1. Heard Sri B.S. Pandey, learned counsel for the petitioner and Paras Nath Singh, learned counsel for the respondent nos. 4 & 5.
2. This writ petition has been filed by the petitioner challenging the order dated 25.11.2010 passed by the Additional Sub Divisional Magistrate, Basti and the order dated 14.1.2011 passed by the Commissioner, Basti and the order dated 7.2.2011 passed by the Board of Revenue.
3. The case set up by the petitioner is to the effect that respondent no. 4 - Chinta Haran and one Deshraj were co-tenure holders of old plot no. 2013. The total area of Plot was four bighas, 4 biswas and 4 biswansi. The respondent no. 4 and Deshraj had equal share, thus the respondent no. 4 had a share of 2 bighas, 2 biswas and 2 biswansi. The respondent no. 4 was in need of money and sold half of his share i.e. 1 bigha, 1 biswa and 1 biswansi through registered sale deed to the petitioner on 15.10.1990. The new number of this plot is 248, village Shitawar Tappa Karan, Pargana, Tehsil and District Basti.
4. It has been further submitted that the respondent no. 4 again in need of money and took a loan of Rs. 30,000/- from the petitioner on 13.1.1991. He delivered possession of the remaining share of 1 bigha, 1 biswa and 1 biswansi, current Plot No. 287 /0.288 to the petitioner with a condition that he will repay the amount along with interest within ten years, and in case of failure to do so the mortgage deed shall be treated to be a sale deed in favour of the petitioner. The respondent no. 4 failed to repay the loan and on expiry of ten years and six months, the petitioner filed a Declaratory Suit under Section 229-B of the U.P. Z.A. & L.R. Act, namely Suit No. 184 / 121 / 139 before the Assistant Collector, Basti Sadar to declare him as bhumidhar of the said Plot No. 287 / 0.288 pursuant to the mortgage deed dated 13.11.1991. It has been alleged that the petitioner filed evidence to show that he was in possession since 1991 and also produced oral evidence and the statements of the villagers regarding his possession.
5. During the pendency of the said Suit, the respondent no. 4 filed a written statement on 16.6.2003 and disputed ever having executed such a mortgage deed dated 13.11.1991 or having delivered possession to the petitioner. The respondent no. 4 moreover sold off the property to one Jokhan arrayed as respondent no. 5 herein on 5.9.2003. The respondent no. 5 tried to evict the petitioner from the plot in question, therefore the petitioner filed an application for impleadment of respondent no. 5 as defendant no. 2 in the said Suit and prayed for interim order, the learned Court below passed an order on 1.10.2003 for impleadment of respondent no. 5 as defendant no. 2 in the said Suit and defendant no. 2 was stopped from interfering in the possession of the petitioner till further orders. The respondent no. 5 also filed a written statement disputing the contents of the said plaint.
6. It is the contention of the learned counsel for the petitioner that at the time of admission of the said Suit, ten issues were framed. The first issue pertained to applicability of Section 164 of the U.P. Z.A. & L.R. Act. The second issue pertained to the validity of the sale deed dated 5.9.2003, and whether it was barred by the Section 52 of the Transfer of Property Act. The third issue related to Rule 209 of the U.P. Z.A. & L.R. Act. The fourth issue related to Sections 17 & 49 of the Registration Act. The fifth issue related to applicability of Section 106 of the Panchayati Raj Act. The seventh issue related to applicability of Section 49 of the U.P. Consolidation of Holdings Act and the tenth issue related to applicability of Sections 34 & 35 of the Land Revenue Act. Other issues were of an ancillary nature.
7. However, it has been submitted by the learned counsel for the petitioner that none of these issues were dealt with individually, but all were taken together and by impugned order dated 25.11.2010, the Suit was dismissed on the ground that the petitioner could not prove his possession over the plot in question.
8. Aggrieved by the impugned order dated 25.11.2010, the petitioner filed an Appeal before the Divisional Commissioner, Basti which was dismissed on 14.1.2011.
9. The petitioner thereafter filed a Second Appeal before the Board of Revenue which was also rejected at the admission stage itself.
