ORDER K.P. Singh, J.
1. This is a defendants' writ petition under Article 226 of the Constitution and arises out of suit filed by opposite party No. 5 Shabbir for declaration of his share and separate possession Over the partitioned property.
2. The opposite party No. 5 Shabbir had claimed share along with Kalua to the extent of 1/2 in the disputed property and had alleged that the petitioners Nos. 1, 2 and 6 and Ghaffoor, opposite party No. 6, in the present writ petition, had the remaining 1/2 share. According to the plaintiff opposite party Shabbir, the disputed land belonged to Smt. Manni, widow of Abdul Kareem and Smt. Nanhi, widow of Abdul Razzaq and both of them had equal share in the disputed land. It was admitted by the plaintiff that Smt. Nanhi had executed a sale deed regarding her 1/2 share in favour of Abdul Aziz, Abdul Majeed Abdul Ghaffoor and Abdul Sattar, hence the aforesaid transferees were entitled to 1/2 share. According to the plaintiff opposite party Shabbir, he alone with his brothers Kalua and Ghaffoor, was entitled to 1/2 share of Smt. Manni and Abdul Sattar, petitioner No. 1. Aziz petitioner No. 6 and Smt. Hafizee, whose descendants are some of the petitioners in this writ petition, were entitled to the remaining 1/2 share.
3. The claim of the plaintiff was denied by Abdul Ghaffoor, Smt. Hafizee and Aziz through Annexure 5 attached with the writ petition. Their main defence was that that the claim of aforesaid Abdul Ghaffoor, Smt. Hafizee, Aziz and the petitioner Abdul Sattar was recognized by the consolidation authorities, hence the claim of the plaintiff was barred by the provisions of Section 27 read with Section 49 of the U. P. Consolidation of Holdings Act. It was asserted on behalf of the defendants that they had been in possession over the disputed land and that the plaintiff's suit was barred by Section 34 (5) of Act No. III of 1901 and various other pleas were taken.
4. The trial Court through its judgment dated 21-9-1973 decreed the plaintiff's suit. It appears that the trial court found that the plaintiff Shabbir, Abdul Ghaffoor, defendant No. 1 and Kalua defendant No. 16 (opposite parties Nos. 5 to 7 in the present writ petition) were alone entitled to the disputed land. The sale deed executed on behalf of Smt. Nanhi in favour of petitioners Shabbir and Aziz, opposite party Ghaffoor and Smt. Hafizee was invalid as it was executed without valid permission from the Settlement Officer of Consolidation, hence no title accrued to the vendees, and the plaintiff along with Ghaffoor and Kalua being co-sharers, became entitled to the disputed property.
5. Aggrieved by the judgment of the trial court the defendants preferred an appeal which was allowed by the lower appellate court through its judgment dated 5-2-1974 (Annexure DC). The defendants' claim based on the sale deeds was accepted by the lower appellate court and the determination of shares by the trial court was accordingly modified and thus the appeal was partly allowed.
6. Aggrieved by the judgment of the lower appellate court the plaintiffs opposite parties in the present writ petition preferred a second appeal which has been allowed by the second Appellate Court through its judgment dated 8-10-1980. The second appellate court has restored the judgment of the trial court. Aggrieved by the iudgment of the second appellate court, the defendants-petitioners have approached this Court under Article 226 of the Constitution.
7. The learned counsel for the petitioners has contended before me that the second appellate court has patently erred in holding the sale deed in favour of the defendants-petitioners as invalid. He has also emphasized that the second appellate court has patently erred in holding that the order passed by the Deputy Director of Consolidation on 9-10-1963 was final and negativing the claim of the defendants-petitioners regarding sale deed in their favour. He has also emphasized that the plaintiffs opposite party in the present writ petition had admitted share of the defendants-petitioners in the plaint, hence the plaintiffs opposite parties were bound by the admission and the second appellate court has patently erred in giving a larger share to the plaintiffs than claimed in the plaint itself.
8. Lastly it has also been contended that the disputed land was situate within the Municipal area, hence no consolidation operation could take place in respect of the disputed land, thus the second appellate court has patently erred in placing reliance upon the decision of the Deputy Director of Consolidation.
