Ezaz Ali and Others vs Deputy Director of Consolidation and Others

Rajiv Sharma, J.—Heard Sri Prashant Chandra, Senior Advocate, assisted by Sri Faisal Ahmad Khan, learned Counsel appearing on behalf of petitioners and learned Standing Counsel appearing on behalf of opposite parties No. 1 to 3 and Sri S.K. Mehrotra, learned Counsel appearing on behalf of opposite parties No. 4 and 5.

With the consent of learned Counsel for the parties, I proceed to hear the matter finally.

By means of the instant writ petition, the petitioners are assailing the order dated 28.3.2009 passed by the Deputy Director of Consolidation, Lucknow inter alia on the ground that while entertaining the revision against the interlocutory remand order dated 9.2.2009 passed by the Settlement Officer Consolidation, Unnao Camp, Lucknow, the Deputy Director of Consolidation has in effect re-written the provisions of Section 90A of the Evidence Act and in a summary manner recorded a finding that sale deed executed on 6.3.2003 and 13.6.2003, more than 36 years after sale deed dated 19.6.1972 executed and registered in favour of the petitioners, is valid and consequently the Mutation order dated 5.9.2003 passed by the Consolidation Officer was also held to be valid.

In the instant writ petition, the dispute relates to Khasra Plot No. 165 (old No. 1475), measuring area 14 bigha, 19 biswa, Khasra Plot No. 170 Ka (Old No. 1475), measuring area of 3 Bigha, 19 Biswa, Khasra Plot No. 171 Kha (Old No. 1540), measuring 10 Bigha and Khasra plot No. 175 Cha (Old No. 1551), measuring area 17 bigha situate at Kalli Paschim, Pargana Bijnore, Tehsil and district Lucknow. The said plots were recorded in the name of Late Smt. Saidunnisha, daughter of Late Abdul Hami, Smt. Qamarunnisha, daughter of Late Salim and Late Niya, son of Late Jabbar Hussain, residents of village Kalli Paschim, Pargana Bijnore, Tehsil and district Lucknow. The aforesaid tenure holders had sold the property in question vide registered sale deed 19.6.1972 in favour of the petitioner after receiving full sale consideration and since then, the petitioners have been in peaceful possession of the property in question.

On 16.4.2008, the petitioners obtained a copy of the Khatauni whereupon it was revealed that on the basis of some orders dated 1.8.2003, 28.8.2003 and 5.9.2003 passed in Case No. 496, 468 and 528, respectively, u/s 12 of the U.P. Consolidation of Holding Act, 1953, by the Consolidation Officer Malihabad, Lucknow, the names of the opposite parties Nos. 4 and 5 have been mutated in place of original recorded tenure holder from whom the petitioners had purchased the property in question vide registered sale deed dated 19.6.1972. Consequently, the petitioners preferred three appeals before the Settlement Officer Consolidation against the orders dated 1.8.2003, 28.8.2003 and 5.9.2003, respectively, passed by the Consolidation Officer, Malihabad, Lucknow.

The Settlement Officer Consolidation, vide order dated 9.2.2009, consolidated all these three appeals and passed a common order for remanding the matter to the Consolidation Officer with a direction to investigate the matter regarding title of the property after affording an opportunity of hearing to all the parties including the petitioners. Feeling aggrieved, the opposite party No. 3-Sahu Housing and Finance Private Limited filed a Revision before the Deputy Director of Consolidation, to which petitioners filed their written objections, wherein it has been stated that the revision was not maintainable for non-joinder of necessary parties inasmuch as before the Appellate Court the original tenure holders of the land and the Land Management Committee were parties but the same had not been arrayed as opposite parties in Revision. However, the Deputy Director of Consolidation, vide order dated 28.3.2009, allowed the revision, setting aside the order dated 9.2.2009 passed by the Settlement Officer Consolidation and confirmed the orders dated 1.8.2003, 28.8.2003 and 5.9.2003 passed by the Consolidation Officer. It is in this background that the petitioners have preferred the instant writ petition.

Learned Counsel for the petitioner submits that the revisional Court was not justified in accepting the testimony of a Clerk of the Registration Department and holding the sale deeds executed in the year 2003 to be authentic inasmuch as he was not the person when the sale deeds in favour of the petitioners were executed as also the fact that while passing the impugned order in the above manner the Revisional Court has clearly transgressed its jurisdiction. The inference drawn by the Revisional Court that the sale deeds executed in favour of the petitioner were liable to be ignored for the reason that no formal order of mutation was passed is wholly illegal.

