SITA RAM (DEAD) THROUGH LRS. versus BHARAT SINGH (DEAD) THROUGH LRS & ORS. on 17 September 2019

SITA RAM (DEAD) THROUGH LRS.

v.

BHARAT SINGH (DEAD) THROUGH LRS & ORS.

(Civil Appeal No. 8179 of 2016)

SEPTEMBER 17, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Uttar Pradesh Zamindari Abolition and Land Reforms Act,1950 – ss.161, 166, 167 – Appellants-original tenure holders (sincedeceased) of Plot No.2902 sold it to late father of respondent nos.10& 11 vide sale deed dtd. 24Jan. 1973 – Father/Grandfather ofrespondent nos.1-8 was tenure holder of Plot Nos.2863 and 2888,he exchanged his plots with plot no.2902 owned by father ofrespondent nos.10 & 11, by exchange deed dtd. 2March, 1974 –Father/Grandfather of respondent nos.1-8 filed application for hisname to be recorded for Plot No.2902 –Appellants raised objectionto the validity of sale deed dtd. 24Jan. 1973– Consolidation Officerheld that the exchange was permissible only with permission of theAssistant Collector in terms of s.161 of the 1950 Act which was notobtained, hence father/grandfather of respondent nos.1-8 is notentitled to be recorded as Bhumidar under the consolidationproceedings – Eventually, High Court inter alia held that it was theState Government who could apply for cancellation, if affected bythe exchange deed but, it was not open to be questioned by theappellants– On appeal, held: Under the pre-amendment scheme ofthe 1950 Act, any transfer in contravention of the Chapter referredto u/s.166 which includes s.161 as well, were not to be automaticallyvoid but voidable – As consequence u/s.167, a suit was to be filedby the Gaon Sabha or the land holder, within six years from thedate of illegal transfer – In the present case, exchange deed wasexecuted on 2March, 1974 – Period of limitation for filing the suitexpired in March 1980 – Indisputedly, no suit was filed either byGaon Sabha or any land holder for ejectment as envisaged u/s.167(1) – Under the pre-amended scheme of the 1950 Act, theconsequence for non-compliance of seeking permission from theAssistant Collector, would in no manner take away or divest the

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Arights/interest of the parties inter se conferred under genuine saledeed dtd. 24Jan.1973, executed in favour of father of respondentnos.10 & 11 – Said sale deed is nowhere related to the exchangeproceedings, initiated at later point of time – Appellants do not haveany locus standi to claim benefit of the defect in the exchange deeddtd. 2March 1974 – Conclusions of the High Court in the impugnedBjudgment does not call for interference – Uttar PradeshConsolidation of Holdings Act, 1953 – s.9A(2) – U.P. ZamindariAbolition & Land Reforms Rules, 1952 – r.338 – U.P. Land Laws(Amendment) Act, 1982.

U.P. Land Laws (Amendment) Act, 1982 – When not applicableC– Discussed.

Dismissing the appeals, the Court

Conclusion

HELD : 1.1 It emerges from the pre amendment (U.P. ActNo. 20 of 1982 w.e.f. 3[rd] June, 1981) scheme of the Uttar PradeshDZamindari Abolition and Land Reforms Act, 1950 that any transfermade in contravention of this Chapter referred to under Section166 which includes Section 161 as well were not be automaticallyvoid but voidable and therefore, as a consequence of alleged voidtransfers under Section 167, a suit was required to be filed by theGaon Sabha or the land holder, as the case may be, withinElimitation of six years from the date of illegal transfer as indicatedin Appendix III annexed to Rule 338 of U.P. Zamindari Abolition& Land Reforms Rules, 1952 but after the U.P. Act No. 20 of1982 amended w.e.f. 3[rd] June, 1981, the law has changed andevery transfer made in contravention of this Act became void inFview of Section 166 and in consequence of void transfer, thesubject land is deemed to have been vested in the StateGovernment by operation of law free from all encumbrances, andsub-section (2) of Section 167, authorises Collector/CompetentAuthority to take over possession with the use of force as maybe necessary. In the instant case, the exchange deed was executedGon 2[nd] March, 1974 indisputedly without permission from theAssistant Collector provided under Section 161 and itsconsequence was embedded under Section 167 of the Act, 1950authorising the Gaon Sabha or the land holder to file a suit forejectment within a period of six years from the date of alleged H

