# Rajendra Prasad v. D.D.C. Sitapur & Ors

- **Citation:** (2021) 8 ILRA 170
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-09
- **Case number:** Consolidation No. 723 of 2015
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-v-d-d-c-sitapur-ors-47176
- **Pages:** 16

## Headnote

A. UP Consolidation of Holdings Act, 1953
-
Section
9-A(2)
-
Consolidation
proceeding - Concurrent finding of fact -
General rule of non-interference - It's
exceptions - Interference can be made
where there is a failure to exercise
jurisdiction or where there is an exceeding
of jurisdiction vested in the courts below
or where the findings of facts have been
arrived at on misreading of evidence or
misinterpretation
of
law
leading
to
perversity. (Para 17)
B. UP Zamindari Abolition and Land
Reform Act, 1950 - Section 176 - Joint
Family Property - Sale of undivided and
specific part - Validity - Held, a sale or
any instrument of transfer that violates
the provisions of the U.P.Z.A. & L.R. Act is
a void document. A sale deed which is
conceived in fraud and delivered in deceit
is void and could be ignored by the
consolidation authorities - Unless there is
a division of the property by metes and
bounds
under
Section
176
of
the
U.P.Z.A.&L.R. Act a co-sharer is entitled to
every inch of the joint holding - If the
Vendee from a co-sharer entered into
possession of the property the possession
would not be in accordance with law.
(Para 25 and 32)
C. Transfer of Property Act, 1882 - Joint
Family
Property
-
Oral
Partition
-
Permissibility - Not registered, even the
property is of value of more than hundred
rupees - Validity - Held, the value of the
property involved in the partition being
more than hundred rupees, oral partition
is not permissible. Registration of such
partition was also required - If the
partition
has
not
been
proved
by
independent and competent witnesses
before the court of law, such partition
8 All. Rajendra Prasad Vs. D.D.C. Sitapur & Ors.
171
could not be said to have taken place at
all. (Para 36)
Writ Petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,963 of 55,357. This is a partial read: ask again with offset=39963 for what follows._

170 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 29 / 30 of the Act, if any of the
conditions mentioned therein are fulfilled.
In the present case the proceedings had not
culminated. The notice was only withdrawn
with a direction to re-enquire and make a
fresh ceiling file of Laxman Singh S/o
Munsha Singh. In pursuance thereof after
re-enquiry, the notice was issued on the
basis of whole land and Luxman Singh and
petitioners had submitted reply claiming
that the petitioners had got the land through
Will so it would not be included in Laxman
Singh's holding, as such the reply was
submitted knowing fully well. Therefore,
merely
because
Section
29
is
not
mentioned, can not be a ground for
challenge.

17. In view of above and considering
the over all facts and circumstances of the
case, this Court is of the view that the
impugned
orders
have
been
passed
considering the objections raised by the
petitioners and evidence in accordance with
law. There is no illegality or error in the
impugned orders. The writ petition has
been filed on misconceived grounds and it
lacks merit.

18. The writ petition is dismissed. No
order as to costs.
----------
(2021)08ILR A170
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.08.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Consolidation No. 723 of 2015

Rajendra Prasad ...Petitioner
Versus
D.D.C. Sitapur & Ors. ...Respondents

Counsel for the Petitioner:
Subodh Awasthi

Counsel for the Respondents:
C.S.C., Manendra Nath Rai, V.K. Pandey,
Yogendra Nath Yadav

