BANSHI Vs. DEPUTY DIRECTOR OF CONSOLIDATION KANPUR CAMP

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution of India is directed against the order dated 14-12-1972 passed by the Deputy Director of Consolidation Kanpur, Camp at Orai (Jalaun) and the order dated 29-9-1974 passed by the Settlement Officer (Consolidation), Jalaun at Orai.

(2.) THE facts of the case lie in a narrow compass and they are these. Plot No. 171/2 (area 3.70 acres) was recorded in the basic year in the name of Respondent No. 3 Lalloo alias Shambhu and in the names of the petitioners as co-tenure holders. Respondent No. 3 claimed to have 1/2 share and the petitioners shall have the remaining share. An objection under Section 9-A (2) of the U. P. Consolidation of Holdings Act (for short the Act) was filed by respondent no. 3 alleging that he was minor in 1956 and his real brother Sudama, who was then major, sold the land including his share by a registered sale-deed dated 20-6-1956 when in fact there was neither any legal necessity or benefit of the estate and the permission of the District Judge was also not obtained before the execution of the sale-deed, hence the sale-deed is void and liable to be cancelled to the extent of half share. Earlier a suit for cancellation of the sale-deed dated 20-6-1956 (Suit No. 243 of 1967) was filed by him to the extent of his half share and also relief for joint possession was claimed. That suit was decreed for the relief of joint possession by the judgment dated 26-2-69 and against that judgment and decree the appeal was filed by the petitioners which was dismissed by the judgment dated 30-9-1969 by the First Civil Judge, Orai and against that judgment and decree Second Appeal No. 2447 of 1969 was filed by the petitioners against respondent no. 3 and his real brother Sudama but that was ordered to abate by this Court under Section 5 (2) (a) of the Act by order dated 22-11-1979. THEreafter the matter was taken up by the parties before the consolidation authorities.

(3.) THE learned counsel for the petitioners has urged that even though respondent no. 3 might have been minor on the date when the sale-deed was executed but nevertheless the sale-deed cannot be said to be void rather it shall be only voidable and in respect of such a sale-deed only the Civil Court has jurisdiction to entertain the suit and the Consolidation Authorities have no jurisdiction as held in Gorakh Nath Dubey v. Hari Narain Singh, AIR 1973 SC 2451 and also in the Full Eench decision of this Court reported in Ram Nath v. Smt. Munna, 1976 AWC 412 (FB). THE second point urged was that the provisions of Section 8 of the Hindu Minority and Guardianship Act, 1956 had been wrongly applied inasmuch as the sale-deed dated 20-6-1956 was prior to the enforcement of the Hindu Minority and Guardianship Act, 1956 (i.e. on 27-8-1956) and that Act was not retrospective in its operation nor. the same was applicable to the agricultural holdings, that the suit for cancellation of the sale-deed must have been filed within the three years from the date of attaining majority but no suit was filed, hence the claim of respondent no. 3 was time-barred.