illegal transfer which in the instant case had expired in March1980 much prior to the U.P. Act No. 20 of 1982 was amendedw.e.f. 3[rd] June, 1981. At least the amendment which has beenmade by the U.P. Land Laws (Amendment) Act, 1982 with effectfrom 3[rd] June, 1981 has no application on the case in hand.[Paras 16-18] [334-F-G; 335-A-D]

1.2 Under the pre-amended scheme of the Act, 1950, theconsequence for non-compliance of Section 161 of the Act, 1950seeking permission from the Assistant Collector, was indeed therequirement of law and the effect of contravention and itsconsequence are embedded under Section 166 and 167 of theAct, 1950 but its consequential effect, in no manner, would takeaway or divest the rights and interest of the parties inter seconferred in reference to the sale deed which was originallyexecuted in favour of late ‘NDC’ in reference to plot no.2902 ad-measuring 0.34 decimals by the registered sale deed dated 24[th]January, 1973. [Para 21] [335-G; 336-A-B]

1.3 The registered sale deed dated 24[th] January, 1973 wasgenuine and duly executed by the parties and it is nowhere relatedin reference to the exchange proceedings which were initiated ata later point of time. After the sale deed was registered andexecuted on 24[th] January, 1973 in favour of late ‘NDC’, theownership rights with possession stands transferred. It is truethat late ‘NDC’ had not initiated proceedings for claiming hisBhumidari rights under the Act, 1953 but that, in any manner willnot, nullify his right of ownership vested on execution of aregistered sale deed dated 24[th] January, 1973 and there is noprohibition or restriction to the contrary has been brought tonotice, if any, under the Act 1950. Indisputedly, no permissionwas sought as contemplated under the mandate of law but underthe pre-amended scheme of the Act, 1950, the effect of exchangein contravention to the provisions of the Act and its consequenceas embedded under Section 166 and 167 of the Act, 1950 makesthe action to be voidable and not void and it entails consequencesof void transfers, in the first instance, it only confines to sirdar orasami and not applicable upon those who are claiming rights ofBhumidar. At the same time, any transfer which has been made A

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Ain contravention of the provisions of this Act including permissionfrom the Assistant Collector as required under Section 161, theejectment may be possible only on filing of a suit by Gaon Sabhaor the land holder, as the case may be, and after the decree ofejectment being obtained under sub-section (1) of Section 167 ofthe Act, ejectment under sub-section (2) of Section 167 beBpermissible and for filing of the suit, the limitation has beenprovided under Appendix III annexed to Rule 338 of the Rules,1952 of which reference has been made in terms thereof suit forejectment could be filed within a period of six years from thedate of the illegal transfer. The deed of exchange in the instantCcase was executed between the parties on 2[nd] March, 1974 andthe period of limitation for filing of the suit had expired in March1980 much before the U.P. Act No. 20 of 1982 amended w.e.f. 3[rd]June, 1981 came into force. Indisputedly, no suit was filed eitherby Gaon Sabha or any land holder for ejectment as envisagedunder Section 167(1) of the Act, 1950. That apart, even assumingDfor the sake of argument, the deed of exchange executed on 2[nd]March, 1974 even if considered to be void, taking note of thepost amended provisions of the Act, 1950, it will still confine tothe deed of exchange dated 2[nd] March, 1974 which was obtainedwithout taking permission from the Assistant Collector asEenvisaged under Section 161 of the Act and at the best the rightsto the parties on execution of exchange deed could not be giveneffect to and it remain inter se between parties to the exchange(late ‘KR’ and late ‘NDC’) at the same time, so far as the subjectplot which was once transferred by the original tenure holders,who are throughout contesting the matter (plot no.2902 area 0.34Fdecimals) to late ‘NDC’ by a registered sale deed dated 24[th]January, 1973 which has been held to be genuine and valid, willnot be under any legal impediment or having any effect on therights of the parties, and the said transaction was not subject tocompliance of Section 161 of the Act, 1950 and at least no rightsGof any kind over plot no. 2902 area 0.34 decimals could be claimedby the original tenure holders (appellants herein) and theirgrievance that late ‘NDC’ had not claimed his Bhumidari rightsunder the Act, 1953, suffice it to say, that no such provision to the contrary has been brought to our notice that if the holder hasnot taken steps for claiming Bhumidari rights under the Act, 1953that will take away or divest from the legal rights conferred tothe party in whose favour registered sale deed has been executedunder the mandate of law. [Paras 22-24] [336-C-G; 337-A-H;338-A]