A. UP Consolidation of Holdings Act, 1953
-
Section
9-A(2)
-
Consolidation
proceeding - Concurrent finding of fact -
General rule of non-interference - It's
exceptions - Interference can be made
where there is a failure to exercise
jurisdiction or where there is an exceeding
of jurisdiction vested in the courts below
or where the findings of facts have been
arrived at on misreading of evidence or
misinterpretation
of
law
leading
to
perversity. (Para 17)
B. UP Zamindari Abolition and Land
Reform Act, 1950 - Section 176 - Joint
Family Property - Sale of undivided and
specific part - Validity - Held, a sale or
any instrument of transfer that violates
the provisions of the U.P.Z.A. & L.R. Act is
a void document. A sale deed which is
conceived in fraud and delivered in deceit
is void and could be ignored by the
consolidation authorities - Unless there is
a division of the property by metes and
bounds
under
Section
176
of
the
U.P.Z.A.&L.R. Act a co-sharer is entitled to
every inch of the joint holding - If the
Vendee from a co-sharer entered into
possession of the property the possession
would not be in accordance with law.
(Para 25 and 32)
C. Transfer of Property Act, 1882 - Joint
Family
Property
-
Oral
Partition
-
Permissibility - Not registered, even the
property is of value of more than hundred
rupees - Validity - Held, the value of the
property involved in the partition being
more than hundred rupees, oral partition
is not permissible. Registration of such
partition was also required - If the
partition
has
not
been
proved
by
independent and competent witnesses
before the court of law, such partition
8 All. Rajendra Prasad Vs. D.D.C. Sitapur & Ors.
171
could not be said to have taken place at
all. (Para 36)
Writ Petition allowed. (E-1)
Cases relied on :-
1. Ram Dass Vs Board of Revenue Allahabad,
AIR 1967 All 481
2. Raghunath Singh Vs Deputy Director of
Consolidation & ors., 2006 (100) RD 794
3. Ajay Kumar Vs Ram Swaroop, a Full Bench
decision of the Board of Revenue rendered on
12.01.2009
4. Smt. Dulara Devi Vs Janardan Singh, AIR
1999
5.
Krishnandan
Vs
Deputy
Director
of
Consolidation, 2015 (1) SCC 553
6. Gulzar Singh & ors. Vs Deputy Director of
Consolidation, 2009 (12) SCC 590
7. Ram Das Vs Sitabai, 2009 RD (108) 772
8.
Krishnanand
Vs
Deputy
Director
of
Consolidation, 2015 (1) SCC 553
9. Guljar Singh & ors. Vs Deputy Director of
Consolidation & ors., 2009 (12) SCC 590
10. Sheonand Vs Director of Consolidation, 2000
(3) SCC 103
11. Shri Ram & ors. Vs Ram Kishen & anr., AIR
2010 Alld 125
12. M.VsS. Manikayala Rao Vs M. Narsimha
Swami, AIR 1966 SC 470
13. Dorab Kawasji Warden Vs Coomi Sorab
Warden, 1990 (2) SCC 117
14. Smt. Savitri Devi Vs Civil Judge (Senior
Division) Gorakhpur, 2003 (51) ALR 369
15. Guzara Vishnu Gosavi Vs Prakash Nana
Sahib Kamble, 2009 (10) SCC 654
16. K. Adivi Naidu & ors. Vs E Duruvasulu Naidu,
1995 (6) SCC 150
17. Dulari Devi Vs Janardhan Singh & ors., 1990
(Supp) SCC 216
18. Gorakhnath Dubey Vs Hari Narain Singh,
1974 (1) SCR
19. Nigawwa Vs Byerappa & 3 ors., AIR 1968 SC
797
20. Ram Adhar Singh Vs Ram Roop Singh, 1968
(2) SCR 95
21. Jagarnath Shukla Vs Sita Ram Pandey, 1969
ALJ 768
22. Ram Kripal & anr. Vs Abdul Wahid & anr.,
1940 RD 132
23. Ramdas Vs Sita Bai & ors., 2009 (7) SCC
444
24. Siddeshwar Mukherjee Vs Bhubaneswar
Prasad Narayan Singh, AIR 1953 SC 487
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. I have heard the learned counsel for
the petitioner, and Shri Manendra Nath Rai,
who appears for the opposite party no.4 and
the learned Standing Counsel Shri Atul
Kumar Dubey, who appears for the State
respondents.

This writ petition has been filed
challenging the order dated 28.01.2015
passed by the Consolidation Officer, on an
application under section 9A (2) Of the
Consolidation of Holdings Act (herein after
referred to as ''the Act'), and the order dated
12.06.2015 passed by the Settlement
Officer Consolidation, and also the order
dated 11.09.2015 passed in Revision by the
Deputy Director Consolidation.

2. In brief, the case set up by the
petitioner Rajendra Prasad is that plot
nos.705 and 712 were originally recorded
in the name of Shri Lakshmi Narayan son
of
Chhannu
Lal
who
died
during
consolidation operations. After the death of
original tenure holder the names of his
three sons Rajendra Prasad, Vijay Kumar
and Sushil Kumar were mutated by the
Assistant Consolidation Officer by an order
dated 20.10.1996. plot nos. 712 and 705 are
172 INDIAN LAW REPORTS ALLAHABAD SERIES
adjacent to each other and both were
consolidated as Chak No. 493, and
recorded jointly in the names of the three
brothers without their share being specified
or divided.

