& Ors Vs. Ram Dhani & Ors  INSC 1220 (26 September 1996)
O R D
the husband of Smt. Phoola died in a state of jointness in the year 1911. The
said Smt.Phoola continued to be the member of the joint family along with other
brothers of her husband. A dispute arose in the family and a compromise was
entered into on February
8, 1932 in which it
was agreed that Smt. Phoola who was the widow in the family should be given
some lands for maintenance. Her name was also mutated in revenue records.
said Phoola executed sale deeds in favour of the respondents on April 6, 1956 in respect of the lands in
question. She died in the year 1966. Thereafter, the appellants filed a suit
for declaration that Smt Phoola having only a limited interest in the said
property could not have transferred the same in favour of the respondents.
suit abated in view of issuance of the notification under the provisions of U.P.Consolidation
of Holdings Act.
the same question as to whether the transfer could have been made or not by Smt.
Phoola in favour of the respondents was raised before the Consolidation
Officer. The Consolidation Officer upheld the right of Smt. Phoola to transfer
the lands in question. The appeal filed on behalf of the appellants before the
Settlement Officer (Consolidation) was also dismissed with the same finding.
on revision application being filed on behalf of the appellants, the Deputy
Director, Consolidation set aside the orders passed by the Consolidation
Officer and the Settlement Officer (Consolidation). Thereafter, a writ petition
was filed on behalf of the respondents before the High Court. A learned Judge
of the High Court after taking into consideration the provisions of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 (hereinafter to be referred to as the Land
Reforms Act) and the provisions of the Hindu Succession Act (hereinafter to be
referred to as the Succession Act) came to the conclusion that even before
coming into force of the provisions of the Succession Act Smt. Phoola had
acquired absolute right under Section 18 of the Land Reforms Act on the basis
of which she could have conveyed valid title to the respondents. The High Court
also proceeded to consider the effect of the provisions of the Succession Act
in connection with the arguments raised before the High Court that the lands
which had been given to Smt. Phoola for maintenance, were in lieu of a
counsel appearing for the appellants took the stand that in the present case,
Section 11 of the Land Reforms Act shall be attracted and not Section 18.
Section 11 and relevant part of Section 18 of the Land Reforms Act are as
11. Sir or Khudkasht allotted in lieu of maintenance allowance Notwithstanding
anything contained in Section 10, where sir or Khudkasht has been allotted by
the sir or Khudkasht holder thereof to a person in lieu of maintenance
allowance, such person shall be deemed to be the asami thereof entitled to hold
the land for so long as the right of maintenance allowance subsists.
18. Settlement of certain lands with intermediaries of cultivators as Bhumidhar
Subject to the provisions of Sections 10, 15, 16 and 17 all lands-
possession of or held or deemed to be held by an intermediary as sir, Khudkasht
or an intermediary's grove,
held as a grove by, or in the personal cultivation of a permanent lessee in Avadh,
by a fixed-rate tenant or a rent-free grantee as such, or
as such by-
tenant or Patta Dawami or Istamrari referred to in Section 17, possessing the
right to transfer the holding by sale,
held by a grove holder, on the date immediately preceding the date of vesting
shall be deemed to be settled by the State Government with such intermediary,
lessee, tenant, grantee or grove- holder, as the case may be, who shall,
subject to the provisions of this Act, be entitled to take or retain possession
as a bhumidhar thereof..................................."
plain reading of Section 18(1) it appears that all lands in possession of an
intermediary as sir or Khudkasht on the date immediately preceding the date of
vesting shall be deemed to be settled by the State Government with such
intermediary. The High Court was of opinion that as Smt. Phoola was in
possession of the lands in question on the date immediately preceding the date
of vesting, it shall be deemed to have been settled by the State Government
with her in view of Section 18(1) and she had right to retain the same as Bhumidhar
behalf of the appellants it was pointed out that Smt. Phoola shall not be
deemed to be an intermediary so as to avail the benefit of Section 18(1). The
Consolidation Officer, the Settlement Officer (Consolidation) and the High
Court have proceeded on the assumption that after the compromise in the year
1932 Smt. Phoola came in possession of the lands which are the subject matter
in dispute, in lieu of maintenance on the basis of compromise in the family.
The family was joint. There is no finding that there was any partition at any
stage later. As such, it shall be deemed that Smt. Phoola continued to be a
member of the joint family which was admittedly an intermediary within the
meaning of provisions of Land Reforms Act. In this background, according to us
Section(5) 18(1) was fully attracted and on the basis thereof it shall be
deemed that the land which she was holding as sir or Khudkasht was settled by
the State Government with her and she was entitled to retain possession as Bhumidhar
Court in the case of Ramji Dixit & Anr. v. Bhrigunath & Ors. reported
in (1968) 2 SCR 767 has considered the scope of the provisions of the Land Reforms
Act in connection with a widow holding a life estate and has held that in view
of the provisions of the Land Reforms Act she will be deemed to be Bhumidhar.
Learned counsel tried to distinguish the judgment by saying that in that case,
the land had devolved on the widow from her husband directly and not on the
basis of any compromise. According to us, the ratio of that judgment cannot be
distinguished on this ground.
High Court has rightly rejected the stand of the appellants that as Smt. Phoola
got the lands by way of maintenance it will be covered by Section 11 of the Act
and after vesting she will be deemed to be the asami and not Bhumidhar. It
appears Section 11 shall be applicable where the holder of sir or Khudkasht
lands allots such lands to a person in lieu of maintenance allowance. In the
present case, Smt. Phoola got the lands on the basis of a compromise entered
into in the year 1932 and she was in possession thereof.
surprised as to how the Deputy Director(6) while exercising the revisional
power entered into all questions of fact and came to the conclusion on pure
conjecture that the appellants before this Court shall be deemed to be in
possession of the lands since 1932. This Court has repeatedly pointed out that
howsoever wide the power under statutory revision may be in contrast to Section
115 of the Code of Civil Procedure, still while exercising that power the
authority concerned cannot act as court of appeal so as to reappreciate the
evidence on record for recording findings on questions of fact. According to
us, the High Court should have set aside the order of the Deputy Director, on
this ground alone and should have restored the order of the Consolidation
Officer and the Settlement Officer (Consolidation). We are in agreement with
the conclusions arrived at by the High Court. Accordingly, this appeal fails
and is dismissed. No costs.
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