1.4 At least late original tenure holders, whose legalrepresentatives are contesting the case throughout are notholding any locus standi to claim benefit of the defect in the deedof exchange dated 2[nd] March, 1974 executed between differentparties who are holders to their respective plots in their ownrights and the procedure mandated under the law if not beingfollowed of taking permission from the Assistant Collector asrequired under Section 161 of the Act, 1950, its consequenceswould not revive/restore the rights to the legal heirs of originaltenure holders over the subject property in question. That apart,the present appellants have never raised any plea for cancellationof the registered sale deed executed in favour of late ‘NDC’ dated24[th] January, 1973 which was otherwise not the subject matter tobe examined under the provisions of the Act, 1950. As regardsthe rights and interests which were transferred by the presentappellants vide registered sale deed dated 24[th] January, 1973 infavour of late ‘NDC’ was never the subject matter of scrutiny andthere was no violation/contravention of the provisions of Act, 1950or of any other law has been pointed to this Court. At the sametime, so far as non-compliance of the mandatory requirement asenvisaged under Section 161 of the Act, 1950 while executingthe exchange deed dated 2[nd] March, 1974 is concerned, partieshave to bear its consequences of the void transaction as providedunder Section 166 read with Section 167 of the Act, 1950 but thatwill not give any preference to the appellants for restoration oftheir rights and to nullify the registered sale deed dated 24[th]January, 1973 executed after taking due consideration in favourof late N.D. Chaudhary. The conclusions of the High Court in itsjudgment impugned are unassailable and does not call forinterference. [Paras 25-28] [338-B-G; 339-A-B]

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 8179of 2016.

From the Judgment and Order dated 05.07.2007 of the High Courtof Judicature at Allahabad in C.M.W.P. No. 11496 of 1984.

WithB

Civil Appeal No. 8181 of 2016.

T. N. Singh, Vikas K. Singh, Ms. Aruna Mathur, AvneeshArputham, Ms. Anuradha Arputham, Ms. Geetanjali, M/S. ArputhamAruna And Co, Mrs. Mona K. Rajvanshi, Anurag Kashyap, AshwaniCKumar, Advs. for the appearing parties.

The Judgment of the Court was delivered by RASTOGI, J.

1. These appeals arise from the judgment dated 5[th] July, 2007passed by the High Court of Allahabad in setting at naught the inter seDrights of the litigating parties initiated under the Uttar Pradesh ZamindariAbolition and Land Reforms Act, 1950 (hereinafter being referred to asthe “Act, 1950”) arising from the registered deed of exchange dated 2[nd]March, 1974.

2. The brief facts of the case culled out from the record are thatESmt. Chando and Sita Ram (since deceased) who were tenure holdersof Plot No. 2902 ad-measuring 0.34 decimals situated in Village MathuraBangar, Tehsil & District Mathura, U.P. sold the subject plot on transferof consideration to late N.D. Chaudhary(father of respondent nos. 10 &11) vide registered sale deed dated 24[th] January, 1973. Late KeshoFRam (father/grandfather of respondent nos. 1 to 8), who was tenureholder of plot nos. 2863 and 2888, with consent, exchanged his plotswith plot no. 2902 owned by late N.D. Chaudhary by a registered deedof exchange dated 2[nd] March, 1974. As a result of the deed of exchange,plot no. 2902 ad-measuring 0.34 decimals was transferred in favour oflate Kesho Ram and plot nos. 2863 and 2888 in favour of late N.D.GChaudhary.

