Smt.Chandrawati vs D.D.C.And Others
2023 Latest Caselaw 18455 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:145981
 
Reserved :- 18/07/2023
 
Delivered :- 21/07/2023
 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
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Case :- WRIT - B No. - 35121 of 2000

Petitioner :- Smt. Chandrawati

Through :- Sri S.K. Pundir

vs.

Respondent :- D.D.C. and others

Through :- Sri A.C. Nishad, Standing Counsel

Sri Rahul Sripat, Senior Advocate assisted by

Sri Ramesh Pundir, Advocate

CORAM : HON'BLE SAURABH SHYAM SHAMSHERY, JUDGE

1. The issue for consideration before this Court is that whether a sale deed executed for land in excess to permission granted under Section 5(1)(c) of U.P. Consolidation of Holdings Act, 1953 (for short "Act of 1953") will be void for entire land or only to the extent of excess land?

2. Husband of petitioner during his lifetime had executed certain sale deeds in favour of various persons in regard to certain parts of land. The petitioner allegedly after taking due permission, as required under Section 5(1)(c)(ii) of the Act of 1953 executed sale deed of her share to contesting respondents. The contesting respondents approached the Authority for correction of revenue records on the basis of their respective share in the sale deed. Objections were also filed to their claim, however, the Consolidation Officer has allowed certain objections, but, rejected the claim of contesting respondents by an order dated 15.12.1995. The contesting respondents filed an appeal before Settlement Officer of Consolidation which was allowed by an order dated 18.03.1997 and name of petitioner of contesting respondents was mutated in revenue records.

3. The Appellate Authority has held that part of sale deed executed by the petitioner in favour of contesting respondents shall be legal to the extent of piece of land for which due permission was granted and further held that on the ground that excess land was sold, entire sale deed cannot be declared to be void. The relevant part of impugned order is mentioned hereinafter :-

"जहाँ तक अनुमति के दिनांक पर ही बैनामा होने का प्रश्न है बैनामे के पुश्त पर सब रजिस्ट्रार को तस्दीक से यह स्पस्ट है कि दिनांक 18.4.88 को समय 2 से 3 बजे के मध्य यह दस्तावेज उनके समक्ष प्रस्तुत होना सिद्ध है। ऐसी स्थिति में यदि अनुमति आदेश की जानकारी होने उपरांत यह बैनामा उसी तिथि अर्थात 18.4.88 को किया गया है तो इसमें कोई संदेह उत्पन्न नहीं होता है। उक्त सभी साक्ष्यों के आधार पर बैनामों दिनांक 18.4.88 चंद्रवती द्वारा ही किया जाना सिद्ध है जहाँ तक उक्त बैनामा 5-19-19 किये जाने का प्रश्न है जैसा की ऊपर स्पस्ट है किया गया है कि श्री तेलु ने अपने जीवनकाल में ही विवादित भूमि में से कुछ भूमि बेच दी थी तथा गाटा 581/6 रकबा 0-3-10 दिनांक 9.12.85 को मामराज आदि के हित में व्यय कर दिया था इस प्रकार शेष भूमि गाटा सं0 577 मि0/ 0-1-12, 578 मि0/0-3-4, 581/6 रकबा 2514-3 रह जाती है। इसी भूमि में चंद्रवती के 1/4 अंश कि सीमा तक बैनामा दिनांक 18.4.88 के आधार पर चंद्रवती के अंश पर दल सिंह पुत्र न्यादर का नाम अनुमति दिनांक 18.4.88 को दृष्टिगत रखते हुए अंकित किये जाने योग्य है तथा शेष भूमि जिसमे कि चंद्रवती का कोई अंश ही नहीं था उक्त बैनामा शुन्य होना सिद्ध होता है। इसी सीमा तक यह अपील स्वीकार की जाती है।"

4. The aforesaid order dated 18.03.1997 is under challenge in this writ petition filed by petitioner.

5. Sri S.K. Pundir, learned counsel for petitioner has submitted that permission granted under the Act of 1953 was in the name of Chandravati wife of Jay Singh whereas name of husband of petitioner is Vijay Singh, therefore, the document of permission is a forged document as well as the disputed sale deed is a forged one and further that since undisputedly, by way of disputed sale deed, land in excess to permission were sold, therefore, entire document i.e. sale deed becomes void and it has no legal consequence.

