# Devi v. Joint Director of Consolidation U.P. & Ors. 1973 ALJ 395

- **Citation:** (2005) 4 ILRA 1210
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-19
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devi-v-joint-director-of-consolidation-u-p-ors-1973-alj-395-40770
- **Pages:** 5

## Headnote

(A) Hindu Minority and Guardianship Act
1956-Section
11
read
with
U.P.
Consolidation
of
Holding
Act
1962Section 9-A Sale Deed executed by grand
mother-minor's
father
and
mother
already died-at the age of 24 years.
Notification under section 4 of C.W. Act
made in the year 1972-minor, attain
majority in the year 1968-6years period
of limitation would expire in 1974- of
adverse possession not available.

Held:Para 16 and 17

On the basis of evidence brought on
record in the form of voter list of 1973
and Parivar register the Settlement
Officer
Consolidation
held
that
the
petitioner attained majority either in
1968 or in 1972. The said finding of the
Settlement Officer Consolidation is based
on the voter list wherein the age of the
petitioner is recorded as 24 years and
the parivar register wherein this date of
birth is 25.2.1954. Thus in any case even
if the starting point of limitation is taken
to be 1968 when the petitioner attained
majority, six years period would expire
in 1974. Admittedly the village was
notified for consolidation operation on
20.5.1972. After commencement of the
consolidation operation no suit under
Section 209 of U.P.Z.A.& L.R. Act can be
filed, the jurisdiction being barred and
hence non-filing of suit would confirm no
rights on the person who was in
possession an the date the consolidation
proceedings started if the limitation for a
suit under Section 209 of U.P.Z.A. & L.R.
Act has not till them run out. In other
words if before the expiry of the
prescribed
period
of
limitation
consolidation
intervenes
then
the
limitation
prescribe
by
section
209
stands arrested. The view taken by me
finds support from a division bench
judgment of our court in the case of Smt.
K.
Devi
Vs.
Joint
Director
of
Consolidation U.P. & Ors. 1973 ALJ 395.

In view of the above legal position the
period of six years from the time
petitioner attained majority having not
expired before the commencement of
the
Consolidation
proceedings,
the
respondent no.4 would not acquire any
title or right by adverse possession. The
remand order made by Deputy Director
of Consolidation cannot be said to be
justified in any manner in the aforesaid
facts and circumstances.
Case law discussed:
2001(45) ALR 820

(B) Constitution of India Art-226-writ
petition against remand order-generally
the Court I refused to interfere-but
where
the
interference
become
necessary-Court not to refused can
technical
ground-finding
of
facts
recorded by the S.O.C. without setting a
side the same-where the sale transaction
made by defects guardian found voidremand order on illegal presumption of
viodable document by the D.D.C.-cannot
be held justified -such order deserves to
be interfered.

Held: Para 18

If the court normally does not interfere
with the remand order, it does not mean
4 All] Ram Vriksha V. The Asstt. Director of Consolidation and another
1211
that there is any lack of power or the
writ petitioned is not maintainable. The
court
can
interfere
if
it
find
the
circumstances to be extraordinary or the
interference necessary in the interest of
justice. In the present case on the
material available on the record the
Settlement
Officer
Consolidation
recorded a finding of fact regarding the
age of the petitioner, Deputy Director of
Consolidation without even referring to
the said documents or setting aside the
finding of fact recorded by Settlement
Officer has remanded the case back and
that too on the illegal presumption that
the sale deed was a viodable document.

## Text

1210 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2005

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition no. 8397 of 2005

Ram Vriksha

...Petitioner
Versus
The Assistant Director of Consolidation
and another

 ...Respondents

Counsel for the Petitioner:
Sri R.S. Misra

Counsel for the Respondents:
Sri Swaraj Prakash
S.C.

(A) Hindu Minority and Guardianship Act
1956-Section
11
read
with
U.P.
Consolidation
of
Holding
Act
1962Section 9-A Sale Deed executed by grand
mother-minor's
father
and
mother
already died-at the age of 24 years.
Notification under section 4 of C.W. Act
made in the year 1972-minor, attain
majority in the year 1968-6years period
of limitation would expire in 1974- of
adverse possession not available.