10. Challenging the orders passed by the three Courts below, this writ petition has been filed mainly on the ground that the applicability of Sections 164 & 209 of the U.P. Z.A. & L.R. Act, and Section 52 of the Transfer of Property Act were not looked into at all. The Suit was decided summarily and the First Appeal and Second Appeal were also rejected summarily only the ground that the petitioner could not prove his possession.
11. It has been contended that no expert opinion was sought by the learned Trial Court or the Appellate Court with regard to validity of the mortgage deed dated 13.11.1991. The burden of proof was wrongly shifted upon the petitioner to prove the mortgage deed dated 13.11.1991 and a Declaratory Suit was decided only on the basis of finding on possession being recorded against the petitioner.
12. A counter affidavit has been filed jointly by the respondent nos. 4 & 5 wherein they have disputed the applicability of Section 164 of the U.P. Z.A. & L.R. Act and have specifically stated that the alleged mortgage deed dated 13.11.1991 was a forged and fabricated document which was unregistered, and no possession was delivered to the plaintiff as alleged by the plaintiff / petitioner herein. The sale deed dated 5.9.2003 transferring the plot in question in favour of the respondent no. 5 was a registered sale deed. The respondent nos. 4 & 5 had also proved their continued possession over the land in question.
13. A rejoinder affidavit has been filed by the petitioner wherein he has relied upon his contention of having possession over the land in terms of the interim order dated 1.10.2003, till the date of dismissal of his Suit and has adverted to two judgments of the Hon'ble Supreme Court and of this Court respectively rendered in Smt. Rama Devi Vs. Dilip Singh 2008 104 Rd 538 and Faggal Vs. State of U.P. 2008 (105) RD 496.
14. At the time of argument, learned counsel for the petitioner repeatedly emphasised from the order passed by the Additional Sub Divisional Magistrate, Basti dated 25.11.2010 that although ten issues were framed initially at the time of admission of the Suit, none of them were dealt with sufficiently, and the Suit was dismissed only on the ground that the petitioner could not prove his possession since 1991.
15. Sri Paras Nath Singh, learned counsel for the respondent nos. 4 & 5 pointed out to this Court that under Section 164 of the U.P. Z.A. & L.R. Act a mortgage of land along with delivery of possession alone can be considered as a sale not requiring registration, or completion of other essential formalities under the Transfer of Property Act, or the Registration Act.
16. In this case, a specific procedure had been prescribed under Rules 148 and 149 of the U.P. Z.A. & L.R. Act, with reference to Section 164, which provides that Lekhpal as soon as he learns of transfer mentioned in Section 164, shall submit a report to the Assistant Collector, Incharge / Sub Divisional Magistrate and on the basis of the said detailed report with regard to name, parentage, address of transfer and transferee, date of transfer of possession, nature of transfer, and number and area of plot's transfer, the Assistant Collector Incharge / Sub Divisional Magistrate shall call upon the parties concerned to show cause why action under Section 164 should not be taken in respect to the land in question. After hearing the parties and making such further enquiry as he considered necessarily, the Assistant Collector shall pass suitable orders including correction of papers accordingly.
17. It has been submitted by the learned counsel for the respondent nos. 4 & 5 that even if the mortgage alleged to have been executed on 13.11.1991 is to be taken at its face value, then since 1991 upto 2003, several Partals had been conducted by the Lekhpal, who is duty bound to conduct such Partals of his area. If possession had been delivered and Lekhpal would have concluded that such delivery of possession by respondent no. 4 to the petitioner had indeed taken place, then in some or the other report with regard to such Partals, the Lekhpal would have mentioned that the possession had been transferred. Since transfer of possession was never mentioned in any report by the Lekhpal or any other Revenue Official, and there was no entry in any Khasra, the petitioner could not prove transfer of possession / usufructuary mortgage allegedly concluded between the parties in 1991.