3. That at the time of field partal (chakbandi) in the village forcorrection of revenue records conducted by the Assistant ConsolidationOfficer (ACO) late Kesho Ram(father/grandfather of respondent nos.1 to 8) filed application under Section 9A(2) of the Uttar PradeshH

Consolidation of Holdings Act, 1953 (hereinafter referred to as “the Act,1953”) and prayed that his name be recorded on Plot No. 2902 by virtueof the exchange deed executed between him and late N.D. Chaudharydated 2[nd] March, 1974.

4. It may be noticed that late N.D. Chaudhary who had exchangedhis Plot No. 2902 with Plot Nos. 2863 and 2888 from late Kesho Ramalso filed application in the consolidation proceedings and supported thecase of late Kesho Ram who was the applicant in the proceedings foropening of mutation in his name in the revenue records.

5. At this stage Smt. Chando and Sita Ram who were the originaltenure holders of Plot No. 2902 who had sold it to late N.D. Chaudhary,by a registered sale deed dated 24[th] January, 1973, raised an objectionregarding validity of the registered sale deed dated 24[th] January, 1973.The Consolidation Officer, after appraisal of the material on record, heldthat the sale deed dated 24[th] January, 1973 executed by Smt. Chandoand Sita Ram in reference to plot no. 2902 in favour of late N.D.Chaudhary was genuine and valid and was jointly executed by Smt.Chando and Sita Ram and in regard to the exchange of plots, theConsolidation Officer held that the exchange was permissible only withpermission of the Assistant Collector in terms of Section 161 of the Act,1950 which, in the instance case, was not obtained by the parties. In theabsence of permission which is pre-requisite, he is not entitled to berecorded as Bhumidar under the consolidation proceedings. When thematter travelled in appeal under Section 11 of the Act, 1953, it wasobserved that the registered sale deed dated 24[th] January, 1973 was notproved based on appreciation of evidence and further held that the deedof exchange dated 2[nd] March, 1974 was void for want of permissionfrom the competent authority provided under Section 161 of the Act,1950 and the appeal was consequently dismissed on 18[th] January, 1982.

6. The matter further travelled before the State Government in itsrevisional jurisdiction under Section 48 of Act, 1953 filed at the instanceof late N.D. Chaudhary and late Kesho Ram before Deputy Director,Consolidation, Mathura, both the revision petitions came to be dismissedalthough authority did not record any finding regarding validity of thesale deed but from the order, it reveals that the authority proceeded onthe premise that registered sale deed dated 24[th] January, 1973 wasgenuine and valid.

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A7. The order of the revisional authority dated 19[th] July, 1984 cameto be challenged by late Kesho Ram in a writ petition under Article 227of the Constitution of India and taking note of the pleadings on record,the High Court vide impugned judgment dated 5[th] July, 2007 observedthat the exchange deed dated 2[nd] March, 1974 was in contravention ofSection 166 read with Section 167 of the Act, 1950 and any exchange inBthe absence of permission from Assistant Collector was void by virtueof Section 166 at the same time further observed that it was the StateGovernment who could apply for cancellation if affected by the registereddeed of exchange but it was not open to be questioned at the instance ofthe original tenure holder Smt. Chando and Sita Ram who are now beingCrepresented by their legal heirs of plot no. 2902 who had sold with theirconsent to late N.D. Chaudhary on 24[th] January, 1973 through aregistered sale deed which was not a subject matter of challenge inappeal before us.

8. The moot question which has been raised for consideration isDas to what will be the legal consequences if the registered exchangedeed dated 2[nd] March, 1974 has been executed without following theprocedure prescribed as provided under Section 161 of the Act, 1950.

