SHER SINGH Vs. JOINT DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THE litigation culminating in this appeal by special leave has a long and chequered history which may be summarised thus :

(2.) BY deed dated 20/07/1945, registered on 30/07/1945, Chaudhary Vijay Kunwar Singh and Virendra Kunwar Singh, Zamindars of Mithanpur (U.P.) leased out ten plots of land admeasuring 6.63 acres situate in Mahal Safed, Mouza Mahendri, Sikandarpur, Pargana Amroha, District Moradabad, which were in their possession as "khud-khast" (self- cultivating possession) to Sher Singh the original appellant, for a period of ten years beginning from the year 1353 Fasli to the end of the year 1362 Fasli Nearly a month and a half later i.e. on 6/09/1945, the said Chaudhary Vijay Kunwar Singh and Virendra Kunwar Singh along with their mother, Smt. Savitri Kunwar Singh, executed a sale deed in respect of their proprietary right and interest in the aforesaid plots of land in favour of Kaley Singh, Harbans Singh and Nihal Singh, brothers of Sher Singh, and one Chajju Singh. On the basis of this lease deed, Sher Singh claimed to have obtained possession of the aforesaid plots of land and was recorded as a hereditary tenant in respect thereof in the revenue record. Asserting their right of pre-emption in respect of the aforesaid transaction of sale on the ground of their being co-sharers in the Mahal in which the said plots of land are situate, Jai Kumar Singh and Roop Kumar Singh, respondents 2 and 3 herein, brought four suits in the Court of the Munsif, Moradabad against the aforesaid vendors and vendees and Sher Singh for possession of the land as also for cancellation of the aforesaid lease deed in favour of Sher Singh on the ground that it was fictitious and fraudulent and was executed with a view to defeat their right of pre-emption. These suits were decreed by the Munsif in favour of respondents 2 and 3/04/1947. On appeal, the Civil Judge, Muradabad, by his judgment dated 9/11/1948 affirmed the judgment and decree passed by the trial court. Although the vendees. Kaley Singh and others did not prefer an appeal from the pre-emption decree passed against them, Sher Singh did not rest content and took the matter in further appeal to the High Court of judicature at Allahabad in so far as his rights to ejectment from the plots of land in question and cancellation of the aforesaid lease deed in his favour were concerned. BY its judgment and decree dated 13/04/1953, the High Court allowed the appeal of Sher Singh holding that the revenue courts alone had jurisdiction to entertain the suit seeking relief of ejectment of the lessee (Sher Singh) and the Civil Courts had no such jurisdiction. The High Court accordingly set aside the decree passed against Sher Singh. Meanwhile the Uttar Pradesh Legislature passed the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) (hereinafter referred to as 'the Act'). Though the Act came into force in the State on 26/01/1951, the issue of notification under S. 4 thereof was made to coincide with the commencement of 1360 Fasli i.e. 1/07/1952. Pursuant to the observation made by the High Court in its aforesaid judgment dated 13/04/1953, disposing of the appeal of Sher Sigh, respondents 2 and 3 filed ejectment suits against Sher Singh under S. 209 of the Act which were dismissed on 20/11/1953. The first appeals preferred against the dismissal of these suits also proved abortive as they were dismissed on 1/09/1959. Respondents 2 and 3 filed ejectment suits against Sher Singh under S. 209 of the Act which were dismissed on 20/11/1953. The first appeals preferred against the dismissal of these suits also proved abortive as they were dismissed on 1/09/1959. Respondents 2 and 3 thereupon took the matter in second appeal to the High Court which was stayed on account of the commencement of the consolidation operation in the village in which the plots of land in question are situate. Thereafter respondents 2 and 3 filed objections under S. 9 (2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter called 'the 1953 Act') disputing the correctness of the entries in the records showing Sher Singh as 'Bhumidar' of the plots of land in question and praying that the latter's name be expunged from the records and in his place, their names be substituted as Bhumidars but the same were rejected by the Consolidation Officer IV at Kanth vide his order dated 24/12/1961. The order passed by the Consolidation Officer, Kanth, rejecting the objections of respondents 2 and 3 to the entries in the records was upheld by the Settlement Officer, Consolidation, Amroha, in first appeal as also by the Deputy Director, Consolidation, U.P. Lucknow in second appeal by orders made on 16/04/1962 and 21/08/1962 respectively. Dissatisfied with these orders of the Consolidation authorities, respondents 2 and 3 took the matter in revision under S. 48 of the 1953 Act to the Joint Director of Consolidation, U.P. who allowed the same and set aside the concurrent orders of the Consolidation Officer, the Settlement Officer and the Deputy Director, Consolidation, holding that the lease in favour of Sher Singh was fictitious; that the basis of Sher Singh's title viz. the aforesaid lessase being fictitious intended to defraud the pre-emptors, the recorded entries in favour of Sher Singh could confer no title upon him; that Sher Singh's position could be deemed to be only that of an agent carrying on cultivation on behalf of his brothers, the vendees, who were entitled to the land in view of the sale in their favour till it was pre-empted and that 'the effect of his finding would be that the possession of Sher Singh after execution of the Patta shall be deemed to be the possession of the vendees as Sher Singh had himself no title to the land.' Finally holding that the case of respondent 2 and 3 was covered by S. 18 of the Act and that the possession of the vendees would ensure to the benefit of the pre-emptors, the Joint Director ordered their names to be substituted in the relevant records observing that they would be deemed to be holders of the land as 'khudkhast'. It is this order of the Joint Director which was challenged before the High Court by Sher Singh in writ proceedings under Art 226 of the Constitution and on the failure thereof has been impugned before us.

(3.) THE principal question that falls for our determination in this case is whether in passing the impugned order, the Joint Director of Consolidation exceeded the limits of the jurisdiction conferred on him under S. 48 of the 1953 Act. For a proper decision of this question, it is necessary to advert to S. 48 of the 1953 Act as it stood on the relevant date before the amendment by Act No. VIII of 1963 :