Mohammad Siddiq vs Deputy Director of Consolidation and others

K. N. Misra, J.

This writ petition is directed against the judgment and order dated 1321960 passed by the Deputy Director of Consolidation, Moradabad, opposite party No. 1, arising out of proceedings under Section 12 of the U. P. Consolidation of Holdings Act.

Briefly stated the facts of the case are as follows;Abdul Majid, father of the petitioner, had executed a saledeed dated 1541968 in favour of opposite parties No. 2 and 3, namely Anwar Husain and Iqbal Hussain, sons of Abdul Aziz in respect of plot Nos. 888/0.73 and 889/1/0.30 situate in village Bhojpur Dharampur, District Moradabad which was brought under consolidation operation in the year 1967. The said plots were found to be abadt during partal, made by the Consolidation Authorities and, this being abadi land, was kept outside the consolidation scheme. On the basis of the aforesaid saledeed, mutation was also affected in the name of the opposite parties No. 2 and 3 on 2831973 and the name of Abdul Majid was expunged, who is said to have given his consent to it Abdul Majid died sometime in the year 1975. The petitioner, thereupon, filed an appeal against the said order of mutation before the Settlement Officer (Consolidation) which was allowed and the case was remanded to the consolidation officer, vide its order dated 6th of July, 1975 for decision on merits. After remand the petitioner had set up a case that the aforesaid saledeed was obtained by fraud and without payment of any consideration. He also pleaded that the claim of the opposite parties No. 2 and 3 is barred under Section 11 (A) of the C. H. Act and the objection filed by the opposite parties was not maintainable and that they are neither the Bhumidhars of the land in dispute nor they are in possession over it. The case was contested by the opposite parties No. 2 and 3 with the allegations that the plots in question were abadi land and the same were sold to them by Abdul Majid and they are in possession ever since then. The saledeed was not obtained fraudulently and the sale consideration was paid by them to Abdul Majid and the saledeed is perfectly valid. The Consolidation Officer framed the following issues:

Whether the objection of Anwar and Iqbal is maintainable, if so, its effect ?

Whether the claim of objector Anwar is barred under Section 11A of C. H. Act, if so, its effect?

Whether the objectors Anwar and Iqbal are Bhumidhar of the land in dispute and are in possession over it.

Whether the saledeed in question was obtained by fraud, if so, its effect?

Whether the objectors Iqbal and Anwar are the Bhuoiidhar of the land in suit on the basis of valid saledeed.

The Consolidation Officer on Issue No. 2 condoned the delay in filing the objection and held the objection, filed by oppositeparties Nos. 2 and 3 for mutation, to be maintainable. The remaining two aforesaid issues were taken up together and the Consolidation Officer held that "the salsdeed was not fraudulent nor it was without consideration in view of the endorsement of the subRegistrar on the saledeed about the executability of the saledeed. He further found that "the petitioner led no evidence to prove that the saledeed was obtained by fraud and without payment of consideration." He further found that "although the disputed plots were outside the consolidation scheme but since the transfer is of the part of Bumidhari holding, hence the permission to make transfer, under Section 5 (1) (c) (ii) of the Act, from the SettlementOfficer (c) was necessary and as no prior permission was obtained from the Settlement Officer (c); hence the saledeed in question was void "and on this ground alone he refused to record the name of the oppositeparties No. 2 and 3, vide its order dated 261976, contained in Annexure ''3'' to the writ petition.

Aggrieved by the said order the opposite parties Nos. 2 and 3 filed an appeal which was dismissed by the Assistant Settlement Officer (c) vide order dated 16101976. The oppositeparties No. 2 and 3, thereupon, filed revision which was heard and allowed by the Deputy Director of Consolidation vide its judgment and order dated 1321980 by holding that since the land in question was abadi prior to the start of consolidation operation in the village, hence no permission to make transfer of the land in question was needed. He further recorded a finding that the saledeed in question was executed by the transferor Abdul Majid and it was not fictitious and the oppositeparties No. 2 and 3 are in possession of the land in question and with these findings the opposite party No. 1 ordered the name of oppositeparties No 2 and 3 to be recorded on the land in question. The petitioner has challenged this order in this writ petition.

