GOVERDHAN SINGH Vs. BOARD OF REVENUE U P

JUDGEMENT

(1.) PRESENT Petition under Article 226 of the Constitution of India is directed against the concurrent judgments and orders dated 11 -10 -83, 17 -8 -1984 and 26 -11 -1984 passed by Respondents 3, 2 and 1 respectively, dismissing the Petitioners' suit under Section 229 -B of (U.P. Act No. 1 of 1951) UP ZA and LR Act filed on 24 -9 -1979 for declaration that they were Co -Bhumidhar of Khasra Plot No. 158, (area 8 -2 -2 -) situated in village Sunari P.S. Bichpuri District Agra along with Respondent Raghubar on the basis of a registered sale deed whereby Raghubar (Respondent) transferred 7/16th of his share in the plot in favour of the Petitioners. The Revenue courts have concurrently taken the view that the sale deed was hit by section 168 -A of U.P. Act No. 1 of 1951 and accordingly, the Petitioners' suit was dismissed by the trial court vide judgment and decree dated 11 -10 -1983. The appeal preferred against the said decree was dismissed by the Additional Commissioner vide judgment and decree dated 17 -8 -1984, which was affirmed and maintained by the Board of Revenue, which dismissed the Petitioners' second appeal by means of the judgment and order dated 26 -11 -1984. The Petitioners have now come up to this Court under Article 226 of the Constitution of India challenging the validity of the aforesaid judgment.

(2.) THE facts of the case are not in dispute. The total area of disputed Khasra Plot No. 158 was 8 Bighas, 2 biswas and 3 biswansis. The Respondent Raghubar was to sole tenure holder of the said plot. By means of registered sale deed dated 20 -6 -1974, he transferred 7/16th share in the said plot in favour of the Petitioners for a cash consideration of Rs. 21,000/ - The Petitioners applied for mutation of their names in the revenue records but the same was refused by means of the order dated 6 -6 -1979 on the ground that the sale deed being in the teeth of section 168 -A of the U. P Act No. 1 of 1951 was void and the Petitioners were not entitled for mutation of their names. It was thereafter that the Petitioners filed suit under section 229 -B which was initially decreed on 15 -9 -80 but the said decree was set aside in appeal by the, Additional Commissioner vide judgment and order dated 5 -8 -81 and the suit was dismissed on the ground that the deed was hit by section 168 -A of the Act. The Board of Revenue however allowed the second appeal and remanded the suit back to the trial court vide judgment and decree dated 19 -7 -82. It may be worthwhile to mention here that though the execution of the sale deed was denied by Respondent Raghubar but the Revenue Courts have recorded finding that the Respondent Raghubar had in fact executed the sale deed and not the mortgage deed as alleged by him. The Revenue Courts have also come to the conclusion that even if it be held to be a mortgage deed, it would be deemed to be a sale deed in view of the provisions contained in Section 164 of U.P. Act No. 1 of 1951 inasmuch as possession was admittedly delivered to the Petitioners pursuant to the deed. The only question involved in the case is to whether the sale -deed executed by Raghubar is hit by section 168 -A of the Act. Sri S.N. Varma Learned Counsel for the Petitioner contended before me that since it was a sale deed in respect of a share only it would not amount to fragmentation of holding. The Learned Counsel for the Respondent refuted this submission of Sri Varma and contended that the share to the extent of 7/16th transferred by Raghubar if converted in terms of area, works out to about 3 Bighas, 1 Biswa and 18 Dhoors, which is a 'fragmentation' as defined in Section 3(8 -A) of the Act inasmuch as it is less than 3.125 acres, the prescribed extent of land less than which fragmentation in terms of Section 3(8 -a)(b) Section 168 -A was added by Section 9 of U.P. Act No. XVIII of 1956 subject to the saving contained in Section 23 thereof. This section as it now stands amended from time to time, reads as under:

(3.) IT ma y be pertinent to mention here that by Section 2 of U.P. Act No. XVIII of 1961, the expression "whole of the plot to which the fragmentation pertains is hereby transferred" occurring, in the original section, was substituted by the present words "whole or so much of the plots in which the persons have Bhumidhari rights which pertains to the fragmentation is hereby transferred."