Held:Para 16 and 17

On the basis of evidence brought on
record in the form of voter list of 1973
and Parivar register the Settlement
Officer
Consolidation
held
that
the
petitioner attained majority either in
1968 or in 1972. The said finding of the
Settlement Officer Consolidation is based
on the voter list wherein the age of the
petitioner is recorded as 24 years and
the parivar register wherein this date of
birth is 25.2.1954. Thus in any case even
if the starting point of limitation is taken
to be 1968 when the petitioner attained
majority, six years period would expire
in 1974. Admittedly the village was
notified for consolidation operation on
20.5.1972. After commencement of the
consolidation operation no suit under
Section 209 of U.P.Z.A.& L.R. Act can be
filed, the jurisdiction being barred and
hence non-filing of suit would confirm no
rights on the person who was in
possession an the date the consolidation
proceedings started if the limitation for a
suit under Section 209 of U.P.Z.A. & L.R.
Act has not till them run out. In other
words if before the expiry of the
prescribed
period
of
limitation
consolidation
intervenes
then
the
limitation
prescribe
by
section
209
stands arrested. The view taken by me
finds support from a division bench
judgment of our court in the case of Smt.
K.
Devi
Vs.
Joint
Director
of
Consolidation U.P. & Ors. 1973 ALJ 395.

In view of the above legal position the
period of six years from the time
petitioner attained majority having not
expired before the commencement of
the
Consolidation
proceedings,
the
respondent no.4 would not acquire any
title or right by adverse possession. The
remand order made by Deputy Director
of Consolidation cannot be said to be
justified in any manner in the aforesaid
facts and circumstances.
Case law discussed:
2001(45) ALR 820

(B) Constitution of India Art-226-writ
petition against remand order-generally
the Court I refused to interfere-but
where
the
interference
become
necessary-Court not to refused can
technical
ground-finding
of
facts
recorded by the S.O.C. without setting a
side the same-where the sale transaction
made by defects guardian found voidremand order on illegal presumption of
viodable document by the D.D.C.-cannot
be held justified -such order deserves to
be interfered.

Held: Para 18

If the court normally does not interfere
with the remand order, it does not mean
4 All] Ram Vriksha V. The Asstt. Director of Consolidation and another
1211
that there is any lack of power or the
writ petitioned is not maintainable. The
court
can
interfere
if
it
find
the
circumstances to be extraordinary or the
interference necessary in the interest of
justice. In the present case on the
material available on the record the
Settlement
Officer
Consolidation
recorded a finding of fact regarding the
age of the petitioner, Deputy Director of
Consolidation without even referring to
the said documents or setting aside the
finding of fact recorded by Settlement
Officer has remanded the case back and
that too on the illegal presumption that
the sale deed was a viodable document.

(Delivered by Hon'ble Krishna Murari, J.)

1. This petition under Article 226 of
the Constitution of India is directed
against the judgment and order dated
26.8.1980 passed by Deputy Director of
Consolidation by which the case has been
remanded back to the Settlement Officer
Consolidation.

2. The dispute arises out of
proceeding under Section 9A (2) of the
U.P. Consolidation of Holdings Act (for
short the Act) and relates to plot
no.102/65
and
khata
no.175.
The
undisputed facts are that one Raj Bali,
father of the petitioner was recorded as
sirdar of the land in dispute. He died in
1956 when the petitioner was minor, aged
about 2 years. Vide order dated 11.4.1956
passed by Naib Tehsildar, the name of the
petitioner was mutated in revenue record
in place of his deceased father. Shortly,
after the death of the petitioner's father
his mother also died. The petitioner was
under care and supervision of his grand
mother. On account of his disability,
being a minor, the petitioner was not able
to cultivate the land himself as such it was
let out to one Sawaroo, the father of
respondent no. 4 on "BATAI" (crop
sharing basis). Later on the grand-mother
of the petitioner executed a sale deed of
the disputed plot in favour of Sawaroo on
11.5.1959, on behalf of the petitioner as
his guardian. The name of Sawaroo also
came to be mutated in the revenue record.

3. On attaining majority when the
petitioner came to know about the entries
in the revenue records he field objection
under section 9 A (2) of the Act for
expunging the name of Sawaroo on the
ground that sale deed executed by his
grand mother during his minority was
void as she was not the natural guardian.
The
objection
was
contested
by
respondent no.4 on the ground that since
no suit was filed for cancellation of the
sale deed by the petitioner within
limitation, after attaining majority his
rights in the land in dispute were
extinguished and in the alternate it was
pleaded that he has perfected rights by
being in possession for about 20 years.