I have heard the learned counsel for the petitioner and the oppositeparties No. 2 and 3 and have carefully considered the averments contained in the writ petition, counteraffidavit, and rejoinder affidavit. The Learned Counsel for the petitioner has argued that since no prior permission was obtained to make transfer from the Settlement Officer (c) in respect of plots in question as was required under Section 5 (1) (c) (ii) of the Act; hence the saledeed was void and the oppositeparty No. 1 acted illegally in ordering the name of oppositeparties No 2 and 3 to be recorded on the plots in dispute; which were part of the holding of the vendor. The Learned Counsel further, submitted that for making a transfer of the part of the holding permission of the Settlement Officer (c) was necessary under the aforesaid provisions of the Act and as no permission was obtained the saledeed in question was void and in support of this he placed reliance on the cases reported in

Ram Behari Shukla and others v. Munna Lal Shukla and others (A.I.R. 1968 223).

Janta Junior High School v. Deputy Director of Consolidation U. P. and others: (1969 R. D. 434).

Smt. Asl.arunisa Begum v. Deputy Director of Consolidation, Camp at Harodi aixi others (1970 R.D. 532).

Smt. Rajeshwari v. Deputy Director of Consolidation, Lucknow, camp Mirzapur and others (1971 R.D. 130).

Smt. Ram Rati and others v. Gram Samaj Jehwa and others (1974 R.D, 163).

Ganga Devi and another v. Jiwa Ram and others (1974 R D. 117).

Lal Chand v. Deputy Director of Consolidation. U. P., Lucknow, Camp at Gorakhpur, and others (1974 Unreported Revenue Cases 53.)

Ramji Lal Singh and others v. State of U. P. and others (1977 R.D. 307).

In the aforesaid decisions it has been laid down that "for making a transfer of the entire holding the tenureholder is not required to obtain permission from the Settlement Officer (c) under Section 5 (1) (c) (ii) of the Act; but where only a part of the holding is to be transferred, prior permission would be needed and any transfer made without obtaining such permission would be void and the transferee will not acquire any title on the basis of such invalid transfer. The Learned Counsel for the oppositeparties No. 2 and 3 does not dispute the aforesaid proposition of law, but contends that since the land in question was abadi land at the time when the village was brought under consolidation operation by notification made under Section 4 of the Act, hence the aforesaid provisions of U. P. Consolidation of Holdings Act would not be applicable to the land in question, and the saledeed was, therefore, perfectly valid. In support of his contention, the learned counsel for the oppositeparties No. 2 and 3 placed reliance upon a Division Beach decision of this Court reported in Triloki Nath v. Ram Gopal and others 1974 R.D. 5, wherein it was held that "the land used as brick kiln is outside the purview of the U. P. Consolidation of Holdings Act, 1953 and the authorities under the Act cannot take such land into consideration. This case was referred in another Division Bench case in Civil Misc. Writ Petition No. 1036 of 1976 connected with Civil Misc. Writ Petition No. 1037 of 1976 Sheo Pratap Singh v. The Civil Judge, Mainpuri and others, decided on 23101980 which arose out of the proceedings under the provisions of the U. P. Imposition of Ceiling on Land Holdings Act wherein the question which cropped up for consideration was:

"Whether taking into consideration the provisions of Section 6 of the U. P. Imposition of Ceiling on Land Holdings Act in conjunction with the definition of land as given in Section 3 (14) of the U. P. Act No. 1 of 1961 and the definitions of ''Holding'' and ''tenureholder'' as given in the Ceiling Act, if some part of a plot of land on 861973 was covered by a brick kiln in respect of which there was no declaration on the said date, i.e. 861973 under Section 143 of the U. P. Zamindari Abolition and Land Reforms Act, 1950, then is such part of the land not leangle to be included in the holding of the tenureholder under the U. P. Imposition of Ceiling on Land Holdings Act".

After considering the definition of the land, as given under the provisions of the Ceiling Act as well as exemptions contained in Section 6 in respect of certain land enumerated therein and also after considering the land under the provision of U. P. Zamindari Abolition and Land Reforms Act, the Division Bench was pleased to observe, in the aforesaid case, that:

"under the Zamindari Abolition Act, persons holding land under various proprietary or tenancy

rights on the date immediately preceding the date of vesting, namely, June 30, 1962, were conferred the status and rights of Bhumidhar, Sirdar and Asami, etc., with effect from the date of vesting, namely, July 1, 1962. If a particular piece of land was, on June 30, 1952, being used for an industrial purpose, like, manufacture of bricks, it was not land as defined in the Zamindari Abolition Act. The holder of such land will not become a Bhumidhar etc., on the date of vesting because it was not land as defined, But if the land was held or occupied for purposes connected with agriculture, horticulture, etc.. will be laad as denned in the Zamindari Abolition Act and the person will acquire the status of Bhumidhari, Sirdari or Asami etc., on the date of vesting."