9. Learned counsel for the appellants submits that the High Courtin its supervisory jurisdiction under Article 227 of the Constitution ofEIndia has exceeded in its jurisdiction in interfering with the concurrentfinding arrived at by the consolidation authorities holding that late N.D.Chaudhary did not get his name mutated in the revenue records basedon the registered sale deed dated 24[th] January, 1973 and at the time ofinitiation of the consolidation proceedings, he did not put forth any claimor filed any objection provided under Section 9A of the Act, 1953. AtFthe same time, the exchange deed dated 2[nd] March, 1974 was executedwithout seeking permission from the competent authority (AssistantCollector) as provided under Section 161 of the Act, 1950 and suchexchange being void, late Kesho Ram cannot claim any right over theplot in question to open mutation and in consequence the appellants holdGa right over the subject plot no. 2902 even if it was sold by Smt. Chandoand Sita Ram(predecessor in interest) jointly by registered sale deeddated 24[th] January, 1973.

10. Learned counsel further submits that the High Court has failedto appreciate the legal effect of Section 166 read with Section 167 of theAct, 1950 and the action once being held to be void by operation of law,they are entitled to hold their right and possession over plot no. 2902.

11. Per contra, learned counsel for the respondents, whilesupporting the finding recorded by the High Court, further submits thatonce plot no.2902 ad-measuring 0.34 decimals was sold by the appellants(predecessor in interest) jointly by the registered sale deed dated 24[th]January, 1973 to late N.D. Chaudhary, they have lost their rights andinterest over the subject plot in question and whatever the default, if any,being committed by late N.D. Chaudhary, it will not give support to thepresent appellants in making their claim over the subject plot in questionand further submits that the permission of the Assistant Collector even ifnot obtained would not take away rights of the parties which have beenconferred on transfer of the property by the registered exchange deeddated 2[nd] March, 1974 and as per the scheme of the Act, 1950, transfersmade prior to 3[rd] June, 1981 are not void but are voidable at the option ofthe suit to be filed by Gaon Sabha or land holder within the period oflimitation. Indisputedly, no action was taken either by Gaon Sabha orland holder within the period of limitation. In the given facts andcircumstances, no error has been committed by the High Court in theimpugned judgment which may call for interference.

12. We have heard learned counsel for the parties and with theirassistance perused the material available on record.

13. The deed of exchange between late N.D. Chaudhary (fatherof respondent nos. 10 and 11) and late Kesho Ram (father/grandfatherof respondent nos. 1 to 8) was executed by the registered deed on 2[nd]March, 1974. Section 161, 166 and 167 of the Act, 1950 as existing priorto the amendment made on 3[rd] June, 1981 are ad infra:- “Section 161 Exchange. [(1) A bhumidhar or sirdar mayexchange with :- (a)any other bhumidhar or sirdar land held by him, or (b)any Gaon Sabha or local authority, lands for the timebeing vested in it under Sec. 117 [ * * *] :

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AProvided that no exchange shall be made except with thepermission of an Assistant Collector who shall refuse permissionif the difference between the rental value of land given in exchangeand of land received in exchange calculated at hereditary rates ismore than 10 per cent of the lower rental value.

B(1-A) Where the Assistant Collector permits exchange he shallalso order the relevant annual registers to be corrected accordingly.

(2) On exchange made in accordance with sub-section (1) theyshall have the same rights in the land so received in exchange asthey had in the land given in exchange.”

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“S. 166. Transfer made in contravention of this chapter tobe void. Any transfer, made by or on behalf of a sirdar or asamiin contravention of the provisions of this chapter shall be void.”

By U.P. Act 30 of 1975, the words “in contravention of thisChapter” were substituted by the words “in contravention of the provisionsDof this Act”.

“S. 167. Consequences of void transfers. [(1) Where a sirdaror asami has made any transfer in contravention of the provisionsof this Act, the transferee and every person who may have thusobtained possession of the whole or part of the holding shall beEliable to ejectment on the suit of the [Gaon Sabha or the landholder, as the case may be,]

(2) A decree for ejectment under sub-section (1) may direct theejectment of the sirdar or asami from the whole or part of theholding as the court may, having regard to the circumstances ofFthe case, direct].”

14. It may be relevant to refer Rule 338 of the U.P. ZamindariAbolition & Land Reforms Rules, 1952(hereinafter being referred to asthe “Rules 1952”) for the purpose as under:- “338. The suit applications and other proceedings specified inGAppendix III shall be instituted within the time specified thereinfor them, respectively.

