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2017 DIGILAW 1842 (ALL)

Prakash Chand v. D. D. C.

2017-08-08

RAJAN ROY

body2017
JUDGMENT : Rajan Roy, J. Heard Sri Pradeep Kumar Tripathi learned counsel for the petitioners and Sri Mohd. Arif Khan learned Senior Advocate along with Sri Vimal Kishore Verma counsel appearing for opposite party No. 2 and learned standing counsel for opposite party No. 1. 2. It is not in dispute that opposite party No. 2 herein (Sarju) was the original tenure holder of the holding in dispute. He is said to have executed a sale-deed in favour of petitioner No. 2 Moolchand on 13.04.1961 in respect of the said holding who in turn is said to have executed another sale-deed on 04.06.1990 in favour of petitioner No. 1 Prakash Chand. On start of consolidation operation, consequent to a notification under Section 4 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act, 1953'), objections were filed by the petitioner No. 2 claiming title over the holding in question in respect of which the opposite party No. 2 was recorded in the basic year Khatauni as the tenure holder, based on the sale deed dated 13.04.1961 albeit on 16.02.1981. The opposite party No. 2 filed his objections to the objection of petitioner No. 2. Consolidation Officer decided the matter in favour of petitioner No. 2, meaning thereby he rejected the objection of the opposite party No. 2 vide order dated 16.06.1989 as he found the sale deed dated 13.04.1961 to be proved. 3. Being aggrieved the opposite party No. 2 Sarju filed an appeal bearing No. 390 of 192 which was also dismissed by the Assistant Settlement Officer of Consolidation vide his judgment dated 17.03.1990. At this stage i.e. after passing of the order by the Consolidation Officer and the Settlement Officer of Consolidation in his favour, the petitioner No. 2 sold of the land in dispute to petitioner No. 1 on 04.06.1990. The contention is that this was done prior to receiving notice of revision filed by opposite party No. 2 against the aforesaid order. In the year 1990 itself, it is said, that the opposite party No. 2 filed a suit for permanent injunction against the petitioners in respect of land in dispute which was held to be maintainable by the Civil Court vide its order dated 13.04.1992 against the petitioner No. 1 but found the suit to be barred against petitioner No. 2. In the year 1990 itself, it is said, that the opposite party No. 2 filed a suit for permanent injunction against the petitioners in respect of land in dispute which was held to be maintainable by the Civil Court vide its order dated 13.04.1992 against the petitioner No. 1 but found the suit to be barred against petitioner No. 2. While passing the said order he also dwelt upon the merits and validity as also veracity of the sale deed mentioning that the sale deed dated 13.04.1961 was void. 4. In the meantime, the opposite party No. 2 challenged the order of Consolidation Officer and the Settlement Officer of Consolidation referred here in above, before the Deputy Director of Consolidation by filing a Revision under Section 48 of the Act, 1953, which was decided on 29.06.1993. The Deputy Director of Consolidation over-turned the orders of the Courts below on the ground firstly that the claim to the land in question had been raised after about 20 years of the sale deed having been executed and secondly the Civil Court had already held the sale-deed to be void. However, after the said decision, as is borne out from the record, on a Revision bearing No. 47 of 1992 being filed before the Competent Civil Court having revisional powers under section 115 of the Code of Civil Procedure by the petitioners against the order of Munsif Court dated 13.04.1992 in Suit No. 321 of 1990, the said order was quashed and the suit was held to be not maintainable against both the petitioners herein who were defendants therein as it was barred under Section 331 of U.P. Zamindari Abolition and Land Reforms Act, 1959 (hereinafter referred to as 'the Act, 1990'), meaning thereby, the order of the Munsif which was the basis of the order of the order of Deputy Director of Consolidation was held to be non-est and without jurisdiction. As this judgment was subsequent to the order of the Deputy Director of Consolidation, therefore, it cannot be said that the Deputy Director of Consolidation committed any error on this count, nevertheless, in view of this subsequent development, the very basis of the Deputy Director of consolidation order was held to be non-est and the order dated 29.06.1993 passed by the Deputy Director of Consolidation allowing the revision of the opposite party No. 2 becomes vulnerable and unsustainable. 5. 