MOHAMMAD SIDDIQ Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) K. N. Misra, J. This writ petition is directed against the judgment and order dated 13-2-1960 passed by the Deputy Director of Consolidation, Moradabad, opposite party No. 1, arising out of proceedings under Section 12 of the U. P. Consolidation of Holdings Act. Briefly stated the facts of the case are as follows;-Abdul Majid, father of the petitioner, had executed a sale-deed dated 15-4-1968 in favour of opposite parties No. 2 and 3, namely Anwar Husain and Iqbal Hussain, sons of Abdul Aziz in respect of plot Nos. 888/0. 73 and 889/1/0. 30 situate in village Bhojpur Dharampur, District Moradabad which was brought under consolidation operation in the year 1967. The said plots were found to be abadt during partal, made by the Consolidation Authorities and, this being abadi land, was kept outside the consolidation scheme. On the basis of the aforesaid sale-deed, mutation was also affected in the name of the opposite parties No. 2 and 3 on 28-3-1973 and the name of Abdul Majid was expunged, who is said to have given his consent to it Abdul Majid died sometime in the year 1975. The petitioner, thereupon, filed an appeal against the said order of mutation before the Settlement Officer (Consolidation) which was allowed and the case was remanded to the consolidation officer, vide its order dated 6th of July, 1975 for decision on merits. After remand the petitioner had set up a case that the aforesaid sale-deed was obtained by fraud and without payment of any consi deration. He also pleaded that the claim of the opposite parties No. 2 and 3 is barred under Section 11 (A) of the C. H. Act and the objection filed by the opposite parties was not maintainable and that they are neither the Bhumidhars of the land in dispute nor they are in possession over it. The case was contested by the opposite parties No. 2 and 3 with the allegations that the plots in question were abadi land and the same were sold to them by Abdul Majid and they are in possession ever since then. The sale-deed was not ob tained fraudulently and the sale consideration was paid by them to Abdul Majid and the sale-deed is perfectly valid. The Consolidation Officer framed the following issues:- 1. Whether the objection of Anwar and Iqbal is maintainable, if so, its effect ?

(2.) WHETHER the claim of objector Anwar is barred under Section 11-A of C. H. Act, if so, its effect?

(3.) WHETHER the objectors Iqbal and Anwar are the Bhuoiidhar of the land in suit on the basis of valid sale-deed. The Consolidation Officer on Issue No. 2 condoned the delay in filing the objection and held the objection, filed by opposite-parties Nos. 2 and 3 for mutation, to be maintainable. The remaining two aforesaid issues were taken up together and the Consolidation Officer held that "the sals-deed was not fraudulent nor it was without consideration in view of the endorsement of the sub-Registrar on the sale- deed about the executability of the sale-deed. He further found that "the petitioner led no evidence to prove that the sale-deed was obtained by fraud and without payment of consideration. " He further found that "although the disputed plots were outside the consolidation scheme but since the transfer is of the part of Bumidhari holding, hence the permission to make transfer, under Section 5 (1) (c) (ii) of the Act, from the Settlement-Officer (c) was necessary and as no prior permission was obtained from the Settlement Officer (c); hence the sale-deed in question was void "and on this ground alone he refused to record the name of the opposite-parties No. 2 and 3, vide its order dated 2-6-1976, contained in Annexure '3' to the writ petition. Aggrieved by the said order the opposite parties Nos. 2 and 3 filed an appeal which was dismissed by the Assistant Settlement Officer (c) vide order dated 16-10-1976. The opposite-parties No. 2 and 3, thereupon, filed revision which was heard and allowed by the Deputy Director of Consolidation vide its judgment and order dated 13-2-1980 by holding that since the land in question was abadi prior to the start of consolidation operation in the village, hence no permission to make transfer of the land in question was needed. He further recorded a finding that the sale-deed in question was executed by the trans feror Abdul Majid and it was not fictitious and the opposite-parties No. 2 and 3 are in possession of the land in question and with these findings the opposite party No. 1 ordered the name of opposite- parties No 2 and 3 to be recorded on the land in question. The petitioner has challenged this order in this writ petition. I have heard the learned counsel for the petitioner and the opposite-parties No. 2 and 3 and have carefully considered the averments contained in the writ petition, counter-affidavit, and rejoinder affidavit. The Learned Counsel for the petitioner has argued that since no prior permission was obtain ed to make transfer from the Settlement Officer (c) in respect of plots in ques tion as was required under Section 5 (1) (c) (ii) of the Act; hence the sale-deed was void and the opposite-party No. 1 acted illegally in ordering the name of opposite-parties No 2 and 3 to be recorded on the plots in dispute; which were part of the holding of the vendor. The Learned Counsel further, sub mitted that for making a transfer of the part of the holding permission of the Settlement Officer (c) was necessary under the aforesaid provisions of the Act and as no permission was obtained the sale-deed in question was void and in support of this he placed reliance on the cases reported in- 1. Ram Behari Shukla and others v. Munna Lal Shukla and others (A. I. R. 1968 223 ). 2. Janta Junior High School v. Deputy Director of Consolidation U. P. and others: (1969 R. D. 434 ). 3. Smt. Asl -. arunisa Begum v. Deputy Director of Consolidation, Camp at Harodi aixi others (1970 R. D. 532 ). 4. Smt. Rajeshwari v. Deputy Director of Consolidation, Lucknow, camp Mirzapur and others (1971 R. D. 130 ). 5. Smt. Ram Rati and others v. Gram Samaj Jehwa and others (1974 R. D, 163 ).