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IN THE HIGH COURT OF ALLAHABAD
JASPREET SINGH, J.
Dharmraj – Appellant
Versus
D.D.C. Faizabad And Ors – Respondents
Consolidation No. 4584 of 1987
Decided on : 26-07-2021
Constitution of India : Article – 226- 227 - Code of criminal Procedure 1973 – Section 407 - U.P. Consolidation and Holdings Act, 1953 - Section 5(1)(c)(ii),12 ,48,45(A),45(2)A,7(1), - Power of High Court to transfer cases and appeals - Effect of notification – Powers of high Court to isse writ - validity of a sale-deed - original respondent no.2 Ram Dular, who is now represented by his legal heirs sought his mutation. He applied for his mutation by moving on the basis of the registered sale-deed executed by the original tenure-holder. Petitioner and respondents no.2 to 4 also made an application for mutation on the basis that original tenure-holder died and the petitioner and the respondents no.2 to 4 being his real brothers and the legal heirs have succeeded to his estate and on the basis of the succession and claimed their names to be mutated – whether the sale-deed dated 17.05.1975 is valid or not?
Finding of the Court : Considering the aforesaid aspect, the sale-deed in question was executed on 17.05.1975 after Section 5(1)(c)(ii) of the U.P. Consolidation and Holdings Act, 1953 was amended in 1974 and it encompassed within its ambit, all transfers whether in part or whole of the holding, hence, sale-deed dated 17.05.1975 which is the basis of the claim of the respondent no.2 was squarely hit by the aforesaid provision r. The Court placed reliance upon the decision found that sale-deed to be valid. Apparently, in light of the discussions made above, reliance placed by the DDC, Faizabad on the decision of Smt. Ram Rati & Ors. vs. Gram Samaj & Ors., (supra) was misplaced for the reason that it related to the position prior to the amendment in the Act - There is not much dispute between parties. It is not disputed that respondent no.2 claimed his rights on the basis of the registered sale-deed dated claiming full rights whereas the contention of the petitioner is that upon the death of tenure holder, petitioner and respondents no.2 to 4 being the brothers succeeded to the property and the sale-deed was hit by Section 5(1)(c)(ii) of the U.P. Consolidation and Holdings Act, 1953. It is also not disputed by the parties that tenure holder had not sought any permission from the SOC prior to executing the sale-deed dated - It will also be relevant to notice that since the rights of parties had crystallized on date when cause of action arose i.e. on the date of the execution of the sale-deed which is subsequent to the amendment of the year 1974 and all remedies under the U.P. Consolidation and Holdings Act, 1953 stood exhausted in the year 1987 i.e. when the final authority under the Act i.e. DDC, Faizabad passed the impugned order dated 20.04.1987. The amendment brought in the Act in the year 1991 during pendency of the writ petition cannot be treated to be retrospective so as to grant any benefit to the respondent no.2. Thus, for the aforesaid reasons, this Court does not find that there is any merit in the submissions of the learned counsel for the respondent no.2 - It would be seen that where a decision has been rendered per incuriam, it is robbed of its precedent value and thus, this Court is unable to follow the aforesaid decision as it does not take note of the provisions of Section 45(A) of the U.P. Consolidation and Holdings Act, 1953 and for the foregoing reasons, the said decision of Ram Bhawan (supra) does not come to the rescue of the respondent no.2 - Court finds that the impugned order passed by the DDC, Faizabad is apparently erroneous and is in ignorance of the provisions of law and the said order cannot be sustained.
Result : writ petition succeeds
JUDGMENT :
1. Heard Shri I.D. Shukla, learned counsel for the petitioner and Shri P.V. Chaudhary, learned counsel for the private-respondents as well as learned standing counsel for the State-respondents.
2. The issue involved in the instant writ petition relates to the validity of a sale-deed executed on 17.05.1975 which is said to be hit by the provisions of Section 5(1)(c)(ii) of the U.P. Consolidation and Holdings Act, 1953.
3. The submission of the learned counsel for the petitioner is that the original respondent no.2 Ram Dular, who is now represented by his legal heirs sought his mutation in respect of Chak-456 constituted by the Plot Nos.71, 72, 73, 119, 120, 122, 124 and 125. He applied for his mutation by moving an application under Section 12 of the U.P. Consolidation and Holdings Act, 1953 on the basis of the registered sale-deed dated 17.05.1975 executed by the original tenure-holder namely Sita Ram.
4. The petitioner and the respondents no.2 to 4 also made an application for mutation on the basis that the original tenure-holder Sita Ram died and the petitioner and the respondents no.2 to 4 being his real brothers and the legal heirs have succeeded to his estate and on the basis of the succession and claimed their names to be mutated.
5. It is in this backdrop that the issue arose before the Consolidation Officer whether the sale-deed dated 17.05.1975 relied upon by the respondent no.2 Ram Dular was hit by Section 5(1)(c)(ii) of the U.P. Consolidation and Holdings Act, 1953 since no permission from the Settlement Officer of Consolidation (for short, 'SOC') was taken.
6. The respondent no.2 while defending his claim before the Consolidation Officer had submitted that there was no need to take permission from the SOC since Sita Ram had executed a registered sale-deed dated 17.05.1975 in respect of his whole holding and, therefore, the bar contained in Section 5(1)(c)(ii) of the U.P. Consolidation and Holdings Act, 1953 did not affect the transfer and he was entitled to succeed.
7. The Consolidation Officer, Akbarpur, District Faizabad by means of the order dated 20.08.1982 rejected the contention of the respondent no.2 and found that the sale-deed dated 17.05.1975 was bad in the eyes of law and accordingly it refused to recognize the same, hence, as a consequence, the names of the petitioner and the respondents no.2 to 4 were mutated as the successors of Sita Ram on the basis succession.
8. The respondent no.2 Ram Dular filed an appeal against the said order which also came to be dismissed by the SOC by means of the order dated 14.06.1983.
9. Being aggrieved against the order of dismissal of his appeal, Ram Dular preferred a revision under Section 48 of the U.P. Consolidation and Holdings Act, 1953 before the Deputy Director of Consolidation, Faizabad (for short, 'DDC, Faizabad'), who by means of the order dated 20.04.1987 allowed the revision and ordered for mutation of the name of respondent no.2 alone on the ground that since Sita Ram had transferred his entire holding in favour of the respondent no.2, hence, no permission as contemplated under Section 5(1)(c)(ii) of the U.P. Consolidation and Holdings Act, 1953 was required. This order passed by the DDC, Faizabad dated 20.04.1987 is under challenge in this writ petition.
10. Insofar as the facts are concerned, there is not much dispute between the parties. It is not disputed that the respondent no.2 claimed his rights on the basis of the registered sale-deed dated 17.05.1975 claiming full rights over the Chak-456 situate in Village Akbarpur, Gram Saidpur, District Faizabad whereas the contention of the petitioner is that upon the death of Shri Sita Ram, the petitioner and the respondents no.2 to 4 being the brothers succeeded to the property and the sale-deed was hit by Section 5(1)(c)(ii) of the U.P. Consolidation and Holdings Act, 1953. It is also not disputed by the parties that Sita Ram had not sought any permission from the SOC prior to executing the sale-deed dated
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