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RAM MANORATH & OTHERS versus SURYA PAL & OTHERS

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Ram Manorath & Others v. Surya Pal & Others - SECOND APPEAL No. 1540 of 1982 [2007] RD-AH 4906 (20 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

   

Civil Misc. Review Application No.247459 of 2006

IN

Second Appeal No. 1540 of 1982

Ram Manorath and others....................................Appellants

v.

Surya Pal and others............................................Respondents

Hon. S.N. Srivastava, J.

This Review Application has been filed to review my judgment dated 8.12.2004 on the ground that no permission of Settlement Officer, Consolidation was necessary to execute sale deed in respect of a land which was already excluded from the consolidation scheme at the initial sage of consolidation as is clear from Exhibit 27-C and further that the execution of a sale deed of entire share of a co-tenureholder in a land not in the consolidation scheme did not hit by Section 5(c)(ii) of the U.P. Consolidation of Holdings Act on the date of execution of sale deed and could not be declared invalid under Section 45(2) of the U.P. Consolidation of Holdings Act.

Opp. Parties were directed to file counter affidavit.  After exchange of Pleadings between the parties, parties were also heard on the Review Application.

The dispute in the present case relates to Plot no.386 (re-numbered as Plot no.348 in the consolidation proceedings).   The land was used as Abadi and was declared Chakout (out of consolidation scheme) after the preliminary survey at the initial stage of consolidation proceeding as mentioned in C.H. Form-18, that is, out of consolidation scheme.  Out of four brothers, who were cotenureholders of the land in dispute, one brother, Indrapal, executed a sale deed of entire 1/4th share in favour of Defendant-appellants.  Remaining brothers instituted suit for permanent injunction against Defendant-appellants on the pleading, interalia, that they are in possession of the land in dispute and Defendants are going to make constructions on land in suit and illegally constructed one Kothari.  Defendants filed their written statement  denying the allegation of making any construction and pleaded that Defendant no.2 Indrapal was co-tenureholders to the extent of 1/4th share, who   executed a sale deed of his entire 1/4th share in favour of Defendants and Defendants are in possession of the land in suit accordingly,    Consolidation Officer in Case No. 1171/699, mutated Defendants' names and they are also in possession of a constructed house,    Defendant no.2, Indrapal, also filed a written statement supporting Defendants  and admitting execution of  a sale deed of his entire 1/4th share in favour of Defendants-appellants whose names were recorded as co-tenureholder alongwith plaintiffs, land in dispute was Chakout and execution of sale deed did not require any permission from the Settlement Officer Consolidation.  

The Trial court decreed the suit on the ground that no permission from Settlement Officer, Consolidation was required for execution of sale deed of the land in suit for entire 1/4th share of Indrapal through the sale deed and the same is not affected by consequences of Section 5(c)(ii) of the U.P. Consolidation of Holdings Act wit a further finding that Defendants have constructed their houses and are in actual possession on the entire land transferred through the sale deed dated 29th January, 1972.  

In Appeal preferred against the judgment and decree of the Trial court decreeing the Suit, the Appellate Court held that sale deed  in question as a consequence of violation of Section 5(c)(ii) of the U.P. Consolidation of Holdings Act and is inoperative, ineffective and thereby does not confer any title to Defendants.  

The Second Appeal preferred by Defendants-appellants was admitted on two questions, the same are being reproduced below:-

"(1) Whether, on the facts proved in the case, permission contemplated by Sec.5(c) of the U.P. Consolidation of Holdings Act was necessary for Indrapal before selling the disputed Chaks in favour of the appellants.

(2) Whether the provisions of the Consolidation of Holdings Act do not apply in this case for reasons mentioned in para 12 at page 6 of the Memo of Appeal."

The Second Appeal was dismissed by my judgment dated 8.12.2004.  That judgment is sought to be reviewed by the present Review Application on the ground that the sale deed executed by Indrapal was not hit by Section 5(c )(ii) read with Section 45-A(2) of the U.P. Consolidation of Holdings Act.

