REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8179 OF 2016
SITA RAM(DEAD) THROUGH LRS. …..APPELLANT(S)
VERSUS
BHARAT SINGH(DEAD)
THROUGH LRS & ORS. …..RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 8181 OF 2016
J U D G M E N T
Rastogi, J.
1. These appeals arise from the judgment dated 5th July, 2007
passed by the High Court of Allahabad in setting at naught the
inter se rights of the litigating parties initiated under the Uttar
Pradesh Zamindari Abolition and Land Reforms Act,
1
1950(hereinafter being referred to as the “Act, 1950”) arising from
the registered deed of exchange dated 2nd March, 1974.
2. The brief facts of the case culled out from the record are
that Smt. Chando and Sita Ram (since deceased) who were
tenure holders of Plot No. 2902 admeasuring 0.34 decimals
situated in Village Mathura Bangar, Tehsil & District Mathura,
U.P. sold the subject plot on transfer of consideration to late N.D.
Chaudhary(father of respondent nos. 10 & 11) vide registered
sale deed dated 24th January, 1973. Late Kesho Ram
(father/grandfather of respondent nos. 1 to 8), who was tenure
holder of plot nos. 2863 and 2888, with consent, exchanged his
plots with plot no. 2902 owned by late N.D. Chaudhary by a
registered deed of exchange dated 2nd March, 1974. As a result of
the deed of exchange, plot no. 2902 admeasuring 0.34 decimals
was transferred in favour of late Kesho Ram and plot nos. 2863
and 2888 in favour of late N.D. Chaudhary.
3. That at the time of field partal (chakbandi) in the village for
correction of revenue records conducted by the Assistant
Consolidation Officer (ACO) late Kesho Ram(father/grandfather of
2
respondent nos. 1 to 8) filed application under Section 9A(2) of
the Uttar Pradesh Consolidation of Holdings Act, 1953
(hereinafter referred to as “the Act, 1953”) and prayed that his
name be recorded on Plot No. 2902 by virtue of the exchange
deed executed between him and late N.D. Chaudhary dated 2nd
March, 1974.
4. It may be noticed that late N.D. Chaudhary who had
exchanged his Plot No. 2902 with Plot Nos. 2863 and 2888 from
late Kesho Ram also filed application in the consolidation
proceedings and supported the case of late Kesho Ram who was
the applicant in the proceedings for opening of mutation in his
name in the revenue records.
5. At this stage Smt. Chando and Sita Ram who were the
original tenure holders of Plot No. 2902 who had sold it to late
N.D. Chaudhary, by a registered sale deed dated 24th January,
1973, raised an objection regarding validity of the registered sale
deed dated 24th January, 1973. The Consolidation Officer, after
appraisal of the material on record, held that the sale deed dated
24th January, 1973 executed by Smt. Chando and Sita Ram in
3
reference to plot no. 2902 in favour of late N.D. Chaudhary was
genuine and valid and was jointly executed by Smt. Chando and
Sita Ram and in regard to the exchange of plots, the
Consolidation Officer held that the exchange was permissible
only with permission of the Assistant Collector in terms of
Section 161 of the Act, 1950 which, in the instance case, was not
obtained by the parties. In the absence of permission which is
prerequisite, he is not entitled to be recorded as Bhumidar
under the consolidation proceedings. When the matter travelled
in appeal under Section 11 of the Act, 1953, it was observed that
the registered sale deed dated 24th January, 1973 was not proved
based on appreciation of evidence and further held that the deed
of exchange dated 2nd March, 1974 was void for want of
permission from the competent authority provided under Section
161 of the Act, 1950 and the appeal was consequently dismissed
on 18th January, 1982.
6. The matter further travelled before the State Government in
its revisional jurisdiction under Section 48 of Act, 1953 filed at
the instance of late N.D. Chaudhary and late Kesho Ram before
Deputy Director, Consolidation, Mathura, both the revision
4
petitions came to be dismissed although authority did not record
any finding regarding validity of the sale deed but from the order,
it reveals that the authority proceeded on the premise that
registered sale deed dated 24th January, 1973 was genuine and
valid.
7. The order of the revisional authority dated 19th July, 1984
came to be challenged by late Kesho Ram in a writ petition under
Article 227 of the Constitution of India and taking note of the
pleadings on record, the High Court vide impugned judgment
dated 5th July, 2007 observed that the exchange deed dated 2nd
March, 1974 was in contravention of Section 166 read with
Section 167 of the Act, 1950 and any exchange in the absence of
permission from Assistant Collector was void by virtue of Section
166 at the same time further observed that it was the State
Government who could apply for cancellation if affected by the
registered deed of exchange but it was not open to be questioned
at the instance of the original tenure holder Smt. Chando and
Sita Ram who are now being represented by their legal heirs of
plot no. 2902 who had sold with their consent to late N.D.
5
Chaudhary on 24th January, 1973 through a registered sale deed
which was not a subject matter of challenge in appeal before us.
8. The moot question which has been raised for consideration
is as to what will be the legal consequences if the registered
exchange deed dated 2nd March, 1974 has been executed without
following the procedure prescribed as provided under Section 161
of the Act, 1950.