"Once a person becomes a tenureholder like Bhumidhar, he doss not cease to be so merely because he has changed the user of the land from agriculture etc., to an industrial purpose. He will continue to be the Bhumidhar and the land will continue to be land as defined in the Zamindari Abolition Act unless a declaration has been made under Section 143, Referring to the aforesaid Division Bench decision of this Court in Triloki Nath''s case (supra) it was observed that:

"For the petitioner, reliance was placed upon a Division Bench of this Court in Triloki Nath v. Ram Gopal and others(supra). In that case, it was held that land used as a brick kiln is outside the purview of U.P. Consolidation of Holdings Act, 19b3 and the authorities under that Act cannot take such land into consideration. That case is distinguishable. The Consolidation of Holdings Act defines land for purposes of that Act. If a plot is not a land as defined on the date when the proceedings under the Consolidation of Holding Act commenced then obviously such land is outside the purview of the Act. The definition of the term ''Land'' as given in the Consolidation of Holdings Act has not been made applicable by the Ceiling Act. This case hence is not relevant."

It would, thus be seen that the Division Bench of this Court in Sheo Pratap Singh''s case (supra) held that if a plot of land is not a land as defined on the date when the proceedings under the U. P. Consolidation of Holdings Act commenced then, obviously, such land is outside the purview of the Act. Similar view was taken by the Division Bench in the earlier Triloki Nath''s case (supra) wherein the land in question was found to have been used as a brick kiln prior to the start of consolidation operation in the village under the provisions of U. P. C. H. Act and it was held that the authorities, under the Act, cannot take such land into consideration. Thus, in view of these authorities, and on parity of reasoning''s, it is found that the plots in question were abadi plots on the date and at the time when the village was brought under consolidation operation, then such land would be outside the purview of the U. P. Consolidation of Holdings Act. In this view of the matter, no permission would be required for making transfer of such land which was abadi land at the time when the village was notified under Section 4 of the Act and the provisions, contained in Section 5 (1) (c) (ii) of the Act would not be applicable in the matter relating to transfer of such land although such land stood recorded in the holding as part thereof. The name of the transferee would be recorded in place of the transferor on the basis of a valid saledeed executed by him in respect of such land which was abadi land on the date when the village was brought under the consolidation operation. No permission in respect of such land would be necessary under Section 5 (c) (ii) of the C. H. Act.

The Learned Counsel for the petitioner, placing reliance upon the aforesaid Sheo Pratap Singh''s case argued that the land in dispute would remain part of the holding although its user has been changed from agricultural purpose to any other purpose and the land is used as abadi site. No doubt, it is correct that the mere change of user will not make any difference in the status of the tenurebolder unless a declaration under Section 143 has been made, as held by the Division Bench in the aforesaid Sheo Pratap Singh''s case. In the said case however, the central question for consideration was "whether any plot of land forming part of a holding on the date of enforcement of the amended Ceiling Act, namely, 8th March, 1973, if brought into use for nonagricultural purposes, namely, an industrial purpose would it be capable of being exempted under Section 6 (a) of the Ceiling Act while determining the surplus area. After considering the provisions of Z.A. and L.R. Act and in view of the definition of the ''Land'' contained therein it was held that if prior to the date of vesting any plot of land was not used for horticulture, agriculture, or animal husbandry including pisciculture and poultry farming, the rights of Bhumidhari, Sirdari, adhivasi and asami will not accrue in the said land on 1st of July, 1952. But if it was used, on the date prior to the date of vesting, for the aforesaid purpose namely, agriculture, horticulture or animal husbandry including pisciculture and poultry farming, bhumidhari, sirdari, adhivasi and asami rights in the land will accrue in such land and it will form part of the holding of the tenureholder and its subsequent user for any such purposes, namely, as bricks kiln, will not make any difference in the status unless a declaration under Section 143 of the Act was made and on this ground the land covered by the bricks kiln was not exempted under Section 6 (a) of the Ceiling Act.

