Vishnu Kumar vs Smt. Sunita Kalra & Others
2012 Latest Caselaw 1741 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved										A.F.R.
 

 
Case :- WRIT - C No. - 23173 of 2007
 

 
Petitioner :- Vishnu Kumar
 
Respondent :- Smt. Sunita Kalra & Others
 
Petitioner Counsel :- Awadhesh Kr. Singh
 
Respondent Counsel :- C.S.C.,Sidjor Dixit,V.K. Singh
 

 
Hon'ble Sunil Hali,J.

The question involved in the writ petition is as to whether contract of sale (agreement to sale) constitutes transfer within the meaning of Section 54 of the Transfer of Property Act, in case, it does not constitute transfer, whether mutation under section 34 of the of the Land Revenue Act could be attested by the Tehsildar on the basis of contract of sale (agreement to sale). In order to address this question, certain facts are required to be noted:

An agreement to sale was executed by one Bakshi Singh (deceased) in favour of Chimman Lal, father-in-law of respondent no. 1 on 28.6.1974 for a consideration of Rs. 40,000/- in respect of plot no. 201/1, area 15-19-13. The agreement was followed by delivery of possession to Sri Chimman Lal. On the death of Chimman Lal, an application was moved by husband of respondent no. 1 under section 34 of the Land Revenue Act for deleting the name of Bakshi Singh from revenue record. The mutation application was allowed and it was directed that the name of Suresh Chandra son of Chimman Lal, husband of respondent no. 1 be recorded in Column 9. The petitioner filed an appeal against the order dated 4.2.2000, which was dismissed by the Sub Divisional Magistrate, Hathras vide order dated 10.1.2003. A revision was preferred by the petitioner before the Commissioner, which was also dismissed vide order dated 8.3.2007. Under these circumstances, the present petition has been filed.

Before appreciating the arguments of the learned counsel for the parties, it is necessary to note that some cases were filed by the parties before various courts. The details are given here-in-below :-

(i) Civil Suit No. 414 of 1976 (Baskshi Singh versus Chimman Lal) was filed for cancellation of the agreement to sale executed in the year 1974. The suit was dismissed.

(ii) Civil Suit No. 88 of 1988 for permenant injunction (Suresh Chandra versus Bakshi Singh) was filed in which interim stay was granted by the Court.

(iii) Another suit was filed by one Pooran Devi, co-tenure holder for being declared as Bhumidhar of the plot. The Suit No. 414 of 1976 was decreed. The entry in the name of Bakshi Singh in column-9 was deleted.

(iv) Civil Suit No. 15/4-11-87 of 1987 (Bakshi Singh and others versus State of U.P.) was filed under section 229-B of the Act to declare him bhumidhar of the land and to expunge the name of Leeladhar and others on the ground that he was in possession of the same. An application for impleadment was filed by respondent no. 1 in the said suit.

(v) One Civil Suit No. of 2003 (Suresh Chandra versus State of U.P. And others) was filed. Both the suits were consolidated. During pendency of the suit, Bakshi Singh died.

The husband of respondent no. 1 Suresh Chandra Kalra also died on 23.6.2006 during pendency of the suit and on the basis of a registered will dated 22.2.2005 executed by Suresh Chandra Kalra in favour of respondent no. 1, she was substituted in place of her husband. A decree was passed by the court on 20.3.2007 declaring her to be bhumidhar of Khasra NO. 201/1 which is recorded in the revenue record as Plot 201/4 area 3.684 situate in Garhi Khandari, Pargana and Tehsil Hathras, District Hathras.

The litigative history of these cases reveals that the status of Bakshi Singh who was recorded in column-9 of the Land Revenue Maunal was of unauthorised occupant. The question involved for consideration is as to whether Bakshi Singh could have executed an agreement to sale in favour of Chimman Lal when his status was of unauthorised occupant.

