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Allahabad High Court · body

2018 DIGILAW 80 (ALL)

GANESH CHANDRA TIWARI v. D. D. C. , ALLD.

2018-01-09

SALIL KUMAR RAI

body2018
JUDGMENT Hon’ble Salil Kumar Rai, J.—Case has been called out in the revised list. 2. Heard counsel for the petitioner and Standing Counsel representing respondent Nos. 1 to 3. 3. Supplementary-affidavit filed by the petitioner is taken on record. 4. The present writ petition has been filed praying for writ of certiorari quashing the orders dated 30.12.2000, 28.12.1999 and 18.2.1995 passed by respondent Nos. 1, 2 and 3, respectively. 5. The dispute between the petitioner and respondent No. 4 relates to plot No. 445 (area 2 bigha and 10 dhur) in Khata No. 136 situated in village Basahi, Tehsil Karchhana, District Allahabad. 6. The contention of petitioner in the writ petition is that on 1.8.1983, respondent No. 4 mortgaged the disputed plot in favour of the petitioner as a security for Rs. 20,000/- advanced by the petitioner to respondent No. 4 and transferred possession of the disputed plot to the petitioner. The petitioner contends that by virtue of Section 164 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950, the said transfer shall be deemed to be a sale and the petitioner became bhumidhar of the same entitling him to get his name recorded in the revenue records relating to the disputed plot. During the consolidation operations held in the village, the petitioner filed an objection under Section 12 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as ‘Act’) before respondent No. 3 praying that the name of respondent No. 4 may be expunged from the revenue records and in his place the petitioner may be recorded as bhumidhar of the said plot. The said application was allowed ex parte vide order dated 2.6.1986 passed by respondent No. 3. The respondent No. 4 subsequently filed an application praying that the order dated 2.6.1986 passed by respondent No. 3 may be recalled. On the said application, case No. 179 under Section 12 of the Act was registered in the Court of respondent No. 3 and respondent No. 3 vide his order dated 18.2.1995 allowed the said application setting aside the order dated 2.6.1986 allegedly passed earlier. Against the aforesaid order passed by respondent No. 3, the petitioner filed an appeal before respondent No. 2 which was registered as appeal No. 218 and respondent No. 2 vide his order dated 28.12.1999 dismissed the appeal filed by the petitioner. Against the aforesaid order passed by respondent No. 3, the petitioner filed an appeal before respondent No. 2 which was registered as appeal No. 218 and respondent No. 2 vide his order dated 28.12.1999 dismissed the appeal filed by the petitioner. The order passed by respondent No. 2 was challenged by the petitioner before respondent No. 1 through revision No. 1542/124 registered under Section 48 of the Act. Respondent No. 1 vide his order dated 30.12.2000 dismissed the said revision. It is the aforesaid orders that are under challenge in this writ petition. 7. In the writ petition, the petitioner has contended that after the order dated 2.6.1986 passed by respondent No. 3, records relating to the case were misplaced as a result of which the original papers of the petitioner were also misplaced. It has been further stated by the petitioner in the writ petition that respondent No. 3 made no efforts to reconstruct the records and respondent Nos. 1 to 3 have acted illegally by passing an order on the application filed by respondent No. 4 without reconstructing the records. The petitioner has also filed an application (Civil Misc. Application No. 30705 of 2006) under Order 41 Rule 27 of the Code of Civil Procedure, 1908 bringing on record, as Annexure 1, the alleged order dated 2.6.1986 passed by respondent No. 3. It has been contended by the petitioner that no orders should have been passed on the application filed by respondent No. 4 (instituting case No. 179) without reconstructing the records of the case and the order of respondent Nos. 2 and 3 are based on surmises so far as they are based on their findings that the alleged order dated 2.6.1986 purporting to be passed by the Consolidation Officer was a forged and fabricated document. Counsel for the petitioner has further argued that from the records annexed with Civil Misc. Application No. 30705 of 2006 and with the supplementary-affidavit, it is evident that order dated 2.6.1986 was actually passed by the Consolidation Officer and in view of the mortgage deed dated 1.8.1983 transfer of possession of the disputed plot to the petitioner by respondent No. 4 shall be treated as a sale in his favour and the petitioner was consequently entitled to get his name mutated under Section 12 of the Act. It has been contended by the petitioner that for the aforesaid reason, the impugned orders dated 30.12.2000, 28.12.1999 and 18.2.1995 passed by respondent Nos. 1, 2 and 3 are liable to be quashed and the writ petition is liable to be allowed. 