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2025 DIGILAW 495 (ALL)

Pawan Kumar v. State of U. P. Thru Secretary

2025-03-17

IRSHAD ALI

body2025
JUDGMENT : Irshad Ali, J. 1. Heard Sri Virendra Misra, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the respondent - State. 2. By means of present writ petition, the petitioner is challenging the order dated 14.05.2003 passed by Commissioner, Faizabad Division, Faizabad in revision No.73 Barabanki under Section 56 of Indian Stamp Act; Pawan Kumar Agrawal Vs. State of U.P. and others and order dated 05.03.2001 passed by Additional District Magistrate, (Finance and Revenue) (ADM - F&R), Barabanki in case No.80/2000-01 under Section 47A/33 Indian Stamp Act; State of U.P. Vs. Pawan Kumar Agrawal. 3. Factual matrix of the case is that the petitioner took a piece of land area measuring 130 Ft. in east to west side and 350 Ft. in north-south length of Gata No.171 and 173 situated at revenue village Satrahi Pargana and Tehsil Haidergarh, District Barabanki. A notice was issued by the Collector, Stamps, Barabanki, which was replied by the petitioner on 14.09.1998 and specifically denied the allegations and justified the assessment of stamps of instrument of tenancy of land in question. 4. The Tehsildar, Haidergarh prepared a report and found a deficiency of stamp of value of Rs.1200/-. The ADM (F&R)/Collector Stamps, Barabanki discarded the explanation and response submitted by the petitioner on 14.09.1998 and also ignored the report submitted by the Tehsildar without making any finding and observation and decided the case finally on 09.06.1999. 5. The Tehsildar, without assigning any reason, observation and finding decided the restoration application filed by the petitioner vide order dated 05.03.2001. Against the order passed by ADM (F&R), the petitioner preferred a revision against order dated 05.03.2001, which was also dismissed by the Commissioner without assigning any reason and without giving any finding on the report of the Tehsildar and explanation of the petitioner. Hence, the present writ petition has been filed before this Court. 6. Submission of learned counsel for the petitioner is that in view of Section 164, U.P. Zamindari Abolition and Land Reforms Act (U.P. ZA&LR Act), the agreement in question would be deemed to be a transfer inasmuch as it was admitted therein that possession over the property in suit had been delivered to the respondents in pursuance of the said agreement. Submission of learned counsel for the petitioner is that in view of Section 164, U.P. Zamindari Abolition and Land Reforms Act (U.P. ZA&LR Act), the agreement in question would be deemed to be a transfer inasmuch as it was admitted therein that possession over the property in suit had been delivered to the respondents in pursuance of the said agreement. Since possession over the property had been transferred to the respondents in pursuance of the said agreement, the agreement was for all purposes a sale of the property. This submission also is on the face of it untenable. Section 164, U.P. ZA&LR Act deals with transfer with possession by a bhumidhar. It contemplates transfer of any holding or any part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money referred to in the said section. On the face of it for the application of Section 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. Since an agreement of sale does not have the effect of transferring any holding or part thereof even if possession was transferred of the holding in pursuance of the said agreement, it cannot be said that the agreement amounted to a sale under Section 164. Section 164 contemplates transfer by a bhumidhar. In support of his submission, he placed reliance upon a judgment in the case of Mohammad Fasih, Appellant Vs. Munir Khan and another, respondents; 1987 All. L.J. 617, paragraph 16. 7. Next submission of learned counsel for the petitioner is that on perusal of impugned order, 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. ZA&LR 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 in immovable property in a manner contrary to provisions of Transfer of Property Act and Indian Registration Act. 8. His next submission is that transfer of possession alone is not sufficient. No right or interest can pass in in immovable property in a manner contrary to provisions of Transfer of Property Act and Indian Registration Act. 8. His next submission is that transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. Thus, the applicability of Section 164 transfer of possession has to be in pursuance of transfer of any holding. Transfer of any holding is condition precedent for transfer of possession. Thus even if possession is transferred by bhumidhar without transferring any interest in the holding, the said transfer cannot be covered by Section 164 of U.P. ZA & LR Act. In support of his submissions, he placed reliance upon a judgment in the case of Umesh Chand and others Vs. Board of Revenue , U.P. Allahabad and others; 2002 SCC Online All 1508 : 2002 All LJ680, paragraph 18, 19, 20 & 21. 