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2018 DIGILAW 2160 (ALL)

Paras Dei v. Deputy Director Of Consolidation

2018-10-09

RAJIV JOSHI

body2018
JUDGMENT : 1. This writ petition has been filed for quashing the orders dated 26.2.2018, 3.11.2014 and 31.12.2011 passed by Deputy Director of Consolidation, Settlement Officer Consolidation and Consolidation Officer, Basti respectively. 2. The facts of the case as reflect from the record are thus: 3. One Balram, son of Suryamani was the recorded bhumidhar of plot no. 80 area 1-7-8 situated at village Khairo Ojha, Tappa Nawai, Pargana Nagar Paschim, Tehsil Haraiya, District Basti. Balram was issueless and he executed a registered Gift-deed dated 11.1.1980 in favour of the petitioner Smt. Paras Dei. Subsequently, Balram also executed registered sale deeds on 8.6.1984 and 20.9.1984 in favour of Jogendra (respondent no.9) and Rajendra (father of respondent nos. 4 to 8). 4. The petitioner filed an application under Section 12 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as Act) for mutating her name on the basis of the aforesaid registered Gift deed executed in her favour. Another application was filed under Section 12 of the Act by Jogendra and Rajendra, on the basis of registered sale deeds dated 8.6.1984 and 20.9.1984 in respect of the land in dispute. Both the cases filed under Section 12 of the Act were consolidated. The Consolidation Officer vide order dated 30.4.1988 rejected the application filed by the petitioner and allowed the application filed by father of respondent nos. 4 to 8 and respondent no.9. The said order was challenged by the petitioner by way of filing appeal before the Settlement Officer Consolidation, which was dismissed vide order dated 15.7.1989. 5. The orders passed by the Consolidation Officer as well as the Settlement Officer Consolidation were challenged by the petitioner by means of revision under Section 48 of the Act before the Deputy Director of Consolidation and the same was allowed vide order dated 18.10.2003, remanding the matter to the Consolidation Officer to decide the objection/application of the parties filed under Section 12 of the Act afresh after affording opportunity of hearing to them. 6. After the remand, the Consolidation Officer vide order dated 31.12.2011 again rejected the application under Section 12 of the Act filed by the petitioner and allowed the application filed by the father of respondent nos. 4 to 8 and respondent no.9 for mutation of their names. Accordingly, their names were mutated in the revenue record in place of Balram. 7. After the remand, the Consolidation Officer vide order dated 31.12.2011 again rejected the application under Section 12 of the Act filed by the petitioner and allowed the application filed by the father of respondent nos. 4 to 8 and respondent no.9 for mutation of their names. Accordingly, their names were mutated in the revenue record in place of Balram. 7. The order of the Consolidation Officer was challenged by the petitioner by way of an appeal, which was dismissed by the Settlement Officer Consolidation vide its order dated 31.11.2014. The orders of the Consolidation Officer as well as Settlement Officer Consolidation were challenged by the petitioner in a revision under Section 48 of the Act, which too was dismissed vide order dated 26.2.2018. All the three orders are impugned in this writ petition. 8. I have heard Sri Manish Kumar Nigam, learned counsel for the petitioner and Sri Rahul Sahai, learned counsel for the respondent nos. 6 and 9. 