5. The other reason given by the Deputy Director of Consolidation while passing the impugned order was the delay in staking claim to the land in question, which, according to this Court is without any legal basis. Merely, because the sale-deed was executed 20 years ago by itself, could not be a ground for rejecting the Revision unless some right had been created in the interregnum in favour of another party. In fact, this was not the case here. Proceedings at hand were with respect to determination of title and sale deed is a document of title. Moreover learned counsel for the petitioners stated that the original sale-deed had been lost, therefore, the rights could not be asserted earlier. Moreover, considering the facts of the case, as the sale-deed was duly proved, for the reasons aforesaid, mere delay on this count could not have been a ground for allowing the Revision of opposite party No. 2 6. At this stage the learned Senior Counsel Sri Mohd. Arif Khan appearing for opposite party No. 2 asserted that in fact both the sale-deeds dated 13.04.1961 and 04.06.1990 were void, therefore, even if the Court is of the view that the order of the Revisional Court is not sustainable, there is no need to remand it as the claim of the petitioners has to be rejected on merits in view of the sale-deed being void. In this regard he invited the attention of the Court to the provisions of U.P. Consolidation of Holdings (Third Amendment) Act, 1956 (U.P. Act No. 24 of 1956) by which Section 16-A was inserted into the Act in U.P. Act No.V of 1954 Consolidation of Holding Act thereby providing that after the publication of the statement under Section 16 and until the issue of a notification under Section 52, a tenure holder shall not, except with the permission in writing of the Settlement Officer (Consolidation), previously obtained, transfer by way of sale, gift or exchange any plot or share in any holding included in the scheme of consolidation notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950. Based on this he said that earlier also there was a provision prohibiting such transfer during consolidation operations. Based on this he said that earlier also there was a provision prohibiting such transfer during consolidation operations. Thereafter he invited the attention of the Court to the provisions of the U.P. Consolidation of Holdings (Amendment) Act, 1958 to contend that the aforesaid Section 16-A was deleted by the said Act and in its place a similar provision was inserted in Section 5(c)(ii) prohibiting such transfer. Based on the aforesaid he said that sale deed dated 13.04.1961 was void and it is in this context he invited the attention of the Court to Section 45-A(2) inserted by the aforesaid Act, 1958 to the effect that transfer made in contravention of the provisions of Section 5(c)(ii) shall not be valid or recognized, anything contained in any other law for the time being in force to the contrary notwithstanding. However, this argument does not appear to be tenable for the simple reason that there is nothing on record to even suggest that the notification under Section 4 of the Act, 1953 had been published prior to 13.04.1961. In fact on being confronted Sri Khan could not show any pleading or document in this regard, that is why no such objection was raised by the opposite party No. 2 before the Consolidation Officer, the Settlement Officer of Consolidation or the Deputy Director of Consolidation, therefore, the sale-deed dated 13.04.1961 remains unaffected by Section 5(c)(ii). 7. Based on aforesaid, Sri Khan also raised a challenge to the subsequent sale-deed dated 04.06.1990 also on the ground that in view of Section 5(c)(ii) this deed was certainly void in view of Section 45-A(2) and the precedents laid down by this Court in the Cases reported in 1993 RD page 8 (Foran Singh and others v. Dy. Director of Consolidation and others) and another report 1987 R.D. page 200 (Chet Ram v. Dy. Director of Consolidation and others). In this regard he invited the attention of the Court to the fact that Section 5-C(ii) was deleted by Act No. 30 of 1991 w.e.f. 19.02.1991, therefore, he contended that the sale-deed dated 04.06.1990 was void. Director of Consolidation and others) and another report 1987 R.D. page 200 (Chet Ram v. Dy. Director of Consolidation and others). In this regard he invited the attention of the Court to the fact that Section 5-C(ii) was deleted by Act No. 30 of 1991 w.e.f. 19.02.1991, therefore, he contended that the sale-deed dated 04.06.1990 was void. In this regard the Court finds that the sale-deed dated 04.06.1990 was executed by petitioner No. 2 in favour of petitioner No. 1 after passing of the order by the Settlement Officer of Consolidation dated 17.03.1990, therefore, there was no consideration of its validity in terms of Section 5(c)(ii) by the Consolidation Officer's Court nor that of the Settlement Officer of Consolidation. This issue was neither raised before the Revisional Court nor considered by it while passing the order dated 26.09.1993, even though, the petitioner No. 2 had by then sold of the holding in favour of petitioner No. 1. The Revisional Court's order does not even refer to the sale-deed dated 04.06.1990. The pleading in the writ petition vide paragraph 17 reveal that the sale-deed was executed before service of summons of Revision