SRI NIWAS Vs. DEPUTY DIRECTOR OF CONSOLIDATION GYANPUR

JUDGEMENT

(1.) This writ petition has been referred by a learned Single Judge for considering the correctness of the decision given in Writ Petition No. 574 of 1971, Ganga v/s. Deputy Director of Consolidation, decided on 13th March, 1974. The controversy involved is about the interpretation of Sec. 5(1)(c)(ii) of U.P. Consolidation of Holdings Act (hereinafter referred to as 'the Act'). Relevant portion of Sec. 5 is extracted below:

(2.) The facts which are relevant for deciding the controversy, briefly stated, are these. The dispute involved in the present case relates to Khatas Nos. 12, 25, 30, 29 and 198 of Chak No. 234 of village Chandi Gahna, Taluqa Asnao, pargana Bhadohi, district Varanasi. The disputed holdings belonged to Smt. Sonkali. In the basic year Khatauni of 1372 Fasli, when the proceedings under the Act were started, the disputed Khatas were entered in the name of Smt. Jirwanti, although she had died before the date of vesting and Smt. Sonkali had succeeded to the same. A notification under Sec. 4 of the Act was made on 12th August, 1964. After the consolidation proceedings had started, the Settlement Officer (Consolidation), Gyanpur, Varanasi, issued an order granting general permission to all the tenure holders of all the villages excepting those villages in which publication of CH Form 11 under Sec. 10 of the Act had already been made, to transfer or alienate their holdings in accordance with law. CH Forms 10 and 11 of the village in question were issued on 31st December, 1966. Before this date, Petitioner obtained registered sale deeds of the holdings in dispute on 15th December, 1964, from Smt. Sonkali. On the basis of the sale deeds, the Petitioners applied to the Consolidation Officer in the Partal proceedings for the entry of their names. The Consolidation Officer dismissed the claims of the Petitioners on December 9, 1964, on the view that the general permission, in pursuance of which the transfer had been made in favour of the Petitioners, was invalid. The Petitioners preferred an appeal under Sec. 11(1) of the Act. The appeal was dismissed on 15th January, 1965. Against this order, the Petitioners filed a review before the Settlement Officer (Consolidation), but on the review failing, they preferred a revision under Sec. 48 of the Act. In the meanwhile, chaks were carved out and the disputed holdings formed part of Chak No. 234.

(3.) On 23rd October, 1967 Jata Shanker, Respondent No. 4, claiming himself to be the bhumidhar of Chak 234 on the basis of sale deed dated September 19, 1967, from Smt. Sonkali, filed an objection under Sec. 12(2) of the Act and prayed for mutation of his name over the disputed Chak. The Petitioners contested the claim of Jata Shanker pleading that as Smt. Sonkali had already executed a sale deed in their favour in December 1964, she had no right left in the Chak and as such, the sale deed dated 19th September, 1967, executed by her in favour of Jata Shanker Respondent 4, was invalid.