Appendix IIIA(Rule 338)Sl. Section Description of suit, Period of Time from which Proper No.of the application and limitation period begins to court Act other proceedingrun fees 19.163 Suits for ejectment Six Years. From the date of As in of bhumidhar. illegal transfer. the BCourt Fees Act, 1870, on the year’s revenue.C20. 167 Suits for ejectment Do. Ditto. Ditto. of a sirdhar or asami.

Substituted 2056/I-A-463-1952 dated 11[th] April, 1969"

15. It will be appropriate to take note of Sections 161, 166 and167 amended by U.P. Act No. 20 of 1982(w.e.f. 3[rd] June, 1981) forbetter appraisal ad infra:- “Section 161 Exchange. [(1) A Bhumidhar [* * *] mayexchange with :- (a)any other bhumidhar [* * *] land held by him, or (b)any Gaon Sabha or local authority, lands for the timebeing vested in it under Sec. 117 [ * * *] :

Provided that no exchange shall be made except with thepermission of an Assistant Collector who shall refuse permissionif the difference between the rental value of land given in exchangeand of land received in exchange calculated at hereditary rates ismore than 10 per cent of the lower rental value.

(1-A) Where the Assistant Collector permits exchange he shallalso order the relevant annual registers to be corrected accordingly.

(2) On exchange made in accordance with sub-section (1) theyshall have the same rights in the land so received in exchange asthey had in the land given in exchange.

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S. 166. Transfer made in contravention of this chapter tobe void.- Every transfer made in contravention of the provisionsof this Act shall be void.

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S. 167. Consequences of void transfers. (1) The followingconsequences shall ensue in respect of every transfer which isvoid by virtue of Section 166, namely- B

(a) the subject-matter of transfer shall, with effect from thedate of transfer, be deemed to have vested in the StateGovernment free from all encumbrances; (b)the trees, crops and wells existing on the land on the dateof transfer shall, with effect from the said date, be deemedto have vested in the State Government free from allencumbrances; C

(c) the transferee may remove other movable property orthe materials of any immovable property existing on suchDland on the date of transfer within such time as may beprescribed.

(2) Where any land or other property has vested in the StateGovernment under sub-section (1), it shall be lawful for theCollector to take over possession over such land or other propertyEand to direct that any person occupying such land or property beevicted therefrom. From the purposes of taking over suchpossession or evicting such unauthorised occupants, the Collectormay use or cause to be used such force as may be necessary.]”

16. It emerges from the pre amendment (U.P. Act No. 20 of 1982Fw.e.f. 3[rd] June, 1981) scheme of the Act, 1950 that any transfer made incontravention of this Chapter referred to under Section 166 which includesSection 161 as well were not be automatically void but voidable andtherefore, as a consequence of alleged void transfers under Section 167,a suit was required to be filed by the Gaon Sabha or the land holder, asthe case may be, within limitation of six years from the date of illegalGtransfer as indicated in Appendix III annexed to Rule 338 of Rules, 1952but after the U.P. Act No. 20 of 1982 amended w.e.f. 3[rd] June, 1981, thelaw has changed and every transfer made in contravention of this Act became void in view of Section 166 and in consequence of void transfer,the subject land is deemed to have been vested in the State Governmentby operation of law free from all encumbrances, and sub-section (2) ofSection 167, authorises Collector/Competent Authority to take overpossession with the use of force as may be necessary.

17. In the instant case, the exchange deed was executed on 2[nd]March, 1974 indisputedly without permission from the Assistant Collectorprovided under Section 161 and its consequence was embedded underSection 167 of the Act, 1950 authorising the Gaon Sabha or the landholder to file a suit for ejectment within a period of six years from thedate of alleged illegal transfer which in the instant case had expired inMarch 1980 much prior to the U.P. Act No. 20 of 1982 was amendedw.e.f. 3[rd] June, 1981.