9. Learned counsel for the appellants submits that the High
Court in its supervisory jurisdiction under Article 227 of the
Constitution of India has exceeded in its jurisdiction in
interfering with the concurrent finding arrived at by the
consolidation authorities holding that late N.D. Chaudhary did
not get his name mutated in the revenue records based on the
registered sale deed dated 24th January, 1973 and at the time of
initiation of the consolidation proceedings, he did not put forth
any claim or filed any objection provided under Section 9A of the
Act, 1953. At the same time, the exchange deed dated 2nd March,
1974 was executed without seeking permission from the
competent authority (Assistant Collector) as provided under
6
Section 161 of the Act, 1950 and such exchange being void, late
Kesho Ram cannot claim any right over the plot in question to
open mutation and in consequence the appellants hold a right
over the subject plot no. 2902 even if it was sold by Smt. Chando
and Sita Ram(predecessor in interest) jointly by registered sale
deed dated 24th January, 1973.
10. Learned counsel further submits that the High Court has
failed to appreciate the legal effect of Section 166 read with
Section 167 of the Act, 1950 and the action once being held to be
void by operation of law, they are entitled to hold their right and
possession over plot no. 2902.
11. Per contra, learned counsel for the respondents, while
supporting the finding recorded by the High Court, further
submits that once plot no.2902 admeasuring 0.34 decimals was
sold by the appellants (predecessor in interest) jointly by the
registered sale deed dated 24th January, 1973 to late N.D.
Chaudhary, they have lost their rights and interest over the
subject plot in question and whatever the default, if any, being
committed by late N.D. Chaudhary, it will not give support to the
7
present appellants in making their claim over the subject plot in
question and further submits that the permission of the
Assistant Collector even if not obtained would not take away
rights of the parties which have been conferred on transfer of the
property by the registered exchange deed dated 2nd March, 1974
and as per the scheme of the Act, 1950, transfers made prior to
3
rd June, 1981 are not void but are voidable at the option of the
suit to be filed by Gaon Sabha or land holder within the period of
limitation. Indisputedly, no action was taken either by Gaon
Sabha or land holder within the period of limitation. In the given
facts and circumstances, no error has been committed by the
High Court in the impugned judgment which may call for
interference.
12. We have heard learned counsel for the parties and with
their assistance perused the material available on record.
13. The deed of exchange between late N.D. Chaudhary (father
of respondent nos. 10 and 11) and late Kesho Ram
(father/grandfather of respondent nos. 1 to 8) was executed by
the registered deed on 2nd March, 1974. Section 161, 166 and
8
167 of the Act, 1950 as existing prior to the amendment made on
3
rd June, 1981 are ad infra:
“Section 161 Exchange. [(1) A bhumidhar or sirdar
may exchange with :
(a) any other bhumidhar or sirdar land held by
him, or
(b) any Gaon Sabha or local authority, lands for
the time being vested in it under Sec. 117 [ *
* *] :
Provided that no exchange shall be made except with
the permission of an Assistant Collector who shall
refuse permission if the difference between the rental
value of land given in exchange and of land received in
exchange calculated at hereditary rates is more than
10 per cent of the lower rental value.
(1A) Where the Assistant Collector permits
exchange he shall also order the relevant annual
registers to be corrected accordingly.
(2)On exchange made in accordance with subsection
(1) they shall have the same rights in the land so
received in exchange as they had in the land given in
exchange.”
“S. 166.Transfer made in contravention of this
chapter to be void. Any transfer, made by or on
behalf of a sirdar or asami in contravention of the
provisions of this chapter shall be void.”
By U.P. Act 30 of 1975, the words “in contravention of this
Chapter” were substituted by the words “in contravention of the
provisions of this Act”.
“S. 167.Consequences of void transfers. [(1)
Where a sirdar or asami has made any transfer in
contravention of the provisions of this Act, the
transferee and every person who may have thus
obtained possession of the whole or part of the holding
9
shall be liable to ejectment on the suit of the [Gaon
Sabha or the land holder, as the case may be,]
(2)A decree for ejectment under subsection (1) may
direct the ejectment of the sirdar or asami from the
whole or part of the holding as the court may, having
regard to the circumstances of the case, direct].”
14. It may be relevant to refer Rule 338 of the U.P. Zamindari
Abolition & Land Reforms Rules, 1952(hereinafter being referred
to as the “Rules 1952”) for the purpose as under:
“338. The suit applications and other proceedings
specified in Appendix III shall be instituted within the
time specified therein for them, respectively.
Appendix III
(Rule 338)
Sl.
No.
Section
of the
Act
Description of suit,
application and
other proceeding
Period of
limitation
Time from which
period begins to
run
Proper
court
fees
19. 163 Suits for ejectment
of bhumidhar.
Six Years. From the date of
illegal transfer.
As in
the
Court
Fees
Act,
1870,
on the
year’s
revenue.
20. 167 Suits for ejectment
of a sirdhar or
asami.
Do. Ditto. Ditto.
Substituted 2056/IA4631952 dated 11th April, 1969”
15. It will be appropriate to take note of Sections 161, 166 and
167 amended by U.P. Act No. 20 of 1982(w.e.f. 3rd June, 1981) for
better appraisal ad infra:
10
“Section 161 Exchange. [(1) A Bhumidhar [* * *] may
exchange with :
(a) any other bhumidhar [* * *] land held by
him, or
(b) any Gaon Sabha or local authority, lands
for the time being vested in it under Sec.
117 [ * * *] :
Provided that no exchange shall be made except with
the permission of an Assistant Collector who shall
refuse permission if the difference between the rental
value of land given in exchange and of land received in
exchange calculated at hereditary rates is more than
10 per cent of the lower rental value.
