Allahabad High Court
Ram Vriksha Son Of Rajbali vs The Assistant Director Of ... on 19 July, 2005
Equivalent citations: 2005(4)AWC3872
Author: Krishna Murari
Bench: Krishna Murari
JUDGMENT Krishna Murari, J.
1. This petition under Article 226 of the Constitution of India is directed against the judgment and order dated 26.8.1980 passed by Deputy Director of Consolidation by which the case has been remanded back to the Settlement Officer Consolidation.
2. The dispute arises out of proceeding under Section 9A (2) of the U.P Consolidation of Holdings Act (for short the Act) and relates to plot no. 102/65 and Khata no. 175. The undisputed facts are that one Raj Bali, father of the petitioner was recorded as sirdar of the land in dispute He died in 1956 when the petitioner was minor, aged about 2 years. Vide order dated 11.4.1956 passed by Naib Tehsildar, the name of the petitioner was mutated in revenue record in place of his deceased father. Shortly, alter the death of the petitioners father his mother also died. The petitioner was under care and supervision of his grand mother. On account of his disability, being a minor, the petitioner was not able to cultivate the land himself as such it was let out to one Sawaroo, the father of respondent no. 4 on " BATAI" (crop sharing basis). Later on the grand- mother of the petitioner executed a sale deed of the disputed plot in favour of Sawaroo on 11.5.1959, on behalf of the petitioner as his guardian. The name of Sawaroo also came to be mutated in the revenue record.
3. On attaining majority when the petitioner came to know about the entries in the revenue records he filed objection under Section 9 A (2) of the Act for expunging the name of Sawaroo on the ground that sale deed executed by his grand mother during his minority was void as she was not the natural guardian. The objection was contested by respondent no. 4 on the ground that since no suit was filed for cancellation of the sale deed by the petitioner within limitation, after attaining majority his rights in the land in dispute were extinguished and in the alternate it was pleaded that he has perfected rights by being in possession for about 20 years.
4. The Consolidation Officer vide order dated 24.4.1978 dismissed the objection filed by the petitioner. Appeal filed against the said order was allowed by the Settlement Officer Consolidation vide order dated 9.3.1997. Aggrieved the respondent no. 4 filed a revision which was allowed by the Deputy Director of Consolidation and the case was remanded back: to the Settlement Officer Consolidation.
5. The Consolidation Officer held that petitioner did not file suit for cancellation of sale deed within three years of attaining the majority and the objection has also been field by him after more than one year of publication of notification under Section 4 of the Act and the consolidation courts have no power to cancel the sale deed hence the objection is liable to be dismissed. In appeal the Settlement Officer Consolidation held that since the sale deed was not executed by natural guardian of minor hence it is hit by Section 11 of Hindu Minority and Guardianship Act and is void. He also recorded a fining that consolidation intervened before the respondent no. 4 could perfect his rights by adverse possession as such he is not entitled to any rights in the property in dispute.
6. The Deputy Director of Consolidation was however of the view since the sale deed was executed without obtaining permission of District Judge as such it was only a voidable document. He further held that it is not clear when the petitioner attained majority and without ascertaining the age of the petitioner the question whether the petitioner took steps within limitation after attaining majority cannot be decided. Thus he directed the case back to Settlement Officer Consolidation to re-determine the age of the petitioner and accordingly ascertain whether objection was field by him within prescribed period of limitation after attaining majority.
7. It has been urged by the leaned counsel for the petitioner that sale deed executed by grand mother of the petitioner who was not natural guardian was void and hit by Section 11 of the Hindu Minority and Guardianship Act. The Deputy Director of Consolidation has wrongly and illegally held it to be a voidable document It has further been urged that there was no justification to remand the case back for recording a finding about the age of the petitioner as there was enough material available on the record on the basis of which Consolidation Officer and Settlement Officer both recorded a fining of fact about the date of birth and age of the petitioner. The Deputy Director of Consolidation, without considering the said evidence remanded the matter back for no rhyme and reason.;
8. In reply the learned counsel for the respondents while justifying the remand order contended that writ petition is not maintainable against the remand order.
9. I have considered the arguments advanced by the learned counsel for the parties and perused the record.
10. The twin questions which arise for adjudication are (i) the competence of the grand mother of the petitioner to execute the sale deed as his guardian (ii) whether the respondent no. 4 would perfect rights by adverse possession.
11. In so far as first question is concerned Section 11 of the Hindu Minor and Guardianship Act 1956 is a complete answer. The said Section provides that De Facto Guardian has no right or authority to dispose of or deal with the property of the minor. Section 11 of the Act reads as follows;
"De Facto Guardian not to deal with minor's property- After the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de-facto guardian of the minor"
12. A plain reading of Section goes to show that after commencement of the Act no person is entitled to transfer, alienate or deal with the property of the minor on the ground of his or her being the De Facto Guardian...