Under the scheme of U.P.Z.A.& L.R. Act, 1950 (in short as the 'the Act'), four types of persons have been classified as tenure holders :-

(i) Bhumidhar with transferable rights;

(ii) Bhumidhar with non-transferable rights;

(iii) Assami; and

(iv) Government lessee.

Section-4 of the Act provides that after publication of the notification under section-4 of the Act, the State Government may by general or special order to be published in the manner prescribed, declare that as from a date to be specified in this behalf all or any of the lands whether vested in the State under this Act shall vest in a Gaon Sabha or any other local authority established for the whole or part of the village in which the said things are situate or partly in one such local authority and partly in another. The power has been given to the Gaon Sabha to manage and utilize the land for the public purposes. Under the definition clause "Intermediary" has been defined. Intermediary with reference to any estate means a proprietor, under-proprietor, sub-proprietor, thekedar, permanent lessee in Avadh and permanent tenure-holder of such estate or part thereof.

Under the Act the rights of various tenure holders have been defined. Section 130 of the Act provides that every person belonging to any of the following classes shall be called as bhumidhar with non-transferable rights and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely :

(a) every person who was a bhumidhar immediately before the date of commencement of the Uttar Pradesh Laws (Amendment) Act, 1977;

(b) every person who, immediately before the said date, was sirdar referred to in Clause (a) or Clause (c) of Section 131, as it stood immediately before the said date;

(c) every person who in any other manner acquires on or after the said date the rights of such a bhumidhar under or in accordance with the provisions of this Act.

Section 131 of the Act defines Bhumidhar with non-transferable rights. Every person belonging to any of the following classes shall be called as bhumidhar with non-transferable rights and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely, -

(a) every person admitted as a sirdar of any land under section 195 before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977 or as a bhumidhar with non-transferable rights under the said section on or after the said date;

(b) every person who is any other manner acquires on or after the said date, the rights of such bhumidhar under or in accordance with the provisions of this Act;

(c) every person who is, or has been allotted any land under the provisions of the Uttar Pradesh Bhoodan Yagna Act, 1952.

(d) with effect from July 1, 1981 every person with whom surplus land is or has been settled under section 26-A or sub-section (3) of Section 27 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960.

Under the scheme of the Act, persons who are classified as tenure holders, their rights have been defined. Bhumidhar with transferable rights alone is competent to transfer and effect any transfer of the land. The other class of tenure holders are not conferred with right to effect transfer. Any person recorded in column-9 of the Land Revenue Act does not come in any of the categories of the tenure holder. The limited right of such person is confined only to hold possession of the land. He does not have any right to effect transfer of the said land.

In the light of the aforesaid discussion, it clearly emerges that Bakshi Singh could not execute an agreement to sale in favour of Chimman Lal. The word 'transfer' is defined under the Transfer of Property Act. Transfer of property means an act by which a living person conveys property in present or in future to one or more other living persons or to himself and one or more other living persons and to transfer property is to perform such act.

The word 'Property' has been defined under the Black Law Dictionary.

"That which is peculiar or proper to any person; that which belongs exclusively to one. In the strict legal sense, an aggregate or rights which are guaranteed and protected by the Government. The term is said to extend to every species of valuable right and interest. More specifically, ownership; the unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to posses it, to use it, and to exclude every one else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects. The exclusive right of possessing, enjoying or disposing of a thing. The highest right a man can have to anything; being used to refer to that right which one has to lands or tenements, goods or chattels which no way depends on another man's courtesy."

What is contemplated under the definition of transfer is that the person must have exclusive right to dispose of his property without any interference in it. There are various types of transfers envisaged under the Transfer of Property Act, which includes sale, gift and lease etc. In the context of the present case, transfer by sale is relevant. Sale has been defined under section 54 of the Transfer of Property Act. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Contract for sale is also defined under the Transfer of Property Act. A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not of itself create any interest in or charge on such property. Thus, on the basis of an agreement to sale, there is no transfer of property.

