Heard Mr. Mohd. Arif Khan, Senior Advocate assisted by Mr.Mohd.Adil Khan, learned counsel for the petitioner as well as Mr.Janardan Prasad, learned counsel for the contesting opposite parties.
The petitioners have challenged the order dated 21.7.2003, passed by the Consolidation Officer, Sadar, Faizabad, order dated 15.9.2008, passed by the Assistant Settlement Officer Consolidation-II, Faizabad as also the order dated 6th of October, 2008, passed by the Deputy Director of Consolidation, Faizabad, inter alia on the ground that the Consolidation Courts have no jurisdiction to adjudicate upon the validity of the Registered Sale deed executed in their favour. Further for execution of sale deed of the agricultural property the natural guardian was not under obligation to seek permission from the court under the Hindu Minor and Guardianship Act. It is further stated that till date the sale deed has not been challenged before the court of competent jurisdiction.
The opposite parties have contested the matter with the submission that the sale deed itself is forged one as Nankoo who was recorded as Sirdar of the land in dispute died on 19th of June, 1970 leaving behind his son Bhoolan. However, after his death just on the next date the nephew of Nankoo, namely, Panchoo obtained a certificate of bhumidhari right in the name of Nankoo and through the imposter he succeeded to get executed the sale deed of the land in dispute on the same very date in the name of his minor son Shiv Kumar and his minor nephew Jagdamba, son 2 of Jethu showing himself to be guardian. After the death of Nankoo name of his son Bhoolan was recorded in Khatauni. No objection was raised by Panchoo on the basis of the alleged sale deed. Subsequently, Panchoo claiming himself as guardian of those minors executed a sale deed in favour of petitioners on 17th of October, 1970 without seeking permission from the District Judge. On the basis of the said sale deed the petitioners filed an application for mutation of their names in revenue records. They also succeeded to get mutated their names under the order dated 13th of December, 1971, passed by the Sub Divisional Officer. Being aggrieved with which the revision was filed before the Additional Commissioner, who set aside the order passed by the Sub Divisional Officer and referred the matter to the Board of Revenue. In the meantime the petitioners succeeded to get recorded their names in the revenue record i.e. Khatauni as the order passed by the Additional Commissioner was not endorsed in the revenue record. In the meantime the village concerned was notified under the consolidation operation and the case was abated. Consequently a fresh proceeding was started before the consolidation Officer. The consolidation courts at the various stages have passed the orders, which are under challenge through the present writ petition.
The Consolidation Officer has recorded the finding that Nankoo died on 19th of June, 1970. It has also observed that since the sale deed executed by allged Nankoo is forged one, Jagdamba and Shiv Kumar were not authorized to execute the sale deed under the Guardianship of Panchoo, who executed the sale deed without seeking permission from the court of competent jurisdiction. Accordingly he passed the order of deletion of petitioners' names from the revenue records. In the appeal the Settlement Officer Consolidation has observed that after abatement, before the consolidation court when fresh proceeding has started then the order passed in the matter automatically 3 becomes ineffective and does not remain binding on the parties. On the question of date of death of Nankoo relying upon the certificate issued by the Panchayat Secretary on 24th of July, 1970, which indicate the date of death of Nankoo as 19th of June, 1970, it has been observed that Nankoo died on 19th of June, 1970. Accordingly it has been observed that once Nankoo died on 19 th of June, 1970, there was no occasion to execute the sale deed by him on 20th of June, 1970. The petitioners also did not move any application for mutation of their names, whereas it is Ram Bharosey who purchased the land from Bhoolan moved an application for mutation of his name in the revenue records. Accordingly he dismissed the appeal. Then the petitioners filed revision. In the revision also the Deputy Director of Consolidation has given a concurrent finding on the date of death of Nankoo, which is based on the certificate issued by the Panchayat Secretary as is registered in the Birth and Death register. The Gram Pradhan and Panchayat Secretary is competent authority to issue the said certificate. The Gram Pradhan Mahadev Singh appeared as witness and certified his signature as well as the signature of the Secretary made on the certificate. Accordingly it has been observed that when on 20th of June, 1970 Nankoo was not alive, there was no question to execute the sale deed by him. Thus on the question of date of death of Nankoo there is a concurrent finding of all the courts which does not require any further investigation by this court nor any document otherwise has been placed before me to establish that Nankoo died on some different date. So far as the question of seeking permission from the District Judge to execute the sale deed by the Guardian is concerned, the learned counsel for the petitioner has placed reliance upon a case i.e. Maya Shanker and another versus Deputy Director of Consolidation and others reported in 1984 R.D. Page 1, in which it has been held that the sale deed in question cannot be held to be void on the ground 4 that no permission was taken while transferring the land in question. On the point of jurisdiction to cancel the sale deed, he cited a decision of Hon'ble Supreme Court rendered in the case of Shri Ram and another versus Ist Additional District Judge and others reported in 2001 (92) R.D.241, relevant paragraph 6 of which is quoted hereunder:-
"6. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder, having a prima facie title and in possession files suit in the civil court for cancellation of sale deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the revenue court-reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded tenure holder seeks cancellation of sale deed by filing a suit in the civil court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the revenue court, as the sale deed being void has to be ignored for giving him relief for declaration and possession."
In support of his contention the learned counsel for the petitioners has further cited the following decisions:- (1) Lal Behari and others versus IIIrd Additional District Judge, Mirzapur and others reported in 1996 (87) R.D. (Allahabad High Court), page 156.
(2) Kamla Prasad and others versus Sri Krishna Kant Pathak and others reported in 2007 All.C.J. (SC), page1257.
(3) Smt.Dularia Devi versus Janardan Singh and others reported in AIR 1990 SC 1173.
(4) Ram Padarath and others versus Second Additional District Judge, Sultanpur and others reported in 1989 R.D. (H.C., L.B., F.B.), page 21.
Upon perusal of record in the light of the aforesaid decisions given by the different courts, I am of the view that in the present case the question for determination is whether Nankoo was alive on the date of execution of sale deed dated 20th of June, 1970 or not? Once by the courts below it has been determined with the concurrent finding that Nankoo died on 19th of June, 1970 itself then it can be held that the sale deed was executed on 20th of June, 1970 by some imposter in the name of Nankoo, therefore, the validity of sale deed becomes ancillary question and the main question is whether the sale deed was executed by Nankoo or not. The date of death of Nankoo as is recorded in the Birth and Death register maintained by the Panchayat concerned is shown as 19th of June, 1970, which has been proved by the witnesses also, therefore, there is no question of giving the finding otherwise. Thus I arrive at conclusion that once Nankoo was not alive on 20th of June, 1970, there is no question to execute the sale deed by him on that date. Thus I do not find error in the orders impugned.
The writ petition is dismissed.
Dated:21.1.2010 Banswar