9. The learned counsel for the contesting opposite parties has tried to refute the contentions raised on behalf of the petitioners. According to him the disputed land was outside the municipal limit at the relevant time and the disputed land was subject matter of consolidation operation, hence the appellate court was right in placing reliance upon the decision of the Deputy Director of Consolidation. According to the learned counsel for the contesting opposite parties, the decision of the Deputy Director of Consolidation about invalidity of the sale deed in favour of the defendants-petitioners is final and in view of the provisions of Section 12 read with Section 49 of the U. P. Consolidation of Holdings Act the claim of the defendants-petitioners based on sale deed stood barred and the second appellate court has rightly not recognized the claim of the defendants-petitioners based on the sale deeds. It has also been emphasized that the sale deed in favour of the defendants-petitioners was executed without obtaining requisite permission, hence it was invalid in law and it has been rightly held so. The learned counsel for the contesting opposite parties also stressed that the admission on question of law regarding share cannot bind the maker thereof and in this view of the matter the second appellate court has rightly granted share to the plaintiffs opposite parties. There is no patent error of law in the impugned judgment, hence the impugned judgment should not be quashed.
10. I have considered the contentions raised on behalf of the parties.
11. As regards the contention of the learned counsel for the petitioners that the disputed land could not be under the operation of the U. P. Consolidation of Holdings Act, I think that the plea raised on behalf of the petitioners is without any merit. No sufficient material has been placed before me to justify the contention that the disputed land was within the municipal area when the consolidation operation started in respect of the disputed land. Added to this, the vendees (i. e. some of the petitioners) had applied for mutation before the Settlement Officer of Consolidation and their names were ordered to be mutated through the order dated 28-8-1961, hence I am not inclined to entertain such a plea in writ jurisdiction and the impugnment cannot be attacked on the ground that the second appellate court placed reliance upon the decision of the Deputy Director of Consolidation in negativing the claim of the defendants-petitioners as he had no jurisdiction to deal with the disputed land.
12. As regards the petitioners: contention that the plaintiffs opposite parties are bound by the admission contained in the pleadings, it is sufficient to indicate that if in law the plaintiff is entitled to the larger share he can demonstrate before the Court and indicate that the admission on behalf of the plaintiff was erroneous, hence the plaintiff should be granted larger share than claimed in the plaint. If the findings recorded by the second appellate court are otherwise good in law, the defendants-petitioners cannot assail the impugned judgment on the ground that the plaintiff opposite party has got larger share than the share claimed in the plaint.
13. The main controversies between the parties centre round the question whether the sale deed in favour of the defendants-petitioners was valid in the circumstances of the present case and whether the finding recorded by the Deputy Director of Consolidation in his order dated 9-10-1963 is final between the parties and whether that finding can be examined by the revenue courts in view of the provisions of Section 12 read with Section 49 of the U. P. Consolidation of Holdings Act.
14. The learned counsel for the contesting opposite party has submitted before me that the sale deed was executed in favour of the defendants-petitioners without obtaining requisite permission, hence it was invalid and the defendants petitioners cannot claim any title on the basis of the aforesaid sale deed. It has not been disputed before me that a sale deed on behalf of the vendor of the defendants was executed in respect of the entire share of the vendor. The learned counsel for the opposite party submitted that according to the decided cases of this Court as well as of the Board of Revenue, no sale deed could be executed by a tenure holder on the date when the sale deed was executed and now after the amendments of the provisions of the U, P. Consolidation of Holdings Act no sale deed can be executed by a tenure-holder without obtaining permission of the authority concerned even in respect of entire share, hence it should be held that the sale deed executed in favour of the defendants-petitioners was bad in law, and was rightly rejected by the second appellate court. I have great difficulty to accept such a contention of the learned counsel for the contesting opposite party. According to a Full Bench ruling reported in AIR 1974 All 106, Smt. Ram Rati v. Gram Samaj, Jehwa it has been made clear that a co-tenure-holder can transfer his entire share without obtaining permission from the authority concerned under Section 5 (i) (c) Sub-clause (ii) of the U. P. Consolidation of Holdings Act. The later amendment in the provisions of the U. P. Consolidation of Holdings Act requiring permission even regarding sale of entire share will not apply retrospectively, hence in my opinion the second appellate court has patently erred in holding that the sale deed in favour of the defendants-petitioners was bad in law as it was executed without permission of the Settlement Officer of Consolidation and the contentions of the learned counsel for the contesting opposite party in this regard are not at all acceptable to me. In my opinion he was wrong to contend that as permission regarding sale of a part of the holding was needed according to some decisions and it is also needed according to the recent amendment of the provisions of the Act, hence it should be construed that at the relevant time when the sale deed was executed in favour of the defendants-petitioners, it was necessary to obtain prior permission for executing the sale deed. According to the Full Bench decisions of this Court reported in AIR 1971 All 87, Smt. Asharfunisa Begum v. Director of Consolidation, Camp at Hardoi and AIR 1974 All 106, Smt. Ram Rati v. Gram Samaj Jehwa, it is crystal clear that the ban under Section 5 (i) (c) (ii) of the U. P. Consolidation of Holdings Act did not apply to sale of entire share of a tenure-holder.