upon the petitioner No. 2 and that the petitioner No. 1, consequent to the sale, was impleaded as opposite party in his Revision and an application was also filed by opposite party No. 2 Sarju, who was the revisionist, for restraining the petitioner No. 1 from digging the land on which initially an injunction was granted against him but subsequently it was vacated. Inspite of it, the Revisional Court has not considered the validity of the subsequent sale-deed dated 04.06.1990. In this context it is not out of place to refer to the provisions of Section 5 which prescribe the consequences ensuing from publication of notification under Section 4. The said consequences ensue from the date specified in the notification under Section 4(2) as published in the official gazette till the publication of notification under Section 52 or sub section 1 of 6, as the case may be. Now there is no dispute about the fact that this sale deed had been executed and registered after the notification under Section 4 but whether this was done prior to de-notification under Section 52 being published or not, is the moot point to be considered. Now there is no dispute about the fact that this sale deed had been executed and registered after the notification under Section 4 but whether this was done prior to de-notification under Section 52 being published or not, is the moot point to be considered. This Court is handicapped from considering this aspect for two reasons, firstly; there is no foundation in the pleadings before this Court nor was it raised before the Courts below, therefore, a new plea would not be normally considered by this Court. The date of de-notification is not mentioned in the pleadings of the writ petition, therefore, in the absence of the said date, which is material, it is not possible for this Court to enter into this issue. 8. In view of the above, the submission with regard to the validity of the sale-deed dated 04.06.1990 cannot be considered by this Court, but, will have to be considered by the Revisional Court. 9. As regards the order impugned herein, for the reasons already given earlier the same is not sustainable. It is, therefore, quashed. The Revision of opposite party No. 2 shall now be restored before the Revisioal Court. The Deputy Director of Consolidation, Sitapur shall now proceed to decide the Revision afresh keeping in mind the observations made here in above. 10. Before parting, there is another aspect of the matter which requires consideration. Sri Khan learned counsel for opposite party No. 2 contended that Moolchand had died but his heirs and legal representatives have not been substituted, therefore, the petition has abated and as the petitioner No. 1 seems to have derived title through opposite party No. 2 and his sale-deed is void therefore, there is nothing which survives for adjudication nor for remand. First of all, as already stated above, in the absence of date of notification under Section 52, it is not possible for this Court to hold that the sale deed dated 04.06.1990 is void and this aspect will have to be considered by the Revisional Court, as has already been mentioned here in above. First of all, as already stated above, in the absence of date of notification under Section 52, it is not possible for this Court to hold that the sale deed dated 04.06.1990 is void and this aspect will have to be considered by the Revisional Court, as has already been mentioned here in above. Secondly, as regards the requirement of substitution of heirs and legal representatives the petitioner No. 2, his rights in the holding has been sold of by petitioner No. 2 to petitioner No. 1 vide sale-deed dated 04.06.1990, therefore, the legal representatives do not have any surviving right to sue and it is petitioner No. 1 who has acquired the rights from the petitioner No. 2, subject of-course to the validity of the sale deed dated 04.06.1990 being determined by the Revisional Court as aforesaid and as the petitioner No. 1 is very much alive and is contesting the matter, therefore, this plea is also not tenable and is accordingly rejected. 11. Although, the date of death of Moolchand is not mentioned in any pleadings before this Court Sri Pradeep Kumar Tripathi informs that he died on 04.10.1995, therefore, an endorsement of 'dead' be made against the name of petitioner No. 2 by the office so that the record may be corrected. 12. The Deputy Director of Consolidation shall proceed to decide the Revision as aforesaid with expedition but in accordance with law say within eight months from the date a certified copy of this order is produced before him. As the parties are already represented before this Court they shall appear before the Court concerned at the earliest to facilitate such proceedings. Till disposal of the revisional proceedings status-quo with regard to possession shall be maintained by the parties who shall not alienate the property in dispute. 13. For the reasons aforesaid, the writ petition stands allowed in the aforesaid terms.