The case set out by the petitioner is that an application under section 34 of the U.P. Land Revenue Act is not maintainable unless the person shows that he has obtained possession of the land by succession or transfer. The explanation appended to section 34 indicates that (i) a family settlement by which the holding or part of the holding recorded in the record-of-rights in the name of one or more members of that family is declared to belong to another or other members; or (ii) an exchange of holding or part thereof under Section 161 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. Thus, it clearly emerges that possession obtained by the respondents on the basis of an agreement of sale, the same does not constitute transfer as contemplated by section 34 of the Act.

The contention raised by the learned counsel for the respondent is that possession has been handed over to respondent by Bakshi Singh, which shall be deemed sale to the transferee under section 164 of U.P.Z.A.& L.R.Act under section 164 of U.P.Z.A. & L.R. Act. The argument of the learned counsel for the respondent is mis-placed. Firstly, Bakshi Singh was not Bhumdhar and delivery of possession was not on account of securing any payment of money advanced or to be advanced by way of loan./

The contention of the learned counsel for the respondent is that (a) that an application under section 34 of the Act read with section 164 of the U.P.Z.A.& L.R. Act was filed before the Tehsildar. What is being said by the learned counsel for the respondent is that on the delivery of possession by Bakshi Singh on the basis of a contract to sale notwithstanding anything contained in the said document of transfer is that the possession of the property has been delivered to respondent no. 1 which shall constitute sale . Argument perse is misconceived. Section 164 of the Act is quoted here-in-below :-

"164. Transfer with possession by a bhumidhar to be deemed a sale :

Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Section 164 and 163 shall apply."

The import of the said Section is that if any Bhumidhar by any mode of transfer, whereby possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement, it would attract pecuniary liability. The said transfer would constitute to be a sale. Admittedly, this is not the case of respondent no. 1 that on account of any loan having been procured by the said Bakshi Singh, the possession of the property in dispute was handed over to Sri Chimman Lal. It is for the purpose of securing payment of money that transfer by bhumidhar would constitute a sale.

Last argument is that the mutation proceedings are summary in nature and cannot be questioned in the writ petition. It is trite law the writ petition is not maintainable because the order and finding rendered in summary proceedings are not binding as the petitioner has alternative right to get the matter adjudicated by a competent court. However, there is an exception to this rule. Where an order is passed without jurisdiction, the Court will always have jurisdiction to entertain the writ petition. In the present case, the Tehsildar has entertained an application for effecting mutation on a basis of a deed which was styled as contract for sale which did not constitute transfer as provided by the meaning of Section 54 of the T.P.Act. Section-34 of the Land Revenue Act provides that when any person obtains possession of any land by succession or transfer it shall be reported to the Tehsildar. If possession has been obtained on the basis of a document which does not constitute transfer, Tehsildar does not have jurisdiction to entertain such an application. The order passed by the Tehsildar is without jurisdiction.

As already discussed here in above, the contract of sale does not amount to transfer. While entertaining this petition, Tehsildar has passed an order of attesting the mutation, when admittedly he had no jurisdiction to entertain such an application.

An effort has been made by the learned counsel for the petitioner that it is not a case of lack of jurisdiction but an error of exercise of jurisdiction. The error of jurisdiction would mean that jurisdiction has been wrongly exercised. In such cases, court has jurisdiction to entertain any dispute but same is exercised wrongly. Tehsildar while exercising jurisdiction under section 34 of the Land Revenue Act can entertain only such applications for attesting mutation in which possession has been acquired either by succession or by transfer. If he entertains any such application, in which possession has been acquired neither by succession nor by transfer, he lacks jurisdiction to entertain such application.

I, therefore, allow the writ petition and set aside the order impugned dated 8.2.2007 passed by respondent no. 3 in Revision No. 14 of 2003 and order dated 10.1.2003 passed by respondent no. 4 in Appeal No. 01 of 2000 and order dated 4.2.2000 passed by respondent no. 5 in Case No. 139.

(Sunil Hali, J.)

Order Date :- 15.5.2012

SU.