15. The second appellate court has expressed itself in the following words while dealing with the question of the validity of the sale deed in favour of the defendants vide paragraph 8 of its judgment;
"......In the present case the transfer in question was not by all co-tenants of their whole holding but was by a co-tenant of her whole share which was of a part of the holding, therefore, it was hit by Section 5 (i) (c) (ii) of the U. P. C. H. Act and was void, as this transfer was made without permission of S. O. C. when consolidation operation was not over. Therefore, the lower appellate court acted illegally in holding that the void transfer to be valid due to the admission in the plaint by the plaintiff which was illegal as there is no estoppel against statute, therefore, that finding is liable to be set aside."
Now, the important controversy raised between the parties in the present case is that according to the learned counsel for the contesting opposite party the decision given by the Deputy Director of Consolidation in bis judgment dated 9-10-1963 regarding invalidity of the sale deed in favour of the defendants-petitioners would stand as final and the revenue courts could not ignore that decision. According to the learned counsel for the petitioners the decision given by the Deputy Director of Consolidation was in a proceeding arising out of correction of papers case hence the finding would not be treated as final between the parties and the second appellate court has patently erred in holding so and it has arrived at patently erroneous conclusions in negativing the claim of the defendants-petitioners.
17. The learned counsel for the opposite party placed reliance upon the rulings reported in 1973 All LJ 352 Smt. Bhuri v. Sundar, 1974 All WR (HC) 209 Prahalad v. Bhavichand, AIR 1974 SC 1657, Suba Singh v. Mahendra Singh, 1975 Rev Dec 228 (BR), Magan Singh v. Hakim Nisar Ahmad, 1975 Rev Dec 233 (BR), Mohan Lal v. Ram Bux, 1977 Rev Dec 269 (BR) Smt. Shyam Kali v. Bachchoo Lal, 1980 All LJ 902 : (AIR 1981 SC 77) Karbalai Begum v. Mohd. Sayeed and 1981 All WC 508 : (1981 All LJ 830) Sukhadeo v. Phool Chand in support of his contention that the finding contained in the order of the Deputy Director of Consolidation dated 9-10-1963 regarding invalidity of the sale deed in favour of the defendants-petitioners would be final and in view of the provisions of Sections 12 and 49 of the U. P. Consolidation of Holdings Act, the same could not be examined by the revenue courts.
18. The learned counsel for the petitioners has placed reliance upon the ruling reported in 1961 All LJ 698 Kumbha Karan v. S. C. Lal Saxena, 1963 Rev Dec 62 Smt. Amjadi v. Deputy Director of Consolidation, Lucknow, 1966 All LJ 563 Smt. Natho v. Board of Revenue, U. P., Allahabad, 1973 All LJ 352 Smt. Bhuri v; Sundar, AIR 1974 SC 1657 (paragraphs 5 to 9) Suba Singh v. Mahendra Singh and 1980 All LJ 902: (AIR 198f SC 77) Karbalai Begum v. Mohd. Sayeed.
19. I have gone through the rulings cited above by the counsel for the parties but I do not find any of them dealing with the similar situation as is under my consideration in the present case. The salient feature of the present case is that the sale deed executed in favour of the defendants-petitioners is of the year 1961 when the amended provisions of 1958 had come into force. According to the aforesaid Act Section 12 of the U. P. Consolidation of Holdings Act was amended and the amended Act reads as below:--
"(1) All matters relating to changes and transfers affecting any of the rights Or interests recorded in the revised records published under Section 11-B for which a cause of action was non-existent when proceedings under Sections 7 to 10 were started or were in progress, may be raised before the Assistant Consolidation Officer as and when they arise, but not later than the date of notification, under Section 52, or under Sub-section (1) of Section 6".
20. Section 49 of the U. P. Consolidation of Holdings Act as amended by U. P. Act No. XXXVIII of 1958 reads as below:--
"Notwithstanding the amendment of the principal Act by this Act all proceedings commenced prior to, and pending on the date on which this Act comes into force -
(i) relating to the correction of records under Section 7 of the principal Act shall be completed in accordance with the provisions contained therein, and shall be deemed to be proceedings taken under Sections 7 and 8 of the principal Act as amended by this Act. All future proceedings thereafter shall be conducted and concluded in accordance with the provisions of the principal Act as amended by this Act.