3. Sushil Kumar sold of 1/3rd of his
share of plot no. 705 and 712 through a sale
deed dated 19.12.1996 to Shashikanti Devi,
the opposite party no.4. The name of
Shashikanti Devi was mutated by the
Assistant
Consolidation
Officer
on
26.12.1997. The petitioner's other brother
Vijai Kumar also sold off 1/3rd of his
undivided share to Smt. Shashikanti Devi
on 30.07.1998 and her name was recorded
on 15.06.1999 in the revenue record. Smt.
Shashikanti continued to cultivate the
undivided share of these two plots,
(numbered as Chak No. 493 in the
consolidation operations), for several years
and then moved an application in 2013
under Section 9A (2) for partition on the
basis of the sale deeds executed in her
favour. The petitioner appeared before the
Consolidation
Officer
and
filed
an
application for spot inspection to be carried
out before such partition can be ordered as
the boundaries shown in the sale deeds by
his two brothers were incorrect. The
Consolidation Officer however did not
accede to the request of the petitioner and
without a spot inspection directed partition
of Chak No. 493 on the basis of boundaries
shown in the sale deeds. It observed that
the sale deeds had been duly proved by the
vendor and the Vendee and their witnesses
and there was no reason to disbelieve the
same. The Consolidation Officer in his
order dated 28.01.2015 directed that
partition be carried out in such manner that
two thirds of south east portion of Chak
No.493 remained with Shashikanti Devi
and a small portion on the north east along
with the western portion of the land was
given to the petitioner. In the process of
dividing Chak No. 493 in this manner the
drain (Nali) and the Chak Road were also
directed to be shifted by the Consolidation
Officer.

4. The petitioner being aggrieved
approached
the
Settlement
Officer
Consolidation
in
Appeal.
Petitioner
contended in the Appeal that since long
Chak No. 493 was being cultivated by the
three brothers on the basis of Family
Settlement wherein each of the brothers
was given 1/3rd in East - West direction so
that each of the brothers had access to the
Chak Marg on the East. Rajendra Prasad
was given the Northern most 1/3rd strip
whereas Vijai Kumar was given Southern
most strip, and Sushil Kumar was given the
strip in between. On the East the share of
the petitioner and his each of his two
brothers opened on the Chak marg and on
the West towards the grove of Kunj Bihari
on plot no. 706. It was submitted by the
petitioner that if the boundaries given
wrongly in the sale deeds were to be
respected then the petitioner would be
deprived of access to the Chak Marg. It was
submitted that although an application for
spot
inspection
was
given
to
the
Consolidation Officer he believed the
boundaries as shown in the two sale deeds
and did not carry out spot inspection. It was
also argued that the Consolidation Officer
exceeded his jurisdiction in passing the
order dated 28.01.2015 directing that the
drain and the Chak Marg be shifted. The
consolidation operations of the village had
been stayed in separate proceedings before
the High Court and during such pendency
of litigation before the High Court the
Consolidation Officer's order directing
shifting of drain and Chak Marg could not
be carried out. As a result of shifting of
Chak road leading to the closing of the
8 All. Rajendra Prasad Vs. D.D.C. Sitapur & Ors.
173
drain, not only the petitioner but other
tenure holders would also be affected.
Since on the east there was already a
Kharanja Marg each of the brothers were
entitled to have access to the same. It was
also argued that while partitioning the Chak
No.493 in this manner the Consolidation
Officer had also handed over to opposite
party no.4 the Boring of the petitioner, his
trees and his plantation of bamboos (Baans
Kothi). The sale deeds had shown wrong
boundaries shifting the petitioner's share to
the Western side thus reducing its value
and in pursuance of the order of the
Consolidation Officer his share had been
determined as an L-shaped plot thus further
reducing its value.

5.

The
Settlement
Officer
Consolidation observed that after the death
of the original tenure holder the three
brothers had been recorded as joint tenure
holders with undivided share over Chak
No.493. Smt. Shashikanti Devi had bought
undivided share of two brothers where the
boundaries were perhaps shown in a
confusing manner and it would have been
proper for the Consolidation Officer to
have allowed on the spot inspection of the
land in question before passing the order
impugned. The order dated 28.01.2015 was
set aside and the matter was remanded to
the Consolidation Officer to consider afresh
and pass order after conducting on the spot
inspection of the land in question.