(1A) Where the Assistant Collector permits
exchange he shall also order the relevant annual
registers to be corrected accordingly.
(2)On exchange made in accordance with subsection
(1) they shall have the same rights in the land so
received in exchange as they had in the land given in
exchange.
S. 166. Transfer made in contravention of this
chapter to be void. Every transfer made in
contravention of the provisions of this Act shall be
void.
S. 167. Consequences of void transfers. (1) The
following consequences shall ensue in respect of every
transfer which is void by virtue of Section 166, namely
(a) the subjectmatter of transfer shall, with
effect from the date of transfer, be deemed
to have vested in the State Government
free from all encumbrances;
(b) the trees, crops and wells existing on the
land on the date of transfer shall, with
effect from the said date, be deemed to
have vested in the State Government free
from all encumbrances;
(c) the transferee may remove other movable
property or the materials of any immovable
11
property existing on such land on the date
of transfer within such time as may be
prescribed.
(2)Where any land or other property has vested in the
State Government under subsection (1), it shall be
lawful for the Collector to take over possession over
such land or other property and to direct that any
person occupying such land or property be evicted
therefrom. From the purposes of taking over such
possession or evicting such unauthorised occupants,
the Collector may use or cause to be used such force
as may be necessary.]”
16. It emerges from the pre amendment (U.P. Act No. 20 of 1982
w.e.f. 3rd June, 1981) scheme of the Act, 1950 that any transfer
made in contravention of this Chapter referred to under Section
166 which includes Section 161 as well were not be automatically
void but voidable and therefore, as a consequence of alleged void
transfers under Section 167, a suit was required to be filed by the
Gaon Sabha or the land holder, as the case may be, within
limitation of six years from the date of illegal transfer as indicated
in Appendix III annexed to Rule 338 of Rules, 1952 but after the
U.P. Act No. 20 of 1982 amended w.e.f. 3rd June, 1981, the law
has changed and every transfer made in contravention of this Act
became void in view of Section 166 and in consequence of void
transfer, the subject land is deemed to have been vested in the
State Government by operation of law free from all
12
encumbrances, and subsection (2) of Section 167, authorises
Collector/Competent Authority to take over possession with the
use of force as may be necessary.
17. In the instant case, the exchange deed was executed on 2nd
March, 1974 indisputedly without permission from the Assistant
Collector provided under Section 161 and its consequence was
embedded under Section 167 of the Act, 1950 authorising the
Gaon Sabha or the land holder to file a suit for ejectment within
a period of six years from the date of alleged illegal transfer which
in the instant case had expired in March 1980 much prior to the
U.P. Act No. 20 of 1982 was amended w.e.f. 3rd June, 1981.
18. After the scheme of the Act has been referred to in extenso,
it is clear that at least the amendment which has been made by
the U.P. Land Laws (Amendment) Act, 1982 with effect from 3rd
June, 1981 has no application on the case in hand.
19. The proceedings were initiated in the first instance when an
application was filed by late Kesho Ram under Section 9A(2) of
the Act, 1953 for obtaining mutation in his name in the year
13
1978 and late N.D. Chaudhary also joined him and filed an
application supporting the claim of late Kesho Ram.
20. It reveals from the record that the Consolidation Officer has
declined the claim of late Kesho Ram for seeking the Bhumidari
rights on the premise that the permission from the competent
authority has not been obtained before the exchange deed was
executed as mandated under Section 161 of the Act, 1950 and in
its absence, no proceedings could be drawn claiming Bhumidari
rights in his favour. Although the Settlement Officer has made
adverse comments in reference to the registered sale deed dated
24th January, 1973, but that appears to be a factual manifest
error committed in recording such finding.
21. To make it further clear that under the preamended
scheme of the Act, 1950, the consequence for noncompliance of
Section 161 of the Act, 1950 seeking permission from the
Assistant Collector, was indeed the requirement of law and the
effect of contravention and its consequence are embedded under
Section 166 and 167 of the Act, 1950 but its consequential effect,
in no manner, would take away or divest the rights and interest
14
of the parties inter se conferred in reference to the sale deed
which was originally executed in favour of late N.D. Chaudhary
by late Smt. Chando and Sita Ram in reference to plot no. 2902
admeasuring 0.34 decimals by the registered sale deed dated
24th January, 1973.
22. It is true that at one stage, late Smt. Chando and Sita Ram
jointly raised objection in the consolidation proceedings initiated
under Section 9A(1) of the Act, 1953 in reference to the registered
sale deed dated 24th January, 1973 but as we have already
observed that the registered sale deed dated 24th January, 1973
was genuine and duly executed by the parties and it is nowhere
related in reference to the exchange proceedings which were
initiated at a later point of time and this fact became clear that so
far as the grievance of Smt. Chando and Sita Ram is concerned,
after the sale deed was registered and executed on 24th January,
1973 in favour of late N.D. Chaudhary, the ownership rights with
possession stands transferred. It is true that late N.D.
Chaudhary had not initiated proceedings for claiming his
Bhumidari rights under the Act, 1953 but that, in any manner
will not, nullify his right of ownership vested on execution of a
15
registered sale deed dated 24th January, 1973 and there is no
prohibition or restriction to the contrary has been brought to our
notice, if any, under the Act 1950.
23. At a later stage, late N.D. Chaudhary(father of respondent
nos. 10 and 11) and late Kesho Ram(father/grandfather of
respondent nos. 1 to 8) who was the tenure holders of plot no.