9. He further placed reliance upon a judgment in the case of Rama Shanker and others Vs. D.D.C. ; Writ B No.5314 of 1980 decided on 18.02.2020, wherein Division Bench of this Court was followed as referred hereinabove. Relevent paragraphs are18, 19 & 20. 10. On the other hand, learned Additional Chief Standing Counsel submitted that the impugned order passed by the respondents do not suffer from any infirmity or illegality and are just and valid. 11. His next submission is that on the basis of agreement possession was transferred to the transferee, therefore, the judgment relied upon by learned counsel for the petitioner do not apply to the present facts and circumstances of the case. 12. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as judgments relied upon by learned counsel for the petitioner. 13. To resolve the controversy involved in the matter, relevant portion of the judgments relied upon are being quoted below: i) Mohammad Fasih, Appellant V. Munir Khan and another, Respondents; 1987 All. 13. To resolve the controversy involved in the matter, relevant portion of the judgments relied upon are being quoted below: i) Mohammad Fasih, Appellant V. Munir Khan and another, Respondents; 1987 All. L.J. 617: "16) Counsel for the respondents in this connection urged that in view of S. 164, U.P. Zamindari Abolition and Land Reforms Act, the agreement in question would be deemed to be a transfer inasmuch as it was admitted therein that possession over the property in suit had been delivered to the respondents in pursuance of the said agreement. According to him since possession over the property had been transferred to the respondents in pursuance of the said agreement the agreement was for all purposes a sale of the property. This submission also is on the face of it untenable. Section 164, U.P. Zamindari Abolition and Land Reforms Act, deals with transfer with possession by a bhumidhar. It contemplates transfer of any holding or any part thereof made by a bhumidhar by which possession is transferred to the tranaferee for the purpose of securing any payment of money referred to in the said section. On teh face of it for the application of S. 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. Since an agreement of sale does not have the effect of transferring any holding or part thereof even if possession was transferred of the holding in pursuance of the said agreement it cannot be said that the agreement amounted to a sale under S. 164. Moreover, S. 164 contemplates transfer by a bhumidhar. .........................." ii) Umesh Chand and others V. Board of Revenue, U.P., Allahabad and others; 2002 SCC Online All 1508 : 2002 All LJ 680: "18. 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. 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. The Division Bench of this Court in Mohd. Fasih v. Munir Khan, 1987 ALJ 617, considered the scope and ambit of Section 164 of U.P. Zamindari Abolition and Land Reforms Act. The Division Bench held in paragraph 16, "16. Counsel for the respondents in this connection urged that in view of Section 164, U.P. Zamindari Abolition and Land Reforms Act, the agreement in question would be deemed to be a transfer inasmuch as it was admitted therein that possession over the property in suit had been delivered to the respondents in pursuance of the said agreement. According to him since possession over the property had been transferred to the respondents in pursuance of the said agreement the agreement was for all purposes a sale of the property. This submission also is on the face of it untenable. Section 164, U.P. Zamindari Abolition and Land Reforms Act. deals with transfer with possession by a bhumidhar. It contemplates transfer of any holding or any part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money referred to in the said section. On the face of it for the application of Section 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. Since an agreement of sale does not have the effect of transferring any holding or part thereof even if possession was transferred of the holding in pursuance of the said agreement it cannot be said that the agreement amounted to a sale under Section 164. Moreover, Section 164 contemplates transfer by a bhumidhar." 19. The Division Bench in the aforesaid judgment has clearly held that under Section 164, transfer of possession alone is not sufficient. Moreover, Section 164 contemplates transfer by a bhumidhar." 