PARASHURAM Vs. DEPUTY DIRECTOR OF CONSOLIDATION AND ORS.

JUDGEMENT

(1.) ONE Bujhawan was the tenure holder of Chak No. 232 situated in village Bhagwanpur, Pargana Minjhaura, Tahsil Akbarpur, District Faizabad. During Consolidation of Holding proceedings, petitioner purchased the said chak from Bujhawan by means of sale -deed dated 5.3.1973 which was registered on 8.3.1973. Thereafter, the petitioner applied for mutation before the Consolidation Authorities wherein Bujhawan is said to have moved an application giving his consent for mutation of the name of the petitioner. However, Smt. Kulwanta, opposite party No. 2, who is daughter of Bujhawan filed objections contending that Bujhawan had not executed the sale -deed in favour of the petitioner. Subsequently, in those proceedings a dispute was developed on behalf of opposite parties that the sale -deed which is said to have been executed by Bujhawan in favour of the petitioner did not contain all the plots comprised in Chak No. 232 and as Bujhawan had not taken permission from the consolidation authorities for executing the sale -deed in respect of part of land of Chak, mutation in favour of the petitioner could not be ordered. These objections of opposite party No. 2 did not find favour with the Consolidation Officer who by means of order dated 27.10.1997 ordered mutation in favour of the petitioner. An appeal preferred by opposite party No. 2 against the said order was dismissed by the Settlement Officer (Consolidation) on 23.8.1978. Thereafter, opposite party No. 2 filed a revision before the Deputy Director of Consolidation who allowed the same by means of impugned order dated 7.3.1980. Now the petitioner has approached this Court. At the time when the sale -deed dated 5.3.1973 came to be executed by Bujhawan in favour of the petitioner, a provision existed under Section 5 of the U.P. Consolidation of Holdings Act, 1953 to the effect that sale of part of land comprised in a chak could not be effected during consolidation operations without permission in writing of the Settlement Officer (Consolidation). However, this provision has now been deleted. It is not disputed that Bujhawan had not taken permission of the Settlement Officer (Consolidation) or executing sale -deed of Chak No. 232 in favour of the petitioner.

(2.) THE contention of the learned counsel for the petitioner is that no such permission was required to be taken because sale -deed was executed by Bujhawan in respect of entire land of Chak No. 232 whereas the contention of learned counsel for opposite party No. 2 is that Bujhawan did not transfer the entire land comprised in the said Chak. A perusal of sale deed dated 5.3.1973 shows that the land comprised in Chak No. 232 was transferred by Bujhawan in favour of the petitioner because at the end of sale -deed it is mentioned that the entire (Musallam) Chak No. 232 is being transferred. It is true that at the beginning of the sale -deed it is mentioned that Bujhawan was selling out the agricultural plots detailed below. These plots have been detailed in the sale -deed with reference to plot numbers and their areas. The total number of plots mentioned in sale -deed are 23, measuring 5 Bighas, 14 Biswas and 15 Biswansis. The Deputy Director of Consolidation in his impugned order has mentioned that plot No. 1691 was not mentioned in the sale -deed which is not correct. Plot No. 1691 measuring 4 Biswas and 17 Biswansis has been mentioned as last plot in the sale deed. After execution of sale deed. Bujhawan executed deed of correction dated 30.4.1974 in respect of three Plots one of which is Plot No. 1694. The Settlement Officer (Consolidation) has wrongly mentioned in his order that neither in the sale -deed nor in the deed of correction plot No. 1694 finds place. This leaves Plot No. 1692. Consolidation CH form 23 has been filed by the petitioner which shows that plots comprised in Chak No. 232 were changed several times Since Bujhawan did not dispute that the entire land comprised in chak which was transferred by him and as it is mentioned in the sale -deed that the entire Chak No. 232 was being transferred, it was not open to the Deputy Director of Consolidation in revision to disturb the findings arrived at by the other two authorities below. It has been held by this Court in the case of Brahma Deo v. Assistant Director of Consolidation Jaunpur and others : 1993 RD 22 that in case any omission was made either in the application for permission or in the permission to sell regarding any particular plot, it is immaterial and by means of the sale deed the entire Chak stands transferred. Hon'ble the Supreme Court also in the case of Sheodhyan Singh and others v. Mst. Sanichara Kuer and others : AIR 1963 SC 1879 has held that if Khata number and boundaries have been correctly given which refer only to Plot No. 1060 mentioning of Plot Nos. 160 in the sale -deed is immaterial and the sale -deed shall be deemed to have been executed in respect of Plot No. 1060. In view of the above, writ petition is allowed. The order dated 7.3. 1980 passed by the Deputy Director of Consolidation is hereby quashed and the orders passed by the Consolidation Officer and the Settlement Officer (Consolidation) are restored. It is held that Bujhawan had executed sale -deed in favour of the petitioner in respect of entire land comprised in Chak No. 232. The mutation of name of the petitioner shall be carried out in respect of the said Chak.