Allahabad High Court
Brij Mohan Singh vs Mangal Singh And Others on 6 September, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. 2023:AHC:175307 Reserved -: 18/08/2023 Delivered -: 06/09/2023 Court No. - 48 Case :- WRIT - B No. - 40481 of 2010 Petitioner :- Brij Mohan Singh Respondent :- Mangal Singh And Others Counsel for Petitioner :- Chaudhary Subhash Kumar,A.N. Bhargava,Girish Chandra Tiwari,S.A. Mishra Counsel for Respondent :- C.S.C.,Manvendra Nath Singh Hon'ble Saurabh Shyam Shamshery,J.
1. Facts which are not under dispute that one Sujan Singh, a sirdar of land bearing Khata No. 142 situated at village- Rajpura, Tehsil- Jalaun (at present Madhogarh), District- Jalaun, had deposited 20 times of land revenue in terms of Section 134 (prior to its omission by U.P. Act No. 8 of 1977 w.e.f. 28.01.1977) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short "Act, 1950") on 14.11.1973 and on very next day, i.e. on 15.11.1973, said Sujan Singh had executed a sale deed in favour of petitioner herein and possession of land referred above was also handed over to him.
2. It is also not under dispute that Sujan Singh died even before Bhoomidhari Sanad was issued. It is not on record, whether legal heirs of deceased Sujan Singh have taken any interest in proceedings of issuance of Bhoomidhari Sanad or not.
3. It appears that co-sharer (Ram Singh) of land in question had filed objections to the application for Bhoomidhari Sanad, however, since Sujan Singh died on 19.03.1974, proceedings in all probabilities did not proceed further. Later on, concerned village was brought within consolidation proceedings and petitioner filed an objection under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (for short "Act, 1953") and claimed his rights on basis of sale deed and prayed for declaration of bhoomidhari rights for share of Sujan Singh (since deceased).
4. Contesting respondents have filed objections and denied claim of petitioner and claimed entire land to be their bhoomidhari. They have also objected that Sujan Singh has no right to transfer the land in dispute since he was not a bhoomidhar, since no Bhoomidhari Sanad was issued to him and that earlier proceedings for mutation were abated against Sujan Singh.
5. The Consolidation Officer rejected the claim of petitioner on the ground that no Bhoomidhari Sanad was issued to vendor (Sujan Singh). An appeal thereof was also rejected by an order passed by Settlement Officer of Consolidation dated 09.01.1991. A revision petition has also received the same fate on 29.03.2010.
6. Sri Chaudhary Subhash Kumar, learned counsel for petitioner has initially placed heavy reliance upon a judgment passed by this Court in Ram Bilas and another vs. Board of Revenue, U.P. Allahabad and others, 2006 (101) RD 51 and referred paragraph 12 thereof is quoted below -:
"12. It is well settled that when a party dies right of substitution is not on the basis of succession but a person who is competent to represent the estate of deceased party and has no interest adverse to the estate of deceased is substituted as heir and legal representative to carry on litigation. Since, during the pendency of the revision Pursottam died and was substituted by his heirs and legal representatives and subsequently the proceedings were abated and all Sirdars were confirmed Bhumidhari rights, the question arises whether a legal representative brought on record to represent the estate of deceased can claim independent rights, contrary to the pleadings or interest of the deceased. As a matter of fact, had Pursottam not died he would have acquired the status of Bhumidhar under Ordinance No. 1 of 1977 and since he had already executed the sale deed after depositing 20 times land revenue, it would have related back to the date when he made the application and deposited the amount. Ram Bilas and Bateshwar substituted in place of deceased Pursottam would derive whatever the rights from Pursottam and since he had already executed a sale deed prior to his death his heirs would be bound by it and it cannot claim confirmant of Bhumidhari rights on themsevles negating the rights which devolved upon Ajudhi @ Ayodhya on the basis of the sale deed executed in his favour. Apart from above, the petitioner is also entitled to benefit of section 43 of Transfer of Property Act. The view taken by me is supported from the decision of the Apex Court in the case of Ram Payare v. Ram Naming1 wherein it has been observed as follows;
"though all Sirdar used to acquire Bhumidhari rights not on the date of depositing the prescribed amount but in stead on the date of issuance of Bhumidhari certificates, where he affected sale of land in respect of which the amount was deposited, on the very date of deposit, thus making an erroneous representation that he was authorised to sale the land. Section 43 of Transfer of Property Act clearly applied and the Vendee was entitled to the benefit thereof. As a consequence, the vendor's son who filed a suit to have the sale set aside on the ground that vendor had no right to effect the sale was liable to be non-suited."
7. Later on, it was pointed out by Sri Dur Vijay Singh, learned counsel for respondents that above referred judgment was challenged before Supreme Court and by order dated 08.03.2019, aforesaid judgment was partially set aside in Rakesh and others vs. Board of Revenue, Uttar Pradesh and others, (2019) 19 SCC 785.