(ii) under Section 8 and the subsequent sections of the principal Act shall, subject to the provisions of Section 50 of this Act, be conducted and concluded in accordance with the provisions of the principal Act, as if this Act has not come into force:"
Section 50 of Act XXXVIII of 1958 provides as below:--
(i) The State Government may, for the purpose of removing any difficulties, in relation to the transition from the provisions of the principal Act, as it existed prior to its amendment by this Act, to the provisions of the principal Act, as amended by this Act, by order published in the official Gazette -
(a) direct that the principal Act, is amended by this Act, shall during such period, as may be specified in the order take effect subject to such adaptations whether by way of modifications, addition or omission as it may deem fit to be necessary or expedient; oR
(b) make such other temporary provisions for the purpose of removing any such difficulty as it may deem fit to be necessary or expedient:
Provided no such order shall be made after 24 months from the date of the commencement of this Act."
21. The provisions of Act XXXVIII of 1958 came into force on 27-11-1958. Relying upon the provisions of Section 49 (ii) of the U. P. Act XXXVIII of 1958, it has been contended before me that the unamended Act would govern the facts and circumstances of the present case, hence the decision dated 9-10-1963 given by the Deputy Director of Consolidation would be treated ad a decision in a case for correction of papers, under Section 5 of the U. P. Consolidation of Holdings Act prior to the amendment of 1958, hence according to the learned counsel for the petitioners the findings recorded by the Deputy Director of Consolidation in his order dated 9-10-1963 cannot be treated as final regarding the title of the defendants-petitioners whereas according to the learned counsel for the opposite party when the cause of action arose due to the sale deed in favour of the defendants-petitioners, the provisions of the amended Section 12 of the U. P. Consolidation of Holdings Act require that the changes due to the transfer deed should be brought to the notice of consolidation authorities and the authorities should decide the same in accordance with the provisions of the amended Sections 7 to 11 by the Act No. XXXVII of 1958 and the decision given by the Deputy Director of Consolidation on 9-10-1963 should be construed as the decision in proceedings under Section 12 of the U. P. Consolidation of Holdings Act 1958, hence the finding regarding invalidity of the sale deed in favour of the petitioners should be treated as final. A perusal of the order dated 9-10-1963 and the judgment of the appellate authority against which the revision was filed and decided through the order dated 9-10-1963 leaves no room for, doubt that the proceedings giving rise to the revision decided by the Deputy Director of Consolidation on 9-10-1963 were under Section 5 of the old Act, i.e. prior to the Amendment Act of 1958.
22. During the course of argument the learned counsel for the opposite party placed much reliance upon the ruling reported in 1974 All WR (HC) 209 Prahlad v. Bhavi Chand. In my opinion the aforesaid case is inapplicable to the facts and circumstances of the present case. In this case the cause of action had arisen on 27-6-1963 hence the case was to be governed bv the provisions of the U. P. Act No. VIII of 1963. In the aforesaid case no question arose for determination as to whether the provisions of the unamended Act prior to the year 1958 were attracted or not. In the present case I am mainly concerned with the question whether the provisions of U. P. Consolidation of Holdings Act prior to the amendment of the year 1958 are attracted to the facts and circumstances of the present case. In the ruling cited by the learned counsel for the opposite party reported in 1974 All WR (HC) 209 a reference has been made to a ruling reported in 1970 Rev Dec 466 Smt. Bhuriya v. Board of Revenue at Allahabad and this case has not been followed by the Judge in the ruling of 1974 All WR (HC) 209 on the ground that the Judge had decided the case on the basis that there were no proceedings under Section 12 of the Act and the claim made bv Smt. Bhuriya was covered by Sections 5 and 27 of the Act In the ruling of the year 1974 mentioned supra the learned Judge has referred to a large number of cases in support of his view that the provisions of Section 12 of the U. P. C. H. Act were attracted to the facts under his consideration and the provisions of Section 49 were applicable, hence the decrees passed in the suit were set aside and the second appeal was allowed Relying upon the aforesaid ruling the learned counsel for the opposite party emphasized before me that the finding recorded by the Deputy Director of Consolidation in the order dated 9-10-1963 should be treated as final and the bar of Section 49 of the U. P. C. H. Act should apply to the facts and circumstances of the present case.