2683 and 2888 got their plot exchanged by registered exchange
deed dated 2nd March, 1974 which indisputedly was in
contravention of Section 161 of the preamended Act, 1950 where
it was postulated that no exchange shall be made except with the
permission of the Assistant Collector. Indisputedly, no
permission was sought as contemplated under the mandate of
law but under the preamended scheme of the Act, 1950, the
effect of exchange in contravention to the provisions of the Act
and its consequence as embedded under Section 166 and 167 of
the Act, 1950 makes the action to be voidable and not void and it
entails consequences of void transfers, in the first instance, it
only confines to sirdar or asami and not applicable upon those
who are claiming rights of Bhumidar. At the same time, any
transfer which has been made in contravention of the provisions
16
of this Act including permission from the Assistant Collector as
required under Section 161, the ejectment may be possible only
on filing of a suit by Gaon Sabha or the land holder, as the case
may be, and after the decree of ejectment being obtained under
subsection (1) of Section 167 of the Act, ejectment under subsection (2) of Section 167 be permissible and for filing of the suit,
the limitation has been provided under Appendix III annexed to
Rule 338 of the Rules, 1952 of which reference has been made in
terms thereof suit for ejectment could be filed within a period of
six years from the date of the illegal transfer.
24. The deed of exchange in the instant case was executed
between the parties on 2nd March, 1974 and the period of
limitation for filing of the suit had expired in March 1980 much
before the U.P. Act No. 20 of 1982 amended w.e.f. 3rd June, 1981
came into force. Indisputedly, no suit was filed either by Gaon
Sabha or any land holder for ejectment as envisaged under
Section 167(1) of the Act, 1950. That apart, even assuming for
the sake of argument, the deed of exchange executed on 2nd
March, 1974 even if considered to be void, taking note of the post
amended provisions of the Act, 1950, it will still confine to the
17
deed of exchange dated 2nd March, 1974 which was obtained
without taking permission from the Assistant Collector as
envisaged under Section 161 of the Act and at the best the rights
to the parties on execution of exchange deed could not be given
effect to and it remain inter se between parties to the
exchange(late Kesho Ram and late N.D. Chaudhary) at the same
time, so far as the subject plot which was once transferred by the
original tenure holders, namely, Smt. Chando and Sita Ram who
are throughout contesting the matter (plot no.2902 area 0.34
decimals) to late N.D. Chaudhary by a registered sale deed dated
24th January, 1973 which has been held to be genuine and valid,
will not be under any legal impediment or having any effect on
the rights of the parties, and the said transaction was not subject
to compliance of Section 161 of the Act, 1950 and at least no
rights of any kind over plot no. 2902 area 0.34 decimals could be
claimed by the original tenure holders (appellants herein) and
their grievance that late N.D. Chaudhary had not claimed his
Bhumidari rights under the Act, 1953, suffice it to say, that no
such provision to the contrary has been brought to our notice
that if the holder has not taken steps for claiming Bhumidari
rights under the Act, 1953 that will take away or divest from the
18
legal rights conferred to the party in whose favour registered sale
deed has been executed under the mandate of law.
25. We are of the view that at least late Smt. Chando and Sita
Ram, whose legal representatives are contesting the case
throughout are not holding any locus standi to claim benefit of
the defect in the deed of exchange dated 2nd March, 1974
executed between different parties who are holders to their
respective plots in their own rights and the procedure mandated
under the law if not being followed of taking permission from the
Assistant Collector as required under Section 161 of the Act,
1950, its consequences would not revive/restore the rights to the
legal heirs of late Smt. Chando and Sita Ram(original tenure
holders) over the subject property in question. That apart, the
present appellants have never raised any plea for cancellation of
the registered sale deed executed in favour of late N.D.
Chaudhary dated 24th January, 1973 which was otherwise not
the subject matter to be examined under the provisions of the
Act, 1950.
19
26. The submission of learned counsel for the appellants that
interference in the concurrent finding and the exchange deed
being void as the permission from Assistant Collector has not
been obtained and in consequence they are entitled for
restoration/possession of plot no.2902 (area 0.34 decimals)
which was originally sold by registered sale deed dated 24th
January, 1973 to late N.D. Chaudhary is without substance for
the reason that these are two separate transactions which has
taken place of the subject plot in question. As regards the rights
and interests which were transferred by the present appellants
vide registered sale deed dated 24th January, 1973 in favour of
late N.D. Chaudhary was never the subject matter of scrutiny
and there was no violation/contravention of the provisions of Act,
1950 or of any other law has been pointed out to us.
27. At the same time, so far as noncompliance of the
mandatory requirement as envisaged under Section 161 of the
Act, 1950 while executing the exchange deed dated 2nd March,
1974 is concerned, parties have to bear its consequences of the
void transaction as provided under Section 166 read with Section
167 of the Act, 1950 but that will not give any preference to the
20
appellants for restoration of their rights and to nullify the
registered sale deed dated 24th January, 1973 executed after
taking due consideration in favour of late N.D. Chaudhary.
28. In our considered view, the conclusions of the High Court in
its judgment impugned are unassailable and does not call for our
interference.
29. Consequently, the appeals fail and are accordingly
dismissed. No costs.
30. Pending application(s), if any, stand disposed of.
.…………………………J.
(A.M. KHANWILKAR)
………………………….J.