8. Considered the submission of the counsel for the petitioner. 9. In his order dated 18.2.1995, the Consolidation Officer has narrated the proceedings of his Court and has recorded that the petitioner never disclosed the basis of order dated 2.6.1986 and also did not disclose the particulars of the documents on which he relied to support his claim that the disputed plot stood transferred to him. Consequently, the respondent No. 3 drew the conclusion that the order dated 2.6.1986 was never passed and therefore, set-aside the same. In his order dated 28.12.1999 the respondent No. 2 has also recorded the fact that though the petitioner contended that his name was recorded in the revenue records on the basis of documents executed in 1973 and 1983 but the petitioner did not reveal the nature of the documents allegedly executed in his favour. In revision No. 1542/124 filed by the petitioner, the revisional Court/respondent No. 1 disagreed with the opinions of Consolidation Officer i.e. respondent No. 3 and the Settlement Officer of Consolidation i.e. respondent No. 2 regarding the existence of the order dated 2.6.1986 but dismissed the revision on the ground that before respondent Nos. 2 and 3 the petitioner never revealed the basis of orders passed in his favour under Section 12 of the Act and had merely stated that respondent No. 4 had executed a document in favour of the petitioner whereby he mortgaged and transferred the disputed property in favour of the petitioner. The revisional Court further recorded its opinion that the petitioner did not make any attempt to get the records of the case reconstructed and could not have done so in as much as he did not even remember the date of the unregistered document allegedly executed by respondent No. 4 in favour of the petitioner. The revisional Court further recorded that the petitioner did not produce any document showing that the disputed plot stood transferred in his favour by operation of Section 164 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ‘U.P.Z.A. & L.R. Act’) and therefore, examination of the said documents was not possible. The revisional Court further recorded that the petitioner did not produce any document showing that the disputed plot stood transferred in his favour by operation of Section 164 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ‘U.P.Z.A. & L.R. Act’) and therefore, examination of the said documents was not possible. Consequently, respondent No. 1 dismissed the revision filed by the petitioner.ýÿ 10. In Civil Misc. Application No. 30705 of 2006 the petitioner has annexed the alleged order dated 2.6.1986 passed by the Consolidation Officer. However, no explanation has been given in the affidavit filed in support of the said application for not filing the said order in proceedings before respondent Nos. 1 to 3 and how the petitioner got the said documents which, according to the petitioner, were misplaced and lost. The petitioner has annexed certain documents with the supplementary-affidavit but the deponent of the said supplementary-affidavit, who is the daughter of the petitioner and has been substituted as petitioner No. 1/1 in place of petitioner, has also not stated as to how she got hold of the said documents and why the same were not filed before the respondents. The alleged mortgage deed dated 1.8.1993 and the alleged statements given by the witnesses before respondent No. 3 in proceedings before respondent No. 3 which culminated in order dated 2.6.1986, have been annexed with the supplementary-affidavit as annexure Nos. 1 to 3. A perusal of orders passed by respondents would show that before the respondents consolidation authorities, the petitioner had pleaded that the records relating to the case and especially the original documents which allegedly supported the case of the petitioner were got misplaced and removed from the records by respondent No. 4. In view of the aforesaid allegations made by the petitioner before the consolidation authorities, it was incumbent upon the petitioner to explain how he subsequently got possession of documents annexed with the supplementary-affidavit. As no such explanation has been given, no orders can be passed in the writ petition relying on the documents annexed with the supplementary-affidavit and with Civil Misc. Application No. 30705 of 2006. Further, there is no denial in the writ petition regarding the findings recorded by respondent Nos. As no such explanation has been given, no orders can be passed in the writ petition relying on the documents annexed with the supplementary-affidavit and with Civil Misc. Application No. 30705 of 2006. Further, there is no denial in the writ petition regarding the findings recorded by respondent Nos. 1 to 3 that the petitioner did not make any attempt to reconstruct the records of the case and never filed any document to substantiate his plea that under Section 164 of the U.P.Z.A. & L.R. Act there was deemed sale of disputed plot to the petitioner. In the aforesaid scenario, there is no illegality or perversity in the orders of respondent Nos. 1 to 3 requiring interference under Article 226 of the Constitution of India. 