Court No. - 53

Case :- SECOND APPEAL No. - 1147 of 2019

Appellant :- Mumtaz Alias Mumtyaz

Respondent :- Salim Ahamad And 3 Others

Counsel for Appellant :- Sanjai Srivastava

Hon'ble Vivek Agarwal,J.

Heard Sri Sanjai Srivastava, learned counsel for the appellant.

It is submitted that this second appeal has been filed on behalf

of the plaintiff challenging the judgment and decree passed in

Civil Appeal No. 7 of 2019 on 12.09.2019 by the Court of

Additional District Judge, Court No. 7, Rampur affirming the

judgment and decree dated 29.11.2018 passed by the Court of

Civil Judge (Junior Division), F.T.C., Rampur in Original Suit

No. 498 of 2009.

Brief facts leading to the present appeal are that plaintiff

challenged the registered sale deed dated 07.03.1992 which was

presented in the Office of Sub-Registrar, Milak on 08.03.1992

by the defendants and sought a relief that such sale deed be

cancelled and declared null and void for the reasons that at the

point of time when such sale deed was executed, the executor

was not having any right to transfer the lease hold rights which

was bestowed in favour of grandfather of the plaintiff. Learned

counsel for the appellant has placed reliance on the provisions

contained in Section 131-B of the U.P. Zamindari Abolition and

Land Reforms Act, 1950. Placing reliance on such provisions as

were inserted vide U.P. Act 19 of 1995 with effect from

14.01.1995. It is submitted that sub-section 1 of Section 131-B

provides that "every person who was a Bhumidhar with non-

transferable rights immediately before the commencement of

the U.P. Zamindari Abolition and Land Reforms Act

(Amendment) Act, 1995 and had been such Bhumidhar for a

period of ten years or more, shall become a Bhumidhar with

transferable rights on such commencement."

Placing reliance on such provisions, it is submitted that since

the land in question was a lease hold land for which patta was

granted to the grandfather by the Government, therefore, before

1995, it was non-transferable lease and thus no sale deed could

have been executed in the year 1992.

Learned counsel for the appellant is asked as to whether he had

exhibited the patta as was granted to his grandfather to bring

home an issue that the lease contained in such patta was non-

transferable, it is fairly admitted that such lease deed was never

exhibited before the Trial Court or the First Appellate Court

even it has not been filed along with the second appeal with an

appropriate application.

Thus, it is apparent that provisions contained in Section 131-B

clearly provides that those Bhumidhars who were not having

transferable rights will get transferable rights after

commencement of the Amendment Act, 1995 provided they

have been a Bhumidhar for a period of ten years or more. This

fact could have been ascertained from the lease deed itself as to

whether transferable rights were available in favour of the lease

holder from whom the land was apparently inherited by the

seller or the plaintiff or not. In absence of such basic document

being exhibited, other pleadings as to the competency of the

power of attorney holder to transfer such land takes a back seat.

That issue of authorization of the power of attorney holder too

has not been disputed and challenged before the courts below.

In view of such facts, merely placing reliance on the provisions

of Section 131-B which is not an unqualified amendment but is

applicable only in case of those Bhumidhars who were granted

patta with non-transferable rights, cannot be blanketly applied

to all situations without appreciating the fact on record that

whether the patta on the basis of which plaintiff claims their

right was transferable or not. In absence of such basic

stipulation being pleaded and proved by the plaintiff, no benefit

can be derived by the plaintiff seeking cancellation of the sale

deed that too after 17 years of its execution.

Thus, appeal fails and is dismissed as it does not giv