AMARJEET Vs. BOARD OF REVENUE ALLD.

JUDGEMENT

(1.) Heard Sri Rajesh Yadav for the petitioners and Sri S.C. Verma for the respondent.

(2.) The writ petition has been filed against the order of Board of Revenue, UP dated 9.6.2016 allowing the second appeal and setting aside the order of Additional Commissioner 4.2.2015 and reinstating the order of trial court passed in the suit under Sec. 229 B of UP Act No. 1 of 1951 (hereinafter referred to as the 'Act').

(3.) Ragghu, father of the petitioners-1 to 3 filed a suit for declaring him as bhumidhar with transferable right of the land in dispute. It has been stated by Ragghu that he was need of money of Rs. 900. Lalmani, respondent-3 (hereinafter referred to as the 'respondent') being his relation agreed to pay money in advance to Ragghu and for securing the money he wants some deed to be executed in terms of loan document. Ragghu went to Sub Registrar office where the respondent got the sale deed dated 21.5.1969 executed on payment of Rs. 900.00 in his favour. When substantially the loan was re-payed then Ragghu asked the respondent to settle the account and take entire money of the loan, then respondent begun to avoid. Thereafter Ragghu made inquiry and came to know that in place of loan document, the respondent has obtained sale deed dated 21.5.1969, although no permission has been taken from Settlement Officer Consolidation under Sec. 5 (1) (c) of UP Consolidation of Holdings Act, 1953 for selling the property in dispute as at that time the consolidation operation in the village was going on. Name of Banguri, sister of Ragghu was also got to be recorded over the land in dispute. When Ragghu asked Banguri to get her name set aside then she executed a sale deed dated 12.4.1979 in respect of her share of the land in dispute. On these allegations the suit was filed for declaration that Ragghu was bhumidhar of the land in dispute and in case it is found that Ragghu is not possession over any part of it then decree for ejectment of defendant-1 be also passed. Earlier round of litigation came up before this Court in Writ B No. 30763 of 1994 and Writ B No. 23682 of 1994. In the aforesaid writ petitions, the remand order of Board of Revenue, UP was challenged by Lalmani. Both the writ petitions were dismissed by this Court and thereafter the matter was heard by the Sub Divisional Officer afresh. The Sub Divisional Officer by order dated 9.6.2011 held that registered sale deed dated 21.5.1969 in respect of the land in dispute in favour of Lalman to the extent of 9/10 share and in favour of Smt. Banguri to the extent of 1/10 share was executed. Since entire holding of the petitioners was sold as such there was no necessity for obtaining permission of Settlement Officer Consolidation under Sec. 5 (1) (c) of UP Consolidation of Holdings Act, 1953 and the sale dated 21.5.1969 was not void. In the sale deed itself, it has been mentioned that the bhumidhari holding of the petitioners has been sold. On the basis of sale deed names of transferees were also mutated in CH Form 45. Thus the sale deed was given effect to and the plea raised that at the time of sale deed, the land in dispute was sirdari land was not liable to be accepted. On these findings the suit of the petitioners has been dismissed. The petitioners challenged the aforesaid order in appeal before Additional Commissioner. The Additional Commissioner by judgement dated 4.2.2015 held that as the land in dispute was alleged to be sirdari land as such it was not transferable and the sale deed is affected by the provisions of Sec. 166 of the Act but this issue has not been examined by the trail court. Accordingly, he allowed the appeal and set aside the order of trial court dated 9.6.2011 and remanded the matter to the trial court to decide the issue as to whether the sale deed dated 21.5.1969 was affected by Sec. 166 of the Act. Against the remand order of Additional Commissioner, the respondent filed a Second Appeal No. 342 of 2015 before Board of Revenue, UP. The Board of Revenue, UP after hearing the parties by judgement dated 9.6.2016 found that in the sale deed, the land in dispute was mentioned as bhumidhar holding, therefore, there could be no reason to say that the sale deed was in respect of sirdari land. In sale deed dated 21.5.1969, 1/10 share was sold to Smt. Banguri. Admitting the title of Banguri, the petitioners obtained sale deed dated 12.4.1979 from Banguri of her 1/10 share. Even the land in dispute was sirdri land in 1979, it shall be assumed that bhumdhari certificate was obtained before execution of the sale deed. So far as prior permission of Settlement Officer Consolidation is concerned, there was no need for prior permission of Settlement Officer Consolidation. On these findings Board of Revenue, UP allowed the Second Appeal and set aside the order of Additional Commissioner. Hence this writ petition has been filed.