 6. It has been argued by the learned
counsel
for
the
petitioner
that
the
Settlement Officer Consolidation could
have himself examined the on spot
inspection report dated 28.04.2015 of the
Assistant Consolidation Officer which was
already on record and should not have
remanded the matter to the Consolidation
Officer for reconsideration. Therefore, the
petitioner filed Revision No. 371 of 2015.
On the other hand the opposite party No.4
being aggrieved by the setting aside of the
order dated 28.01.2015 and remanding of
the matter to the Consolidation Officer
approached
the
Deputy
Director
Consolidation
by
filing
Revision
No.368/2015. Both the Revisions were
clubbed together and heard on 11.09.2015.
The Revision of the opposite party no.4
was allowed and Revision No. 371 was
rejected by the Deputy Director of
Consolidation only on the ground that the
sale deeds were registered documents and
had not been challenged by the petitioner
by filing appropriate proceedings in the
competent civil court. The boundaries as
given in the sale deeds had been verified by
competent witnesses of the two sale deeds.
The
concerned
Settlement
Officer
Consolidation should not have set aside the
order passed by the Consolidation Officer
and remanded it to him for consideration
afresh.

7. In the counter affidavit filed by
opposite party no.4, it has been stated that
there was already a family settlement
partitioning the land in question much
before the sale deeds were executed by the
two brothers of the petitioner. The
registered sale deeds were never challenged
by the petitioner in any competent court.
On the spot inspection report of the
Assistant Consolidation Officer was legally
unsound and, therefore, rightly rejected by
the Settlement Officer Consolidation who
referred the matter to the Consolidation
Officer to conduct a fresh on the spot
inspection and pass appropriate orders
thereafter. It has been also stated in the said
counter affidavit that as per the sale deeds
which are annexed as Annexure no.1 and 2
to the counter affidavit, it is evident that the
Boring and the Bans Kothi and trees were
174 INDIAN LAW REPORTS ALLAHABAD SERIES
also sold off by the two brothers of the
petitioner to the opposite party no.4. The
boundaries were clearly mentioned in the
two sale deeds by the vendors who were
educated people and the sale deeds were
proved by competent witnesses before the
Consolidation Officer. It has also been
stated
in
the
counter
affidavit
that
measurement and demarcation proceedings
were on in the village and the interim order
granted
initially
by
this
Court
on
07.10.2015 for the parties to maintain
status quo had lapsed as it was never
extended by the Court on various dates of
listing.

8. The petitioner has challenged the
orders passed by the Consolidation Officer,
the Settlement Officer (Consolidation) and
the Deputy Director of Consolidation on
the ground that they have been passed
without any reference being made to the
law regarding co-sharers with undivided
share having the competence to sell their
share of the undivided holdings and deliver
the transfer of the same.

9. Learned counsel for the petitioner
has placed reliance upon a report submitted
to the Settlement Officer (Consolidation)
dated
28.04.2015
wherein
on
spot
inspection was carried out and the opposite
party no.4 was found in possession of
Southern part of the undivided holding of
Chak No.493 comprising of old plot
nos.705 and 712. He has referred to several
judgments of this Court for substantiating
the legal proposition that unless shares are
divided over joint holdings no transfer of
possession can be made. He has also
referred to the legal proposition that after
formulation of CH-23, if any share is sold
without following the Rules of partition;
that the sale deed is void, the judgment
relied upon by the learned counsel for the
petitioner are Ram Dass Vs. Board of
Revenue Allahabad AIR 1967 All 481,
Raghunath Singh Vs. Deputy Director of
Consolidation and others 2006 (100) RD
794, and Ajay Kumar Vs. Ram Swaroop, a
Full Bench decision of the Board of
Revenue rendered on 12.01.2009.

