BIBHUTI Vs. KASHI RAM AND ANR.

JUDGEMENT

(1.) DHANRAJ filed a suit for cancellation of the sale deed dated September 17, 1963 under which his half share in certain Bhumidhari plots measuring 4 bighas, 12 biswas and 13 dhoors and the half share in a house was transferred in favour of the Defendants. The Plaintiff also claimed a declaration that he was Bhumidhar in possession of the plots and the owner in possession of the house in suit and in case he was found out of possession, a decree for possession was also claimed. During the pendency of the suit Dhanraj died and his brother Bibhuti, who was the co -Bhumidhar of the plots in question to the extent of the remaining half share, was substituted in his place. The sale deed was ought to be cancelled primarily on the ground that it had been procured fraudulently and that it was void as the transfer was contrary to the provisions of Sub -section (1) of Section 168 -A of the U.P. Zamindari Abolition and Land Reforms Act. The Courts below dismissed the suit. During the hearing of the second appeal it was noticed that conflicting views on the scope of Section 168 -A have been expressed in Jalpa Sahai v. Tribhunath, 1971 AWR 863 and Santokhi v. Board of Revenue U.P. at Allahabad, 1971 AWR 590. On account of this conflict the following question has been referred to us for decision:

(2.) THERE is no dispute that the plots in question are Bhumidhari land situate in a consolidated area and measures less than three acres. Dhanraj had a half share in the land and the other half share belongs to his brother Bibhuti. The sale was not in favour of any person having a contiguous plot or holding. The transfer was of Dhanraj's entire share in a 'fragment' which has been defined to mean land of less extent than 6.25 acres in certain areas of the State and land of less extent than 3.125 acres in certain other areas. The land in question being situate in Basti a fragment will mean less than 3.125 acres.

(3.) THE prohibition contained in Section 168 -A is in respect of any 'fragment' of land situate in a consolidated area i.e. a specific piece of land. Similarly the exception provided is relating to transfer of a 'fragment' in favour of a tenure holder who has a plot contiguous to the 'fragment' and the transfer pertaining to a 'fragment' in favour of any person of the whole or so much of the plot in which the transfer (?) has Bhumidhari rights. The provision in the first exception that the transferee tenure -holder must have a plot contiguous to the 'fragement' sought to be transferred also indicates that the transfer contemplated in the section relates to a specific piece of land. Similarly the language employed in the second exception indicates that the transfer must be of a specific piece of land. The language of the section does not warrant an interpretation that the prohibition contained in it extends to the transfer of a share in the 'fragment'. If that had been the intention of the legislature, the language would have been that no person shall transfer whether by sale, gift or exchange any 'fragment' or a share in any 'fragment'.