JUDGMENT Ashok Bhushan, J.
1. Heard counsel for the petitioner.
2. By this writ petition, the petitioner has prayed for quashing order dated 27.1.2006 passed by Deputy Director of Consolidation, Saharanpur. Brief facts necessary for deciding the writ petition are; one Atma Ram was the original tenure holder of land in dispute. He executed an agreement to sell of agricultural land, in favour of Bharat Singh, the predecessor in interest of contesting respondents on 31.10.1968. A suit was filed by Bharat Singh for specific performance of the agreement in the year 1967 which suit was decreed by the Civil Court vide judgment and order dated 20.4.1971, The decree was put into execution and the learned Civil Judge executed a sale deed in favour of Bharat Singh on 6.6.1975. In pursuance of sale deed dated 6.6.1975 possession was taken by Bharat Singh by the Dakhalnama dated 19.8.1975. The notification under Section 4(2) of the U.P. Holdings Act 1953 was issued on 1.11.1973. Atma Ram the original tenure holder has executed a sale deed in favour of Smt. Kaiawati on 21.6.1969 on the basis of which sale deed name of Kalawati was recorded in the basic year. At the time of Partal one Phullu s/o Atma Ram claimed possession and rights on the basis of adverse possession. Second objection was filed by Bharat Singh, father of respondent No. 4 to 7 claiming rights on the basis of sale deed dated 6 6.1975. Third objection was filed by one Smt. Skakuntala Devi claiming 1/3rd share on the basis of sale deed by Smt. Kalawati. Fourth objection was filed by Smt. Kanti Devi claiming unauthorised possession on plot in dispute and claimed right on that basis, Consolidation Officer rejected all the fourth objections vide his order dated 31.1.1976 and maintained the entry of Smt. Kalawati. Against the order of Consolidation Officer only Bharat Singh filed an appeal before Settlement Officer of Consolidation which was dismissed by Settlement Officer of Consolidation on 5.6.1978. The Consolidation Officer and the Settlement Officer of Consolidation took the view that sale deed executed in favour of Bharat Singh dated 6.6.1975 has been executed "without obtaining prior permission of Settlement Officer of Consolidation as required by Section 5(1)(c) of the U.P. Consolidation of Holdings Act., 1953, hence no right can be given to Bharat Singh. The sale deed of Bharat Singh was not held to be valid due to want of permission under Section 5(1)(c) of the U.P. Consolidation of Holdings Act, 1953, The Settlement Officer of Consolidation observed that the sale deed is void. Bharat Singh filed a revision challenging the order of Settlement Officer of Consolidation which revision has been allowed by the Deputy Director of Consolidation vide his judgment dated 27.1.2006. The Deputy Director of Consolidation held that no permission was required under Section 5(1)C(ii) since the sale deed was executed by Civil Judge in execution of the decree of Civil Court. Deputy Director of Consolidation held that Consolidation Officer as well as Settlement Officer of Consolidation committed error in holding the sale deed void- Smt. Kalawati the recorded tenure holder had executed a sale deed in favour of Manmohan Singh Bahal and Virendra Singh Bahal who in turn had executed the sale deed in favour of Nazim. This writ, petition has been f led by Nazim the vendee challenging the order of Deputy Director of Consolidation dated 27.1.2006.
3. The learned Counsel for the petitioner challenging the order contended that permission under Section 5(1)C(ii) of the U.P. Consolidation of Holdings Act, 1953 was necessary before execution of the sale deed and Bharat Singh did not acquire any right on the basis of sale deed which was executed in the contravention of Section 5(1)C(ii) of the Act.
4. I have considered the submissions and perused the record.
5. The Section 5(1)C(ii) of the UP. Consolidation of Holdings Act, 1953 has it institute of the relevant period is quoted below:-
5. Effect of notification under Section 4(2).- (1) Upon the publication of the notification under Sub-section (2) of Section 4 in the Official Gazettee, the consequences, as hereinafter set forth, shall subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or Sub-section (1) of Section 6, as the case may be, ensure in the area to which the notification under Sub-section (2) of Section 4 relates, namely-
(a) ...
(b) ...
(C) notwithstanding anything contained in the UP Zamindari Abolition and Land Reforms Act, 1950, no tenure- holder, except with the permission in writing of the Settlement Officer, Consolidation, previously obtained shall-
(i) use his holdings or any part thereof for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming; or
(ii) transfer by way of sale, gift or exchange his holding or any part thereof 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 the prior to the date specified in the notification issued under Sub-section (2) of Section 4.
