rights of Satish Kumar in the said land was extinguished. Accordingly, the Consolidation Officer ordered that Gata No. 92 at village Bhanpur be recorded in the name of Shri Satish Kumar. 19. In view of the above, as, the compromise/family arrangement was reduced in the form of a document which was not a memorandum of any arrangement having taken place earlier, but, was submitted with intent to create and extinguish rights in respect of the land in question that too in proceedings under Section 9-A(2) of the Act, 1953 and in respect of land the value of which more than Rs. 100/-, therefore, in view of the catena of decisions of the Supreme Court and this Court, the same was compulsorily registrable under Section 17(1) (b) read with Section 17(2)(vi) and the Deputy Director of Consolidation clearly erred in opining otherwise and upturning the view expressed by the SOC and the Consolidation Officer on this issue. Reference may be made in this regard to the judgments in Ramgopal and others v. Tulsi Ram and another, AIR 1928 All 641 (FB); Kisto Chandra Mandal and others v. Mt. Anila Bala Dasi and others, AIR 1968 Patna 487; Musammat Bhagwan Dei v. Shib Singh, AIR 1930 All 341; Roshan Singh and others v. Zila Singh and others, AIR 1988 SC 881 ; Kale and others v. Deputy Director of Consolidation and others, AIR 1976 SC 807 and Ghanshyam Sarda v. Sashikant Jha and others, (2017) 1 SCC 599 . 20. The consequences of non registration are mentioned in Section 49 of the Act, 1908 according to which no document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall affect any immovable property comprised therein or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Title passes only on registration of a document required by law to be compulsorily registered as has also been held in the case of Ghanshyam Sharda (supra). 21. Reference may also be made to Section 91 of the Indian Evidence Act, 1872 which provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. This provision has been considered by the Supreme Court in the above referred precedents, especially, in the case of Roshan Singh (supra). 22. This provision has been considered by the Supreme Court in the above referred precedents, especially, in the case of Roshan Singh (supra). 22. Further more, even if, the document was compulsorily registrable and had not been registered, even then, the plea of estoppal was still available to Shri Shanti Swaroop and the relevant aspects in this regard were required to be considered, as, he did raise the plea that the compromise has been acted upon. Reference may be made in this regard to the judgment of Supreme Court in this regard in Musammat Bhagwan Dei v. Shib Singh, AIR 1930 All 341; wherein, it was held that even an unregistered document might be taken in evidence for collateral purpose in order to show the character of possession, and the judgment of the Supreme Court in Kale and others (supra), wherein, it was held that there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppal against the respondent Nos. 4 and 5. 23. The Courts below should have also kept in mind that Shri Satish Kumar never challenged the alleged compromise order dated 22.9.1973 nor the compromise and its effect on the issues involved. 24. Now, in this regard, the only thing which is clear is that consequent to the compromise order dated 22.9.1973 the land was recorded in the name of Shri Satish Kumar by the officials themselves, but, not on any application on his part. 25. The moot point is, did he gain possession of the land bearing Gata No. 92 at village Bhanpur and whether Shri Shati Swaroop came into possession of the entire Gata No. 221 at village Chandibhanpur, meaning thereby, whether the alleged compromise was acted upon. In this regard, the Courts below do not appear to have applied their mind appropriately. It is not clear as to who had paid the lagaan in respect of the lands in the aforesaid two villages and whether Shri Shanti Swaroop had paid the lagaan in respect of the entire Gata No. 221 at village Chandibhanpur and was he entitled to the benefit of the law that the possession of one co-sharer implies the possession of the other also. These aspects have not been considered with a proper appreciation of evidence. 26. These aspects have not been considered with a proper appreciation of evidence. 26. This Court is conscious of the fact that much time has lapsed, but, its hand are tied in this regard as under Article 226 of the Constitution of India it does not sit in appeal nor can it appreciate evidence or allow a fresh evidence to be adduced before it, therefore, it has no other option, but, to remand the matter for consideration of this aspect of the matter. 27. Another error committed by the DDC is that it has omitted to consider the plea based on Section 41 of the Transfer of Property Act, 1882, as, irrespective of validity of compromise/family arrangement discussed herein above, if the petitioners of Writ Petition No. 2843(Cons.) of 1986 were bona fide purchasers in terms of Section 41 and the law in this regard, then, they would be entitled to protection, however, if it was held otherwise the consequences would follow as per law. In this regard reference may be made to the judgment of the Supreme Court in Controller of Estate Duty, Lucknow v. Alok Mitra, (1981) 2 SCC 121 ; wherein, the equitable provision contained in Section 41 fell for consideration in the context of a benami property and the Supreme Court opined as under : “32. A benamidar has no interest at all in the property standing in his name. Where the transaction is once made out to be benami, the Court must give effect to the real and not to the nominal title subject to certain exceptions. In Mulla’s Hindu Law, 14th Edn., p. 638, four exceptions to the normal rule are brought out. But these exceptions are not material in this case. One of the exceptions enumerated