10. Learned counsel for the petitioner
has submitted that the Consolidation
Officer relied upon the sale deed made out
by the petitioner's two brothers namely
Sushil Kumar and Vijay Kumar in favour
of the opposite party no.4 wherein wrong
boundaries
were
mentioned.
In
fact
boundaries could not have been mentioned
at all as it was an undivided share in the
property of all co-sharers where each cosharer is the joint owner of every inch of
the plot of land of the joint holdings. The
Settlement
Officer
(Consolidation)
in
Appeal had directed an on the spot
inspection to be made and the report to be
submitted to him. The said report was
submitted where clearly this fact had come
on record that the Opposite party no.4 was
in possession over the Southern part of the
land and the petitioner was found in
possession of 1/3rd portion on the Northern
side and both the petitioner and the
opposite party no.4 were found to be in
possession of the land adjacent to the Chak
Marg which ran on the East. However, the
Settlement Officer (Consolidation) did not
look into the report at all and although he
could have decided the matter being the
First Appellate Court on the basis of his
findings recorded in the said report, he
preferred to remand the matter to the
Consolidation Officer to decide afresh,
therefore, the petitioner filed a Revision
challenging the order of the Settlement
Officer (Consolidation). The opposite party
no.4 also filed a Revision challenging the
entire order on the ground that the
8 All. Rajendra Prasad Vs. D.D.C. Sitapur & Ors.
175
Settlement Officer (Consolidation) had
given a wrong findings. Both the Revisions
were clubbed together and decided by the
Deputy Director of Consolidation. The
Deputy Director of Consolidation failed to
exercise due diligence and the power of
review even of facts that was vested in him
and set aside the order of the Settlement
Officer (Consolidation) and affirmed the
order of the Consolidation Officer only on
the ground that no Suit for cancellation of
sale deed executed by Sushil Kumar and
Vijay Kumar in favour of the opposite
party no.4 had filed by the petitioner.
Because of the registered sale deed being a
valid document possession had to be
delivered on the basis of description of
boundaries made out in the said sale deed.
He has submitted that the learned D.D.C.
also failed to take into account that the
Consolidation Officer far exceeded his
jurisdiction when he directed the Nali on
the other side of the Chak Marg to be
converted in the Rasta and the Chak marg
to be taken as part of the holdings of the
opposite party no.4.

11. Shri Manendra Nath Rai,
appearing for the opposite party no.4 has
argued that it is admitted that the sale deed
was
never
challenged
and
being
a
registered sale deed, the partition could
have been made of the holding in question
by the Consolidation Officer in terms of
Section 9-C of the Act, the sale deed unless
it is set aside by the Competent Court had
to be followed. If the description of the
boundaries had been given wrongly and the
petitioner was aggrieved he should have
challenged the same. He has referred to
judgment of the Hon'ble Supreme Court
where the reference has been made to void
and voidable documents and even if the
sale deed has wrongly described, it is a
voidable document and unless it is set aside
by the Competent Court it had to be
followed by the Consolidation Officer. He
has also argued that the Settlement Officer
(Consolidation)
had
unnecessarily
remanded the matter to the Consolidation
Officer as no new issues were to be
decided. He had all the evidence filed
before
him
which
he
could
have
appreciated and passed appropriate orders.
The sale deed in question had been proved
by the competent witnesses. He has also
argued that the D.D.C. is the final Court
with regard to the finding of fact, a
concurrent
finding
of
fact
by
the
Consolidation
Courts
should
not
be
ordinarily
interfered
with
in
writ
jurisdiction. He has also submitted that the
tubewell and Banskothi that was existing
on the North Eastern side of the holdings
were also bought by the opposite party no.4
as is evident from the sale deeds copies of
which have been filed alongwith counter
affidavit.

12.

Learned
counsel
for
the
respondents has placed reliance upon the
judgment rendered in Smt. Dulara Devi
Vs. Janardan Singh reported in AIR 1999,
Krishnandan Vs. Deputy Director of
Consolidation reported in 2015 (1) SCC
553:-Gulzar Singh and Others Vs.
Deputy
Director
of
Consolidation
reported in 2009 (12) SCC 590.

13. Learned counsel for the petitioner
in rejoinder has submitted that as is evident
from Page-15 of the counter affidavit filed
by the opposite party no.4 Vijay Kumar
had sold only the southern part of holding
as per the family settlement between three
brothers and in the sale deed executed by
Sushil Kumar wrong boundaries have been
mentioned showing Vijay Kumar on his
west and Chak marg on his East. Learned
counsel for the petitioner has argued that
176 INDIAN LAW REPORTS ALLAHABAD SERIES
the Consolidation Officer was competent to
look into the validity of the sale deeds in so
far as the reference to wrong boundaries
had been made therein by carrying out on
the spot inspection.