19. The Division Bench in the aforesaid judgment has clearly held that under Section 164, transfer of possession alone is not sufficient. It held "what is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof." Thus, for applicability of Section 164, transfer of possession has to be in pursuance of transfer of any holding. Transfer of any holding is condition precedent for transfer of possession. Thus, even if possession is transferred by bhumidhar without transferring any interest in the holding, the said transfer cannot be covered by Section 164 of U.P. Zamindari Abolition and Land Reforms Act. As observed above, transfer of any right in a holding by bhumidhar can be made of a value more than Rs. 100 by registered document. The Division Bench has also clearly held that even if by registered agreement to sale, transfer of possession is made by bhumidhar, the said transfer will not be covered by Section 164 of U.P. Zamindari Abolition and Land Reforms Act since by agreement to sale, no right or interest is transferred in the holding. When by registered agreement to sale with transfer of possession does not come within Section 164 of U.P. Zamindari Abolition and Land Reforms Act, there is no question of applying provisions of Section 164 of U.P. Zamindari Abolition and Land Reforms Act in the facts of the present case whereas, as noted above, only a plain receipt of revenue stamp was given by the father of defendants as advance for transferring the land in dispute. The case of the plaintiff, as noted above, clearly indicates that the transaction was more or less in the nature of agreement to sale. In view of the Division Bench pronouncement, it is clear that provisions of Section 164 of U.P. Zamindari Abolition and Land Reforms Act are not attracted in the facts of the present case. 20. This Court in several other decisions has taken the same view. In Data Ram v. Additional Civil Judge, Bulandshahr and Anr., 1978 ALJ 840, this Court held that there must be a transfer of holding in law, such as to transfer some right, title or interest of the tenure holder in the holding. It was held in paragraph 4 that : "4. In Data Ram v. Additional Civil Judge, Bulandshahr and Anr., 1978 ALJ 840, this Court held that there must be a transfer of holding in law, such as to transfer some right, title or interest of the tenure holder in the holding. It was held in paragraph 4 that : "4. Having given the matter my anxious consideration, I am unable to agree with the contention of the learned counsel. Although Section 164 speaks of "any transfer of any holding or part thereof made by a bhumidhar", it does not mean that the transfer of holding spoken of thereby may be merely a transfer of possession over land included in the holding. There must be a transfer of the holding in law, such as to transfer some right, title or Interest of the tenure holder in the holding. A transfer of interest in holding cannot be effected in case of property valued at more than Rs. 100 without a registered Instrument. Even if there is transfer of possession under an unregistered agreement, there is no transfer of any right, title or interest of the tenure-holder in the holding. In my opinion a bare transfer of possession of land by a tenure-holder, may be for securing any payment of any advance to him, is not covered by Section 164 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The object of Section 164 is to convert such transactions as a Zarpeshgi lease or a usufructuary mortgage into sale, and not to convert mere transfers of possession of land by a tenure holder without any transfer of Interest in the holding into sales. In this view of the matter the order of the Additional Civil Judge cannot be said to suffer from any error of law." 21. In 1978 Rev. Dec 307 : (1978 All LJ 836) Kedar v. District Judge, Banda it was held that : "Before this provision applies, the transaction in question has to be a transfer. An agreement to sell cannot be held to be transfer as contemplated by this section, for no title passes to another person as a result of the transaction. Dec 307 : (1978 All LJ 836) Kedar v. District Judge, Banda it was held that : "Before this provision applies, the transaction in question has to be a transfer. An agreement to sell cannot be held to be transfer as contemplated by this section, for no title passes to another person as a result of the transaction. This apart, even assuming that such an agreement would fall within the purview of Section 164 of the Act, inasmuch as the Instrument evidencing it was not a registered one, no title at all could pass under this document as the consideration in the agreement to sell was in excess of Rs. 100. This contention must, therefore, be rejected." iii) Rama Shanker and others V. D.D.C., Writ B No.5314 of 1980 decided on 18.02.2020: 19. The division bench in the case of Mohd. Fasih (supra) also had the occasion to examine the same issue. It specifically dealt with the precise submission being advanced by learned Senior Counsel for the petitioners, at page 41 of the report, wherein