9. The contention of learned counsel for the petitioner is that the orders impugned by the Consolidation Authorities have been passed without considering the evidence available on record i.e. the registered gift deed, which had been executed by Balram in favour of the petitioner and was duly accepted by the donee (the petitioner). It is further contended that the finding that the donee has not accepted the gift, is perverse and against the evidence. It is next argued that as per Section 122 of the Transfer of Property Act, 1882, the gift can be accepted by the donee or on behalf of donee. It is then argued that the gift deed is a registered instrument and since it has not been revoked or cancelled by the donor (Balram) as per the provision of Section 126 of the Transfer of Property Act, 1882, therefore, all the consolidation authorities fell in error and committed illegality in not accepting the gift deed. It is lastly urged that non-presence of the petitioner at the time of registration of gift deed, does not render the gift deed void as the same was accepted by the husband of the petitioner. 10. On the other hand, Sri Rahul Sahai, learned counsel for the respondent nos. It is lastly urged that non-presence of the petitioner at the time of registration of gift deed, does not render the gift deed void as the same was accepted by the husband of the petitioner. 10. On the other hand, Sri Rahul Sahai, learned counsel for the respondent nos. 6 and 9 argued that earlier the application was filed by the petitioner for mutating her name on the basis of registered gift deed under Section 12 of the Act, which was dismissed for want of prosecution and thereafter, again an application was filed on the same ground and therefore, her second application is not maintainable and is barred by principle of res judicata. 11. It is further argued that Balram, the alleged donor of the gift has refused that he ever executed any gift deed in favour of the petitioner and even there is no evidence or recital in the gift deed that the petitioner or her husband on her behalf ever accepted the gift, and therefore, the Gift is not in accordance with the provision of Section 122 of Transfer of Property Act and the same has never been acted upon. 12. In rejoinder, Sri Manish Kumar Nigam, learned counsel for the petitioner submitted that earlier application for mutating her name was rejected for want of prosecution and not decided on merits and as such, the principle of res judicata is not attracted at all and there is no bar for filing the application afresh. 13. I have considered the rival submissions advanced on behalf of the respective parties and also perused the record. 14. There is no dispute with regard to the fact that two sale deeds have been executed by Balram i.e. one in favour of father of respondent nos. 4 to 8 and another in favour of respondent no.9, on 8.6.1984 and 20.9.1984 respectively in respect of land in dispute. The issue involved is regarding the validity of the gift deed. The gift deed was executed on 11.1.1980 but as per the learned counsel for the respondent, the said gift deed was never acted upon as the said gift deed was never accepted by the petitioner. Balram, the donor of the gift deed, has refused that he ever executed any gift deed in favour of the petitioner. His statement has been recorded before the Consolidation Officer in which he has denied its execution. 15. Balram, the donor of the gift deed, has refused that he ever executed any gift deed in favour of the petitioner. His statement has been recorded before the Consolidation Officer in which he has denied its execution. 15. Gift has been defined under Section 122 of Transfer of Property Act, 1882, which reads as under: “122. “Gift” defined.—“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.” 