Mr. S. K. Mehrotra, learned Counsel appearing for the opposite parties submits that the sale deed dated 19.6.1972, allegedly executed by the owners of the plots in favour of the petitioners, was not filed before the Settlement Officer (Consolidation) in original, but the photocopy of the fabricated document purporting to be prepared from the registered copy of the sale deed alleged to be executed in their favour on 19.6.1972 was produced. In order to verify the said fact, the Settlement Officer (Consolidation) summoned Sri Mukesh Chandra Srivastava, Registration Clerk of Sadar Tehsil, Lucknow, who deposed before him that in the original record at page No. 251 contains the figure "251" in print but the photocopy of the very document produced by the petitioners contains the figure "251" written by hand. It has further been deposed that on the reverse side of the above page,, the serial number of the above page number "252" is written on the left side on the original record while on the photocopy of the same very document filed by the petitioners before the Settlement Officer Consolidation, it is on the right hand side written by hand. The Registration Clerk also deposed that there is a difference in the manner of writing . Further, Rs. 4800/- has been disclosed as valuation of the land whereas the valuation in the register is recorded as Rs/ 2722/-. Counsel for the opposite parties submits that although the Settlement Officer Consolidation recorded the statement of Sri Mukesh Chandra Srivastava but the said statement of Sri Mukesh Chandra Srivastava being a root of the matter was not considered by the Settlement Officer Consolidation and as such, it was rightly considered by the revisional Court and further it was correctly held that the transaction of the sale deed relied upon by the petitioners was not a genuine transaction.

Elaborating his arguments, Counsel for the respondents submitted that the consolidation proceedings had started in the village in question by publication of notification u/s 4 (2) of the U.P. Consolidation of Holdings Act, 1953 on 31.1.1970 while the consolidation proceedings were closed by publication of notification u/s 52 of the Act on 5.7.2003. He submits that according to the petitioners, the alleged sale deed was executed on 19.6.1972 in their favour during pendency of the consolidation proceedings. Although as per Section 5 (1) (c) (ii) of the Act, permission is necessary from the Settlement Officer Consolidation for executing the said sale deed but no such permission was obtained as such the alleged sale deed, which was executed in their favour, cannot be said to be a valid document. The above provision of Section 5 (1) (c) (ii) of the Act was on the statute book upto 19.2.1991 and it was omitted by U.P. Act No. 30 of 1991. Thus, the mutation orders passed by the Consolidation Officer as upheld by the Deputy Director of Consolidation, Lucknow, were perfectly valid.

In order to substantiate his submissions, he has relied upon the judgment of this Court rendered in the case of Ramji Lal Singh and Ors. v. State of U.P. and Ors. reported in 1977 RD 307, wherein a Division Bench of this Court held that Section 5 (1) (C) (ii) imposes a ban on the transfer of land by way of sale, gift or exchange of any part of the holding in the Consolidation area and this ban commences from the date of publication of notification u/s 4 and it continues to remain in force till the publication of the notification u/s 52 of the Act, therefore, transfer of any part of the holding in the consolidation area is prohibited unless prior permission in writing is obtained from the Settlement Officer (Consolidation). However, the provisions of the said section are not attracted in case where entire holding is transferred by the tenure holder.

Elaborating his arguments, Sri Mehrotra, learned Counsel for the contesting opposite parties argued that the order passed by the Settlement Officer Consolidation in remanding the case was absolutely illegal and was vitiated by the exercise of a jurisdiction not vested in the above Court. It was, therefore, not an interlocutory order. He submits that the petitioners were not parties in the proceedings which were started on the objection filed by the answering opposite parties. Petitioners had not even filed their objection and, therefore, the orders passed by the Consolidation Officer on the objection filed by the answering opposite parties cannot be held to be an ex parte orders. Further u/s 41 of the U.P. Consolidation of Holdings Act, 1953, provides that the provisions contained in Chapter IX and X of U.P. Land Revenue Act, 1901 are to be applicable. Section 201, which falls in Chapter IX of U.P. Land Revenue Act provides that no appeals lie from orders passed ex parte or by default. Therefore, the person against whom an ex parte order has been passed or an order has been passed by default has to apply before the same very court for rehearing on proof of good cause for non-appearance. In these backgrounds, the Settlement Officer Consolidation erred in remanding the matter to the Consolidation Officer.

Further the assertion of the petitioners, that the Revisional Court is not conferred with the authority to enter into any factual aspect of the matter is also totally misconceived and incorrect. In support of his submission, he has relied upon the judgment of the Apex Court rendered in the case of Preetam Singh (Dead) by L.Rs. and others Vs. Assistant Director of Consolidation and others, wherein the Apex Court has held that when the matter in Revision comes before the Assistant Director (Consolidation), he had the entire matter before him and his jurisdiction was unfettered. Further while in seisin of the matter in his revisional jurisdiction, he was in complete control and in position to test the correctness of the order made by the Settlement Officer (Consolidation) effecting remand. Apart from the above cases, the Counsel has relied upon (2008)8 SCC 48 Municipal Corporation Hyderabad v. Sunder Singh; Bashir Ahmad v. Deputy Director of Consolidation 1986 RD 164; Kashi Nath v. Board of Revenue 2001(92) RD 562 to assert that the order of remand cannot be passed on ipse dixit of the court and in routine course.