it was observed as under:- "Counsel for the respondents in this connection urged that in view of Section 164 of the U.P. Zamindari Abolition and Land Reforms Act the agreement in question would be deemed to be a transfer inasmuch as it was admitted therein that possession over the property in suit had been delivered to the respondents in pursuance of the said agreement. According to him since possession over the property had been transferred to the respondents in pursuance of the said agreement the agreement was for all purposes a sale of the property. This submission also is on the face of it untenable. Section 164 of the U.P. Zamindari Abolition and Land Reforms Act deals with transfer with possession by a Bhumidhar. It contemplates transfer of any holding or any part thereof made by a Bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money referred to in the said section. On the face of it for the application of Section 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. On the face of it for the application of Section 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. Since an agreement of sale does not have the effect of transferring any holding or part thereof even if possession was transferred of the holding in pursuance of the said agreement it cannot be said that the agreement amounted to a sale under Section 164." 20. In view of the authoritative pronouncement of law made by the division bench and in absence of any contrary law being shown to exist, the submission being advanced on the strength of Section 164 of the Zamindari Act, clearly does not survive for any active consideration. Since a simple agreement to sell does not have the effect of transferring any holding, mere passing of possession, even if proved, could not have given birth to title in favour of Nepal, under section 164 of the Zamindari Act. The essential pre-condition of Section 164 of the Zamindari Act, was never claimed or proven to have existed. Indisputably, the burden to prove such fact was on Nepal, which was never discharged. Existence or otherwise of such contract as may have given rise to possession in favour of Nepal would remain a factual plea. It was never raised before the fact finding authorities. It cannot be raised now." 14. In the case of Mohammad Fasih (Supra) , it has been held that since possession over the property had been transferred to the respondents in pursuance of the said agreement, the agreement was for all purposes a sale of the property. This submission also is on the face of it untenable. Section 164, U.P. ZA&LR Act deals with transfer with possession by a bhumidhar. It contemplates transfer of any holding or any part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money referred to in the said section. On the face of it for the application of Section 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. On the face of it for the application of Section 164 transfer of possession alone is not sufficient. What is required by the section is transfer of possession made in pursuance of transfer of any holding or part thereof. Since an agreement of sale does not have the effect of transferring any holding or part thereof even if possession was transferred of the holding in pursuance of the said agreement, it cannot be said that the agreement amounted to a sale under Section 164. Section 164 contemplates transfer by a bhumidhar. 15. In the case of Umesh Chand and another (Supra) , it has been held that 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. ZA&LR 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 in immovable property in a manner contrary to provisions of Transfer of Property Act and Indian Registration Act. 16. In the case of Rama Shanker and others (Supra) , it has been held that since a simple agreement to sell does not have the effect of transferring any holding, mere passing of possession, even if proved, could not have given birth to title in favour of Nepal, under section 164 of the Zamindari Act. The essential pre- condition of Section 164 of the Zamindari Act, was never claimed or proven to have existed. 17. In view of facts and circumstances of present case, the judgments relied upon by learned counsel for the petitioner are fully applicable to the present case and in view of reasoning recorded therein, the writ petition deserves to be allowed. 18. Accordingly, the impugned order dated 14.05.2003 passed by Commissioner, Faizabad Division, Faizabad in revision No.73 Barabanki under Section 56 of Indian Stamp Act; Pawan Kumar Agrawal Vs. State of U.P. and others and order dated 05.03.2001 passed by Additional District Magistrate, (Finance and Revenue) (ADM - F&R), Barabanki in case No.80/2000-01 under Section 47A/33 Indian Stamp Act; State of U.P. Vs. Pawan Kumar Agrawal are hereby quashed. 19. The writ petition succeeds and is allowed. 20. No order as to costs.