(AJAY RASTOGI)
NEW DELHI
SEPTEMBER 17, 2019
21
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8179 OF 2016
SITA RAM(DEAD) THROUGH LRS. …..APPELLANT(S)
VERSUS
BHARAT SINGH(DEAD)
THROUGH LRS & ORS. …..RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 8181 OF 2016
J U D G M E N T
Rastogi, J.
1. These appeals arise from the judgment dated 5th July, 2007
passed by the High Court of Allahabad in setting at naught the
inter se rights of the litigating parties initiated under the Uttar
Pradesh Zamindari Abolition and Land Reforms Act,
1
1950(hereinafter being referred to as the “Act, 1950”) arising from
the registered deed of exchange dated 2nd March, 1974.
2. The brief facts of the case culled out from the record are
that Smt. Chando and Sita Ram (since deceased) who were
tenure holders of Plot No. 2902 admeasuring 0.34 decimals
situated in Village Mathura Bangar, Tehsil & District Mathura,
U.P. sold the subject plot on transfer of consideration to late N.D.
Chaudhary(father of respondent nos. 10 & 11) vide registered
sale deed dated 24th January, 1973. Late Kesho Ram
(father/grandfather of respondent nos. 1 to 8), who was tenure
holder of plot nos. 2863 and 2888, with consent, exchanged his
plots with plot no. 2902 owned by late N.D. Chaudhary by a
registered deed of exchange dated 2nd March, 1974. As a result of
the deed of exchange, plot no. 2902 admeasuring 0.34 decimals
was transferred in favour of late Kesho Ram and plot nos. 2863
and 2888 in favour of late N.D. Chaudhary.
3. That at the time of field partal (chakbandi) in the village for
correction of revenue records conducted by the Assistant
Consolidation Officer (ACO) late Kesho Ram(father/grandfather of
2
respondent nos. 1 to 8) filed application under Section 9A(2) of
the Uttar Pradesh Consolidation of Holdings Act, 1953
(hereinafter referred to as “the Act, 1953”) and prayed that his
name be recorded on Plot No. 2902 by virtue of the exchange
deed executed between him and late N.D. Chaudhary dated 2nd
March, 1974.
4. It may be noticed that late N.D. Chaudhary who had
exchanged his Plot No. 2902 with Plot Nos. 2863 and 2888 from
late Kesho Ram also filed application in the consolidation
proceedings and supported the case of late Kesho Ram who was
the applicant in the proceedings for opening of mutation in his
name in the revenue records.
5. At this stage Smt. Chando and Sita Ram who were the
original tenure holders of Plot No. 2902 who had sold it to late
N.D. Chaudhary, by a registered sale deed dated 24th January,
1973, raised an objection regarding validity of the registered sale
deed dated 24th January, 1973. The Consolidation Officer, after
appraisal of the material on record, held that the sale deed dated
24th January, 1973 executed by Smt. Chando and Sita Ram in
3
reference to plot no. 2902 in favour of late N.D. Chaudhary was
genuine and valid and was jointly executed by Smt. Chando and
Sita Ram and in regard to the exchange of plots, the
Consolidation Officer held that the exchange was permissible
only with permission of the Assistant Collector in terms of
Section 161 of the Act, 1950 which, in the instance case, was not
obtained by the parties. In the absence of permission which is
prerequisite, he is not entitled to be recorded as Bhumidar
under the consolidation proceedings. When the matter travelled
in appeal under Section 11 of the Act, 1953, it was observed that
the registered sale deed dated 24th January, 1973 was not proved
based on appreciation of evidence and further held that the deed
of exchange dated 2nd March, 1974 was void for want of
permission from the competent authority provided under Section
161 of the Act, 1950 and the appeal was consequently dismissed
on 18th January, 1982.
6. The matter further travelled before the State Government in
its revisional jurisdiction under Section 48 of Act, 1953 filed at
the instance of late N.D. Chaudhary and late Kesho Ram before
Deputy Director, Consolidation, Mathura, both the revision
4
petitions came to be dismissed although authority did not record
any finding regarding validity of the sale deed but from the order,
it reveals that the authority proceeded on the premise that
registered sale deed dated 24th January, 1973 was genuine and
valid.
7. The order of the revisional authority dated 19th July, 1984
came to be challenged by late Kesho Ram in a writ petition under
Article 227 of the Constitution of India and taking note of the
pleadings on record, the High Court vide impugned judgment
dated 5th July, 2007 observed that the exchange deed dated 2nd
March, 1974 was in contravention of Section 166 read with
Section 167 of the Act, 1950 and any exchange in the absence of
permission from Assistant Collector was void by virtue of Section
166 at the same time further observed that it was the State
Government who could apply for cancellation if affected by the
registered deed of exchange but it was not open to be questioned
at the instance of the original tenure holder Smt. Chando and
Sita Ram who are now being represented by their legal heirs of
plot no. 2902 who had sold with their consent to late N.D.
5
Chaudhary on 24th January, 1973 through a registered sale deed
which was not a subject matter of challenge in appeal before us.
8. The moot question which has been raised for consideration
is as to what will be the legal consequences if the registered
exchange deed dated 2nd March, 1974 has been executed without
following the procedure prescribed as provided under Section 161
of the Act, 1950.