4. The Consolidation Officer vide
order dated 24.4.1978 dismissed the
objection filed by the petitioner. Appeal
filed against the said order was allowed
by the Settlement Officer Consolidation
vide Order dated 9.3.1997. Aggrieved the
respondent no. 4 filed a revision which
was allowed by the Deputy Director of
Consolidation and the case was remanded
back
to
the
Settlement
Officer
Consolidation.

5. The Consolidation Officer held
that petitioner did not file suit for
cancellation of sale deed within three
years of attaining the majority and the
objection has also been field by him after
more than one year of publication of
notification under Section 4 of the Act
1212 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
and the consolidation court have no power
to cancel the sale deed hence the
objection is liable to be dismissed. In
appeal
the
Settlement
Officer
Consolidation held that since the sale
deed was not executed by natural
guardian of minor hence it is hit by
Section 11 of Hindu Minority and
Guardianship Act and is void. He also
recorded a fining that consolidation
intervened before the respondent no. 4
could perfect his right by adverse
possession as such he is not entitled to
any right in the property in dispute.

6.

The
Deputy
Director
of
Consolidation was however of the view
since the sale deed was executed without
obtaining permission of District Judge as
such it was only a voidable document. He
further held that it is not clear when the
petitioner attained majority and without
ascertaining the age of the petitioner the
question whether the petitioner took steps
within limitation after attaining majority
cannot be decided. Thus he directed the
case
back
to
Settlement
Officer
Consolidation to re-determine the age of
the petiti9oner and accordingly ascertain
whether objection was field by him within
prescribe
period
of
limitation
after
attaining majority.

7. It has been urged by the leaned
counsel for the petitioner that sale deed
executed
by
grand
mother
of
the
petitioner who was not natural guardian
was void and hit by Section 11 of the
Hindu Minority and Guardianship Act.
The Deputy Director of Consolidation has
wrongly and illegally held it to be a
voidable document. It has further been
urged that there was no justification to
remand the case back for recording a
finding about the age of the petitioner as
there was enough material available on
the record on the basis of which
Consolidation Officer and Settlement
Officer both recorded a finding of fact
about the date of birth and age of the
petitioner.
The
Deputy
Director
of
Consolidation without considering the
said evidence remanded the matter back
for no rhyme and reason.

8. In reply the learned counsel for
the respondents while justifying the
remand order contended that writ petition
is not maintainable against the remand
order.

9. I have considered the arguments
advanced by the learned counsel for the
parties and perused the record.

10. The twin questions which arise
for adjudication are (i) the competence of
the grand mother of the petitioner to
execute the sale deed as his guardian (ii)
whether the respondent no.4 would
perfect rights by adverse possession.

11. In so far as first question is
concerned Section 11 of the Hindu Minor
and Guardianship Act 1956 is a complete
answer. The said Section provides that De
Facto Guardian has no right or authority
to dispose of or deal with the property of
the minor. Section 11 of the Act reads as
follows:

"De Facto Guardian not to deal with
minor's property- After commencement
of this Act, no person shall be entitled
to dispose of, or deal with, the property
of a Hindu minor merely on the ground
of his or her being the de-facto
guardian of the minor"
4 All] Ram Vriksha V. The Asstt. Director of Consolidation and another
1213
12. A plain reading of Section goes
to show that after commencement of the
Act no person is entitled to transfer,
alienate or deal with the property of the
minor on the ground of his or her being
the De Facto Guardian.

13. The Hon'ble Apex Court in the
case of Madhegowda (D) by L.Rs. Vs.
Ankegowda (D) by L.Rs. and others
2001 (45) ALR 820 SC has ruled that
transfer of a minor's property in violation
of Section 11 of the Act is void ab initio
void. It has been observed as follows;

"From the statutory provisions noted
above, it is clear that with the avowed
object of saving the minor's estate being
miss appropriated or squandered by any
person, by a relation or a family friend
claiming to be a well wisher of the minor,
Section 11 was enacted to prohibit any
such person from alienating the property
of the minor. Even a natural guardian
required to seek permission of the court
before alienating any part of the estate of
the minor and the court is not to grant
such permission to the natural guardian
except in case of necessity or for an
evident advantage to the minor. So far as
de facto guardian or de facto manager is
concerned the statute has in no uncertain
term prohibited any transfer of any pert of
minor's estate by such a person. In view
of the clear statutory mandate, there is
little scope for doubt that any transfer in
violation of the prohibition incorporated
in Section 11 of the Act is ab initio void".