11. There is another aspect of the matter. The claim of the petitioner to get his name mutated in the revenue records rests solely on the alleged deed dated 1.8.1983 executed by respondent No. 4 in his favour. I have perused the mortgage deed dated 1.8.1983 allegedly executed by respondent No. 4 in favour of the petitioner and annexed as Annexure SA-3 to the supplementary-affidavit. A reading of the document shows that the deed was executed by respondent No. 4 and purports to transfer interest in the disputed plot and possession of the same to respondent No. 4 for the purpose of securing the repayment of a loan of Rs. 20,000/- given by respondent No. 4 to the petitioner and also in lieu of interest chargeable on the said loan. The aforesaid document is a mortgage deed and the principal money secured through the aforesaid document is Rs. 20,000/-. In view of Section 59 of Transfer of Property Act, 1882 the said document had to be registered before any right or interest in the disputed property could pass to the petitioner. Admittedly, the deed dated 1.8.1983 is not registered. The counsel for the petitioner has argued that there was no legal necessity of registration of a mortgage deed where the principal amount secured is merely Rs. 20,000/- and further that the document purporting to transfer immovable property and interest in it would attract the provisions of Section 164 and the transfer would be a deemed sale even if the document of transfer is not registered according to law. I am unable to agree with the contention of the counsel for the petitioner. 20,000/- and further that the document purporting to transfer immovable property and interest in it would attract the provisions of Section 164 and the transfer would be a deemed sale even if the document of transfer is not registered according to law. I am unable to agree with the contention of the counsel for the petitioner. A look at different statutory provisions and judgments interpreting the said provisions belies the contentions of the counsel for the petitioner. 12. In this context, Section 17 of the Indian Registration Act and Sections 54, 58 and 59 of the Transfer of Property are relevant: “17. Documents of which registration is compulsory—(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877) or this Act came or comes into force, namely : (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether vested or contingent, to or in immovable property. (f) any other instrument required by any law for the time being in force, to be registered.” “54. “Sale” defined—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. “Sale” defined—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” “58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgaged” defined.—(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed. (b) Simple mortgage-Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee. (c) Mortgage by conditional sale-Where, the mortgagor ostensibly sells the mortgaged property- on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. (d) Usufructuary mortgage-Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee. (e) English mortgage-Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage. (f) Mortgage by deposit of title-deeds-Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds. (g) Anomalous mortgage-A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.” “59. (g) Anomalous mortgage-A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.” “59. Mortgage when to be by assurance—Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property. 59A. References to mortgagors and mortgagees to include persons deriving title from them—Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.” 13. A perusal of Section 17 of the Indian Registration Act and Sections 54, 58 and 59 of the Transfer of Property Act, 1882 shows that any transfer of any immovable property exceeding an amount of Rs. 100/- or more can be executed only by a registered document and no right or interest shall accrue to the petitioner on the basis of an unregistered document. In view of the said statutory provisions, the contention of the petitioner that the deed dated 1.8.1983 did not require registration as the principle amount secured through the same was merely Rs. 20,000/- is not acceptable. 14. So far as the next contention of the petitioner that in order to attract the provisions of Section 164 of the U.P.Z.A. & L.R. Act the document of transfer is not required to be registered is concerned, it would be relevant to quote Section 164 of the U.P.Z.A. & L.R. Act: “164. 