6. Learned counsel for petitioner has placed reliance upon judgments of Supreme Court as well as this Court passed in Tarsem Singh vs. Sukhminder Singh, 1998 (3) SCC 471; 1998 AIR (SC) 1400 and Ram Padarath vs. Second Addl. D.J., Sultanpur, 1989 RD 21; 1989 (15) ALR 19 respectively.

7. Per contra, Sri Rahul Sripat, Senior Advocate assisted by Sri Ramesh Pundir, Advocate for respondents has supported the findings of Appellate and Revisional Authorities that in absence of any material, document whereby permission was granted under relevant provisions of Act of 1953 cannot be considered to be a forged document. Petitioner has never tried to dispute the sale deed by bringing any material on record.

8. Provisions of Act of 1953 provides that during consolidation proceedings, with the permission, as required under Section 5(2)(A) of the Act of 1953, a vendor can sell piece of land to a vendee. In the said document, details of land are mentioned and learned Senior Advocate fairly submits that in the sale deed, certain part of land were sold which were in excess to land for which permission was granted and which was rightly noted by two Authorities below and held that on this ground, entire sale deed cannot be declared void rather it will have a legal consequence only to the extent of land for which permission was granted.

9. In support of his argument, he has placed reliance upon a judgments of this Court in Ram Rati and others vs. Gram Samaj, Sehwa and others, AIR 1974 All 106, Brahma Deo vs. Assistant Director of Consolidation and others, MANU/UP/0993/1992 and Bharat Prasad vs. DDC, Sitapur, 2021 0 Supreme (All) 503.

10. Heard learned counsel for parties, perused written submissions and record.

11. Learned counsel for petitioner has half-heartedly argued about challenge to order of permission and sale deed, however, since, it is not supported by any material, therefore, the challenge to said documents is liable to be rejected and accordingly rejected.

12. Now the Court proceeds to consider the issue involved and mentioned in paragraph 1 of present judgment. The petitioner (vendor) was legally entitled to execute sale deed of land mentioned in permission granted to her under Section 5(i)(c)(ii) of Act of 1953. Undisputedly, the petitioner has executed sale deed in excess of land mentioned in permission.

13. A sale deed could be held void only if the vendor has sold land without any legal right or against provisions of any law. Ownership of land in question is now not in dispute i.e. petitioner was owner of disputed land being part of sale deed.

14. Supreme Court in Gorakh Nath Dube vs. Hari Narain Singh and others, (1973) 2 SCC 535 has held that :-

"5. There is no decision of this Court directly on the question whether a suit for cancellation of a sale-deed, which was pending on the date of the notification under Section 4 of the Act, abates under Section 5(2) of the Act. A decision of a Division Bench of the Allahabad High Court, in Jagarnath Shukla v. Sita Ram Pande [ 1969 ALJ 768] , directly dealing with the question before us, was then cited before us. Here, we find a fairly comprehensive discussion of the relevant authorities of the Allahabad High Court the preponderating weight of which is cast in favour of the view that questions relating to the validity of sale-deeds, gift deeds, and wills could be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudication on rights or interests in land which are the subject-matter of consolidation proceedings. We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject-matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid, inoperative, and void. Such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagarnath Shukla case that it is the substance of the claim and not its form which is decisive."

(emphasis supplied)

15. As observed above, the sale deed in question is not a void instrument but it may be a voidable instrument i.e. valid to extent of land which would fall within the permission granted under Section 5(i)(c)(ii) of Act of 1953 and could be declared void in regard to excess land.

16. In view of above discussion, impugned order does not suffer with any illegality. Therefore, writ petition is dismissed.

Order Date :- July 21, 2023

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]