Reserved Court No. - 17 Case :- WRIT - B No. - 2981 of 1982 Petitioner :- Ram Awadh Respondent :- D.D.C. & Others Counsel for Petitioner :- U.S.M. Tripathi,Dinesh Kumar Rai,Dr. V.K. Rai,Rakesh Pande,Satyendra Mani Tripathi,Vinod Kumar Upadhyay Counsel for Respondent :- F. Rai,C K Rai,Chandra Kumar Rai,S.C.
Hon'ble Rajiv Joshi,J.
This writ petition has been filed for quashing the order dated 18.12.1981 passed by the Deputy Director of Consolidation, Gorakhpur, whereby the revision filed by the contesting respondent nos. 3 to 5 was allowed and the order dated 24.10.1977 passed by the Settlement Officer Consolidation was set aside.
The facts as reflect from the record are thus:
A sale deed was executed on 10.3.1958 by Smt. Asharfa and Smt. Gangotra in favour of the petitioner with respect to their landed properties, a portion of which was situated at Azamgarh and the other portion at Gorakhpur. The sale deed was registered with Sub Registrar, Sagari, District Azamgarh. The present matter relates to the property situated at Gorakhpur. On the basis of the registered sale deed, the name of the petitioner was mutated in the revenue record.
During consolidation operation, due to some mistake, since name of the petitioner did not appear in C.H. Form No. 5, therefore, he filed an objection under Section 9A (2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as Act) claiming 1/3rd share in the disputed land. The respondent nos. 3 to 5 contested the matter on the ground that major portion of the land situates at Gorakhpur and the sale deed has been executed fraudulently at Azamgarh showing some land in the name of vendor at Azamgarh, therefore, the sale deed is void and on the said basis, the petitioner's name cannot be entered in revenue records.
The Consolidation Officer, Ghujhuli Gorakhpur vide order dated 20.1.1976 rejected the objection of the petitioner on the ground that sale deed is void as it has been registered under suspicious circumstances at Azamgarh, which is not in accordance with provisions of Section 28 of the Registration Act, 1908.
Against the said order, the petitioner filed an appeal under Section 11 (1) of the Act, which was allowed by the Settlement Officer Consolidation vide order dated 24.10.1977, whereby the order of the Consolidation Officer was set aside with the finding that sale deed is valid and Smt. Asharfa and Smt. Gangotra, who executed the sale deed had a right over the land in dispute to the extent of 1/3rd share. Accordingly, the objection filed by the petitioner under Section 9(A) (2) of the Act was allowed.
Aggrieved by the order of the Settlement Officer Consolidation dated 24.10.1977, respondent nos.2 to 5 filed a revision before the Deputy Director of Consolidation, Gorakhpur under Section 48 of the Act, which was allowed by the revisional authority setting aside the order passed by the Settlement Officer Consolidation and affirming the order passed by the Consolidation Officer.
The order dated 18.12.1981 passed by the Deputy Director of Consolidation, Gorakhpur and the order dated 20.1.1976 passed by the Consolidation Officer are impugned in the writ petition.
I have heard Sri Rakesh Pandey, learned counsel for the petitioner and Sri C.K. Rai, learned counsel for the contesting respondents.
The contention of learned counsel for the petitioner is that the sale deed dated 10.3.1958 executed by Smt. Asharfa and Smt. Gangotra in favour of the petitioner is valid and cannot be said to be void as some portion of the land is situated at Azamgarh and the other portion, was situated at Gorakhpur and the said deed has been registered at Azamgarh as per provisions of section 28 of Registration Act.
It is further contended by the counsel for the petitioner that as per the provisions of Section 28 of the Registration Act as prevailing at the relevant point of time, Smt. Asharfa and Smt. Gangotra have a right to execute the sale deed in favour of the petitioner and as they have the land in their names at Azamgarh also, therefore, sale deed has rightly been executed at Azamgarh. The order impugned has wrongly been passed just on the basis of presumption and contrary to Section 28 of the Registration Act and as such the said order is liable to be quashed and the order passed by the Settlement Officer Consolidation deserves to be restored in the facts and circumstances of the case.
On the other hand, Sri. C.K. Rai, learned counsel for the respondent submitted that the registration of sale deed at Azamgharh had purposely been made although the major portion of the land situate at Gorakhpur. The Deputy Director of Consolidation has considered each and every aspect of the matter while allowing the revision and therefore, no interference is called for under the writ jurisdiction.
I have considered rival submissions of the parties and gone through the record.
A finding has been recorded by the Deputy Director of Consolidation in the impugned order that Smt. Asharfa and Smt. Gangotra have share in the disputed property and they have right to execute the sale deed but the sale deed was declared to be void on the ground that the same has been executed under suspicious circumstances at Azamgarh, although the land in dispute lies at Gorakhpur.
Now the question arises whether the sale deed executed by Smt. Asharfa and Smt. Gangotra in favour of the petitioner on 10.3.1958 at Azamgarh accordingly to viz the major portion of the land situated at Gorakhpur and some portion of land at Azamgarh, is valid or can be said to be void?
It is admitted by the parties that the bhumdhari plot of the land bearing No. 1063/1 and 1059/1 in Village Bachhaur Khas, Tehsil Sagari, District Azamgarh was recorded in the names of Smt. Asharfa and Smt. Gangotra. In paragraph-6 of the writ petition, it is specifically stated that Smt. Asharfa and Smt. Gangotra had the Bhumidhari plots in their names at Azamgarh which fact was admitted by the respondents in paragraph-8 of their counter affidavit wherein the reply given was that the land situated at Village Bachhaur Khas, Tehsil Sagari, District Azamgarh was fraudulently included in the sale deed with evil designs for execution of fraudulent sale deed in respect of land in dispute and the said transfer of land is wholly illegal.
Section 28 of the Registration Act, is quoted hereinbelow for ready reference:
“28. Place for registering documents relating to land.—Save as in this Part otherwise provided, every document mentioned in section 17, sub- section (l), clauses (a) , (b), (c) [,(d) and (e), section 17, sub-section (2), insofar as such document affects immovable property,] and section 18, clauses (a), (b) 2[(c) and (cc),] shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.”
From bare reading the said Section 28 of the Registration Act, it is apparent that the instrument mentioned in Section 17, sub Section (1) clauses (a), (b), (c), (d) and (e), Section 17 sub-Section (2) in so far as such documents affects immovable properties shall be presented for registration in the office of Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.
The word “or some portion” has been omitted by the U.P. Amendment vide Uttar Pradesh Act No. 27 of 1994. Since the sale deed was executed in the year 1958 and therefore, at that time Section 28 of the Registration Act prevails according to which instrument can be presented for registration in the office Sub- Registrar within whose jurisdiction the whole or some portion of the property to which such document relates is situate.
It is admitted position that small portion of land in the name of Smt. Asharfa and Smt. Gangotra situated at Azamgarh also and the remaining portion was situated at Gorakhpur and therefore, the sale deed has rightly been registered at Azamgarh and the same is valid one. The finding as recorded by the Deputy Director of Consolidation that the sale deed was executed under suspicious circumstances at Azamgarh and is void, is wholly perverse and illegal. There is nothing available on record to sustain the finding recorded by the Deputy Director of Consolidation to the effect that sale deed in question has been executed under the suspicious circumstances at Azamgarh.
In the facts and circumstances of case as stated above, the writ petition is allowed and impugned order dated 18.12.1981 passed by the Deputy Director of Consolidation, Gorakhpur is quashed upholding the order dated 24.10.1977 passed by the Settlement Officer Consolidation.
No order as to costs.
Order Date :- 30.7.2018 Noman