JAI NARAIN Vs. AYODHYA PRASAD AND OTHERS

JUDGEMENT

(1.) This writ petition has been filed by Jai Narain who is the son of one Ayodhya Prasad and grandson of one Pooran. The petitioner's case was that Pooran was the owner of zamindari shares in pattis Nos. 2 and 3 of village Khatkari in the district of Sitapur in which the plots in suit are situate. The said plots were his sir, and khudkasht. In 1923 the aforesaid Pooran died and was survived by his three sons and grandsons who constituted a joint Hindu family with him. In 1941 there was a partition in the family, and in the said partition the plots in suit were allotted to the branch of Ayodhya Prasad, respondent No. 1 which consisted of himself and his two sons. The petitioner is a son of Ayodhya Prasad. On June 15, 1959, the aforesaid Ayodhya Prasad sold the plots in suit and kothar etc. in favour of Mani Ham and Diwakar Prakash who are respondents Nos. 2 and 3 respectively in the writ petition for an ostensible consideration of Rs. 1,800.00 without any legal necessity. On Aug. 28, 1959, the petitioner filed a civil suit for the cancellation of the aforesaid sale deed on the ground that it related to joint Hindu family property and was executed without any legal necessity. Thereafter respondents Nos. 2 and 3 applied for mutation of names in their favour under the sale deed dated June 15, 1959. Both the mutation case as well as the civil suit were stayed as the property in dispute came under the consolidation operations. Both parties moved the Consolidation Officer. On July 11, 1960, the petitioner filed an application before the Consolidation Officer on the lines on which he had filed the plaint in the civil Court. On Jan. 31, 1961, the Consolidation Officer refused to give effect to the sale deed mentioned above on the ground that the subject matter of the said sale deed was joint Hindu family property, that Ayodhya Prasad, respondent No. 1, was the karta of the said family and that he had no authority to sell it without legal necessity. He further found that there being no legal necessity for the sale deed the sale deed was bad in law. On Aug. 7, 1961, the Settlement Officer (Consolidation) dismissed the appeal filed by the vendees i.e. respondents Nos. 2 and 3. On Nov. 27, 1961, the Deputy Director (Consolidation) allowed the appeal filed by respondents 2 and 3 and reversed the findings of the first two Courts. On March 7, 1962, the Director (Consolidation) Uttar Pradesh, Lucknow, respondent No. 4, dismissed the revision filed by the petitioner and upheld the decision of the Deputy Director of Consolidation. Aggrieved by the decision of the Deputy Director of Consolidation as well as the Director of Consolidation the petitioner filed the present writ petition for the issue of a writ of certiorari quashing the order of the Deputy Director dated Nov. 27, 1961, and of the Director of Consolidation dated March 7, 1962. The orders of the Deputy Director of Consolidation and of the Director of Consolidation are Annexures 4 and 5 respectively.

(2.) On behalf of the petitioner learned counsel has argued that there is nothing in the U.P. Zamindari Abolition and Land Reforms Act indicating that the sir and khudkasht land held by an intermediary prior to the abolition of zamindari loses the character of joint Hindu family property after the coming into force of the said Act. On the other hand, on behalf of the respondents the learned counsel argued that an intermediary in possession of sir and khudkasht on the first of July, 1951 becomes a bhumidhar of the said land under Sec. 18 of the Act. He further argued that the tenure created under the U.P. Zamindari Abolition and Land Reforms Act was a new right altogether and not substitution of a prior right by another right with the result that the incidents applicable to the prior right cease to be applicable to the new right which is carved out under the U.P. Zamindari Abolition and Land Reforms Act. In support of his contention the learned counsel has relied on the ease of Rana Sheo Ambar Singh Vs. Allahabad Bank Ltd., Allahabad, 1961 A.W.R. 546 . In this case while dealing with the effect of Sec. 18 of the U.P. Zamindari Abolition and Land Reforms Act on three kinds of properties, viz. sir, khudkasht land and intermediary's grove their Lordships observed as follows:-

(3.) Sec. 171 of the Act lays down the general order of succession in respect of properties of a male bhumidhar, sirdar or an asami on his death and the opening portion of the said Sec. provides as follows:-