Refuting the allegations of opposite parties, Sri Prashant Chandra, Senior Advocate appearing for the petitioner vehemently argued that the procedure of proving a document registered more than 30 years ago, without prejudice to the presumption to be raised u/s 90 of the Indian Evidence Act, is not to summon the clerk of the registration office and prove or disprove the documents on the basis of the statement given by him. He submits that insofar as the violation of Section 5 (1) (c) (ii) is concerned, a deliberate endeavour has been made by the opposite parties to mislead this Court inasmuch as Section 5 was inserted vide U.P. Act No. 34 of 1974 w.e.f. 7.12.1974 and was also taken away and the original Section 5 was restored in the year 1991 vide Act No. 30 of 1991 w.e.f. 19.2.1991. Therefore, the said Section 5 (1) (c) (ii) was available on the statute book only from 7.12.1974 to 19.2.1991. He also urged that a specific objection has been raised by the petitioners before the Settlement Consolidation Officer that in the year 2003, when the sale deeds are alleged to have executed in favour of the opposite parties, the original land owners were not even alive but nothing has been done either by the opposite parties or by the Deputy Director of Consolidation to refute the said objection, which needless to say is based on true and correct facts and the revisional Court has erred in not making them parties to the revision leave alone requiring their presence to ascertain as to whether they were alive or not. Therefore, the fact remains that the sale deeds dated 6.3.2003 and 13.6.2003 are fictitious and concocted and outcome of fraud by impersonation of dead persons.

Lastly, Counsel for the petitioners submitted that there cannot be any grievance to any party against such innocuous order but the contesting respondents preferred the revision, which was allowed by the Deputy Director of Consolidation in a record time of about 6 weeks, which itself is indicative of the fact that the opposite parties are loath to get proper examination done.

Counsel for the petitioners also submits that the deposition of a clerk from the Registration Office is not the procedure contemplated for holding a registered sale deed to be invalid. The Clerk was produced before the Settlement Consolidation Officer and his statement was recorded which is only to the effect that some minor discrepancies such as figure " 251" is written in handwriting instead being printed as well as page which was numbered as "252", the same was written on the right side instead of left side. The substance of the sale deeds was not a matter to be at variance with the original record. They further clarified that at the time of issuing a certified copy of the original sale deed, in view of feign impression in the photocopy of the issuing clerk of the office of Sub-Registrar has mentioned the serial number in his own handwriting. This does not have the effect of altering the sale deed and in any case on the basis of photocopy produced before the Settlement Consolidation Officer, the original sale deed could not be struck down on a mere statement recorded by the Settlement Officer Consolidation. He urged that besides the fact that the petitioners were not permitted to discharge the burden of proof has befell upon them under the provisions of the Indian Evidence Act, the fact that a mutation had not been got done would not invalidate a duly a registered sale deed.

The Settlement Officer, Consolidation in its order dated dated 9.2.2009 has given strong and genuine reasons for remanding the matter to the Consolidation Officer. He has mentioned that the order passed by the Consolidation Officer is an ex-parte order as the petitioners were not heard. Therefore, proper course would be to remand the matter so as to enable both the parties to lead evidence and deciding the title in accordance with law so that the matter may be decided on merits after hearing both the parties. He has also found the reasons for filing the delayed appeal to be genuine. It has also been indicated that both the parties are stating the execution of sale deeds by misrepresentation and fraud.

Here also the petitioners have argued that a specific objection has been raised by the petitioners before the Settlement Consolidation Officer that in the year 2003, when the sale deeds are alleged to have executed in favour of the opposite parties, the original land owners were not even alive but neither the Deputy Director of Consolidation has not dealt the said objection any where in the impugned judgment nor the private respondents have placed any documents to refute the said objection. Furthermore, the Revisional Court committing an error in not considering the fact that the original tenure holder were not party and made no sincere efforts to ascertain the fact that as to whether the original tenure holders, who had executed the sale deed in the year 2003 were alive at the relevant time and not.

The assertion of the respondents that as per Section 5 (1) (c) (ii) of the Act, permission is necessary from the Settlement Officer Consolidation for executing the said sale deed but no such permission was obtained as such the alleged sale deed, which was executed in their favour, cannot be said to be a valid document is misconceived as Section 5 was inserted vide U.P. Act No. 34 of 1974 w.e.f. 7.12.1974 and the same was also taken away and the original Section 5 was restored in the year 1991 vide Act No. 30 of 1991 w.e.f. 19.2.1991. Therefore, the said Section 5 (1) (c) (ii) was available on the Statute Book only from 7.12.1974 to 19.2.1991.

The Revisional Court has also given to much weight to the mutation order overlooking the fact that mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title, it only enable the person in whose favour mutation is ordered to pay the land revenue in question See: Smt. Sawarni Vs. Smt. Inder Kaur and Others, Furthermore, the sale deed dated 3.6.1972 cannot be declared invalid in the manner as adopted by the Revisional Court.

For the reasons aforesaid, the impugned order 28.3.2009 passed by the Deputy Director (Consolidation), Lucknow is hereby set-aside. The Consolidation Officer is directed to proceed with the matter and decide the same as directed by the Settlement Officer Consolidation. It is also provided that the Consolidation Officer shall make an earnest endeavour to decide the dispute within a period of four months'' from the date of receipt of a certified copy of the order. Till the decision by the Consolidation Officer, both the parties are directed to maintain status quo over the property in dispute.

The writ petition is allowed in above terms.