20,000/- is not acceptable. 14. So far as the next contention of the petitioner that in order to attract the provisions of Section 164 of the U.P.Z.A. & L.R. Act the document of transfer is not required to be registered is concerned, it would be relevant to quote Section 164 of the U.P.Z.A. & L.R. Act: “164. Transfer with possession by a bhumidhar to be deemed a sale.—Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any 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.” 15. The requirement of registration in order to attract the provisions of Section 164 of the U.P.Z.A. & L.R. Act was considered by this Court in the case of Umesh Chand and others v. Board of Revenue, U.P., At Allahabad and others, 2002 (93) RD 264 and in the said case this Court after considering the previous judgment on the question concluded that the provisions of Transfer of Property Act and the Indian Registration Act are applicable with regard to transfer made under provisions of U.P.Z.A. & L.R. Act and in order to attract Section 164 of the U.P.Z.A. & L.R. Act the document has to be registered if the value of the transfer of any interest in any holding through the aforesaid is more than Rs. 100/- and the transfer has to be effectedýÿ in accordance with law i.e. in accordance with Transfer of Property Act, 1882 and Indian Registration Act. The relevant portions of the aforesaid judgment are produced below: 16. “Thus, it is clear that the provisions of Transfer of Property Act are fully applicable while effecting a transfer of holding by bhumidhar. In the Act, wherever it is mentioned that particular meaning given in Transfer of Property Act or Indian Registration Act be not given to a transaction, specific provision has been made in U.P. Zamindari Abolition and Land Reforms Act. In the Act, wherever it is mentioned that particular meaning given in Transfer of Property Act or Indian Registration Act be not given to a transaction, specific provision has been made in U.P. Zamindari Abolition and Land Reforms Act. Reference has been made to Section 158 of U.P. Zamindari Abolition and Land Reforms Act which provides that lease for a term exceeding one year or from year to year may be made either by a registered instrument or in the prescribed manner. Section 158 of U.P. Zamindari Abolition and Land Reforms Act has overriding effects to the provisions of Transfer of Property Act and Indian Registration Act whereas Section 107 of Transfer of Property Act provides that a lease of immovable property from year to year, or for any term exceeding one year can be made only by the registered instrument. Section 158 clearly contemplates that applicability of Transfer of Property Act as well as Indian Registration Act is not ruled out in application to U.P. Zamindari Abolition and Land Reforms Act and the provisions are overridden in specific case. Apart from Section 59 of Transfer of Property Act, Section 17 of Indian Registration Act also provides that registration of instruments to value of more than 100 rupees or more of immovable property is required when such an instrument purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent...” 17. “From the above discussions, it is clear that any transfer of any holding regarding an amount of Rs. 100 or more can be only executed by registered documents. “Any transfer of any holding” referred to under Section 164 of U.P. Zamindari Abolition and Land Reforms Act refers to transfer of any interest in any holding if the value is more than 100 rupees of immovable property, the transfer has to be effected in accordance with law. No right or interest can pass in immovable property in a manner contrary to provisions of Transfer of Property Act and Indian Registration Act...” 29. “In view of what has been stated above, the aforesaid judgment of learned single Judge does not support the contention of the petitioners since the decisions relied in the aforesaid case do not lay down any proposition as referred to in the judgment of learned single Judge. “In view of what has been stated above, the aforesaid judgment of learned single Judge does not support the contention of the petitioners since the decisions relied in the aforesaid case do not lay down any proposition as referred to in the judgment of learned single Judge. It is true that a document which purports to transfer of immovable property and is not registered, will attract the provisions of Section 164 and will be deemed to be sale but only when the value of the Immovable property is not Rs. 100 or more.” 16. In view of the aforesaid judgment of this Court, the argument of the counsel for the petitioner that there was no necessity of registration of a document to attract provision of Section 164 of the U.P.Z.A. & L.R. Act is also not acceptable. 17. For the aforesaid reasons, the writ petition lacks merit and is hereby dismissed. 18. Interim order granted in favour of the petitioner stands vacated.