14. Shri P.V. Chaudhary, has
rendered
his
valuable
assistance
by
referring judgment rendered by Hon'ble the
Supreme Court in Ram Das Vs Sitabai
reported in 2009 RD (108) 772.

15. I will first deal with the judgments
relied upon by the learned counsel for the
contesting respondent no.4. In Krishnanand
versus Deputy Director of Consolidation
2015 (1) SCC 553 the Supreme Court was
considering the scope of judicial review
under Article 226 of the Constitution of
India in a case where concurrent findings
recorded by three consolidation authorities,
that is, the Consolidation Officer, the
Settlement Officer Consolidation and the
Deputy Director of Consolidation were set
aside by the High Court. Supreme Court
observed in paragraph 7 of the report that
the High Court had committed an error in
re-appreciating the evidence and setting
aside findings of fact, which is normally
impermissible in exercise of its jurisdiction
under Article 226 of the Constitution of
India. The Court observed that the three
consolidation authorities had come to a
certain conclusion regarding the respondent
being a trespasser however the High Court
in writ petition re-appreciated the entire
evidence on record as if it was hearing an
Appeal and came to the conclusion that she
was not so. The Court observed in
paragraph 12 that the High Court has
committed an error in reversing the
findings of fact recorded by the Authorities
below in coming to the conclusion that
there was a partition. No doubt the High
Court did so in the exercise of jurisdiction
under Article 226 of the Constitution but it
is settled law that such jurisdiction cannot
be
exercised
for
re-appreciating
the
evidence and reversal of findings of fact
unless the Authority which passed the order
does not have jurisdiction to render the
findings or has acted in excess of its
jurisdiction, or the findings resulted in a
perversity. The High Court in its order did
not say that authorities below had acted in
excess
of
jurisdiction
or
without
jurisdiction or that the findings recorded
were vitiated by perversity.

16. In Guljar Singh and others Vs.
Deputy Director of Consolidation and
others 2009 (12) SCC 590, the Supreme
Court was considering a case where in the
first round of litigation orders passed by the
Consolidation Authorities was set aside by
the High Court and certain directions were
issued by the High Court to be followed by
the D.D.C. while deciding the matter
afresh. After remand the D.D.C. allowed
the Revision and the shares of the parties
were decided in the manner indicated in the
High Court's order. The appellant thereafter
filed a writ petition challenging the order
passed by the D.D.C. The High Court
affirmed the order of the D.D.C. The
appellant filed a Special Leave Petition
before the Supreme Court. The Supreme
Court observed that it could only interfere
under Article 136 of the Constitution if
there was some gross irregularity in the
judgement of the High Court or any
substantial grounds of law which were of
public importance had been raised in such a
petition. If these conditions were not
satisfied, it would not be open for the
Supreme Court to interfere with the
concurrent findings of the High Court as
well as the D.D.C. in exercise of its
discretionary power under Article 136 of
the Constitution. The Court observed that
8 All. Rajendra Prasad Vs. D.D.C. Sitapur & Ors.
177
the concurrent findings of fact recorded by
the D.D.C. and High Court were on
consideration of all materials placed before
the
Court
and
after
giving
proper
opportunity of hearing to the parties. The
High Court in its order had observed that it
was exercising revisional-cum-supervisory
power and could not go into the intricate
details of facts and decide the questions
raised therein. The Supreme Court further
observed that in exceptional cases, where
orders were based on perversity and
arbitrariness, the High Court can interfere
even in concurrent findings of fact recorded
by the learned Courts below. The High
Court had observed that the D.D.C. had
decided the dispute after considering all
aspects of the matter and the entire
materials
including
the
oral
and
documentary evidence on record. The
Supreme Court felt that the High Court had
rightly rejected the writ petition. It also
observed that in view of the law laid down
in
Sheonand
versus
Director
of
Consolidation 2000 (3) SCC 103, under
section 48 the D.D.C. has been conferred
with wide powers. He may either suo moto
on his own motion or on an application of
any person, consider the propriety, legality,
regularity and correctness of all the
proceedings held under the Act and pass
appropriate orders. These wide powers
have been conferred on the Deputy
Director so that the claims of the parties
under
the
Act
may
be
effectively
adjudicated upon and determined so as to
confer finality to the rights of the parties
and the revenue records may be prepared
accordingly. Normally, the Deputy Director
in exercise of his powers is not expected to
disturb the findings of fact recorded
concurrently by the Consolidation Officer
and the Settlement Officer Consolidation,
but where the findings are perverse, in the
sense that they are not supported by the
evidence brought on record by the parties,
or that they are against the weight of
evidence, it would be the duty of the
Deputy Director to scrutinise the whole
case again so as to determine the
correctness, the quality, or propriety of the
orders passed by the authority subordinate
to him. In the case of Sheonand (supra)
being considered by the Supreme Court, it
was observed that while scrutinising the
evidence on record, the Deputy Director
had noticed that the entries were fictitious
and in recording some of the entries in the
revenue records in favour of the appellants,
statutory
provisions
including
those
contained in the U.P. Land Records Manual
were not followed. In that situation, the
Deputy Director was wholly justified in
looking into the legality of the entire
proceedings and disposing of the revision
in the manner in which he had done. The
Supreme Court in Guljar (supra) observed
that the D.D.C. has a wide range of
discretionary powers mandated under the
Act by which he could proceed to modify
even the basic year entries if found to be
wrongly
arrived
at.
Therefore,
the
contention that the D.D.C. could not have
modified the Basic year entries was not
correct.