9. Learned counsel for the appellants submits that the High
Court in its supervisory jurisdiction under Article 227 of the
Constitution of India has exceeded in its jurisdiction in
interfering with the concurrent finding arrived at by the
consolidation authorities holding that late N.D. Chaudhary did
not get his name mutated in the revenue records based on the
registered sale deed dated 24th January, 1973 and at the time of
initiation of the consolidation proceedings, he did not put forth
any claim or filed any objection provided under Section 9A of the
Act, 1953. At the same time, the exchange deed dated 2nd March,
1974 was executed without seeking permission from the
competent authority (Assistant Collector) as provided under
6
Section 161 of the Act, 1950 and such exchange being void, late
Kesho Ram cannot claim any right over the plot in question to
open mutation and in consequence the appellants hold a right
over the subject plot no. 2902 even if it was sold by Smt. Chando
and Sita Ram(predecessor in interest) jointly by registered sale
deed dated 24th January, 1973.
10. Learned counsel further submits that the High Court has
failed to appreciate the legal effect of Section 166 read with
Section 167 of the Act, 1950 and the action once being held to be
void by operation of law, they are entitled to hold their right and
possession over plot no. 2902.
11. Per contra, learned counsel for the respondents, while
supporting the finding recorded by the High Court, further
submits that once plot no.2902 admeasuring 0.34 decimals was
sold by the appellants (predecessor in interest) jointly by the
registered sale deed dated 24th January, 1973 to late N.D.
Chaudhary, they have lost their rights and interest over the
subject plot in question and whatever the default, if any, being
committed by late N.D. Chaudhary, it will not give support to the
7
present appellants in making their claim over the subject plot in
question and further submits that the permission of the
Assistant Collector even if not obtained would not take away
rights of the parties which have been conferred on transfer of the
property by the registered exchange deed dated 2nd March, 1974
and as per the scheme of the Act, 1950, transfers made prior to
3
rd June, 1981 are not void but are voidable at the option of the
suit to be filed by Gaon Sabha or land holder within the period of
limitation. Indisputedly, no action was taken either by Gaon
Sabha or land holder within the period of limitation. In the given
facts and circumstances, no error has been committed by the
High Court in the impugned judgment which may call for
interference.
12. We have heard learned counsel for the parties and with
their assistance perused the material available on record.
13. The deed of exchange between late N.D. Chaudhary (father
of respondent nos. 10 and 11) and late Kesho Ram
(father/grandfather of respondent nos. 1 to 8) was executed by
the registered deed on 2nd March, 1974. Section 161, 166 and
8
167 of the Act, 1950 as existing prior to the amendment made on
3
rd June, 1981 are ad infra:
“Section 161 Exchange. [(1) A bhumidhar or sirdar
may exchange with :
(a) any other bhumidhar or sirdar land held by
him, or
(b) any Gaon Sabha or local authority, lands for
the time being vested in it under Sec. 117 [ *
* *] :
Provided that no exchange shall be made except with
the permission of an Assistant Collector who shall
refuse permission if the difference between the rental
value of land given in exchange and of land received in
exchange calculated at hereditary rates is more than
10 per cent of the lower rental value.
(1A) Where the Assistant Collector permits
exchange he shall also order the relevant annual
registers to be corrected accordingly.
(2)On exchange made in accordance with subsection
(1) they shall have the same rights in the land so
received in exchange as they had in the land given in
exchange.”
“S. 166.Transfer made in contravention of this
chapter to be void. Any transfer, made by or on
behalf of a sirdar or asami in contravention of the
provisions of this chapter shall be void.”
By U.P. Act 30 of 1975, the words “in contravention of this
Chapter” were substituted by the words “in contravention of the
provisions of this Act”.
“S. 167.Consequences of void transfers. [(1)
Where a sirdar or asami has made any transfer in
contravention of the provisions of this Act, the
transferee and every person who may have thus
obtained possession of the whole or part of the holding
9
shall be liable to ejectment on the suit of the [Gaon
Sabha or the land holder, as the case may be,]
(2)A decree for ejectment under subsection (1) may
direct the ejectment of the sirdar or asami from the
whole or part of the holding as the court may, having
regard to the circumstances of the case, direct].”
14. It may be relevant to refer Rule 338 of the U.P. Zamindari
Abolition & Land Reforms Rules, 1952(hereinafter being referred
to as the “Rules 1952”) for the purpose as under:
“338. The suit applications and other proceedings
specified in Appendix III shall be instituted within the
time specified therein for them, respectively.
Appendix III
(Rule 338)
Sl.
No.
Section
of the
Act
Description of suit,
application and
other proceeding
Period of
limitation
Time from which
period begins to
run
Proper
court
fees
19. 163 Suits for ejectment
of bhumidhar.
Six Years. From the date of
illegal transfer.
As in
the
Court
Fees
Act,
1870,
on the
year’s
revenue.
20. 167 Suits for ejectment
of a sirdhar or
asami.
Do. Ditto. Ditto.
Substituted 2056/IA4631952 dated 11th April, 1969”
15. It will be appropriate to take note of Sections 161, 166 and
167 amended by U.P. Act No. 20 of 1982(w.e.f. 3rd June, 1981) for
better appraisal ad infra:
10
“Section 161 Exchange. [(1) A Bhumidhar [* * *] may
exchange with :
(a) any other bhumidhar [* * *] land held by
him, or
(b) any Gaon Sabha or local authority, lands
for the time being vested in it under Sec.
117 [ * * *] :
Provided that no exchange shall be made except with
the permission of an Assistant Collector who shall
refuse permission if the difference between the rental
value of land given in exchange and of land received in
exchange calculated at hereditary rates is more than
10 per cent of the lower rental value.