The Division Bench in Sheo Pratap Singh''s case held that "if a plot is not a land as defined in the U. P. C. H. Act on the date when the proceedings under the U. P. C. H Act commenced, then obviously such land is outside the purview of that Act. "In the earlier decision of the Division Bench in Triloki Nath v. Ram Gopal (supra), after considering the provisions Section 5 of the U. P. C. H. Act and after perusing of Section 143 of the U. P. Z. A. and L. R. Act it was held that "in our opinion the use of the holding for purposes unconnected with agriculture whether permitted under the Act or whether commenced before the enforcement of this Act, in either case that area which is put to a different use other than agriculture etc., would not be covered by the definition of the word ''land'' and therefore, the provisions of this Act would not apply." In the present case the land in dispute is ''abadi'' on the date when the village was brought under consolidation operation and it was also found and noted as ''abadi'' in C. H. Form 2A, hence in my opinion the provisions of U. P. Consolidation of Holdings Act were not applicable to the land in question and no permission under Section 5 (1) (c) (ii) of this Act was required to be taken for making transfer of the land in question.

The Learned Counsel for the petitioner next argued that the view taken by the Division Bench in Trilok Nath''s case, runs counter to the decision recorded by the Division Bench in the aforesaid Sheo Pratap Singh''s case wherein the said decision of Triloki Nath''s case was noticed and a different view was taken. 1 do not find any inconsistency in the view taken in the aforesaid cases by the Division Bench of this Court. In Triloki Nath''s case, it was held that "the land as defined, under the provisions of U. P. C. H. Act is narrow in its application and it refers to that area alone which is used for agriculture purposes etc. If any land is used for the purposes other than agriculture, horticulture etc., it would not be covered by the definition of the word ''land'' and as such the provisions of U. P. C. H. Act cannot apply to that land. "The Division Bench in Sheo Pratap Singh''s case observed that the Consolidation of Holdings Act defines land for purposes of that Act. If a plot is not a land as defined on the date when the proceedings under the consolidation of Holdings Act commenced then obviously such land is outside the purview of this Act.

In both the aforesaid cases it was held that the provisions of U. P. Consolidation of Holdings Act would not be applicable to the land which was not used for the purposes of agriculture etc., on the date when the village was brought under consolidation operation by notification under Section 4 of the U. P. C. H. Act. Thus, in this view of the matter I am of the opinion that, if any plot of land was''abadi''prior to the date of notification made under Section (2) of the U. P. C. H. Act, the provisions of the said Act would not apply to such land and no permission would be necessary under Section 5 (1) (c) (ii) of the Act for making transfer of it.

The Learned Counsel for the petitioner next argued that the Deputy Director of Consolidation has erred in holding that the plot in question was abadi land sued as such prior to the start of the consolidation operation in the village. I do not find any merit in this submission also. The Deputy Director of Consolidation had, after taking into consideration the evidence on record, held that the plots in question were abadi prior to the start of the consolidation operation in the village. He has also referred to C. H. Form No. 2A wherein the said land was found at the time of portal to be abadi. He has further found that even on the date of execution of the saledeed, the plot in question was abadi. I do not find any infirmity in the aforesaid findings recorded by the Deputy Director of Consolidation.