18. After the scheme of the Act has been referred to in extenso,it is clear that at least the amendment which has been made by the U.P.Land Laws (Amendment) Act, 1982 with effect from 3[rd] June, 1981 hasno application on the case in hand.

19. The proceedings were initiated in the first instance when anapplication was filed by late Kesho Ram under Section 9A(2) of theAct, 1953 for obtaining mutation in his name in the year 1978 and lateN.D. Chaudhary also joined him and filed an application supporting theclaim of late Kesho Ram.

20. It reveals from the record that the Consolidation Officer hasdeclined the claim of late Kesho Ram for seeking the Bhumidari rightson the premise that the permission from the competent authority has notbeen obtained before the exchange deed was executed as mandatedunder Section 161 of the Act, 1950 and in its absence, no proceedingscould be drawn claiming Bhumidari rights in his favour. Although theSettlement Officer has made adverse comments in reference to theregistered sale deed dated 24[th] January, 1973, but that appears to be afactual manifest error committed in recording such finding.

21. To make it further clear that under the pre-amended schemeof the Act, 1950, the consequence for non-compliance of Section 161 ofthe Act, 1950 seeking permission from the Assistant Collector, was indeedthe requirement of law and the effect of contravention and its A

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Aconsequence are embedded under Section 166 and 167 of the Act, 1950but its consequential effect, in no manner, would take away or divest therights and interest of the parties inter se conferred in reference to thesale deed which was originally executed in favour of late N.D.Chaudhary by late Smt. Chando and Sita Ram in reference to plot no.2902 ad-measuring 0.34 decimals by the registered sale deed dated 24[th]BJanuary, 1973.

22. It is true that at one stage, late Smt. Chando and Sita Ramjointly raised objection in the consolidation proceedings initiated underSection 9A(1) of the Act, 1953 in reference to the registered sale deeddated 24[th] January, 1973 but as we have already observed that theCregistered sale deed dated 24[th] January, 1973 was genuine and dulyexecuted by the parties and it is nowhere related in reference to theexchange proceedings which were initiated at a later point of time andthis fact became clear that so far as the grievance of Smt. Chando andSita Ram is concerned, after the sale deed was registered and executedDon 24[th] January, 1973 in favour of late N.D. Chaudhary, the ownershiprights with possession stands transferred. It is true that late N.D.Chaudhary had not initiated proceedings for claiming his Bhumidari rightsunder the Act, 1953 but that, in any manner will not, nullify his right ofownership vested on execution of a registered sale deed dated 24[th]January, 1973 and there is no prohibition or restriction to the contraryEhas been brought to our notice, if any, under the Act 1950.

23. At a later stage, late N.D. Chaudhary(father of respondentnos. 10 and 11) and late Kesho Ram(father/grandfather of respondentnos. 1 to 8) who was the tenure holders of plot no. 2683 and 2888 gottheir plot exchanged by registered exchange deed dated 2[nd] March, 1974Fwhich indisputedly was in contravention of Section 161 of the pre-amended Act, 1950 where it was postulated that no exchange shall bemade except with the permission of the Assistant Collector. Indisputedly,no permission was sought as contemplated under the mandate of lawbut under the pre-amended scheme of the Act, 1950, the effect ofGexchange in contravention to the provisions of the Act and its consequenceas embedded under Section 166 and 167 of the Act, 1950 makes theaction to be voidable and not void and it entails consequences of voidtransfers, in the first instance, it only confines to sirdar or asami and not applicable upon those who are claiming rights of Bhumidar. At the sametime, any transfer which has been made in contravention of the provisionsof this Act including permission from the Assistant Collector as requiredunder Section 161, the ejectment may be possible only on filing of a suitby Gaon Sabha or the land holder, as the case may be, and after thedecree of ejectment being obtained under sub-section (1) of Section 167of the Act, ejectment under sub-section (2) of Section 167 be permissibleand for filing of the suit, the limitation has been provided under AppendixIII annexed to Rule 338 of the Rules, 1952 of which reference has beenmade in terms thereof suit for ejectment could be filed within a period ofsix years from the date of the illegal transfer.

