DAYA KISHUN Vs. ASSTT DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) Briefly stated the facts of the case are that Daya Kishan petitioner filed an objection under Section 9-A (2) of the U. P. Consolidation of Holding Act with the allegations that Swami Prasad and Shambhu Dayal were co-tenure holders of plots No. 2723/1 and 2712 along with other plots of the joint holding. It was further asserted that a suit for partition was filed by Swami Prasad against Shambhu Dayal and a preliminary decree was passed on 15th March 1967. It was further asserted that in the said suit quras were submitted by the plaintiff and the defendant and on the basis of those quras drawn by the parties plot Nos. 2723/1 and 2712 were said to be given to Swami Prasad and he was in possession over it. Which plots had fallen in the qura of Shambhu Dayal has not been indicated before him. Learned counsel for the petitioner admits that although quras were submitted by the parties in which the aforesaid plots had fallen in the share of Swami Prasad but no final decree had been passed and as such no delivery of possession was made through Court on the said plots. He contended that the parties remained in possession over the plots which they received in their quras although no final decree for partition was passed. The petitioner contends that the aforesaid two plots which were in possession of Swami Prasad having fallen in his qura were transferred to the petitioner by Swami Prasad through a sale deed executed in the year 1969. The petitioner contends that he is in possession over the said plots ever since on the basis of the registered sale deed executed by Swami Prasad in his favor. The petitioner in his objection under Section 9-A (2) of the' Act claimed to be the sole bhumiduar of the aforesaid two plots and prayed that his name be recorded as such. Swami Prasad has died. His two sons Raj Kumar and Bhagwat admitted the claim of the petitioner and admitted that their father had executed the sale deed. The case was contested by Shambhu Dayal asserting that Swami Prasad was in same and he could not sell the land in question. It was further contended that since no final decree for partition had been passed and as such Swami Prasad could not execute the sale deed in question. The Consolidation officer repelled the contention of Shambhu Dayal holding that Swami Prasad was not insane. He, however, held that since no final decree for partition was passed and as such Swami Prasad could not execute the sale deed treating the aforesaid two plots as his severally and as such he held that Swami Prasad and Shambhu Dayal Shad half share each in the aforesaid two plots namely plots No. 2723/1 and 2712 and that the said plot be partitioned accordingly. Feeling aggrieved by the said order the petitioner filed an appeal which was dismissed on 9. 12. 1980 and it was held that the petitioner and Shambhu Dayal are co-tenure holders. It was further held that Swami Prasad could not execute the sale deed for the entire plots without a valid partition decree being passed for the partition. The Deputy Director of Consolidation rejected the revision 'of the petitioner by order dated 26. 11. 1981. Aggrieved by the aforesaid orders the petitioner has filed this writ petition. Learned counsel for the petitioner contended that although no final decree for partition was passed but since Swami Prasad, the vendor, was in exclusive possession on the basis of Quras submitted by the parties and as such Swami Prasad was entitled to execute the sale deed treating the said plots to be his severally and that he had a right to execute the sale deed in respect of the entire land being his exclusive Bhumidari. I am unable to agree with this contention. Unless a final decree for partition is passed on the basis of Quaras submitted by the parties no exclusive rights could be claimed by Swami Prasad over the said plots. It is admitted that no final decree for partition was passed nor delivery of possession over the plots was given through Court. The Quras submitted by the parties, therefore remained a mutual partition between the parties for the sake of convenience in cultivation. The quras submitted by the parties remained merely an arrangement between the parties since no final decree was passed on the basis of quras submitted by the parties. On the basis of mutual partition and exclusive possession over the land the rights and title of Shambhu Dayal in the said plots to the extent of half share could not, therefore be taken have extinguished. A Division Bench of this Court in Ram Kripal v. Abdul Wahid, (1940 R. D. 132) held that "a co-sharer in undivided property who by an arrangement with the other co-sharers takes possession of a definite portion of the property is not entitled to alienate to a third person as his exclusive property the portion which he has been occupying by agreement with his co-sharers. The transferee acquires no right by the transfer and is not entitled in respect of the same. " The earlier decision of this Court in Jamma v. Jhalli, (1920) 18 A. LJ. 129.) was referred in the said decision, la view of this authority I am of the opinion that the consolidation authorities have not committed any error in holding the petitioner and Shambhu Dayal to be co-tenure holders on the basis of the impugned sale deed. Since final decree for partition was not passed Swami Prasad could not execute the sale deed in respect of the entire two plots in question. The sale deed will be valid only to the extent of his share in the said plots. The petitioner therefore has rightly been held to be joint tenure holder along with Shambhu Dayal in the aforesaid plots. In view of the above I do not find any substance in this write petition. It is accordingly dismissed in limine. .