The Learned Counsel for the petitioner next argued that on the land in question, at present cultivation is being done and this fact has been admitted by the oppositeparties No. 2 and 3 in the proceedings, which subsequently arose between the parties under Section 145 Cr. P. C. wherein the oppositeparties admitted that on a portion of this land in question they are making cultivation and, in this connection, he referred to Criminal Revision No. 706 of 1981 (Mohammad Siddiq v. State of U.P. and others) (supra) which the petitioner had filed in this Court against the order dated 30th of December, 1980 passed by the S. D. M. Moradabad upholding the possession of the oppositeparties No. 2 and 3 over the Land in question. The file of the said case was summoned and the learned counsel for the petitioner referred to the judgment of the said case wherein cultivation of certain crops are said to have been made by the oppositeparties on the land in dispute. Be that as it may be it will however, be of no consequence in the present case, it will not make any difference if the land in question was brought under cultivation during the consolidation during the consolidation proceedings sometime after the execution of the saledeed. The relevant date is the date of notification made under Section 4 (2) of the U. P. Consolidation of Holdings Act when the village was brought under consolidation operation. If the land in question was ''abadi'' land on the said date and it was also abadi land on the date when the saledeed in question was executed the provisions of U P. Consolidation of Holdings Act would not apply to such land and no permission was required under Section 5 (1) (c) (ii) of the Act for making transfer of the land in question by the father of the petitioner, Abdul Majid, in favour of the oppositeparties No 2 and 3. The Deputy Director of Consolidation has recorded a categorical finding on the aforesaid questions of fact that the plots in dispute were ''abadi'' since prior to the bringing of the village under consolidation operation and also on the date of execution of the saledate in question If the land in question has been brought under cultivation sometime after its sale as the constructions situated thereon had subsequently fallen down, it would not invalidate the sale deed in question on the ground that no permission was taken under the aforesaid provisions prior to the execution of the saledeed in question. I, therefore find no substance in the aforesaid argument of the learned counsel for the petitioner.

The learned counsel for the petitioner next argued that the saledeed in question was not proved and as such, on its basis the names or oppositeparties No. 2 and 3 cannot be ordered to be mutated in place of the transferor. In the writ petition no such fact has been alleged nor this question appears to have been raised before the Deputy Director of Consolidation. The Settlement Officer (c) has mentioned that, after the remand of the case, evidence was led to prove the saledeed which has been challenged by Mohd. Siddiq (petitioner) on the ground that it is fraudulent and fictitious. It is thus evident that the execution of the saledeed is not disputed by the petitioner who had challenged it on the ground that it was fraudulently got executed and its validity was challenged on the ground that no prior permission was obtained from the Settlement Officer (c), which has already been discussed above, I, therefore, do not find any substance in this argument of the learned counsel for the petitioner specially when the execution of the saledeed in question has not been denied and this point has not been raised in the writ petition.

The Learned Counsel for the petitioner, in the end, argued that the saledeed in question was fraudulently obtained by the oppositeparties No. 2 and 3 and, as such, they are not entitled to get their names recorded on its basis. I do not find any substance in the argument. A saledeed, which is alleged to have been got executed fraudulently, would not be a void document of transfer but it would be avoidable and for the cancellation of it a suit in the competent Civil Court will have to be filed. It is well settled that the consolidation authorities can determine the question and ignore the deed of transfer which is void and they have no jurisdiction to determine the validity or otherwise of a voidable document and the same cannot be ignored by them unless set aside by the competent Civil Court, as held by Hon''ble Supreme Court in Gorakh Nath Dubey v. Hari Narain Singh A.I.R. 1973 SC. 2451. This Court in Ram Nath v Smt Munni 1976 Luck. L.J. 52, took the same view placing reliance upon the aforesaid Supreme Court decision. In this view of the matter since the saledeed in question, on the aforesaid grounds would, if at all, be a voidable document and it will remain effective till cancelled by competent Civil Court and it is liable to be given effect to by the consolidation authorities.

The only other point that remain to be considered is whether the consolidation authorities would have jurisdiction to correct the revenue records by ordering mutation in the name of the vendee in place of the vendor on the basis of saledeed in question, which, as already observed above cannot be held to be invalid on the ground that no permission to make transfer of the land in question under Section 5 (1) (c) (ii) was obtained.

The Learned Counsel for the contesting oppositeparties referred to Section 5 (a) of the Act which provides that in a consolidation area a duty is cast upon the District Deputy Director of Consolidation to maintain the record of rights and to prepare the village map, the field book and the annual register of each village. He thus contended that from the date of notification under Section 4 (2) till the denotification under Section 52 of the Act the authorities under the Land Revenue Act ceased to have jurisdiction to entertain mutation application under Section 34 of the Land Revenue Act on the basis of transfer of succession in respect of any land situated within the consolidation area even if the matter may relate in respect of such land which does not come within the purview of the definition of land as contemplated by the Consolidation of Holdings Act, namely, ''abadi land''. The argument, that the consolidation authorities have at least the jurisdiction to correct the revenue records during the pendency of consolidation proceedings even in respect of such land was considered by the Division Bench in Triloki Nath case (supra) and it was held that

"If the area does not come within the circumscribed limit over which the consolidation Courts have been given jurisdiction to adjudicate in our view they will have no power to adjudicate upon such claims for correction of their records, such a correction can only be effected by Consolidation Courts or by District Deputy Director of Consolidation as mentioned, in Section 5 (a) after the rights of the parties ha\\e been decided by a competent Court " In this view of the matter, we are not inclined to agree with the submissions made by counsel for the appellant that because a duty is cast upon the Deputy Director of Consolidation to maintain the record of rights, he should be presumed to have jurisdiction to decide disputes and questions of title with respect to those areas which are not covered by the provisions of this Act."