18. It has also been pointed out by Sri Paras Nath Singh, Advocate that possession being an essential ingredient for considering such mortgage under Section 164 to be a transfer, under Section 155, and possession itself could not be proved by the petitioner, there was no need for any further enquiry on any of the issues framed by the Sub Divisional Magistrate at the admission stage.
19. It is also his case that under Section 331 of the U.P. Z.A. & L.R. Act Schedule II has been mentioned and it is provided that no Court other than a Court mentioned in column 4 of schedule II shall, take cognizance of any Suit / Application of as mentioned in column no. 3 thereof, and he also referred to schedule II and stated that from a bare perusal thereof, it is evident that although Sections 143, 144, 157(2), 161, 163 and 167 read with sections 201 & 202 have been mentioned in the said Schedule, there is no mention of Section 164.
20. It is his contention on the basis thereof, that no such Suit could have been filed by the petitioner under Section 229-B of the U.P. Z.A. & L.R. Act.
21. It has been contended that proceedings should have been undertaken under Rules 148 & 149 by the Lekhpal and the Sub Divisional Magistrate either Suo Moto or an application moved in this regard by the interested party in this case i.e. the petitioner.
22. Mr Paras Nath Singh, learned counsel for the respondent Nos. 4 and 5 has also pointed out pages 10 and 11 of the rejoinder affidavit and from the same he has emphasized that the signatures/name of Chinta Haran has been appended to the document at the very bottom, after a huge gap between it and the writing of the document. He says that if any transfer is made through a deed, the transferor and the transferee both ensure that their signatures were appended right after the writing of the deed as it would prevent any interpolation thereafter. In this case, there is a huge gap between what has been written on the document and the alleged signatures of Chinta Haran.
23. It is his case that since Chinta Haran had earlier sold certain part of the same plot in question to the petitioner, some extra stamp papers may have been signed by Chinta Haran, which were utilized by the petitioner in making out a forged mortgage deed as aforesaid in the name of Chinta Haran for the benefit of the petitioner.
24. It is his argument that the observations made by Sub Divisional Magistrate after going through all facts as well as the document of alleged mortgage relied upon by the petitioner had rightly dismissed the Suit and such dismissal may not be interfered with. Besides, there were concurrent findings of three learned courts below and this Court should not interfere in such matters lightly.
25. Mr Paras Nath Singh, learned counsel for the respondent Nos. 4 and 5 has relied upon a judgment rendered by co-ordinate Bench of this Court in Indra Prasad and others vs. Board of Revenue, U.P. and others, 1984 RD 37, paragraphs 5 and 6 thereof, specifically with regard to section 164 proceedings and burden of proof lying initially on the plaintiff to establish positively that as a result of mortgage being instituted in their favour, they got into possession of the plot in question. Since, the petitioner could not prove his possession, every other argument made by the learned counsel for the petitioner or issues framed by the Sub Divisional Magistrate, which allegedly have not been decided, became redundant and were liable to be ignored.
26. Learned counsel for the petitioner on the other hand in his rejoinder submitted that as is evident from page 18 of the writ petition, sugar cane was grown on the plot in question by the petitioner as has been reported in the Cane Survey Report of 2009-10. He has also made an argument although subsequently retracted that Rules 148, 149 were deleted in 1953 with retrospective effect.
27. From a perusal of Act and Rules, it is evident that sections 147 and 151 of U.P. Z.A. & L.R. Act has been deleted in 1953 and not Rules 148 and 149 of the Rules.
28. He has also argued that it was the duty of the trial court to record the oral statement of all witnesses and also summon records, so as to conclusively give a finding as to possession of the plot being or not being with the petitioner, which he failed to do, and therefore, the order impugned is liable to be set aside.
29. It is his case that he had rightly filed a suit under section 229-B read with section 209 of the U.P. Z.A. & L.R. Act and he had no cause to file application under Rule 148 and 149 of the Rules.
30. Since, both the learned counsel have referred to Sections 155, 164 & 166 of the U.P. Z.A. & L.R. Act, the aforesaid three Sections are being quoted herein below:-
"Section 155. Mortgage of land by a bhumidhar- No bhumidhar shall have the right to mortgage any land belonging to him as such where possession of the mortgaged land is transferred or is agreed to the transferred in future to the mortgagee as security for the money advanced or to be advanced.