On bringing the fact through this Review Application to the notice of the Court that the land in dispute was out of consolidation scheme right from very beginning and was recorded in C.H. Form-18 and does not form part of the consolidation scheme, parties had already made construction of their residential houses on the land in dispute  which was not in cultivatory  possession of parties, they  were directed to file their respective replies to the Review Application.  Pleadings are complete.

Heard learned counsel for the parties.

Learned counsel for the Appellant urged that Section 5(c)(ii) of the U.P. Consolidation of Holdings Act will not apply in the facts of the suit as intention of Legislature while introducing Section 5(c)(ii) of the U.P. Consolidation of Holdings Act by way of U.P. Consolidation of Holding (Amendment) Act, 1958 was to protect all the land which are included in the consolidation scheme.  He further urged that in the present case as the admitted position at the time of verification of the spot and revenue records it was found that the land in dispute was not connected with agriculture, horticulture, and animal husbandry and did not form part of the land affecting consolidation scheme and, therefore, Section 5(c)(ii) of the U.P. Consolidation of Holdings Act would not affect the impugned sale deed.  Thus, the sale deed executed by Indrapal may not be declared void which was also not under challenge in the Civil Court by way of Suit for cancellation on any ground and the suit for permanent injunction was not maintainable against a co-tenureholder/co-sharer.  Suit was wrongly decreed.  It was prayed that Second Appeal deserves to be allowed.

In reply to the same, learned counsel for Respondents urged that the word ''holding' has been defined under Section 3(4-C) of the U.P. Consolidation of Holdings Act according to which ''Holding' means a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holders.  He further urged that that the ''Land' has also been defined under Section 3(5) of the U.P. Consolidation of Holdings Act according to which ''Land' means land held or occupied for purposes connected with agriculture, horticulture and animal husbandry.  He further urged that it includes all land including the land which is not part of the consolidation scheme.  He further urged that the judgment and decree passed by this Court  while affirming the judgment of the Trial Court was rightly passed in accordance with law.  He further urged that the questions again raised through the Review Application cannot be gone into in review.

Considered the arguments of learned counsel for the parties and the relevant provisions of law on the point as well as relevant materials on record.

The first question requires to be considered is whether Review Application is maintainable on the grounds mentioned therein in the present case.

For deciding this question, Order 47 Rule 1 (1) of the Code of Civil Procedure is relevant, the same is being quoted below for ready reference:-

"1. Application for review of judgment-(1) Any person considering himself aggrieved.-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."

Order 47, Rule 1(1) of the Code of Civil Procedure provides grounds for review from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.  There is no dispute of fact and admitted facts which were not brought to the notice of the Court at the time of hearing of the Second Appeal that the land in dispute was not included in consolidation scheme for allotment of Chak proceeding and was out of consolidation scheme recorded in U.P. C.H. Form-18.  The Court could not consider the effect of non-inclusion of the land in suit in consolidation scheme, though it was part of consolidation proceeding on notification under Section 4 of the U.P. Consolidation of Holdings Act.  My view of supported by the judgment of Apex Court reported in (1997) 8 SCC 715, Parsion Devi and others v. Sumitri Devi and others, as this error is self-evident and does not require a process of reasoning, but an interpretation of law.

In view of above, in the present case, it is an error apparent on the face of the record which could not be noticed at the time of hearing which also goes to the root of the matter and this important question of law in the undisputed fact was not brought to the notice of the Court at the time when hearing of the Second Appeal took place, this Court considers it a sufficient reason to entertain Review Application.  