23. It is noteworthy that the facts and circumstances involved in the present case are similar to the facts mentioned in the case reported in 1970 Rev Dec 466 Smt. Bhuriva v. Board of Revenue, U. P. Allahabad. In that case the cause of action arose on the death of Sagun on 29-4-1962 as in the present case the causa of the action has arisen due to the sale deed in favour of the defendants-petitioners in the year 1961. In both these cases, the causes of action has arisen after the enforcement of Act XXXVIII of 1958. Though I find difficulty in agreeing with the reasonings contained in paragraph 3 of the aforesaid ruling but my conclusions are the same due to the similarity of the circumstances that the cause of action arose in both the cases after the enforcement of Act XXXVIII of 1958. However, the provisions of Section 49 of the U. P. Act No. XXXVIII of 1958 stand substituted by Section 51 of the U. P, Land Laws Amendment Act 1965 (U. P. Act No. XII of 1965) which reads as below:--
"For Section 49 of the Uttar Pradesh Consolidations of Holdings (Amendment) Act, 1958, the following shall be substituted and be deemed always to have been substituted, namely -
"49. Where consolidation operations are pending in any unit at the commencement of this Act -
(i) if the operations are at the stage of examination of the land records under Section 7 of the principal Act, then the Assistant Consolidation Officer shall complete the preparation of the statement mentioned in that section as if this Act has not come into force, and such revision and preparation of statement shall thereupon be deemed to be the revision and preparation of statement mentioned in Sections 7 and 8 of the amended Act, and thereafter all further proceedings shall be conducted and concluded in accordance with the provisions of the amended Act, beginning with the proceedings under Section 9 thereof;
(ii) if the operations are at the stage of proceedings under Section 8 of the principal Act, or at any later stage, then all further proceedings shall be continued and concluded in accordance with the principal Act as if this Act had not_ come into force.
Explanation-- In this section "amended Act" means the principal Act as amended by this Act."
24. During the course of argument the learned counsel for the petitioners placed reliance upon the provisions of Section 49 (ii) of the U. P. Act No. XXXVIII of 1958 in support of his contention that the proceedings should be treated merely for correction of papers case in which the Deputy Director of Consolidation gave judgment on 9-10-1963 but I have difficulty to accept the contention in view of the circumstance that the transitory provision could be relied upon only for a period of 24 months and in the present case cause of action had arisen in the year 1961 much after 24 months of the enforcement of U. P. Act XXXVIII of 1958. Bare reading of Section 12 of U.P. Act No. XXXVIII of 1958 would show that it was required of the defendants vandees to have sought relief under that provision and if the defendants vendees chose wrong action, they were to thank themselves but in view of the substituted provision of Section 49 of Act XXXVIII of 1958 I have no manner of doubt that the provisions of U. P. C. H. Act prior to the year 1958 would govern the facts and circumstances involved in the present case and the proceedings giving rise to the order dated 9-10-1963 by the Deputy Director of Consolidation would be in the nature of mutation proceedings as indicated by a learned Judge of this Court in 1970 Rev Dec 466 Smt. Bhuria v. Board of Revenue, U. P. at Allahabad in the following words :--
"The mutation proceedings conducted by the Assistant Consolidation Officer were covered by Sections 5 and 27 of the Consolidation of Holdings Act, under which the maintenance of the records have been entrusted to these authorities till the notification of the village under Section 52 of the Consolidation of Holdings Act. Mutation proceedings were not intended to investigate into questions of title."
25. It is noteworthy that in view of the decision in 1973 All LJ 352 Smt. Bhuri v. Sundar and in view of the decision reported in AIR 1974 SC 1657, Suba Singh v. Mahendra Singh if the cause of action arose after the decision of title prior to the Amendment Act of 1958, there was no provision for entertaining the disputes regarding title. The only provision under the then U. P. C. H. Act was with regard to the maintenance of records, hence I think that the defendants-petitioners being vendees of one of the co-tenure-holders, rightly applied under Section 5 of the old Act (prior to the amendment of 1958 Act). The order of the Deputy Director of Consolidation dated 9-10-1963 is in a proceeding for correction of records, hence the findings cannot be treated as final between the parties negativing the claim of the defendants-petitioners based on sale deed in their favour. Since the second appellate court has relied upon the findings recorded by the Deputy Director of Consolidation in his order dated 9-10-1963 in a revision arising out of proceedings for correction of papers case, I think his judgment suffers from patent error of law and deserves to be set aside. In the circumstances of the present case I am unable to accept the contention of the learned counsel for the opposite party that in view of the provisions of Section 12 read with Section 49 of the U. P. Act No. XXXVIII of 1958 the findings recorded by the Deputy Director of Consolidation and the decision of the revenue courts would be final between the parties while determining the claim of the parties.
26. In the result, the writ petition succeeds and the impugned judgment of the Second Appellate Court is hereby quashed and the case is sent back to the Second Appellate Court for passing final and suitable order in the second appeal in the light of the observations made by me above. Parties are directed to bear their own costs.