RAM LAL Vs. DEPUTY DIRECTOR OF CONSOLIDATION

JUDGEMENT

(1.) THESE are two connected Writ Petitions directed against order of Deputy Director of Consolidation. The facts in brief are that one Ram lal who admittedly was groveholder of plot No. 270 executed a mortgage on 1st July, 1927 in favour of Badal and Bhagwati. The stipulation in the mortgage deed was that the mortgage shall continue for 20 years and it shall be redeemed thereafter within one year and in case it is not redeemed the mortgagee shall become owner of it. On 18th January, 1949 Ram Khclawanson o f Ram lal filed a suit for redemption. During pendency of this suit he sold the equity of redemption in favour of Badal. The suit was ultimately dismissed in default on 16th November 1949. After equity of redemption was purchased by Badal he is alleged to have paid share of Bhagawati to his widow Smt. Murti who was alive at that time. Badal subsequently filed a suit under Section 229-B of U. P. Z. A. & L. R. Act I of 1961 for declaration that he was sole tenure-holder of the land in dispute. This suit was ultimately abated due to enforcement of consolidation. During consolidation proceedings petitioner Ram lal in Writ Petition No. 4551 of 1972, claimed to be owner of the land in dispute being son of Badal. The opposite party who are sons of Bhagwati and were minors in 1949 also claimed to be owner and in alternative to be co-owners of the land in dispute. The objector of Badal was allowed by the Consolidation Officer. In appeal the order was modified and it was held that both petitioner and the opposite party were co-owners. The order was main tained in revision. Aggrieved against order of Deputy Director, Ram lal filed Writ Petition No. 4551 of 1972 and Sheo Prasad and others filed Writ Petition No. 6597 of 1972. As questions involved in both the petitions are common they are being decided by a common order. The appellate or revisional authority did not set aside finding of Consoli dation Officer that Ram Khelawan sold his equity of redemption in favour of Badal. The only question that survives for consideration is whether Sheo Prasad and others, sons of Bhawati also got right under the sale-deed effected by Ram Khelawan or they continued to be mortgagees. The appellate authority held that payment of mortgage money by Badal to Smt. Murti was illegal as pay ment was not noted on back side of mortgage-deed and further persons who were entitled to receive this amount were minor sons and as payment was against the interest of minor it did not bind them. For purposes of deciding these two petitions it is not necessary to consider whether this finding record-ded by the Settlement Officer consolidation and affirmed by the Deputy Director is correct or not. So long Sheo Prasad and others failed to establish that the sale of equity of redemption by Ram Khelawan in favour of Badal was invalid or they by any transaction or by operation of law acquired right in the land in dispute other than that of a mortgage, their petition is bound to fail and the petition of Ram lal is bound to succeed. The Deputy Director has no doubt recorded a finding that the equity of redemption purchased by Badal shall be deemed to have been purchased on behalf of Sheo Prasad and others as well. But this was never the case of the opposite parties and the Deputy Director could not make out a now case at the stage of revision. This was primarily a question of fact and there being no pleading on it tie Deputy Director was not justified in recording a finding in favour of Sheo Prasad and others on this issue. As regards sale of equity of redemption in favour of Badal it has been held to be valid by Consolidation Officer and the finding having not been set aside by any of the authorities it has to be accepted that the sale was valid and binding. The learned counsel for Sheo Prasad has failed to show that finding recorded by Consolidation Officer that sale of equity of redemption was in accordance with law suffers from any manifest error of law. It was submitted that sale having been made during pendency of suit for redemption it was hit by Section 52 of Transfer of Property Act. The argu ment is so fallacious that it hardly needs any discussion. The provision of Section 52 is clear enough and it does not need elaboration to say that transfer during pendency of the suit is not invalid or void ipso facto. It is only subject to decision of the suit. This did not effect sale of equity of redemption as by dismissal of suit in default the status of Ram Khelawan did not change. His status as mortgagee continued. If his status did not change the transfer of equity of redemption was in no manner affected. It was then argued that after sale of equity of redemption Badal was subrogated in position of mortgagor and he having not taken any steps to sue the' dismissal of suit shall recoil on him and he shall not get any right in law. The argument is misconceived. Ram Khelawan was mortgagor and he filed suit for redemption and if during pendency of suit he transferred equity of redemption the transferor stepped into his shoes. He could have pursued the suit but if he did not that did not affect his rights. It did extinguish his right. Even assuming that by the virtue of being subrogated he was bound by order dismissing suit in default to the extent Ram Khelawan was, it only debarred him from filing the suit on the same cause of action. The claim in suit under Section 229-B and before the consolidation authorities were not based on same cause of action as the suit filed for redemption. In any case the right of petitioner under equity of redemption was not affected. The effect of purchase of equity of redemption was that Badal became owner of his share and mortgagor of Bhagwati's share. The finding of Settlement Officer Consolidation and Deputy Director therefore, that Sheo Prasad and others became co-owners along with Badal is manifestly erroneous. It was then argued that as Badal and Bhagwati were real brothers and Settlement Officer and Deputy Director of Consolidation have held them to be co-owners substantial justice has been done and this Court should not interfere in exercise of its extraordinary jurisdiction. It is difficult to appreciate this argument. The justice if any is in favour of Badal and his descendant and not in favour of Bhagwati and his successors. Badal purchased equity of redemption. He paid entire consideration. The right and title in entire land vested in him. By erroneous approach of consolidation authorities, his descendants are being deprived of land. In the end the learned counsel submitted that the right of the respondents as mortgagee has not been decided nor they have been paid the mortgage money. There appears to be substance in this argument. In the result Writ Petition No. 4551 of 1972 succeeds and is allowed. The order of the Deputy Director of Consolidation and Settlement Officer Consolida tion are quashed. The Writ Petition No. 6597 of 1972 is dismissed. The Deputy Director shall however decide if the respondent has acquired any right on the land in dispute as mortgagee whether the mortgage money has been paid or not. If it finds that mortgage money has not been paid it shall direct the same to be paid. No other question shall remain open for consideration. The petitioner shall be entitled to costs in Writ Petition No. 4551 of 1972 and also in Writ Petition No. 6597 of 1972 in which he is respondent.