Uttarakhand High Court
Sarafat Ali And Anr. vs D.D.C. Haridwar And Ors. on 18 August, 2017
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
IN THE COURT OF UTTARAKHAND
AT NAINITAL
Civil Writ Petition No. 59 of 2003 (M/S)
Sarafat Ali and another ......Petitioners
Versus
Deputy Director of Consolidation, Haridwar
and others ...... Respondents.
Present:
Mr. Tapan Singh, Advocate for the petitioner.
Mr. J.S. Bisht, Brief Holder for the State of Uttarakhand.
Mr. M.S. Tyagi, Advocate for the private respondents.
Dated: 18th August, 2017
JUDGMENT
Hon'ble Sharad Kumar Sharma, J.
Heard learned counsel for the petitioners on the Restoration Application No. 753 of 2017.
For the reasons stated in the application duly supported by affidavit, I am satisfied for reason of absence, the Restoration Application No. 753 of 2017 is allowed. Order dated 21.07.2017 is recalled. Writ Petition is restored to its original.
With the consent of learned counsel for the parties, the petition is taken up for final hearing today itself.
According to the petitioners the land lying in khasra No. 70/32, having an area of 15 bigha, 11 biswa and 0 bishwansi (hereinafter to be called as property in dispute) situated at Village Nehandrapur Suthari, Tehsil Roorkee, District Saharanpur (hereinafter to be called as District Haridwar).
2The contention of the petitioners is that when they were minor they have purchased the property through their natural guardians by virtue of registered sale deed executed by Hasmatullah, Inayatullah and Rahamatullah on 4th June, 1957. Their contention was that under the strength of the sale deed, they filed under Section 34 read with Section 35 of the Land Revenue Act for getting themselves recorded in the revenue record which was allowed on 3rd April, 1984, but, they contend that in pursuance of the order under Section 34 of the Act, their name was not recorded in the revenue records. This contention of the petitioners cannot be accepted, to be correct for the reason under the Revenue Courts Manual, Para 39, provides that all changes, in all case which affects the title, it has to be recorded by the Lakhpal in the revenue records in accordance with Para 39 of the Revenue Courts Manual. There was no reason as to why when the mutation of the petitioners under Sections 34 and 35 of the Act which stood allowed on 3rd April, 1984, why the petitioners did not get themselves recorded in the revenue records a bona fide doubt is created, because even the Revenue Authorities who ought to have acted upon in pursuance of Para 39 of the Revenue Records Manual, have not done so.
During the intervening period, the village was brought under consolidation. With the advent of the consolidation proceedings, the petitioners are supposed to have file an objection under Section 9A (2) for seeking a declaration in relation to the property in dispute which they alleged to have purchased by sale deed on 4th June, 1957. There is doubt with regard to this proceedings also, the reason being, the petitioners claimed their rights by the sale 3 deed 4th June, 1957, and at the stage when the village was not under consolidation, the sale deed was not made subject matter of challenge by any of the person before the competent Court and, thus, as a matter of fact, the petitioners ought to have invoked Section 12 for recording themselves on the basis of the sale deed instead of seeking declaration under Section 9A (2), because declaration was not a subject matter of controversy at that stage. The proceedings seems to be clandestine because he was conscious of the fact that the proceedings in pursuance to Section 12 of the Mutation Act had already been taken and the same was decided on 13th September, 1991.
The objection, thus, filed by the petitioners under Section 9A (2) was decided on 13th September, 1991. The Court of Consolidation Officer, while deciding the objection held that the proceedings drawn at the behest of the petitioners under Section 9 was bad for the reasons that in pursuance to the sale deed dated 4th June, 1957, the petitioners had already filed an application before the Naib Tehsildar for getting themselves recorded under Section 34 of the Land Revenue Act, on which the order had already passed by Tehsildar on 3rd April, 1984, and their name was already recorded, but, this order was concealed to be brought to the knowledge of the Court by the petitioners. But, since the Consolidation Officer was dealing with the right and title claimed by the petitioners by the objection under Section 9A (2), had allowed the objection and directed that "petitioners to be recorded on the basis of the sale deed as sankramanya bhumidhar".
The respondents Hasmatullah, Abdul Mazid and Smt. Rasheedan, on learning about the order dated 13th 4 September, 1991, had preferred a Recall Application which was registered as Case No. 5572 of 1991, seeking recall of the order dated 13th September, 1991. The contention of the petitioners counsel is that during the pendency of the Recall Application, a compromise was entered into between the parties and the same was executed on 8th June, 1993. The petitioners, by taking to this Court to the compromise filed with writ petition, submitted that it bears the endorsement of Hasmatullah, Sarafat Ali and Tufail Ahmed, the sellers of the property. However, the recall application as submitted by the respondents was allowed and the order dated 13 th September, 1991, was set aside by the order dated 24th December, 1991.