Section 164. Transfer with possession by a bhumidhar to be deemed a sale- Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.
Section 166. Every transfer made in contravention of the provisions of this Act, shall be void."
31. Under Section 155, a bhumidhar cannot mortgage his land where such mortgage deed included transfer of possession either in the present or in the future, as security for the money advanced or to be advanced.
32. Under Section 164, if a bhumidhar for the purpose of securing any payment of money advanced or to be advanced by way of loan, or on existing or future debt or a pecuniary liability, transfers possession of his land for securing repayment to another, it shall be deemed at all times and for all purposes to be a sale to the transferee, and to every such sale the provisions of Section 154 and Section 163 shall apply.
33. Section 154 relates to restriction on transfer by a bhumidhar, if such transfers would mean that the transferee would come into possession of more than 12.50 acres of land in Uttar Pradesh. Such transfer in favour of Cooperative Societies however being exempted. Every transfer of land in excess of limit prescribed under sub section (1) requires prior approval of the State Government.
34. Section 163 dealt with the consequences of transfer made in contravention of the provisions of the Act which have now been provided in Section 166, and therefore Section 163 has been omitted by way of an Amendment. Rules 148 & 149 have also been relied upon.
35. During the course of arguments, Rules 148 and 149 were referred to and they are being quoted herein below:-
"148. Section 164- The Lekhpal shall as soon as he learns of a transfer mentioned in Section 164 submit a report to the Assistant Collector In-charge of the sub-Division mentioning therein-
(a) the name, parentage and address of the transferor and the transferee;
(b) the number and area of the plots transferred;
(c) the date of the transfer of possession, and
(d) the nature of the transfer.
149. (1) On receipt of the report from the Lekhpal or information from any interested party the Assistant Collector In-charge of the Sub-Division shall call upon the parties to show cause why action under Section 164 should not be taken in respect of the land in question.
(2) After hearing the parties and making such further inquiry as he considers necessary, the Assistant Collector shall pass suitable orders and shall also order the correction of papers accordingly."
36. It is evident from the language of Section 164 that for a mortgage to be treated as a sale outright transfer of possession is necessary to secure the loan. In Indra Prasad & others Vs. Board of Revenue, U.P. 1984 RD 37, it has been observed in paragraphs 4 & 5 thus:-
"4. Section 164 of the U.P. Zamindari Abolition and Land Reforms Act provides that when any Bhumidhar makes a transfer of any holding or part thereof by which the possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan then notwithstanding anything contained in the document of transfer, it shall be deemed to be a sale to the transferee.
5. Thus, in view of the Section, it was for the plaintiffs to establish positively that as a result of the mortgage executed in their favour they got into possession. The Additional Commissioner noted that while the mortgage was executed in 1360 Fasli, the name of Parshuram, the father of the plaintiffs, was entered in 1359 and 1361 Fasli. The names of the plaintiffs were recorded for the first time in 1365 Fasli. The Commissioner found that the possession was not transferred to the plaintiff in pursuance of the mortgage and therefore the Additional Commissioner dismissed the Suit. The Board of Revenue found that the plaintiffs did not try to get the mortgage acted upon by getting their names mutated in place of the mortgagor. The Board of Revenue also found though not in so many clear words that the finding on the question as to whether the plaintiffs got the possession on the basis of the mortgage or not, was a finding of fact which was binding on the Board of Revenue."
(emphasis supplied)
37. In the judgment relied upon by the learned counsel for the petitioner, viz Smt. Rama Devi Vs. Dilip Singh 2008 (104) RD 538, the Hon'ble Supreme Court was considering the question as to whether usufructuary mortgage would or would not be deemed to be sale as provided under Section 164 of the U.P. Z.A. & L.R. Act. Under Section 164 of the U.P. Z.A. & L.R. Act that a transaction would be deemed to be a sale to transferee from the very inception i.e. from the date of execution of usufructuary mortgage if transfer of possession in pursuance thereof is given to the mortgagee. The provisions of Section 60 of the Transfer of Property Act would not be applicable to such mortgage, and the mortgagor will have no right to redeem the mortgage, and to claim possession from the mortgagee by offering to make payment of the loan amount. According to the Hon'ble Supreme Court, a deeming provision in a statute postulates that a thing deemed to be something else is not, in fact, the thing which it is deemed to be, and it is to be treated as if it is that thing, though in fact it is not.