(1A) Where the Assistant Collector permits
exchange he shall also order the relevant annual
registers to be corrected accordingly.
(2)On exchange made in accordance with subsection
(1) they shall have the same rights in the land so
received in exchange as they had in the land given in
exchange.
S. 166. Transfer made in contravention of this
chapter to be void. Every transfer made in
contravention of the provisions of this Act shall be
void.
S. 167. Consequences of void transfers. (1) The
following consequences shall ensue in respect of every
transfer which is void by virtue of Section 166, namely
(a) the subjectmatter of transfer shall, with
effect from the date of transfer, be deemed
to have vested in the State Government
free from all encumbrances;
(b) the trees, crops and wells existing on the
land on the date of transfer shall, with
effect from the said date, be deemed to
have vested in the State Government free
from all encumbrances;
(c) the transferee may remove other movable
property or the materials of any immovable
11
property existing on such land on the date
of transfer within such time as may be
prescribed.
(2)Where any land or other property has vested in the
State Government under subsection (1), it shall be
lawful for the Collector to take over possession over
such land or other property and to direct that any
person occupying such land or property be evicted
therefrom. From the purposes of taking over such
possession or evicting such unauthorised occupants,
the Collector may use or cause to be used such force
as may be necessary.]”
16. It emerges from the pre amendment (U.P. Act No. 20 of 1982
w.e.f. 3rd June, 1981) scheme of the Act, 1950 that any transfer
made in contravention of this Chapter referred to under Section
166 which includes Section 161 as well were not be automatically
void but voidable and therefore, as a consequence of alleged void
transfers under Section 167, a suit was required to be filed by the
Gaon Sabha or the land holder, as the case may be, within
limitation of six years from the date of illegal transfer as indicated
in Appendix III annexed to Rule 338 of Rules, 1952 but after the
U.P. Act No. 20 of 1982 amended w.e.f. 3rd June, 1981, the law
has changed and every transfer made in contravention of this Act
became void in view of Section 166 and in consequence of void
transfer, the subject land is deemed to have been vested in the
State Government by operation of law free from all
12
encumbrances, and subsection (2) of Section 167, authorises
Collector/Competent Authority to take over possession with the
use of force as may be necessary.
17. In the instant case, the exchange deed was executed on 2nd
March, 1974 indisputedly without permission from the Assistant
Collector provided under Section 161 and its consequence was
embedded under Section 167 of the Act, 1950 authorising the
Gaon Sabha or the land holder to file a suit for ejectment within
a period of six years from the date of alleged illegal transfer which
in the instant case had expired in March 1980 much prior to the
U.P. Act No. 20 of 1982 was amended w.e.f. 3rd June, 1981.
18. After the scheme of the Act has been referred to in extenso,
it is clear that at least the amendment which has been made by
the U.P. Land Laws (Amendment) Act, 1982 with effect from 3rd
June, 1981 has no application on the case in hand.
19. The proceedings were initiated in the first instance when an
application was filed by late Kesho Ram under Section 9A(2) of
the Act, 1953 for obtaining mutation in his name in the year
13
1978 and late N.D. Chaudhary also joined him and filed an
application supporting the claim of late Kesho Ram.
20. It reveals from the record that the Consolidation Officer has
declined the claim of late Kesho Ram for seeking the Bhumidari
rights on the premise that the permission from the competent
authority has not been obtained before the exchange deed was
executed as mandated under Section 161 of the Act, 1950 and in
its absence, no proceedings could be drawn claiming Bhumidari
rights in his favour. Although the Settlement Officer has made
adverse comments in reference to the registered sale deed dated
24th January, 1973, but that appears to be a factual manifest
error committed in recording such finding.
21. To make it further clear that under the preamended
scheme of the Act, 1950, the consequence for noncompliance of
Section 161 of the Act, 1950 seeking permission from the
Assistant Collector, was indeed the requirement of law and the
effect of contravention and its consequence are embedded under
Section 166 and 167 of the Act, 1950 but its consequential effect,
in no manner, would take away or divest the rights and interest
14
of the parties inter se conferred in reference to the sale deed
which was originally executed in favour of late N.D. Chaudhary
by late Smt. Chando and Sita Ram in reference to plot no. 2902
admeasuring 0.34 decimals by the registered sale deed dated
24th January, 1973.
22. It is true that at one stage, late Smt. Chando and Sita Ram
jointly raised objection in the consolidation proceedings initiated
under Section 9A(1) of the Act, 1953 in reference to the registered
sale deed dated 24th January, 1973 but as we have already
observed that the registered sale deed dated 24th January, 1973
was genuine and duly executed by the parties and it is nowhere
related in reference to the exchange proceedings which were
initiated at a later point of time and this fact became clear that so
far as the grievance of Smt. Chando and Sita Ram is concerned,
after the sale deed was registered and executed on 24th January,
1973 in favour of late N.D. Chaudhary, the ownership rights with
possession stands transferred. It is true that late N.D.
Chaudhary had not initiated proceedings for claiming his
Bhumidari rights under the Act, 1953 but that, in any manner
will not, nullify his right of ownership vested on execution of a
15
registered sale deed dated 24th January, 1973 and there is no
prohibition or restriction to the contrary has been brought to our
notice, if any, under the Act 1950.
23. At a later stage, late N.D. Chaudhary(father of respondent
nos. 10 and 11) and late Kesho Ram(father/grandfather of
respondent nos. 1 to 8) who was the tenure holders of plot no.