therein is that where a benamidar sells, mortgages or otherwise transfers for value property held by him without the knowledge of the real owner, the real owner is not entitled to have the transfer set aside unless the transferee had notice, actual or constructive that the transferor was merely a benamidar. The principle is embodied in Section 41 of the Transfer of Property Act. The section makes an exception to the rule that a person cannot confer a better title than he has. The section is based on the well-known passage from the judgment of the Judicial Committee in Ramcoomar Koondoo v. Macqueen [1872] I.A. Sup. The principle is embodied in Section 41 of the Transfer of Property Act. The section makes an exception to the rule that a person cannot confer a better title than he has. The section is based on the well-known passage from the judgment of the Judicial Committee in Ramcoomar Koondoo v. Macqueen [1872] I.A. Sup. 40 : “It is a principle of natural equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of an estate, and a third person purchases it for value from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title unless he can overthrow that of the purchaser by showing, either that he had direct notice, or something which amounts to constructive notice, of the real title, or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted, would have led to a discovery of it.” A benamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title. But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible owner thereof.” 28. Apart from the fact that the ostensible owner therein was a benamidar the principle embodied in Section 41 of the Act, 1882 has been clearly enunciated. 29. Likewise reference may be made to the judgment of the Supreme Court in V. Chandrasekaran and another v. Administrative Officer and others, (2012) 12 SCC 133 ; wherein their Lordships held as under : “32. The general rule of law is undoubted, that no one can transfer a better title than he himself possesses; Nemo dat quod non habet. 29. Likewise reference may be made to the judgment of the Supreme Court in V. Chandrasekaran and another v. Administrative Officer and others, (2012) 12 SCC 133 ; wherein their Lordships held as under : “32. The general rule of law is undoubted, that no one can transfer a better title than he himself possesses; Nemo dat quod non habet. However, this Rule has certain exceptions and one of them is, that the transfer must be in good faith for value, and there must be no misrepresentation or fraud, which would render the transactions as void and also that the property is purchased after taking reasonable care to ascertain that the transferee has the requisite power to transfer the said land, and finally that, the parties have acted in good faith, as is required Under Section 41 of the Transfer of Property Act, 1882. (Vide Asa Ram v. Ram Kali ( AIR 1958 SC 183 ); SBI v. Rajendra Kumar Singh ( AIR 1969 SC 401 ); CED v. Aloke Mitra (1981) 2 SCC 121 ; Hanumant Kumar Talesara v. Mohal Lal (1988) 1 SCC 377 ; and State of Punjab v. Surjit Kaur (2012) 12 SCC 155).” 30. In this context it is relevant to point out that before the Courts below Shanti Swaroop raised a plea that he had sent a notice to the proposed purchasers i.e. Anirudh Singh and Sobran Lal on 4.5.1978 under postal certificate warning them of any such transaction. However, as per his statement recorded on 3.5.1980 before the Court below, a copy of which has been annexed with the rejoinder-affidavit in Writ Petition No. 2843(Cons.) of 1986, he has stated just the opposite. He has contended that he had no knowledge whatsoever of any such sale transaction prior to it. Now the sale-deed was executed on 2.6.1978, therefore, by his own statement before the Courts below the alleged notice dated 4.5.1978, a copy of which has filed before this Court is also belied, but, without forming any conclusive opinion on this issue, as, this would ultimately have to be seen by the Deputy Director of Consolidation, this Court is of view that the relevant aspects have not been kept in mind while deciding the revision under Section 48. 31. 31. Further more, the DDC has brushed-aside the findings of the Court below regarding the family arrangement being equitable and lopsided in favour of Shri Shanti Swaroop by merely stating that no proper inquiry was held as to the lands situated in various villages and the area alloted to Shri Shanti Swaroop and Shri Satish Kumar, whereas, on a reading of the SOC’s order the Court finds that the same has been considered in detail, nevertheless, if the DDC was persuaded to take a contrary view in the matter he should have himself conducted such an inquiry so as to arrive at a conclusion in this regard in the form of a finding rather than base his judgment on a tentative view formed without such inquiry. 32. Shri Shanti Swaroop and Shri Satish Kumar have died. Shri Satish Kumar executed a will deed in favour of Smt. Manju Srivastava, who has been substituted herein. The son of Shri Shanti Swaroop had succeeded him and has been substituted in his place in these proceedings. 33. For the reasons aforesaid, the order of the Deputy Director of Consolidation dated 31.3.1986 cannot be sustained and even though much time has lapsed the matter is required to be remanded back to the Deputy Director of Consolidation for consideration of the revision afresh in the light of the observations made herein above. 34. It is further ordered that after due notice to the parties the DDC shall make an earnest endeavour to decide the revision with expedition in accordance with law, but, in any case before expiry of one year from the date of receipt of a certified copy of this order. 35. Till disposal of the revision status quo as existing today in respect of the land in question shall be maintained by the parties. 36. The writ petitions are allowed in part.