38. The Hon'ble Supreme Court relied upon judgments rendered in Smt. Bhagwatiya Vs. Deputy Director of Consolidation, Deoria & others 1981 (2) RD 60 and Sati Prasad & another Vs. Deputy Director of Consolidation, Kanpur & other 1993 RD 13.
39. In Ramanand Vs. Deputy Director of Consolidation, Basti 1993 RD 91 (HC), this Court held that the moment an usufructuary mortgage take place and the bhumidhar transfers possession of his land with a view to secure the loan to the mortgagor, it becomes a sale outright and shall be deemed as such and would not require the formalities under the Registration Act or the Transfer of Property Act to be completed.
40. This Court for the aforesaid proposition relied upon its own judgment Thakur Das Vs. Deputy Director of Chakbandi & others 1986 RD 35.
From the aforecited decisions by the parties, it is evident that a transfer by way of mortgage is prohibited under Section 155 of the U.P. Z. A. & L.R. Act.
41. Therefore, under Section 164, the legislature found it fit to provide that even in cases where a loan is taken without necessarily referring to it as a mortgage by the bhumidhar, and the bhumidhar for securing repayment of the loan or any other pecuniary liability arising out of it, transfers possession of his land, it shall be deemed to be a sale and the provisions of the U.P. Z.A. & L.R. Act prohibiting such sale without prior approval or fulfilment any other conditions mentioned in the U.P. Z. A. & L.R. Act would be void.
42. In this case, the petitioner could not prove delivery of possession of the disputed plot at the time of alleged unregistered deed dated 13.11.1991.
43. On the other hand, the learned Trial Court found from a perusal of the evidence that the said unregistered document referred to as an usufructuary mortgage by the petitioner was quite doubtful as the signatures of the mortgagor, in this case respondent no. 4, had been made at the same place on both pages of the document. At the base of second or the last page, the transcription of the deed ended much above the signatures of the respondent no. 4, it was also made in a different ink.
44. Learned Trial Court also found that the respondent no. 5 had filed documentary evidence to show that right from the initial date of sale through registered sale deed on 5.9.2003, he had continued in possession and there were reports of the Revenue Officials of his boring, crop of rice and sugarcane being sown therein.
45. Before this Court, the petitioner has tried to show that he was in possession after the interim order was granted on 1.10.2003, and he has filed copies of cane survey report of the year 2009-2010 as Annexure 1 to the writ petition, however, these documents have been issued by the Cooperative Cane Development Society, Basti which only reveal that 463.36 quintals of sugarcane was delivered at the main gate of the sugar mill. There is no mention of the plot number on which such sugarcane was sown and reaped.
46. Learned Trial Court below and the Appellate Courts have correctly come to a conclusion that the petitioner failed to prove possession being delivered to him in pursuance of the alleged mortgage deed dated 13.11.1991. The findings of fact recorded by the learned Courts below cannot be interfered with by this Court, unless they are shown to be manifestly perverse.
47. Moreover, this Court finds that by filing a Suit under Section 229-B of the U.P. Z.A. & L.R. Act, the petitioner was attempting to secure by way of amendment in the said Suit, a declaration of the registered sale deed dated 5.9.2003 as void. No such declaration could have been given by the Revenue Court. The petitioner could have filed a regular Suit before a civil Court of competent jurisdiction to get the registered sale deed dated 5.9.2003 declared as void, which he did not do for reasons best known to him.
48. There is no factual or legal infirmity in the order impugned.
49. The writ petition is dismissed. No order as to costs.
Order Date :- 20.8.2018 Arif