2683 and 2888 got their plot exchanged by registered exchange
deed dated 2nd March, 1974 which indisputedly was in
contravention of Section 161 of the preamended Act, 1950 where
it was postulated that no exchange shall be made except with the
permission of the Assistant Collector. Indisputedly, no
permission was sought as contemplated under the mandate of
law but under the preamended scheme of the Act, 1950, the
effect of exchange in contravention to the provisions of the Act
and its consequence as embedded under Section 166 and 167 of
the Act, 1950 makes the action to be voidable and not void and it
entails consequences of void transfers, in the first instance, it
only confines to sirdar or asami and not applicable upon those
who are claiming rights of Bhumidar. At the same time, any
transfer which has been made in contravention of the provisions
16
of this Act including permission from the Assistant Collector as
required under Section 161, the ejectment may be possible only
on filing of a suit by Gaon Sabha or the land holder, as the case
may be, and after the decree of ejectment being obtained under
subsection (1) of Section 167 of the Act, ejectment under subsection (2) of Section 167 be permissible and for filing of the suit,
the limitation has been provided under Appendix III annexed to
Rule 338 of the Rules, 1952 of which reference has been made in
terms thereof suit for ejectment could be filed within a period of
six years from the date of the illegal transfer.
24. The deed of exchange in the instant case was executed
between the parties on 2nd March, 1974 and the period of
limitation for filing of the suit had expired in March 1980 much
before the U.P. Act No. 20 of 1982 amended w.e.f. 3rd June, 1981
came into force. Indisputedly, no suit was filed either by Gaon
Sabha or any land holder for ejectment as envisaged under
Section 167(1) of the Act, 1950. That apart, even assuming for
the sake of argument, the deed of exchange executed on 2nd
March, 1974 even if considered to be void, taking note of the post
amended provisions of the Act, 1950, it will still confine to the
17
deed of exchange dated 2nd March, 1974 which was obtained
without taking permission from the Assistant Collector as
envisaged under Section 161 of the Act and at the best the rights
to the parties on execution of exchange deed could not be given
effect to and it remain inter se between parties to the
exchange(late Kesho Ram and late N.D. Chaudhary) at the same
time, so far as the subject plot which was once transferred by the
original tenure holders, namely, Smt. Chando and Sita Ram who
are throughout contesting the matter (plot no.2902 area 0.34
decimals) to late N.D. Chaudhary by a registered sale deed dated
24th January, 1973 which has been held to be genuine and valid,
will not be under any legal impediment or having any effect on
the rights of the parties, and the said transaction was not subject
to compliance of Section 161 of the Act, 1950 and at least no
rights of any kind over plot no. 2902 area 0.34 decimals could be
claimed by the original tenure holders (appellants herein) and
their grievance that late N.D. Chaudhary had not claimed his
Bhumidari rights under the Act, 1953, suffice it to say, that no
such provision to the contrary has been brought to our notice
that if the holder has not taken steps for claiming Bhumidari
rights under the Act, 1953 that will take away or divest from the
18
legal rights conferred to the party in whose favour registered sale
deed has been executed under the mandate of law.
25. We are of the view that at least late Smt. Chando and Sita
Ram, whose legal representatives are contesting the case
throughout are not holding any locus standi to claim benefit of
the defect in the deed of exchange dated 2nd March, 1974
executed between different parties who are holders to their
respective plots in their own rights and the procedure mandated
under the law if not being followed of taking permission from the
Assistant Collector as required under Section 161 of the Act,
1950, its consequences would not revive/restore the rights to the
legal heirs of late Smt. Chando and Sita Ram(original tenure
holders) over the subject property in question. That apart, the
present appellants have never raised any plea for cancellation of
the registered sale deed executed in favour of late N.D.
Chaudhary dated 24th January, 1973 which was otherwise not
the subject matter to be examined under the provisions of the
Act, 1950.
19
26. The submission of learned counsel for the appellants that
interference in the concurrent finding and the exchange deed
being void as the permission from Assistant Collector has not
been obtained and in consequence they are entitled for
restoration/possession of plot no.2902 (area 0.34 decimals)
which was originally sold by registered sale deed dated 24th
January, 1973 to late N.D. Chaudhary is without substance for
the reason that these are two separate transactions which has
taken place of the subject plot in question. As regards the rights
and interests which were transferred by the present appellants
vide registered sale deed dated 24th January, 1973 in favour of
late N.D. Chaudhary was never the subject matter of scrutiny
and there was no violation/contravention of the provisions of Act,
1950 or of any other law has been pointed out to us.
27. At the same time, so far as noncompliance of the
mandatory requirement as envisaged under Section 161 of the
Act, 1950 while executing the exchange deed dated 2nd March,
1974 is concerned, parties have to bear its consequences of the
void transaction as provided under Section 166 read with Section
167 of the Act, 1950 but that will not give any preference to the
20
appellants for restoration of their rights and to nullify the
registered sale deed dated 24th January, 1973 executed after
taking due consideration in favour of late N.D. Chaudhary.
28. In our considered view, the conclusions of the High Court in
its judgment impugned are unassailable and does not call for our
interference.
29. Consequently, the appeals fail and are accordingly
dismissed. No costs.
30. Pending application(s), if any, stand disposed of.
.…………………………J.
(A.M. KHANWILKAR)
………………………….J.
(AJAY RASTOGI)
NEW DELHI
SEPTEMBER 17, 2019
21