6. The permission under Section 5(1)C(ii) is required to be taken by a tenure holder before transferring land situate in a consolidation area. The injunction contain in Sub-section c is against the tenure holder, the key words in section are "no tenure holder, except with the permission in writing shall." Thus the restriction is with regard to acts of the tenure holder. The injunction contained in Section 5(1)(c) cannot be enforced against the Civil Court when the sale deed is being executed in pursuance of decree of the Civil Court.
7. The above view has been taken by this Court in Smt. Bhagwati v. Deputy Director of Consolidation reported in 1983 RD 201. In the aforesaid case the same question came for consideration before the Court as to whether when the Civil Court executes a sale deed whether it is necessary to seek permission under Section 5(1)(C)(ii) of the Act. The Court answered the said question in negative in following words:-
To my mind the restriction contained in Section 5(c)(ii) of the UP Consolidation of Holdings Act rotates to a voluntary sale by the tenure holder. If the tenure holder refuses to execute sale deed in pursuance of an agreement to sell and the Civil Court is called upon to execute necessary sale deed in favour of the decree holder, it would be too much to expect that the Civil Court should seek permission of the Settlement Officer of Consolidation for executing the necessary sale deed in favour of the decree holder. If the contentions raised on behalf of the petitioner are accepted, there are chances that the decree passed by the Civil Court would become ineffective if the for specific performance of a contract to sell to grant permission. The provisions of Section 5(2) of the Act do not apply to suits for specific performance of a contract to sell as is evident from several decisions of this Court. If the bar contained in Section 5(c)(iii) is imposed upon the Civil Court, the net result would be that an unwilling tenure holder cant get en opportunity to thwart the civil court decree in an undesirable manner.
Mere reading of Section 5(c)(ii) of the Act indicates that the bar contained in the aforesaid section is only upon tie tenure holder. If the Civil Court executes a sale deed against the will of the tenure holder it would not at all be necessary for the Civil Court to seek permission of the Settlement Officer of Consolidation under the provisions of Section 5(c)(ii) of the Act.
8. The same view has again been taken by an another Hon'ble judge of this Court in a judgment reported in 1987 RD 403 Ambika Prasad v. Deputy Director of Consolidation and Ors. Following was laid down by the Court:
In view of the above it is quite clear that wherever restriction has been imposed on the tenure holder in making transfer of land without obtaining prior permission of the competent authority, the same would apply only to voluntary sales and not to sale deed executed by Court in execution of decree where the tenure holder refuses to execute sale deed in pursuance of decree passed against mm. Thus, in this view of the matter I do not find any merit in the contention of the learned Counsel for the opposite parties and I find that the Deputy Director of Consolidation has legally erred in holding invalid the sale deed dated October 14, 1977 executed by Additional Munsif, Bahraich in favour of the petitioner in execution of decree for specific performance of contract passed in his favour in Suit No. 280 of 1968. The sale deed, being perfectly valid, the petitioner acquired Bhumidari rights on its basis and the two sub-ordinate consolidation authorities have rightly upheld the contention of the petitioner.
9. The view taken by Deputy Director of Consolidation holding that sale deed executed by Civil Court dated 6.6.1975 in favour of Bharat Singh was not void due to want of permission under Section 5(1)(c)(ii) is in consonance with law laid down by this Court. Both Consolidation Officer and Settlement Officer of Consolidation had taker erroneous view in holding sale deed void. The Deputy Director of Consolidation has rightly allowed the revision and directed the recording of the name of Bharat Singh on the basis of sale deed dated 6.6.1975 executed by Civil Court.
10. There is one more reason for upholding the order of Deputy Director of Consolidation. The suit for specific performance of the agreement to sale dated 31.10.1968 was filed by Shri Bharat Singh against Atma Ram, Smt. Kalawati and Smt. Shakuntala. The suit was decreed after contest on 20.4.1971. Smt. Kalawati who took sale from Atma subsequent to agreement to sale was also party to the suit and was bound by decree. The decree was executed, against Smt. Kalawati who was also one of the defendant, there is no material on the record to know as to whether any objections on the basis of permission under Section 5(1)(c)(ii) was taken before the executing Court. The sale deed was executed by Civil Court in execution of decree. The view taken by Deputy Director of Consolidation advances substantial justice. The decree of Civil Court which was passed after contest has to be respected. The writ petitioner who was subsequent vendee from Smt. Kalawati can not have better rights then his vendors. The order of Deputy Director of Consolidation having done substantial justice, no case has been made out for interference in the order of Deputy Director of Consolidation dated 27.1.2006 in exercise of jurisdiction by this Court under Article 226 of the constitution of India.
11. The writ petition lacks merit and is dismissed.