13. The Hon'ble Apex Court in the case of Madhegowda (D) by L.Rs. v. Ankegowda (D) by L.Rs. and Ors. 2001 (45) ALR 820 SC has ruled that transfer of a minor's property in violation of Section 11 of the Act is viod ab initio void. It has been observed as follows.
" From the statutory provisions noted above, it is clear that with the avowed object of saving the minor's estate being mis-appropriated or squandered by any person, by a relation or a family friend claiming to be a well wisher of the minor. Section 11 was enacted to prohibit any such person from alienating the properly of the minor. Even a natural guardian is required to seek permission of the court before alienating any part of the estate of the minor and the court is. not to gram such permission to the natural guardian except in case of necessity or for an evident advantage to the minor.; So far as de facto guardian or de facto manager is concerned, the statute has in no uncertain terms prohibited any transfer of any part of minor's estate by such a person. In view of the clear statutory mandate, there is little scope for doubt that any transfer in violation of the prohibition incorporated in Suction 11 of the Act is ab initio void".
14. From the aforesaid settled legal position, it is clear that the sale deed executed by the grand mother of the petitioner was a void document and the Deputy Director of Consolidation wrongly held it to be viodable.
15. In view of the fact that since the sale deed was a void document, the judgment of the Deputy Director of Consolidation remanding the case back to the Settlement Officer Consolidation to find out the age of the petitioner to ascertain whether proceedings were initiated by him within limitation after attaining majority also cannot be sustained for the simple reason that void document does not require any cancellation and can be ignored by the consolidation authorities The Limitation provided under general law for cancellation of a document would not stand in the way of the consolidation authorities in case the document in question is a void document.
16. In so far as the second question is concerned admittedly the respondent no. 4 came in possession in 1959, on the basis of sale deed executed during the minority of the petitioner. The limitation of six years as prescribed at the relevant time, for perfecting rights by adverse possession would start running after the petitioner had attained majority. On the basis of evidence brought on record in the form of voter list of 1973 and Parivar register the Settlement Officer Consolidation held that the petitioner attained majority either in 1968 or in 1972. The said finding of the Settlement Officer of Consolidation is based on the voter list wherein the age of the petitioner is recorded as 24 years and the parivar register wherein his date of birth is 25.2.1954. Thus in any case even if the starting point of limitation is taken to be 1968 when the petitioner attained majority, six year period would expire in 1974. Admittedly the village was notified for consolidation operation on 20.5.1972. After commencement of the consolidation operation no. suit under Section 209 of U.P.Z.A.& L.R. Act can be filed, the jurisdiction being barred and hence non -tiling of suit would confirm no rights on the person who was in possession on the date the consolidation proceedings started if the limitation for a suit under Section 209 of U.P.Z.A.& L.R. Act has not, till then run out. In other words if before the expiry of the prescribed period of limitation consolidation intervenes then the limitation prescribed by Section 209 stands arrested. The view taken by me finds support from a division bench judgment of our court in the case of Smt. K. Devi v. Joint Director of Consolidation U.P. and Ors. 1973 ALJ 395.
17. In view of the above legal position the period of six years from the time petitioner attained majority having not expired before the commencement of the Consolidation proceedings, the respondent no. 4 would not acquire' any title or right by adverse possession. The remand order made by Deputy Director of Consolidation cannot be said to be justified in any manner in the aforesaid facts and circumstances.
18. The objection raised by teamed counsel for the respondents that ¦ writ petition challenging remand order is not; maintainable, is also not liable to be accepted. It cannot be said that as a rule writ petition against remand order is not maintainable. Generally, the court refuses to interfere or issue a writ of certiorari against a remand order for there is no final adjudication. If the court normally does not interfere with the remand order, it does not mean that there is any lack of power or the writ petition is not maintainable. The court can interfere if it finds the circumstances to be extraordinary or the interference necessary in the interest of justice. In the present case on the material available on the record the Settlement Officer Consolidation recorded a finding of fact regarding the age of the petitioner, the Deputy Director of Consolidation, without even referring to the said documents or setting aside the finding of fact recorded by Settlement Officer has remanded the case back and mat too on the illegal presumption that the sale deed was a viodnble document. Thus the remand order in no way can be said to be justified. The approach of the Deputy Director of Consolidation is totally contrary to the law and the order deserves to be interfered and quashed by this court.
19. In the result writ petition succeeds and is allowed. The impugned order of Deputy Director of Consolidation dated 26.8.1980 stands quashed and that of Settlement Officer Consolidation dated 9.3.1979 stands affirmed. However, in the facts and circumstances of the case, there shall be no order as to costs.