Ultimately, on the revival of the proceedings as a consequence of the allowing of the application for recall, Case No. 30, under Section 9A (2), Abdul Mazid Vs. Mazi Ahmad, came up for consideration before the Consolidation Officer. The Consolidation Officer, by the order dated 30th December, 1999, rejected the objection. The reason which has been assigned by the Consolidation Officer, while rejecting the claim, was that out of the total co-tenure holders it only bears the signature of one co-tenure holder Hasmatullah, as the signature on the compromise, which was relied by the petitioners, being that of Hasmatullah was also denied. The Court held that in pursuance to the statements recorded and while dealing with issue Nos. 1 and 2, held that as a matter of fact the sale deed dated 4th June, 1957, which has been filed before the Consolidation Officer it was only a zerox copy sowing the name of Mr. Baru, who was not produced in the witness box to prove the execution of the sale deed as contemplated under Section 68 5 of the Indian Evidence Act. Even so much so, Hasmatullah was also not produced to record his statement to show the propriety of the sale deed dated 04/06/1957, having been executed in favour of the petitioners. Thus, the Consolidation Officer rejected the objection.
Being aggrieved against the order of Consolidation Officer, appeal was preferred by the petitioners before the Settlement, Consolidation Officer, which was registered as Appeal No. 813, which too, was dismissed by the Settlement Officer, Consolidation by the order dated 17th September, 2001. The Court held that looking to the veracity of the sale deed, Hasmatullah had no right to sell the property in favour of the petitioners and, thus, any compromise executed by him, will have no effect and have any bearing so far it relates to the consideration of the propriety of the sale deed. The Court held that since the attesting witness of the sale deed, who was produced before the Court, was though named as Baru was not the same person who was the attesting witness of the sale deed but was rather a person of identical name belonging to other village, thus, the Court while affirming the order passed by the Consolidation Officer, upheld the fact that the petitioners have failed to prove the execution of the sale deed dated 4 th June, 1957.
The petitioners challenged the two orders passed by the Consolidation Officer and the Settlement Officer, Consolidation by preferring a revision before the Deputy Director, Consolidation. The Deputy Director, Consolidation, while concurring to the judgment rendered by the Consolidation Officer and the Settlement Officer, Consolidation, have also recorded the findings to the effect 6 that the sale deed executed in favour of the petitioners suffers from the vices of Section 154 of the ZA & LR Act, for the reason that the same is said to have been executed in favour of a minor person and the possession too was said to have been handed over to the minor and, thus, the Court held that in view of the restriction imposed under Section 154 of the ZA & LR Act, apart from the fact that no sale deed could have been executed, no possession of the said land could either be handed over to the purchasers who are shown to be the minor at the time of the execution of the sale deed.
Another reason which has been assigned by the Court for not accepting the propriety of the sale deed dated 4th June, 1957, was that at the time of purchase, the purchaser already had land more than 12-1/2 acres, hence, the bar of Section 154 of Act will come into play which would render the sale deed to be void.
The Revisional Court dismissed the revision further on the ground that the petitioners have failed to prove a valid execution of the sale deed in the light of the provisions contained under Section 68 of the Indian Evidence Act.
Another line of argument which the petitioner has canvassed before the Revisional Court, as well as before this Court is that the petitioners would not be falling to be within the definition of minor and their land could not be included as to be a land belonging to their father. However, after considering the contention of the petitioners, the learned Revisional Court dismissed the revision and affirmed the judgments passed by the Consolidation Officer as well Settlement Officer, Consolidation.
7In response thereof the argument of Mr. M.S. Tyagi, learned counsel for the respondents, is that as a matter of fact the petitioner No. 1 was a practicing Advocate and, according to the statement recorded by him before the Court below, he has submitted that he was practicing and was enrolled as an Advocate in 1971 and, hence, calculating his age at the time of the execution of the sale deed, he was 24 years of age and was not a minor as claimed.
