Allahabad High Court
Shiv Nath Singh & 2 Others vs Dy. Director Of Consolidation & 10 ... on 2 November, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 33 Case :- WRIT - B No. - 51292 of 2017 Petitioner :- Shiv Nath Singh & 2 Others Respondent :- Dy. Director Of Consolidation & 10 Others Counsel for Petitioner :- Kamlesh Kumar Tiwari,Rachna Tiwari Counsel for Respondent :- C.S.C. Hon'ble Manoj Misra,J.
Heard learned counsel for the petitioners; learned Standing Counsel for the respondents 1, 2 and 3; and perused the record.
Briefly stated the facts giving rise to this petition are as follows: During the course of consolidation proceedings, the fifth respondent set up an objection before the consolidation authority that vide sale deed dated 26.05.1973 he had purchased the share of recorded tenure-holder, accordingly his name be recorded. The claim was initially accepted on basis of compromise but thereafter a challenge was laid to the sale deed before the appellate authority and the matter was remanded. Upon remand the claim was resisted on the ground that sale deed was got executed by playing fraud/misrepresentation.
The Consolidation Officer accepted the claim of fifth respondent and held that as the sale deed was not annulled by any decree of civil court and purchase of stamp paper, etc. at the request of vendor was admitted and signatures thereon were not denied, the sale deed cannot be discarded by Consolidation Court, which has no power to cancel/annul a document. Accordingly vide order dated 11.07.2016 entry in the Khata was directed as per the sale.
Against the order of the Consolidation Officer, appeal was preferred by taking two grounds: (a) that sale deed dated 26.05.1973 was void being without permission as required by Section 5(1)(c)(ii) of U.P. C.H. Act, as it stood then; and (b) the sale deed was not proved by production of attesting witness, scribe, etc. The Settlement Officer of Consolidation vide order dated 24.03.2017 dismissed the appeal by holding that as per the provisions of the Act, at that time, permission was not required for selling one's entire share though was required on sale of part of the holding therefore the sale deed was not void.
The above view is in conformity with the provisions of Section 5(1)(c)(ii) as it existed then as also the decisions of this Court in AIR 1974 Allahabad 106: Smt. Ram Rati Vs. Gram Samaj, Jehwa, which has been followed in Sheo Narain Singh Vs. Sudama Singh, 1980 RD 202.
As regards non examination of scribe and attesting witness of the sale deed, the Settlement Officer of Consolidation held that neither the execution nor existence of sale deed was denied though it was claimed to have been obtained by fraud, which made sale deed voidable at the instance of the transferor but since Consolidation Courts did not have power to annul the sale deed, the same could not be discarded by Consolidation Court and, therefore, under the circumstances, non examination of attesting witnesses or the scribe will not be fatal to the case of the transferee. While holding as above, it also found that initially the execution of sale deed was not denied by the vendor and, in fact, the parties vide compromise dated 26.07.1975 had accepted one-half share of the transferee (Jagdish Singh) in the Khata, pursuant to the sale.
Against the order of the Settlement Officer of Consolidation, revision was preferred, which has been dismissed by the Deputy Director of Consolidation vide order dated 25.09.2017.
Assailing all the three orders, the learned counsel for the petitioners has urged that according to the case of the petitioners (which include their predecessor-in-interest) the sale deed was obtained by false representation that it was being executed in favour of the temple therefore it was alleged to be a void document. As such its validity ought to have been tested by the Consolidation Courts and since the attesting witnesses were not examined due execution of the sale deed was not proved.
I have considered the submissions and have perused the record carefully.
A perusal of the record would reveal that existence of the sale deed was not denied. Rather its execution was impliedly accepted in the sense that signature/thumb mark were admitted and request for purchase of stamp paper was also admitted though it was claimed that fraud was played upon the transferor by putting him under the belief that he was executing sale deed in favour of temple.
The ground taken to assail the sale deed at best makes it voidable at the instance of the transferor under Section 19 of the Contract Act because fraudulent misrepresentation, if any, was with regards to the contents and not with regards to the character of the document. It is well settled that where fraudulent misrepresentation is in respect of contents of the document and not as regards its character, it is voidable and unless set aside it would operate (vide AIR 1968 SC 956: Ningawwa V. Byrappa Shiddappa Hirekurabar; (1979) 5 ALR 487 Sheopal Vs. Lakhpata; 1990 Supp SCC 216: Dulari Devi Vs. Janardan Singh).
It is equally well settled that Consolidation Courts have no power to annul/cancel a document which is voidable though it can disregard a void document (vide (1973) 2 SCC 535, Gorakhnath Dube Vs. Hari Narain Singh).
Under the circumstances, the consolidation courts could not have gone into the validity of sale deed on the grounds it was challenged.
Even otherwise, the consolidation courts have found that the transferor had initially admitted execution of the sale deed and had also accepted the same by entering into a compromise by accepting one-half share of the transferee. As purchase of stamp paper for execution of sale deed; putting of signature/thumb impression was admitted and its existence was never denied, non-examination of scribe, attesting witness etc. would not be fatal to the case of the transferee. Accordingly, I find no legal error in the orders impugned.
The petition is dismissed.
Order Date :- 2.11.2017 AKShukla/-