Smt. Sarju Devi vs Doodh Nath And Others
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Allahabad High Court

Smt. Sarju Devi vs Doodh Nath And Others on 21 February, 2025

Author: Manish Kumar

Bench: Manish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:11371
 
Court No. - 17
 

 
Case :- SECOND APPEAL No. - 123 of 1998
 

 
Appellant :- Smt. Sarju Devi
 
Respondent :- Doodh Nath And Others
 
Counsel for Appellant :- S.K.Mehrotra,I.D. Shukla,M.C. Yadav,Radhey Shyam Tiwari,S.K. Mehrotra
 
Counsel for Respondent :- Prabhat Kumar,Anand Swarup Chaudhary,Prabhakar Vardhan Chaudha,Rajan Singh
 

 
Hon'ble Manish Kumar,J.
 

1. The present second appeal has been preferred under Section 100 C.P.C. against the judgment and decree dated 10.02.1998 in Civil Appeal No.337 of 1989 passed by Second Additional District Judge, Sultanpur, allowing the appeal against the judgement and decree dated 10.02.1998 in Regular Suit No.779 of 1987 passed by the Munsif South, Sultanpur, dismissing the suit.

2. A brief facts of the case are that the registered sale deed dated 16.10.1985 of plot no.260 was executed by Ram Pher (now deceased) in favour of one Smt Sarju Devi the defendant/appellant, who also died during the pendency of present second appeal and her legal heirs have been substituted.

3. Late Ram Pher had filed a regular suit No. 779 of 1987 for cancellation of sale deed by taking a ground that he had gone for registration of deed for agreement to sale whereas fraudulently, the sale deed was executed by misleading him. The said suit was dismissed by judgement and decree dated 28.10.1989 against which the first appeal was preferred by Ram Pher under Section 96 CPC.

4. The first appellate court had allowed the appeal by judgement and decree 10.02.1998 and set-aside the judgment and decree dated 28.10.1989 passed in the suit on the ground that prior to execution of sale deed no approval was taken from the Consolidation Officer as per Section 5 (i) (c) (ii) of the U.P Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act").

5. The appeal was admitted on substantial question of law nos. 3, 6,7 and 8 which are quoted herein below:-

"(iii). whether the exclusion of the sale deeds executed before 19.02.1991 (the date of enforcement of U.P. Act No.30 of 1991), from the purview of the amending Act deleting the provisions under Section ( (i) (c) (ii) of U.P. Consolidation of Holdings Act, suffers from the vice of arbitrariness and illegal and unreasonable discrimination and, therefore, ultra vires Article 14 of the Constitution?.

(vi). whether a transferer of Agricultural land located in an area under consolidation operations can be allowed to avoid the transaction of Sale bonafidely entered into by him after receiving due consideration from the transferee and to have an unjust enrichment by raising a technical objection arising from his own default that he had not obtained the permission of the Settlement Officer Consolidation under Section 5 (i) (c) (ii) of U.P. Consolidation of Holdings Act alleging of sale in question to be in effectual?

(vii) whether the provision contained in Section 5 (i) (c) (ii) of U.P. Consolidation of Holdings Act requiring the permission of the Settlement Officer consolidation to be taken before executing a sale deed being a procedural provision, its deletion by the Government notification dated 19.2.1991 has retrospective effect, there being nothing to the contrary stated in the Government notification stated above?

(viii) whether the deletion of the provision u/s 5 (i) (c) (ii) of U.P. Consolidation of Holdings Act by Government notification dated 19.2.1991 has the effect of its leading to a deemed deletion from the very inception making it inapplicable to the sale dead which is the subject matter of the present litigation."

6. Learned counsel for the appellant has submitted that the first appeal was filed by the predecessor of the respondent i.e. late Ram Pher on the ground that the sale deed was executed by fraud as it was taken in the regular suit which was dismissed by the trial court after appreciation of the evidence and found that the sale deed was not executed by playing fraud.

7. The said finding of the trial court has not been interfered with by the first appellate court and allowed the appeal on the ground of Section 5 (i) (c) (ii) of the Act, which was neither pleaded or taken by the late Ram Pher in his first appeal.

8. It is further submitted that the Section5 (i) (c) (ii) of the Act, 1953 was intended to prevent fragmentation of the holdings and as such restriction was placed on the transfer on the part of the holding whereas in the present case the sale deed was executed for whole holding not for a part of a holding. Hence, Section 5 (i) (c) (ii) of the Act did not apply in the case of present appellant and in support of his submission, he relied upon the judgment of this Court in the case of Lalta Prasad Srivastava and another vs. IX Additional District Judge, Agra and others, reported in 1996 (87) R.D. 544, wherein the decision of Full Bench in the case of Smt Ram Rati and others vs. Gram Samaj, Jehwa and others reported in AIR 1974 All 106 has been relied upon.