24. The deed of exchange in the instant case was executedbetween the parties on 2[nd] March, 1974 and the period of limitation forfiling of the suit had expired in March 1980 much before the U.P. ActNo. 20 of 1982 amended w.e.f. 3[rd] June, 1981 came into force.Indisputedly, no suit was filed either by Gaon Sabha or any land holderfor ejectment as envisaged under Section 167(1) of the Act, 1950. Thatapart, even assuming for the sake of argument, the deed of exchangeexecuted on 2[nd] March, 1974 even if considered to be void, taking noteof the post amended provisions of the Act, 1950, it will still confine to thedeed of exchange dated 2[nd] March, 1974 which was obtained withouttaking permission from the Assistant Collector as envisaged under Section161 of the Act and at the best the rights to the parties on execution ofexchange deed could not be given effect to and it remain inter se betweenparties to the exchange(late Kesho Ram and late N.D. Chaudhary) atthe same time, so far as the subject plot which was once transferred bythe original tenure holders, namely, Smt. Chando and Sita Ram who arethroughout contesting the matter (plot no.2902 area 0.34 decimals) tolate N.D. Chaudhary by a registered sale deed dated 24[th] January, 1973which has been held to be genuine and valid, will not be under any legalimpediment or having any effect on the rights of the parties, and the saidtransaction was not subject to compliance of Section 161 of the Act,1950 and at least no rights of any kind over plot no. 2902 area 0.34decimals could be claimed by the original tenure holders (appellants herein)and their grievance that late N.D. Chaudhary had not claimed hisBhumidari rights under the Act, 1953, suffice it to say, that no suchprovision to the contrary has been brought to our notice that if the holder AB

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Ahas not taken steps for claiming Bhumidari rights under the Act, 1953that will take away or divest from the legal rights conferred to the partyin whose favour registered sale deed has been executed under themandate of law.

25. We are of the view that at least late Smt. Chando and SitaBRam, whose legal representatives are contesting the case throughoutare not holding any locus standi to claim benefit of the defect in thedeed of exchange dated 2[nd] March, 1974 executed between differentparties who are holders to their respective plots in their own rights andthe procedure mandated under the law if not being followed of takingpermission from the Assistant Collector as required under Section 161Cof the Act, 1950, its consequences would not revive/restore the rights tothe legal heirs of late Smt. Chando and Sita Ram(original tenure holders)over the subject property in question. That apart, the present appellantshave never raised any plea for cancellation of the registered sale deedexecuted in favour of late N.D. Chaudhary dated 24[th] January, 1973Dwhich was otherwise not the subject matter to be examined under theprovisions of the Act, 1950.

26. The submission of learned counsel for the appellants thatinterference in the concurrent finding and the exchange deed being voidas the permission from Assistant Collector has not been obtained and inEconsequence they are entitled for restoration/possession of plot no.2902(area 0.34 decimals) which was originally sold by registered sale deeddated 24[th] January, 1973 to late N.D. Chaudhary is without substancefor the reason that these are two separate transactions which has takenplace of the subject plot in question. As regards the rights and interestswhich were transferred by the present appellants vide registered saleFdeed dated 24[th] January, 1973 in favour of late N.D. Chaudhary wasnever the subject matter of scrutiny and there was no violation/contravention of the provisions of Act, 1950 or of any other law hasbeen pointed out to us.

27. At the same time, so far as non-compliance of the mandatoryGrequirement as envisaged under Section 161 of the Act, 1950 whileexecuting the exchange deed dated 2[nd] March, 1974 is concerned, partieshave to bear its consequences of the void transaction as provided underSection 166 read with Section 167 of the Act, 1950 but that will not give H

any preference to the appellants for restoration of their rights and toAnullify the registered sale deed dated 24[th] January, 1973 executed aftertaking due consideration in favour of late N.D. Chaudhary.

28. In our considered view, the conclusions of the High Court inits judgment impugned are unassailable and does not call for ourinterference.B

29. Consequently, the appeals fail and are accordingly dismissed.No costs.

30. Pending application(s), if any, stand disposed of.

Divya Pandey

Appeals dismissed.

C

D

E

F

G

H