8. In aforesaid circumstances, learned counsel for petitioner has tried to distinguish facts of present case and that the petitioner being bonafide purchaser, was entitled to get protection of Section 43 of Transfer of Property Act, 1882 (for short "Act, 1882") and that Sujan Singh would become bhoomidhar on date when he had deposited 20 times of revenue rent. Learned counsel has further submitted that observations made in Rakesh and others (supra) may not be adverse to petitioner and has placed reliance on Ram Pyare vs. Ram Narain and others, 1985 AIR (SC) 694, Bindha Prasad and others vs. Bhan Datt (Died) and others, (2008) 2 SCC 537 and Ram Swarup vs. Ram Nath, 1960 RD 271. The transitory provision of U.P. Land Laws (Amendment) Act, 1977 has no adverse effect.
9. Per contra, learned counsel for respondents has heavily placed reliance on Rakesh and others (supra) and has submitted that no Bhoomidhari Sanad was issued to Sujan Singh, therefore, due to promulgation of above referred Ordinance and consequent Act, it would be deemed that Sujan Singh remained only sirdar and had never got bhoomidhari rights, therefore, he has no right to sell the property in dispute and beneficial legal consequence of Ordinance and Act would fall on his legal heirs only.
10. Heard learned counsel for parties, perused record and written submission for petitioner in which Ms. Geetanjali Patel, a law student has also put her efforts under guidance of Chaudhary Subhash Kumar, Advocate.
11. In the background of above referred undisputed fact, specifically that no Bhoomidhari Sanad was issued to Sujan Singh either prior to his death or after his death and he sold land in dispute to petitioner after depositing 20 times of revenue rent.
12. The Supreme Court in Deo Nandan and another vs. Ram Saran and others, (2000) 3 SCC 440 and later in Bindha Prasad (supra) has considered the provisions of Section 134 and 137 (before its omission) of Act, 1950 and held that on an application being made and stipulated land revenue being paid, a sirdar would become bhoomidhar w.e.f. date on which said amount was deposited irrespective of date of issuance of Bhoomidhari Sanad.
13. In both above referred judgments, effect of U.P. Zamindari Abolition Land Reforms (Amendment) Ordinance, 1977 (for short "Ordinance, 1977") and its consequent Act of 1977 were neither referred nor considered.
14. The Supreme Court, for the first time, in Rakesh and others (supra) has dealt with above two referred cases as well as has considered the effect of above referred Ordinance and its consequent Act.
15. So far as facts of Rakesh and others (supra) are concerned, it appear to be similar of present case except that in that case an application for Bhoomidhari Sanad was rejected and revision thereof was pending, (for part of land in dispute in that case) whereas in present case, no Bhoomidhari Sanad was issued.
16. In referred circumstances, the Supreme Court has considered provisions of Section 134 and 137 of Act, 1950 as well as Section 3 of Ordinance, 1977 as well as Section 73 which provides transitory provisions and finally held that -:
"17. We may first notice the provisions of U.P. Ordinance 1 of 1977, which has been referred to by the High Court and which are relevant in the facts of the present case. We have noticed above that under Section 134 read with Section 137, a Sirdar after depositing 20 times of land revenue and making an application could obtain bhumidhari sanad. Sections 130 and 131 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 were substituted by U.P. Ordinance 1 of 1977 -- U.P. Zamindari Abolition and Land Reforms (Amendment) Ordinance, 1977, which was subsequently enacted as an Act, namely, the Uttar Pradesh Land Laws (Amendment) Act, 1977, which are to the following effect:
"3. Substitution of Sections 130 and 131.--For Sections 130 and 131 of the principal Act, the following sections shall be substituted, namely--
'130. Bhumidhar with transferable rights.--Every person belonging to any of the following classes, not being a person referred to in Section 131, shall be called a bhumidhar with transferable rights, and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely--
(a) every person who was a bhumidhar immediately before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977;
(b) every person who, immediately before the said date, was a sirdar referred to in clause (a) or clause (c) of Section 131, as it stood immediately before the said date;
(c) every person who in any other manner acquires on or after the said date the rights of such a bhumidhar under or in accordance with the provisions of this Act.
131. Bhumidhar with non-transferable rights.--Every person belonging to any of the following classes shall be called a bhumidhar, with No.-transferable rights, and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely--
(a) every person admitted as a sirdar of any land under Section 195 before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977, or as a bhumidhar, with No.-transferable rights under the said section on or after the said date;
(b) every person who in any other manner acquires on or after the said date, the rights of such a bhumidhar under or in accordance with the provisions of this Act;
(c) every person who is, or has been allotted any land under the provisions of the Uttar Pradesh Bhoodan Yagna Act, 1952.' "
18. Section 134 was omitted by the Uttar Pradesh Land Laws (Amendment) Act, 1977. The effect of the provision was that by statute, bhumidhari right was conferred on Sirdar w.e.f. 28-1-1977, the date of issue of U.P. Ordinance 1 of 1977, which was subsequently enacted as an Act, namely, the U.P. Land Laws (Amendment) Act, 1977, which was deemed to have come into effect on 28-1-1977, the date of issuance of Ordinance.
