Jageshwar and Others vs Ram Gulam and Others <BR>Chhedi Lal and Another Vs Assistant Director Consolidation and Others

Pankaj Mithal, J.—One Bhura had two daughters namely Dulli and Phulia. He transferred his agricultural holding gata No. 146 area 1.129 hectare Dadamau of Pargana, Tahsil and District Banda by registered sale deed dated 16.4.1968 in favour of one of her daughters Smt. Dulli. The said daughter sold the said land in favour of Shiv Narain and Chedi Lal vide sale deed dated 10.6.1968. The aforesaid Bhura executed another sale deed in respect of the said land on 7.7.1975 in favour of Ram Gulam. Bhura had instituted suit No. 274 of 1968 for cancellation of the sale deed dated 16.4.1968. The suit was decreed vide judgment and order dated 1.6.1970 and the same was affirmed in appeal as well as in second appeal which was dismissed some time in 1979. As in the mean time consolidation proceedings started in the village, Chedi Lal who had purchased the aforesaid land from Dulli the daughter of Bhura preferred objections for the purposes of recording his name on the basis of the sale deed dated dated 10.6.1968. The objections were allowed by the order dated 28.4.1981 and the appeal preferred against the same was dismissed. However, in revision, the appellate order as well as the order allowing the objections were set aside and the matter was remanded. Against the said order of remand Chedi Lal has preferred writ petition No. 12678 of 1984.

During the pendency of the writ petition, Chedi Lal transferred the said land vide sale deed dated 23.5.1998 in favour of Jageshwar, Maniram and Hariram. The above Jageshwar, Maniram and Hariram purchasers of the aforesaid land from Chedi Lal instituted original suit No. 360 of 1998 for permanent injunction against the Ram Gulam and others who claimed to be the owner on the basis of the subsequent sale deed dated 7.7.1975 alleged to have been executed by the original tenure holder Bhura. The suit was dismissed and so was the appeal. Therefore, the plaintiffs have preferred this second appeal.

Accordingly, the writ petition aforesaid and the second appeal are both before me.

I have heard Sri R.S. Chauhan, learned Counsel for the petitioners and plaintiff-appellants in appeal and Sri Gulrej Khan, learned Counsel for the respondents in both the cases and with their consent proceed to decide both the writ petition and the second appeal finally.

Un-disputedly, the plaintiff-appellants are claiming rights over the land in dispute through Chhedi Lal who had purchased the same vide sale deed dated 10.6.1968 from Smt. Dulli one of the daughters of the original owner Bhure in whose favour the said land was transferred by Bhure vide sale deed dated 16.4.1968. The sale deed dated 16.4.1968 has been cancelled vide judgment and order dated 25.4.1974 passed in Original Suit No. 274 of 1968 instituted by Bhure himself which has become final and conclusive as the appeal and the Second Appeal arising therefrom have been dismissed. In view of the above, as the sale deed dated 16.4.1968 executed by Bhure in favour of one of her daughter Smt. Dulli has been cancelled by a decree of the civil court which has become final and conclusive. The subsequent transfer made by her automatically falls to the ground and no rights in the land accrue either in favour of Chhedi Lal or the plaintiff-appellants.

It is said that even if the sale deed dated 16.4.1968 has been cancelled, Smt. Dulli subsequently acquired rights in the property as the successor of Bhure and as such plaintiff-appellants rights to the extent of her share stands protected. The defendant-respondents Ram Gulam and others are claiming the land in dispute on the basis of sale deed dated 7.7.1975 which was executed by the original owner Bhure. Once the sale deed dated 7.7.1975 was executed by Bhure himself there is no question of devolvement of any part of it in favour of his daughter Smt. Dulli. Accordingly, plaintiff-appellants do not get any legal right or title over the land in dispute through Smt. Dulli who could not perfect any right in the suit property either through sale deed or devolution. The court below as such committed no error in refusing a decree of permanent injunction to the plaintiff-appellants. The second appeal therefore has no merit and is dismissed.

Now as it is being contended that the said sale deed dated 7.7.1975 is void and it confers no right upon the defendant-respondents.

The dispute about the rights of the respondents on the basis of sale deed dated 7.7.1995 has been the subject matter of consideration before the consolidation proceedings. The Consolidation Officer decided in favour of the predecessor in interest of the plaintiff-appellants and the appeal of the defendant- respondents against the same was dismissed by the Settlement Officer Consolidation. The Deputy Director of Consolidation however has remanded it to the Consolidation Officer for re-consideration against which the instant writ petition arises.

The writ petition as such is directed against the order of remand and therefore the rights of the parties are yet to be adjudicated and have not been decided finally. Learned Counsel vehemently contended that in remanding the matter, the Deputy Director of Consolidation has unnecessarily permitted re-opening of the issue as to whether the sale deed dated 7.7.1975 is void as no permission u/s 5(c)(ii) of the U.P. Consolidation of Holdings Act, 1953 was taken. The said issue had already been decided by the Consolidation Officer and the Settlement Officer Consolidation and as such remand on the said ground is not justified.

I have carefully perused the orders dated 28.4.1981 and 6.1.1982 of the Consolidation Officer and the Settlement Officer Consolidation respectively and find that none of them have considered the validity of the sale deed dated 7.7.1975 in the light of the provisions of Section 5 (c)(ii) of the Consolidation Act on the basis of which it is claimed to be void. In this view of the matter, I am of the opinion that the Deputy Director of Consolidation rightly set aside the aforesaid two orders and committed no error in remanding the matter. The writ petition as such has no force.

In view of the above the second appeal as well as the writ petition both are dismissed with costs upon the parties.

Accordingly, parties are permitted to appear before the authority concerned pursuant to the order of remand and the Consolidation Officer is directed to decide the matter in accordance with law most expeditiously.