The facts that the land in dispute was not being used for the purposes connected with agriculture, horticulture and animal husbandry and was excluded from the consolidation scheme  at the time of spot verification for proposed inclusion of the land in scheme for consolidation and was recorded in C.H. Form-18 and the construction also existed on a part of the land in suit shown in the consolidation records published in Village under Section 9 of the U.P. Consolidation of Holdings Act are not disputed. It was not brought to the notice of the Court by Sri Radhey Shyam, learned Counsel appearing for Defendant-appellants at the time of hearing of Second Appeal. It was brought to the notice of this Court  by the Review Application.  In such a situation, the important question of law arises to be considered in undisputed fact is whether Section 5(c)(ii) of the U.P. Consolidation of Holdings Act  while enacting U.P. Consolidation of Holdings (Amendment) Act, 1958 (U.P. Act No. XXXVIII of 1958) is applicable in the facts like in the present case.  For ready reference Section 5(c) of the U.P. Consolidation of Holdings Act introduced by U.P. Act No. XXXVIII of 1968 is being reproduced below:-

"5(c) notwithstanding anything contained in the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act of 1951), no tenure-holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-

(i) use his holding or any part thereof for purposes not connected with agriculture, horticulture or animal husbandry including, pisciculture and poultry farming; or

(ii) transfer by way of sale, gift or exchange any part of his holding in the consolidation area

provided that a tenure-holder may continue to use his holding, or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued under Section 4."

This very amendment also defines consolidation under Section 3(2) of the U.P. Consolidation of Holdings Act which means rearrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more compact.  In explanation there are seven exception by which it has been provided that the land falling in these exception will not be included in the consolidation scheme.  It is borne out from the record that the land in dispute was not used for the purposes connected with agriculture, horticulture and animal husbandry on the date on which the notification under Section 4 of the U.P. Consolidation of Holdings Act was issued and was not included in the consolidation scheme as it was exclusively used as Abadi land consisting old constructions.  

The purpose for which U.P. Consolidation of Holding Act was enacted as mentioned in the Preamble is to provide consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture.  The purpose of consolidation as defined under Section 3(2) of the U.P. Consolidation of Holdings Act is rearrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more compact.  Section 3(4-C) of the U.P. Consolidation of Holdings Act defines holding according to which ''Holding' means a parcel or parcels of land held under one tenure by a tenure-holder singly or jointly with other tenure-holder.

In this regard a Full Bench decision of Lucknow Bench of this Court reported in AIR 1971 Allahabad 87 (V 58 C18), Smt. Asharfunisa Begum v. Dy. Director of Consolidation, Camp at Hardoi and others is very relevant, Paragraphs 18, 19 and 21 of the judgment are being reproduced below:-

"18. The Statement of Objects and Reasons of the Act reads thus:-

"After the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, there was naturally a pressing demand for the consolidation of holdings in the State.  Since the complicated and numerous types of tenures, both proprietary and cultivatory, the greatest stumbling block in the way of successful consolidation of holdings, have been abolished it is an opportune time to start this work.  The advantages of having in compact blocks all the land farmed by one family need only be briefly mentioned.  Boundary lines should be reduced in "number and extent, saving land and diminishing boundary disputes, larger fields would be possible and time saved in making trips to the fields.  Further, if land were all in one piece barriers, such as fences, hedges or ditches could be erected to obtain privacy and prevent trespassing, thieving and gleening.   The control of irrigation and drainage water would be easier control of pests, insects and disease would also be difficult."

19. Referring to the object of the Act, in Attar Singh v. State of U.P., AIR 1959 SC 564, the Supreme Court made the following observations:-

"The object of the Act is to allot a compact area in lieu of scattered plots to tenure-holders so that large scale cultivation may be possible with all its attendant advantages.  Thus by the reduction of boundary-lines saving of land takes place and the number of boundary disputes is reduced.  There is saving of time in the management of fields inasmuch as the farmer is saved from traveling from field to field, which may be at considerable distance from each other.  Proper barriers such as fences, hedges and ditches can be erected around a compact area to prevent trespassing and thieving.  It would further be easier to control irrigation and drainage and disputes over water would be reduced considerably where compact area are allotted to tenure-holders.  Lastly, the control of pests, insects and plant-disease is made easier where farmers have compact areas under cultivation.  There advantages resulting from consolidation of holdings are intended to encourage the development of agriculture and larger production of food grains, which is the necessity of the day."

The preamble of the Act reads:-

"An Act to provide for the consolidation of agricultural holdings in Uttar Pradesh for the development of agriculture.

