Chhedi Lal and Others vs Maniruddin (deceased) through LRs. <BR>Maniruddin (deceased) through LRs. Vs Chhedi Lal and Others

Pankaj Mithal, J.—This second appeal arises out of a suit for cancellation of the two sale deeds dated 18.12.1979 and 1.2.1980 alleged to have been executed by the plaintiff Maniruddin, now deceased (represented by his heirs and legal representatives) in favour of Chhedi Lal and Smt. Kalawati respectively.

The suit was dismissed by the court of first instance but in appeal the judgement and order of the lower court has been set aside and the suit has been decreed. Therefore, the defendants have preferred this appeal.

The plaintiff Maniruddin was said to be the owner of araji No. 326 having an area of 1 acre 40 1/2 decimal. It is said that he executed two registered sale deeds 28.12.1979 and 1.2.1980 in respect of 17 1/2 decimal each in favour of Chhedi Lal defendant No. 1 and Smt. Kalawati defendant No. 2 respectively. Subsequently, Smt. Kalawati transferred the land so purchased in favour of Smt. Lilawati Devi. On 19.5.1997, the plaintiff instituted O.S. No. 346 of 1987 for cancellation of the above sale deeds alleging that he had come to know about the sale deeds only in the last month; he had not executed any of them; he was not paid any sale consideration; and the plot was under consolidation and therefore sale deeds could have been executed without the prior permission of the Settlement Officer Consolidation (in short SOC).

The court of first instance on the basis of the sale deeds on record and the other evidence held that both the sale deeds bear the thumb impression of the plaintiff and they have been duly executed by him. It was also held that the sale consideration was paid to him which has been proved and stand corroborated by the recitals of the sale deeds also. The lower court further returned a finding that for the purposes of transfer of the land in dispute, initial permission of the SOC was taken on 5.12.1979 allowing execution of the sale deed within a month of the permission. This period of one month was extended by SOC vide order dated 7.1.1980 for another one month. The two sale deeds have been executed within the aforesaid period. The lower appellate court affirmed the findings of the lower court with regard to due execution of the sale deeds and payment of sale consideration. However, while dealing with the third aspect it held that under the initial permission granted the sale deeds were to be executed by 4.1.1980 but no of the sale deeds were executed within the said period and the reason for the delay has not been explained.

It is now in the above circumstances that the defendants have preferred this second appeal basically assailing the determination of the lower appellate court on the third point. The plaintiff has filed cross objections challenging the findings recorded on the first two points also.

I have heard Sri P.N. Singh, learned Counsel for the appellant and Sri Sankatha Rai learned Counsel for the respondents.

I first of all take up the cross objections which in fact have not been entertained as yet by any positive order.

The perusal of the two judgments of the courts below amply demonstrates that the two sale deeds in dispute were executed on 28.12.1979 and 1.2.1980 but till 1997 i.e., for over 17 years plaintiff took no steps whatsoever for seeking cancellation of the said sale deeds. Anyhow, it was pleaded that the sale deeds were not executed by him and probably some imposter was produced before the Sub-Registrar and the sale deeds were illegally got executed. The court of first instance on the perusal of the original sale deed paper No. 34 Ka and the copies of the sale deeds paper No. 7 Ga and 8 Ga and further on the basis of the report of the finger print expert came to a definite conclusion that the thumb impressions on the sale deeds are that of the plaintiff which tallies with his admitted thumb impression on record. Therefore, there is no question of sale deeds being executed by any imposter. It was further observed that not even the plaintiff''s own witness PW-2 dared to say that the sale deeds were forged and fictitious and does not bear the thumb impression of the plaintiff. The aforesaid finding of fact has also been affirmed by the lower appellate court. Thus, in view of the concurrent findings on the above aspect, the objection taken by the plaintiff to this effect has no merit and stands rejected.

The other objection is with regard to finding of payment of sale consideration. The payment was said to have been made by three cheques. The said payment was proved by the defendant by producing statement of his Bank account, according to which the payment under cheques so issued was duly made to the plaintiff. The sale deeds also contain an endorsement that entire sale consideration was paid to the plaintiff by means of cheques ie Rs. 4000/- before the execution of sale deeds and Rs. 8,000/- before the Sub-Registrar at the time of execution of sale deeds. Since no contrary evidence to deny the aforesaid payment was produced by the plaintiff, the courts below concurrently held that the sale deeds were not without sale consideration. This also being the pure finding of fact can not be interfered with in Second appeal and therefore the cross objection disputing the said finding has no force and stands rejected.

Now I come to the main appeal. At the time of admission the following substantial question of law was framed by the court for determination:

Whether in the facts and circumstances, the lower appellate court erred in law in holding the sale deeds to be void only on the ground that it was executed after the time granted in the permission given by the SOC?