9. On the other hand, learned counsel for the respondent has submitted that the present appellant had committed fraud at the time of execution of the sale deed. The plot number for which the sale deed was executed was not the plot number for which the permission was taken from the Consolidation Officer as per Section 5 (i) (c) (ii) of the Act but unable to dispute the submission made by learned counsel for the appellant that in the judgment passed in the first appeal, the appellate court had not interfered with the finding of the trial court regarding the alleged fraud committed by the defendant/appellant-late Sarju Devi and the said finding was after the appreciation of evidence. The said finding was also upheld by the Ist appellate court.

10. Learned counsel for the respondent has submitted that the plea of Section 5 (i) (c) (ii) of the Act was taken before the first appellate court, so it is incorrect submission of learned counsel for the appellant but unable to dispute the law laid down by this Court as relied by learned counsel for appellant.

11. After hearing the learned counsel for the parties and going through the record of the case, it is found that the learned first appellate court had not interfered with the finding that there was no fraud committed by the present appellant at the time of execution of sale deed given by the trial court taken by late Ram Pher but by upholding the finding of the trial court that no fraud was committed by the present appellant at the time of execution of sale deed. It allowed the first appeal by setting aside the judgment of the trial court only on the ground that permission as envisaged under section 5 (i) (c) (ii) of the Act was not taken.

12. The first appellate court had ignored completely the purpose of section5 (i) (c) (ii) of the Act which was intended to prevent fragmentation of holdings whereas it related to transfer of part of the holding. It is undisputed case between the parties that the sale was executed for the whole holding, not the part of holding.

13. This Court in the case of Lalta Prasad Srivastava (supra) by placing reliance on the judgement of Full Bench decision in the case of Smt Ram Rati and others (supra) has held that the transfer of whole holding does not fall within the purview of 5 (i) (c) (ii) of the Act and it is not necessary to obtain the permission of Settlement Officer (Consolidation) for the transfer of the holding as a whole. The relevant extract of the judgment in the case ofLalta Prasad Srivastava (supra) is quoted hereinbelow:-

"A Full Bench of this Court in its decision in the case of Smt. Ram Rati and others v. Gram Samaj, Jehwa and others, had clarified that the ban envisaged under clause (ii) of Section 5 of U.P. Consolidation of Holdings Act was intended to prevent fragmentation of holdings and as such it was placed only on a transfer of a part of the holding. There could be no objection to the transfer of the holding as a whole because it would not involve fragmentation but would involve only a change in ownership. The Full Bench observed that the scheme underlying the Act was to consolidate agricultural holdings and to prevent their further fragmentation for which the said provision had been made. It is also observed that it was not the intention to restrict the right of an owner to deal with his property by way of sale, exchange or transfer except to the extent that was necessary to carry out the objects of the Act. The Full Bench further observed that the expression 'any holding' occurring in clause (ii) of Section 5(1) (c) of the Act does not include the 'whole holding' so that it is not necessary to obtain the permission of Settlement Officer (Consolidation) for the transfer of the holding as a whole.

It seems to me that the invalidity of a transfer resulting in the absence of the prior permission as envisaged under Section 5(1) (c) (ii) of the U.P. Consolidation of Holdings Act does not per se render the transaction void or legally ineffective. This invalidity is curable. Considering the policy and the object behind the aforesaid provisions, this invalidity can be cured before the finalisation of the provisional consolidation scheme. It is obvious that to begin with the Settlement Officer (Consolidation) had granted the permission which was to remain effective Civil for thirty days but considering that the sale had been executed after the period provided for in the order passed in the year 1977, the Settlement Officer (Consolidation) again granted the permission in March 1978 extending the duration of the earlier permission. The invalidity if any, therefore, stood cured as it is no body's case that the provisional consolidation scheme had attained finality by the date of permission which had been granted for the second time."

14. In the aforesaid view of the matter, the transfer in question could not be held to be void or nonest being illegal or without any authority of law.

15. In view of the discussion held above, there is no occasion to deal with or decide the question of law on which the appeal was admitted in view of the Full Bench decision in the case of Smt Ram Rati and others (supra) and the fact that the transaction related to whole of the holding not in part of it.

16. The second appeal is allowed. The judgment and decree dated 10.02.1998 passed by Second Additional District Judge, Sultanpur in Civil Appeal No.337 of 1989 is hereby set aside.

Order Date :- 21.2.2025

Renu/-