GAON SABHA Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THIS writ petition is directed against the order of the Deputy Director of Consolidation dated 3-11-1973.

(2.) THE village came under the consolidation of holdings operation sometimes before 1967. In the basic year Khatauni, plot Nos. 103/2, 104, 105 and 11/1 in dispute were recorded as Bhita and Tank. An objection purporting to be under Section 12 of the U. P. Consolidation of Holdings Act was filed on behalf of the respondent nos. 3 to 6 (hereinafter referred to as the respondents) claiming to be sirdars on the basis of the sale deed dated 28-5-1969. An objection was filed on behalf of the Gaon Sabha, the petitioner no. 1 as well as Shri Bans Narain, the petitioner No. 2 on the allegation that the land in dispute is bhita and Pokhra, which has vested in Gaon Sabha and the land in dispute was never evacuee property. THErefore, the Custodian has no jurisdiction to execute a sale deed in favour of the respondents and on the basis of that sale deed, the names of the respondents cannot be entered over the plots in disputes. In the meantime, a letter of request was sent by the Asstt. Custodian, Varanasi to the Asstt. Consolidation Officer for recording the names of the respondents in the revenue papers after expunging the name of the evacuee. THE Asstt. Consolidation Officer allowed the names of the respondents to be recorded over the plots in dispute by order dated 29-7-1970. THE petitioners preferred a revision against the order of the Asstt. Consolidation Officer, which was allowed with the following observations :- "Thus the learned C. O. should not have ordered for the amaldaramad on the basis of letter from the Assistant Custodian dated 8-6-1970 without hearing the parties and without satisfying himself about the question whether the disputed land has vested in the Custodian." In pursuance of the above order of the Deputy Director of Consolidation, the case again came up before the Consolidation Officer, and the Consolidation Officer, on the basis of some compromise between the petitioners and the respondents, declared the respondents to be the sirdars of the land in disputes. THE petitioners preferred an appeal against the order of the Consolidation Officer dated 27th May 1972, which was, however, allowed and the basic year entry was maintained. A revision was filed against the order of the Asstt. Settlement Officer (Consolidation) on behalf of the respondents, which was allowed by the Deputy Director of Consolidation and the order of the Consolidation Officer was restored. THE petitioners have challenged the order of the Deputy Director of Consolidation before this Court in the present writ petition.

(3.) I have considered the contentions advanced by the learned counsel for both the parties. The questions involved in this cases for consideration are as to whether the land in dispute was evacuee property and the unregistered sale deed executed by Custodian for a value over rupees one hundred required registration ? As regards the first question, the validity of the sale deed is one thing and whether the property is evacuee property, is different thing. The Custodian has jurisdiction to execute a sale deed only in respect of the property, which is an evacuee property and not in respect of other than the evacuee property, for instance the property of the Gaon Sabha. Merely because the sale deed has been executed by the Custodian the sale deed cannot be held to be valid, if it is in respect of the property which has never been an evacuee property. Therefore, the question of jurisdiction can be considered whenever and wherever it is raised even at the stage of execution proceedings as held in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. The authority has got to decide first of all the question of jurisdiction raised in any case. The Deputy Director of Consolidation, by his order dated 23-6-1971 has already indicated that any order without satisfying about the question whether the disputed land has been vested in the Custodian, cannot be upheld to be legal. The Deputy Director of Consolidation, without recording any finding on the other points, has just presumed that the sale deed executed by the Custodian is valid and cannot be challenged. From the revenue entries of 1356, 1359 as well as from the basic year entry, it is sufficiently proved that the land was bhita and pokhra. There is no reference or any evidence to show that it was an evacuee property. Consequently, the sale deed executed by Custodian in respect of the land other than the evacuee property is without any authority of law and cannot be given effect to in the revenue pepers.