Shabbir
& Ors Vs. Abdul Sattar & Ors [2000] INSC 480 (13 September 2000)
Syed
Shah Mohammaed Quadri, J. & S.N. Variava, J. S. N. VARIAVA,J.
L.I.T.J
This Appeal is against an Order dated 21st December 1981 passed in Writ
Petition No. 10508 of 1980 by the High Court of Allahabd.
Briefly
stated the facts are as follows: Smt.Munni and Smt.
Nanni
were joint owners of the land in question. On the death of Smt. Munni, after
some dispute, her share devolved on Nathua.
Nathua
had three sons, namely, Shabbir, Kalua and Abdul Gafur.
In
respect of the land in question consolidation proceedings, under the U.P.
Consolidation of Holdings Act, 1953, were in progress.
Smt. Nanni
had no issues. She had, however, appointed four Mukhtarams (Power of Attorney
holders). On 20th
January, 1961, these
four Mukhtarams executed a sale deed of her share in favour of Abdul Gafur,
Abdul Aziz, Abdul Majid and Abdul Sattar (hereinafter referred to as the
purchasers). On 13th
July, 1961 post facto
permission was granted for such sale. On the basis of this sale deed the A.C.O.
passed an order dated 28th
August, 1961,
directing mutation to be made in the name of the purchasers.
When Smt.
Nanni learned about the sale deed and the mutation of her share in the name of
the purchasers, she filed objections under Section 5 of the U.P. Consolidation
of Holdings Act, 1953.
On 21st June, 1963 her objections were rejected by the
A.C.O.
However,
the revision filed by her was allowed by S.O.C. on 29TH July, 1963. The S.O.C. directed deletion of the change in mutation,
inter alia, on the ground that the sale deed was invalid as no prior permission
had been taken under Section 5(1)(c)(ii) of the U.P. Consolidation of Holdings
Act, 1953.
The
revision filed by these four persons was rejected by the Deputy Director on 9th October, 1963. Deputy Director also held that the
sale deed was invalid as no prior permission had been taken under Section 5(1)(c)(ii)
of the U.P. Consolidation of Holdings Act, 1953. The purchasers then filed Writ
Petition No.
323 of
1964, challenging the order dated 9th October, 1963 of the Deputy Director. During the pendency
of the Writ Petition Smt.
Nanni
died. On 6th May, 1969, a statement was made, before the
High Court, that Smt. Nanni had died and that the Petitioners (therein)
claiming to be the heirs of Smt. Nanni had made an application for mutation in
their favour on that basis. On this statement it was held that the Writ
Petition had become infructuous. The same was accordingly dismissed.
Shabbir
(the first Appellant herein) then filed a case under Section 229(B) of the U.P.
Zamindari Abolition and Land Reforms Act, 1950. He claimed that on the death of
Nanni, he along with his brothers Kalua and Abdul Gafur had inherited Nanni's
share in the said land. He applied for mutation of this land in the names of
three brothers. The purchasers i.e. Abdul Gafur, Abdul Aziz, Abdul Majid and
Abdul Sattar again made a claim to the land on the basis of the sale deed dated
20th January, 1961.
The
case was decreed in favour of the Appellant on 21st September, 1973. However, an Appeal filed by the purchasers was
allowed by the Commissioner on 5th February, 1974. The Appellant, therefore, filed a Second Appeal before the Board of
Revenue. The Board of Revenue, allowed the Second Appeal on 8th October, 1980. The Board of Revenue held that the
order dated 9th
October, 1963 passed
by the Deputy Director in earlier proceedings between Nanni and the purchasers
had become final.
It was
again held that the sale deed dated 20th January, 1961 was invalid for want of prior
permission under Section 5(1)(c)(ii) of the U.P. Consolidation of Holdings Act,
1953.
The
purchasers then filed Writ Petition No. 10508 of 1980.
This
was allowed by the impugned judgment dated 21st December, 1981. Relying on a
Full Bench decision in the case of Smt. Ram@@ JJJJJ Rati and others vs. Gram Samaj,
Jehwa and others, reported in AIR 1974 Allahabad 106, it has been held that
under Section 5(1)(c)(ii) prior permission is required only if a part of the
holding is being transferred by sale, gift or exchange. It is held that if the
whole of the holding is being transferred then no permission is required. It is
held that the sale was of the entire share of Nanni and therefore it was not a Sale of the part of the holding. It is also held that the
order dated 9th
October, 1963 was
passed in a proceeding for correction of records and, therefore, that order
would not be final and binding in a proceeding where the rights or interests of
the parties were being decided. Mr. Mehrotra informs us that this Full Bench
decision has been overruled by a Bench of seven Judges in the case of Mata Badal
Pandey vs. Board of Revenue & Ors. reported in 1976 A.L.R. 392. However,
this subsequent authority was not shown to this Court. As the subsequent
authority is not shown to this Court, for purposes of this Order, we will
proceed on the basis that the learned Judge was bound by Ram Rati's case. In our
view even on the basis that no permission would be required for transfer of the
whole of the holding, the order of the High Court is not sustainable. The
purpose of providing for prior permission is that during pendency of the
consolidation proceedings complications should not arise. Complication would
arise if parts of the holdings were transferred. Then there would be two or
more tenure holders and separate lands would have to be allotted to each one.
In this case the land was in joint names of Smt. Munni and Smt. Nanni.
Admittedly what had been sold was only the share of Smt. Nanni. This was an
undivided share in the land. Thus what was sold was a 1/2 share in the holding.
Thus there was no transfer of the whole of the holding.
There
was a transfer of a part of the holding. This could not be done without prior
permission under Section 5(1)(c)(ii) of the U.P. Consolidation of Holdings Act,
1953. If that be so then the sale without prior permission was invalid and no
rights accrued to the purchasers. We are also unable to agree with the finding
given by the High Court that the order dated 9th October, 1960, did not become final. Undoubtedly, those proceedings were
under Section 5 for correction of records. But even in those proceedings the
question of title was gone into. Without going into the question of title it
could not be decided in whose name the mutation was to be made. After going
into the question of title it had been held that the sale deed was invalid as
no permission had been taken under Section 5(1)(c)(ii) of the U.P.
Consolidation
of Holdings Act, 1953. The writ petition challenging this finding was allowed
to be got dismissed as infructuous. Once that was done it was no longer open to
the purchasers to again place reliance on the sale deed. On that ground also
the writ petition could not have been allowed. Faced with this situation Sh. Bagga
sought to submit that the earlier proceedings were Revenue proceedings and
findings in such proceedings are not binding. We have not permitted Mr. Bagga to
take up this contention as in the Writ Petition filed by the Respondents no
such ground is taken. For the above reasons the impugned Judgment cannot be
sustained. Accordingly the appeal is allowed. The impugned judgment dated 21st December, 1981 is set aside. The order of the
Board of Revenue dated 8th
October, 1980 is
restored. There will, however, be no order as to costs.
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