16. From a bare perusal of the aforesaid definition, it is apparent that the gift deed must be accepted either by the donee himself/herself or by anybody on his/her behalf. In the present case, there is no recital in the gift deed that the said gift deed was ever accepted by the petitioner herself or by her husband on her behalf. Even in the statement recorded before the Consolidation Officer, petitioner has nowhere stated that she ever accepted the gift deed. All the consolidation authorities have held that Gift deed is not as per Section 122 of the Transfer of Property Act, which was never acted upon and hence, is void. Even in the statement recorded before the Consolidation Officer, petitioner has nowhere stated that she ever accepted the gift deed. All the consolidation authorities have held that Gift deed is not as per Section 122 of the Transfer of Property Act, which was never acted upon and hence, is void. The relevant portion of the findings recorded by the Deputy Director of Consolidation in this regard is quoted herein under: ^^fookn ds mDr eq[; fcUnq ds lUnHkZ esa i=koyh esa miyC/k lk{;ksa ds voyksdu ls Li"V gS fd fuxjkuhd=h ds i{k esa fy[ks x;s iathd`r nLrkost fgCckukek fnukad 11-1-1980 dks cyjke }kjk Lo;a budkj fd;k x;k gSA cyjke us U;k;ky; esa mifLFkr gksdj Lo;a c;ku fn;k gS fd mlus fuxjkuhdrkZ ds i{k esa dksbZ fgCckukek ugha fy[kk gS vkSj u gh fgCckukek ds vk/kkj ij fuxjkuhdrkZ dks dksbZ dCtk n[ky gh gSA fuxjkuhd=h us U;k;ky; ds le{k mifLFkr gksdj vius C;ku esa ;g dFku fd;k gS fd og fgCckukek fy[kkus ds fy;s gjS;k ugha x;h Fkh cfYd mlds ifr x;s Fks] ifr us ?kj ykSVdj crk;k fd fgCckukek gks x;k gSA fuxjkuhd=h ds mDr c;ku dh iqf"V mlds ifr d`".k dqekj }kjk Hkh vius c;ku esa fd;k x;k gSA fgCckukek fnukad 11-1-1980 ds voyksdu ls ;g fofnr gS fd mlds fjlkbVy esa nku xzghrk Jherh ikjlnsbZ }kjk nku dks Lohdkj fd;s tkus dk dFku ugha fd;k x;k gS tcfd VªkUlQj vkWQ ÁkWiVhZ ,DV dh /kkjk&122 ds vuqlkj nkuxzghrk ds Lohdkj fd;s oXkSj nku iw.kZ ugha gksrk gS] ;gka ;g Hkh mYys[k fd;k tkuk vko';d gS fd nkudrkZ cyjke }kjk Lo;a nku fn;s tkus ds rF; ls rFkk fookfnr Hkwfe ij nku xzghrk dks dCtk n[ky nsus ds rF; ls Hkh budkj fd;k tk jgk gS] ftldh iq"Vh i=koyh esa miyC/k vU; lk{;ksa ls Hkh gksrh gSA fgCCkkukek esa cyjke dks lUrkughu rFkk cq<+kik vLoLF; dk gksuk fy[kk x;k gS tcfd fuxjkuhd=h rFkk mlds ifr ds c;ku ls Li"V gS fd lu 1980 esa cyjke dh mez 38&40 o"kZ dh jgh gksxh] ftldks cq<+kik ugha dgk tk ldrk gSA fuxjkuhd=h ds ifr d`".k dqekj ds c;ku ls ;g Hkh Li"V gS fd mls cyjke ds lxs lEcU/kh ds ckjs esa tkudkjh ugha gS tcfd fgCckukek ds vuqlkj og cyjke ds lkFk 'kkfey 'kjhd FkkA Li"V gS fd xokg vlfy;r dks fNikus dk Á;kl dj jgk gS] ftlls fgCCkkukek lafnX/k Árhr gksrk gSA i=koyh esa miyC/k lk{;ksa ls ;g Hkh Li"V gS fd mDr fgCckukek ds vk/kkj ij nkf[ky [kkfjt dk ÁkFkZuk i= fnukad 21-8-1980 dks fuxjkughd=h ds ifr dh rjQ ls fn;k x;k Fkk ftldk fojks/k ml le; Hkh cyjke }kjk fgCckukek dks QthZ dgrs gq, fd;k Xk;k FkkA cyjke ds fojks/k dks ns[krs gq, fuxjkuhd=h ds ifr d`".k dqekj us nkf[ky [kkfjt ds lEcU/k esa viuk nkok mBk fy;k x;k Fkk] ftldks rRdkyhu pdcUnh vf/kdkjh }kjk fnukad 23-6-1981 dks fujLr dj fn;k x;k FkkA fuxjkuhd=h ds ifr ds }kjk bl Ádkj ls cyjke ds fojks/k djus ij rRdky nkf[ky [kkfjt ds ÁkFkZuk i= dks mBk fy;s tkus ls Hkh fgCckukek lafnX/k Árhr gksrk gSA** 17. In view of the above, there appears to be no infirmity in the finding so recorded regarding the validity of the gift deed and it cannot be said that the finding is perverse or against the evidence on record. 18. In so far as the question regarding maintainability of the present application under Section 12 of the Act is concerned, this Court is of the view that since the earlier application filed by the petitioner was rejected for want of prosecution and not decided on merits, therefore, the principle of res judicata would not apply. 19. There being concurrent findings-of-fact by the authorities below, based on the evidence available on record, no good ground exists for any kind of interference with the orders impugned in exercise of the extraordinary powers conferred under Article 226 of the Constitution. 20. In the result, the writ petition fails and is, accordingly, dismissed. No order as to costs.