14. From the aforesaid settled legal
position, it is clear that the sale deed
executed by the grand mother of the
petitioner was a void document and the
Deputy
Director
of
Consolidation
wrongly held it to viodable.
15. In view of the fact that since the
sale deed was a void document, the
judgment of the Deputy Director of
Consolidation remanding the case back to
the Settlement Officer Consolidation to
find out the age of the petitioner to
ascertain
whether
proceedings
were
initiated by him within limitation after
attaining
majority
also
cannot
be
sustained for the simple reason that void
document
does
not
require
any
cancellation and can be ignored by the
consolidation authorities. The Limitation
provided
under
general
law
for
cancellation of a document would not
stand in the way of the consolidation
authorities in case the document in
question is a void document.

16. In so far as the second question
is concerned admittedly the respondent
no. 4 came in possession in 1959, on the
basis of sale deed executed during the
minority of the petitioner. The limitation
of six years as prescribed at the relevant
time, for perfecting rights by adverse
possession would start running after the
petitioner had attained majority. On the
basis of evidence brought on record in the
form of voter list of 1973 and Parivar
register
the
Settlement
Officer
Consolidation held that the petitioner
attained majority either in 1968 or in
1972. The said finding of the Settlement
Officer Consolidation is based on the
voter list wherein the age of the petitioner
is recorded as 24 years and the parivar
register wherein this date of birth is
25.2.1954. Thus in any case even if the
starting point of limitation is taken to be
1968
when
the
petitioner
attained
majority, six years period would expire in
1974. Admittedly the village was notified
for consolidation operation on 20.5.1972.
After commencement of the consolidation
1214 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
operation no suit under Section 209 of
U.P.Z.A.& L.R. Act can be filed, the
jurisdiction being barred and hence nonfiling of suit would confirm no rights on
the person who was in possession an the
date the consolidation proceedings started
if the limitation for a suit under Section
209 of U.P.Z.A. & L.R. Act has not till
them run out. In other words if before the
expiry of the prescribed period of
limitation consolidation intervenes then
the limitation prescribe by section 209
stands arrested. The view taken by me
finds support from a division bench
judgment of our court in the case of Smt.
K.
Devi
Vs.
Joint
Director
of
Consolidation U.P. & Ors. 1973 ALJ
395.

17. In view of the above legal
position the period of six years from the
time petitioner attained majority having
not expired before the commencement of
the
Consolidation
proceedings,
the
respondent no.4 would not acquire any
title or right by adverse possession. The
remand order made by Deputy Director of
Consolidation cannot be said to be
justified in any manner in the aforesaid
facts and circumstances.

18. The objection raised by learned
counsel for the respondents that writ
petition challenging remand order is not
maintainable, is also not liable to be
accepted. It cannot be said that as a rule
writ petition against remand order is not
maintainable. Generally, the court refuses
to interfere or issue a writ of certiorari
against a remand order for there is no
final adjudication. If the court normally
does not interfere with the remand order,
it does not mean that there is any lack of
power or the writ petitioned is not
maintainable. The court can interfere if it
find the circumstances to be extraordinary
or the interference necessary in the
interest of justice. In the present case on
the material available on the record the
Settlement
Officer
Consolidation
recorded a finding of fact regarding the
age of the petitioner, Deputy Director of
Consolidation without even referring to
the said documents or setting aside the
finding of fact recorded by Settlement
Officer has remanded the case back and
that too on the illegal presumption that the
sale deed was a viodable document. Thus
the remand order in no way can be said to
be justified. The approach of the Deputy
Director of Consolidation is totally
contrary to the law and the order deserves
to be interfered and quashed by this court.

19. In the result writ petition
succeeds and is allowed. The impugned
order of Deputy Director of Consolidation
dated 26.8.1980 stands quashed and that
of Settlement Officer Consolidation dated
9.3.1979 stands affirmed. However, in the
facts and circumstances of the case, there
shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 46588 of 2005

Sanjeev Sharma & another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ravi Kant
Sri M.R. Khan
Sri Manish Goyal
Sir Anil Bhushan
Sri Gautam Chaudhary