19. The most important provision, which needs to be noticed in the Uttar Pradesh Land Laws (Amendment) Act, 1977 is Section 73, which dealt with transitory provisions, which is as follows:
"73. Transitory provisions.--(1) Notwithstanding anything contained in any other law for the time being in force all proceedings for acquisition of bhumidhari rights under Sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before 28-1-1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate.
(2) Where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be."
20. Section 73(1) provides that all proceedings for acquisition of bhumidhari rights under Sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before 28-1-1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate.
21. The revision against the order dated 23-5-1975 was pending against the rejection of grant of bhumidhari sanad, which stood abated by virtue of Ordinance 1 of 1977, as has been noted by the High Court in its judgment. The most important provision is Section 73(2), which provides that where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives, as the case may be.
22. Thus, sub-section (2) of Section 73 of U.P. Act 8 of 1977 contemplated that all proceedings pertaining to grant of bhumidhari sanad shall be abated and amount deposited shall be refunded to the person applying or the legal representative. The consequence of the said provision is that the revision, which was filed by Pursottam stood abated and the amount so deposited was to be refunded to his legal representative. The claim of Pursottam to get bhumidari rights on the basis of his application dated 25-11-1974 with regard to Plots Nos. 243 and 503, thus, stood terminated by virtue of the provisions of Section 73 as extracted above. In view of the provisions of Section 73, as extracted above, the claim of Pursottam to get bhumidhari rights on the basis of his application dated 25-11-1974 stood negated. Hence, on the basis of the pendency of revision, no benefit can be taken by Pursottam and the High Court erred in law in holding that by Ordinance 1 of 1977, Pursottam had also got benefitted retrospectively.
23. By statutory provision i.e. Section 73, all pending applications and proceedings were abated and grant of bhumidhari rights was contemplated under Sections 130 and 131, which was sought to be inserted by U.P. Ordinance 1 of 1977. The benefit of a statutory provision shall be applicable to those Sirdars, who were Sirdars on the date when Ordinance was enforced, which subsequently became an Act. On 28-1-1977, Pursottam was already dead and his legal heirs were mutated in his place, thus, benefit of Ordinance 1 of 1977 and U.P. Act 8 of 1977 cannot be availed by Pursottam, so as to validate his sale deed dated 26-11-1974 with regard to Plots Nos. 243 and 503. The High Court, thus, committed error in allowing the writ petition filed by the contesting respondent and decreeing Suit No. 30 of 1978.
24. The writ petition filed by Respondent 3 questioning the decision of the courts below with regard to Suit No. 30 of 1978 was not liable to be allowed by the High Court. All the courts below including the Board of Revenue had taken correct view with regard to Suit No. 30 of 1978 filed by the respondent."
17. The argument of learned counsel for petitioner that aforesaid judgment would not come in the way of petitioner and since his rights were protected under Section 43 of the Act, 1882 as well as that transitory provision was not substituted in the parent Act and still it would be deemed that Sujan Singh has accrued bhoomidhari rights would have no legal force, since all such eventualities were considered by the Supreme Court. Other judgments relied upon by the petitioner will not be helpful since all these cases were considered by Supreme Court in Rakesh and others (supra) and held against all his arguments. In said judgment, as referred above, the Supreme Court has held that benefit of statutory provision shall be applicable to those sirdars who were sirdar on the date when Ordinance was enforced and since before that date, Sujan Singh has expired, therefore, he would not be beneficiary of the provision.
18. In background of admitted facts that no Bhoomidhari Sanad was issued to Sujan Singh before his death or thereafter, the effect of above referred provisions of Ordinance, 1977 and its corresponding Act of 1977, specifically the provisions of transitory would be adverse to petitioner's claim and as referred above, due to operation of Ordinance and its corresponding Act, no bhoomidhari right could be accrued to Sujan Singh since his application even if pending would have abated on commencement of Act, 1977 i.e. no bhoomidhari right could be issued to him and beneficial consequence, if any, would fall only to legal heirs of Sujan Singh. Section 73 of Ordinance, 1977 and its corresponding Act, being a transitory provision was not required to be inserted or substituted in parent Act.
19. In other words, Sujan Singh who was not declared bhoomidhar, before his death and since his application kept pending, therefore, it would abate and he could not be declared bhoomidhar.
20. Therefore, the sale deed executed in favour of contesting respondents shall be a void document since Sujan Singh was not legally authorized to execute being a sirdar and not a bhoomidhar.
21. In these circumstances, I do not find that learned counsel for petitioner has able to point out any illegality or irregularity on facts as well as on law.
22. Accordingly, present writ petition, being sans merit, is dismissed.
Dt/- September 06, 2023 Nirmal Sinha [Saurabh Shyam Shamshery, J.]