LAL BEHARI Vs. NIRMAL SINGH

JUDGEMENT

(1.) THIS writ petition is directed against the order of the Deputy Director Consolidation dated 22 -9 -71. By the said order the Deputy Director held that the Petitioner was not entitled to the mutation of his name in place of Respondent No. 1 who admittedly was the owner of the plot in dispute at one time. The facts of this case lie in narrow campus. The chak in dispute consists of Bhumidhari and Sirdari plots. Out of the total area of .65, .9 was Bhumidhari of Nirmal Singh. He was the sirdar of the remaining area of land which was .56. He deposited ten times of annual rent and filed an application for being granted Bhumidhari Sanad in respect of the Sirdari rights. The order for issue of Bhumidhari Sanad was passed on the same day. Nirmal Singh executed sale deed conveying the entire chak in favour of the Petitioner and Respondent No. 2. Subsequently the Petitioner and Respondent No. 2 filed an application for being mutated on the record on the ground that they had purchased the rights of Nirmal Singh and had acquired rights of Bhumidhari. The claim of mutation was accepted by the Assistant Consolidation Officer. But it appears that the respondent raised a dispute before the Consolidation Officer. He contended that as the Bhumidhari Sanad was not issued therefore the sale deed executed by him was illegal. The Consolidation Officer did not accept the plea taken and maintained the order of the Assistant Consolidation Officer. It seems that after the decision of the consolidation officer the Petitioner filed an application before the S.D.O. for withdrawal of ten times of annual rent. The S.D.O. granted the prayer made in the said application. The Settlement Officer Consolidation did not accept the plea of Respondent No. 1 and dismissed the appeal of Respondent No. 1. Respondent No. 1 went in revision which was allowed on the ground that Respondent No. 1 having withdrawn the amount deposited could not be Bhumidhar on the date of the execution of the sale deed i.e. 6 -7 -70. He also held that as the Bhumidhari Sanad haviug not actually been issued the Respondent No. 1 was not the Bhumidhar entitled to execute the sale deed. Aggrieved by the aforesaid judgment of the Deputy Director the present Writ Petition has been filed. The first question that calls for determination is whether the Respondent No. 1 had right to execute the sale deed after withdrawing the deposit made for acquisition of Bhumidhari. There is no provision in Zamindari Abolition and Land Reforms Act for the withdrawal of the deposit once made. It therefore appears that the withdrawal allowed by the S.D.O. is contrary to the provisions of the said Act. Further the Respondent No. 1 had executed the sale deed and the Respondent No. 2 on the strength of that acquired Bhumidhari. Subsequent -withdrawal of money by him could not bring about a change in the status and deprive the Petitioner and the Respondent No. 2 of the rights purchased by them. The withdrawal as stated above is illegal. So far as the second contention is concerned suffice to mention that the said controversy has been set at rest by laying down in a Division Bench case that in a case where the land is sold on the professed representation that the seller has Bhumidhari rights, such a sale cannot be held to be of Sirdari rights. The said case is reported in Des Raj v. Lal Sahai Singh, 1973 AWR 123. I am in respectful agreement with the view taken by the Division Bench of the aforesaid case. I have further seen the sale deed produced before me which was executed by the Respondent No. 1 that he was Bhumidhar on the date of the execution of the sale deed. Applying the said law I must find that the Deputy Director committed error.

(2.) IN the result the Writ Petition succeeds and is allowed. The order of the Deputy Director dated 22 -9 -71 is set aside and that of the Consolidation Officer restored. No order as to costs.