Whereas it is expedient to provide for the consolidation of agricultural holding in Uttar Pradesh for the development of agriculture."

21. The preamble of a Statute is a key to the understanding of it.  Jagdish Sahai, J. observed in Sobha v. State, AIR 1963, All 29, that a preamble is a key to the interpretation of an Act and can be used to know the aims and objects of the legislation. The Statement of Objects and Reasons can be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated an Act to be passed and the extent and urgency of the evil which it sought to remedy.  A perusal of the Statement of Objects and Reasons and the preamble will clearly establish that the intention of the Legislature was to provide for consolidation of agricultural holdings for the development of agriculture.  If an agricultural holding is used for purposes not connected with agriculture, development will be retarded and similarly is a farmer is to travel from place to place to look to his scattered fields, again development will be retarded.  The prohibition under sub-cl.(ii) is to avoid fragmentation by sale, gift or exchange.  It appears to me that it is because of this that while under sub-clause(i), the prohibition applies to the entire as well as to the part of a holding; under sub-clause (ii) it extends to a party only, because if the whole holding is transferred, there can be no fragmentation and the only effect will be the substitution of the transferee in place of the transferor.  Sub-clause (i) and (ii) of the Clause (c), therefore, were purposely enacted to subserve the purposes of the legislation and to avoid the existing evil.

Considering the Preamble, Object of the Act and other relevant provisions of U.P. Consolidation of Holdings Act, this Court is of the view that intention of introducing Section 5(c)(ii) of the U.P. Consolidation of Holdings Act was that if the land included in consolidation proceeding does not affect allotment of Chak proceeding under U.P. Consolidation of Holdings Act by transfer by way of sale, gift or exchange, no prior written permission of Settlement Officer, Consolidation as required under Section 5(c )(ii) of the U.P. Consolidation of Holdings Act was required.   Intention of Legislature is clear that if any land is not used for the purposes connected with agriculture, horticulture and animal husbandry and not part of the consolidation scheme for allotment of Chak, any transfer could not be  declared void as it does not affect consolidation scheme in any way.  This Court is of the firm view that restriction by way of introducing Section 5(c)(ii) of U.P. Consolidation of Holdings (Amendment) Act, 1958 was to affect transfer of the land included in the consolidation scheme and not the land which does not affect the consolidation scheme for allotment of Chak and excluded from the consolidation scheme, though it may be in village on notification under Section 4 of the U.P. Consolidation of Holdings Act.  Therefore, this Court fully agreeing  with the arguments of learned counsel for the Defendant-appellants  (Opp. Parties herein) is satisfied that the provisions of Section 5(c) (ii) of U.P. Consolidation of Holdings Act and its consequences thereof as contained under Section 45-A(2) of the U.P. Consolidation of Holdings Act shall not affect the impugned sale deed by which a valid title passed to the Defendant-Appellants.

In view of the discussions made above, my order dated 8.12.2004 requires to be reviewed.

There is another aspect of the matter.  Admittedly the land in dispute was out of consolidation scheme in which Indrapal had 1/4th share who executed a sale deed in favour of Defendant-Appellants after taking full consideration by transferring his entire 1/4th share and Defendant-transferee would also be co-tenureholder  for entire 1/4th share of Indrapal by way of sale.

In view of the above, Substantial question of law no.1 is decided in negative as it was held that no prior permission of Settlement Officer, Consolidation was necessary as required under Section 5(c )(ii) of the U.P. Consolidation of Holdings Act and the impugned sale deed could not be declared void.  The judgment of the lower Appellate Court is vitiated in law and is liable to be set aside and the suit is liable to be decreed.  The Substantial question of law no.2 is answered in affirmative.

With the result, Review Application is allowed.  The judgment-dated 8.12.2004 passed in Second Appeal stands reviewed and the Second Appeal is allowed.  Judgment of Lower Appellate Court is set aside and the Suit is dismissed, but no order as to cost.

20.3.2007

bgs/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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