It would be appropriate to have a glimpse of the provisions of Section 5(1) of the U.P. Consolidation of Holdings Act, 1950 (hereinafter referred to as an Act) and the scheme of the Act before attempting to determine the above question. The scheme of the Act provides that the consolidation proceedings commences with the issuance of the notification u/s 4(2) of the Act by the State Government and the area remains under consolidation till the proceedings are notified to be closed by issuance of notification u/s 52 of the Act. Section 5(1)(c) (ii) of the Act now deleted by (U.P. Act No. 31 of the 1991 w.e.f, 19.2.1991) provided that during the continuation of the consolidation proceedings no tenure holder shall transfer any part of the holding without the previous permission in writing of the SOC. The provisions of Section 5 of the Act as existed at the relevant time read as under:

[5. Effect of [notification u/s 4(2)]- (1) Upon the publication of the notification [under Sub-section (2) (of Section 4] in the Official Gazette, the consequences, as hereinafter set forth, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification u/s 52 or Sub-section (1) of Section 6, as the case may be, ensure in the area to which the [notification u/s 4(2)] relates, namely:

(a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and the duty of maintaining the record-of-rights and preparing the village map, the field-book and the annual register of each village shall be performed by the District Deputy Director of Consolidation, who shall maintain or prepare them, as the case may be, in manner prescribed.

(b) ....

(c) notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950, no tenure- holder,except with the permission in writing of the settlement Officer, Consolidation, previously obtained shall-

(i) use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming; or

(ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area.

Provided that a tenure-holder may continue to use his holding, or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued [under Sub-section (2) of Section 4].

In Lal Ji v. Joint Direction of Consolidation and Ors. 1983 RD 100 this Court has observed that the purpose of grant of permission by the SOC to the proposed transfer of land u/s 5(1)(c) is to ensure that such transfer does not adversely affect the consolidation scheme. In another case reported in 1997 RD 285 Smt. Sita Devi v. Deputy Director of Consolidation, Jaunpur it has been held that in case permission is granted to execute the sale deed within a specified period but the sale is made thereafter, the delay in its execution, if explained, can not be held to invalidate the sale deed or void for want of permission u/s 5(1)(C) of the Act. Therefore, the result is that in the event permission is granted by SOC u/s 5(1)(C)(ii) for making sale, it would not invalidate the sale to be void even if it is executed after the expiry of the period fixed therein.

In Lalta Prasad Srivastava v. IX Additional District Judge, Agra 1996 RD 544 a Single Judge of this Court observed as under:

In a case where permission to sell the entire share in the holding consisting of several plots or chak under one tenure has been granted, the prohibition in making transfer stands removed and on any one or more plots or chak or part of the holding can be transferred validly. The transfer of a part of holding after permission to transfer the whole can not be said to defeat the purposes of the Act nor can it be deemed to invalidate the sale.

In one of the decisions Sheo Nayak v. Smt. Saraswati and Ors. 1991 AWC 37 where permission to transfer several plots was taken and the sale deed was executed only in respect of one of them, it was held that sale deed is not void and the judgments and orders of the courts below dismissing the suit for cancellation of sale deed were held to be correct. A more clearer view in this regard has been expressed by another Single Judge of this Court in the case of Kali Charan and Ors. v. Deputy Director Consolidation, Gyanpur 1981 (2) RD 319. In this case SOC had granted permission to transfer the entire land but sale was executed in respect of only part of it and the sale was held to be valid.

Thus, from the above, the legal position that emerges is that once permission is granted u/s 5(1)(C) of the Act by the SOC for the transfer of the entire holding, the sale even if made after the expiry of the period contemplated under the permission would not be void or invalid and secondly the transfer of part of the holding despite permission to transfer the entire holding would not defeat the purpose of the Act and can not be deemed to invalidate the sale. In view of the legal position discussed above the transfer by sale deeds even after expiry of the term stipulated under the permission is not sufficient for holding the sale to be void and further that where permission to transfer the entire holding is given, the tenure holder is free to make a sale of part of it and such sale would not be held to be invalid/void.

Now the sale deeds made in the instant case are to be examined in the light of the above legal position. The record reveals that the SOC had granted permission to sell the land on 5.12.1979 for a period of one month. The first sale deed was executed on 28.12.1979. It was as such within the period granted under the permission and therefore can not be held to be void or invalid.

The time of one month provided under the permission of the SOC was admittedly extended for one month vide order dated 7.1.1980. This means that the transfer of the land could have been made by 7.2.1980 or 4.2.1980. The second sale deed was executed on 1.2.1980 which was again within time/extended time of one month granted under the permission of the SOC. Therefore, none of the two sale deeds were executed either without prior permission of the SOC or beyond the period/extended period stipulated therein. Thus, the lower appellate court had manifestly erred in holding that the sale deeds were not executed within time allowed as per the permission of the SOC.

In view of the aforesaid facts and circumstances, the two sale deeds involved in the suit/appeal can not be held to be void or invalid on the ground of infringement of Section 5(1)(C)(ii) of the Act.

No other point was raised or pressed before me by either of the parties.

Accordingly, the judgment and orders of the lower appellate court can not be sustained. Therefore, this Second appeal succeeds and is allowed. The Judgment and order of the lower appellate court dated 23rd July 2004 passed in Civil Appeal No. 32/97 Maniruddin v. Chhedi Lal and Anr. is set aside and that of the Court of first instance dated 19th May 1997 passed by III Additional Civil Judge in Original Suit No. 346/87 (Maniruddin v. Chhedi Lal and Anr.) is restored.

Parties to bear their own costs.