In the said decision the Division Bench laid down that the Consolidation Courts will have no jurisdiction to adjudicate upon the disputed questions of title in respect of land not falling within the purview of Consolidation of Holdings Act and will not make correction of record in respect of such land until disputed question of title with regard to it are decided by the competent Court. Such correction can only be corrected by consolidation as mentioned in Section 5 (a) after the rights of parties have been decided by a competent Court.

In view of these observations it cannot be said that the consolidation authorities will have no jurisdiction at all to make correction of entries in respect of such land. If they can, as observed in the said case, correct the entries in respect of such land after the decision given by the competent Court on disputed question of title, there appears to be no inherent want of jurisdiction to make orders of correcting the entries in respect of such land where no dispute at all is raised with regard to title in such land or where such dispute, even if raised, it cannot be decided by the consolidation authorities; for example, in cases of voidable transfer deeds the validity of which cannot be gone into by the consolidation authorities and they have to give effect to it in papers unless it is cancelled by competent Court.

If extreme view is taken, as is argued by the learned counsel for the petitioner, that in respect of ''abadi'' land or such other land to which the provisions of the U. P Consolidation of Holdings Act do not apply, the consolidation authorities will have no jurisdiction at all to make correction of the entries in the records and the existing entries have to continue untouched, an anomalous situation may arise. In many cases the recorded tenants on said such laud might have died or they undisputedly might have transferred such land and have got no concern with it and their successors or transferees are in possession. If the consolidation authorities will be said to have no jurisdiction at all to make orders for recording the names of successors or the transferees in respect of such aforesaid land the names of every dead persons and of those persons who hold no right, title or interest will continue in the final records (Settlement Consolidation Volume) prepared by the consolidation authorities, which is not envisaged under the act. The view taken by the Divisiou Bench in Triloki Nath''s case (supra) is that the consolidation authorities, in respect of such land which is beyond the purview of the Act, cannot determine the disputed question of title in respect of such land and the entries in the records will be corrected by the consolidation authorities after the rights of the parties have been decided by the competent Court. Thus on the parity of reasoning it can very well be said that where no dispute of title is raised in respect of such land either in case of succession or of transfer the Consolidation Courts can order correction of entry in respect of aforesaid such land. Even in cases where transfer deeds are challenged but it is found to be voidable and not void the Consolidation Courts will have jurisdiction to order mutation as they cannot ignore the voidable transfer deeds and have to give effect to it; but such orders will of course be subject to the decision in any title suit that may be filed seeking cancellation of transfer deed in question. However, in a case where title suit, seeking cancellation of transfer deed, is pending before the competent Courts, the consolidation authorities will make entries in the records after the rights of parties have been decided. Continuance of entry in the name of transferor in such cases or the mutation orders in the name of transferees in aforesaid cases would not operate as a bar in subsequent proceedings nor the provisions of Section 49 of the Act would be attracted to such suits. The question whether the transfer is void or voidable can be gone into by the consolidation authorities before whom such question is raised even in respect of transfer by abadi land or such other similar land which would not be covered by the definition of ''land'' given under C. H. Act. If transfer deed is void it would be ignored altogether but if it is found to be merely voidable it will be given effect to in the records. However, such entry will be subject to the decision of title suit which may be filed.

In the present case, it has not been indicated by the petitioner that he has filed any suit in Civil Court and the same is pending seeking cancellation of the saledeed in question and as such, in my opinion, the name of oppositeparties No. 2 and 3 have been rightly ordered to be recorded on the land in dispute. The impugned order passed by the oppositeparty No. 1 does not suffer from any infirmity.

In the result the writ petition fails and is accordingly dismissed. I, however, make no order as to costs.