He further submits that the petitioner No. 1 who was a practicing Advocate has concealed material facts from being brought to the knowledge of the Court to the effect that he has already filed an application for mutation before the Tehsildar under the strength of the sale deed and his name was mutated on 3rd April, 2004, and, if this be so, there was no necessity for him to initiate the proceedings by filing objection under Section 9A (2). He contends that there was some mala fide intention on behalf of the petitioners because they were aware of the fact that the mutation made in their favour by the order dated 3rd April, 1994, by the Teshildar, under the strength of the sale deed, since was being void proceedings and hit by Section 154 of the Act, that is why, objection under Section 9 was filed by the writ petitioners, concealing the mutation made on 3rd April, 1984. Thus, according to the learned counsel for the respondents, the inception of the proceedings, at the behest of the petitioners under Section 9A (2), based on the sale deed, was illegal.
After hearing the learned counsel for the parties, this Court feels that the manner in which the transaction, on the basis of the sale deed dated 4th June, 1957, has been executed in favour of the minor and on the strength on which the 8 mutation has been sought by the petitioners, was hit by the provisions contained under Section 154 read with 161 of ZA & LR Act. The contention of the petitioners with regard to the impact of Section 68 of the Indian Evidence Act is also not acceptable by this Court, the reason being, Hashmatullah was not produced in the witness box and, secondly, the attesting witness who was produced before the Court below by the petitioners, since was not a person who was the actual attesting witness to the sale deed and the petitioners have clandestinely produced another person of another village, this would result into the fact that the execution of the sale deed was not established by the petitioners.
In support of his contention, the learned counsel for the petitioners, has placed reliance on number of authorities to show as to what would be the impact of the definition of family viz-a-viz its relation to the sale deed dated 4th June, 1957. It is pertinent to mention at this juncture that the sale deed happens to be of 4th June, 1957, the provision of Section 166 has been incorporated under the ZA & LR Act, by a substitution made by U.P. Act No. 20 of 1982, w.e.f. 3rd June, 1981. Similarly, Section 167 was also incorporated on the same date. The effect of sale deed which according to the petitioner is voidable and not void, the impact of Sections 166 and 167 will not follow.
This Court is not in concurrence with the arguments extended by the learned counsel for the petitioners, the reason being, that the sale deed dated 4th June, 1957, allegedly executed in favour of the petitioners when they were minor, admittedly, was in contravention to the provisions contained under Section 154 of the ZA & LR Act.
9And if this be so, the sale deed dated 4th June, 1957, would be void from its inception and cannot be treated as to be a voidable document as argued by the learned counsel for the petitioners, irrespective of its effect by provision of Sections 166 or 167 of the Zamindari Abolition Act.
The learned counsel for the petitioners for the purposes of getting the sale deed excluded from the purview of Section 154, has placed reliance in the case of Chandrika Prasad and others Vs. Joint Director of Consolidation, U.P. and others reported in RD 1967 147. The ratio as propounded by the said judgment was in relation to interpreting the definition of family and it is laid down that it will not include the parent of the transferee. This is not the situation prevailing in the instant case as already observed above, Section 154 will come into play because, according to the case of the respondents, at the time when the sale deed was executed, one of the purchaser was already major and he has wrongly reflected himself as to be minor on 4th June, 1957, as established, the appellant in his cross examination recorded before the Court below, he admits that he is practicing Advocate, having registered since 1971. If this be so, the ratio of 1976 which deals with definition of family excluding the parent will not apply.
The learned counsel for the petitioners has placed reliance on yet another authority in the case of Kripashanker Vs. Director of Consolidation reported in AWC 1979 p/459. This judgment too would not be applicable. The reason being, the Hon'ble Apex Court at that point of time was ceased with an issue of a conjoint reading of Section 154 read with Sections 163, 166 and 189 of the ZA & LR Act. In the said judgment, the Hon'ble Apex 10 Court was dealing with Section 189 as it dealt with extinction of interest of a transferor Bhumidhar who has effected a transfer in contravention of Section 154. The Apex Court in the said judgment has held that the only part which is purchased in excess to the cut off limit as provided under Section 154, would be void. Hence, this judgment would too be not in the benefit of the petitioners, in the manner, because it was dealing with altogether a different issue and the controversy as dealt by the Apex Court.
In that view of the matter as all the three Courts have not accepted the propriety of the sale deed dated 4th June, 1957, which has not been proved by the petitioners to have been validly executed in accordance with law as contemplated under the provisions of ZA & LR Act which is an Act contained under Schedule 9 of the Constitution of India, will have a precedence over the General Law.
In the light of above observations, the writ petition is dismissed.
No order as to costs.
(Sharad Kumar Sharma, J.) 18.08.2017 Shiv