17. It is clear that in both the cases
cited by the learned counsel for the
respondent no.4, the Supreme Court had
carved out exceptions to the general rule of
not interfering with concurrent findings of
facts recorded by the trial courts and
appellate
courts,
in
exercise
of
extraordinary jurisdiction under Article 136
or Article 226 by the superior Courts. The
Supreme
Court
had
observed
that
interference can be made where there is a
failure to exercise jurisdiction or where
there is an exceeding of jurisdiction vested
in the courts below or where the findings of
178 INDIAN LAW REPORTS ALLAHABAD SERIES
facts have been arrived at on misreading of
evidence or misinterpretation of law
leading to perversity.

18. Now, this Court will consider
whether the case at hand falls within the
parameters of the exceptions carved out by
the
Supreme
Court
to
interfere
in
concurrent
findings
recorded
by
the
Consolidation Authorities.

19. In Shri Ram and others versus
Ram Kishen and another AIR 2010 ALLD
125, this Court was considering the case of
the plaintiff who had filed a suit for
cancellation of sale deed and injunction
against the transferee from interfering or
seeking possession over the house in
question. It was argued that the plaintiffs
and the defendants nos. 2 to 7 were coowners of a house situated in a village. The
defendants nos. 2 to 7 had executed a sale
deed of their share in the house in favour of
defendant no.1, Ram Kishen who took
possession forcibly. The plaintiffs filed a
suit for cancellation of sale deed and for
restraining the defendant no.1 from taking
possession of the share purchased. The
Court considered Section 44 of the Transfer
of Property Act wherein an exception has
been carved out against a transferee of a
share of a dwelling house belonging to an
undivided family and it is provided that if
he is not a member of the family he would
not be entitled to joint possession or part
enjoyment of the house. Such a stranger
transferee should file a suit for partition
before he can be allowed to take possession
on the basis of the sale deed.

20. In M.V.S. Manikayala Rao Versus
M. Narsimha Swami AIR 1966 Supreme
Court 470, the Supreme Court was
deciding the issue relating to purchase of
undivided shares of coparceners at an
execution sale. It was held that the
purchaser is not entitled to possession of
what he has purchased. He had only a right
to sue for partition and ask for allotment to
him of that which on partition might be
found to be the share of the coparcener
whose share he had purchased. The
Supreme Court held that such purchaser of
share of a coparcener cannot claim to be
put in possession of any definite piece of
family property unless a partition has been
made of the entire property.

21. In Dorab Kawasji Warden v
Coomi Sorab Warden 1990 (2) SCC 117,
the Supreme Court relied upon another
judgement in Nil Kamal Bhattacharya
Versus Kamakshya Charan Bhattacharya
AIR 1928 Calcutta 539, and judgements of
the Madras High Court and Orissa High
Court and observed that if a member of the
family transferred his share in the dwelling
house to a stranger, paragraph 2 of Section
44 of the Transfer of Property Act comes
into play and the transferee does not
become entitled to joint possession or any
joint enjoyment of the half house although
he would have the right to enforce the
partition of his share if such a transferee is
able to get possession of a share without
actual partition by metes and bounds, such
a possession would be illegal and the coowners would be entitled to get a decree for
eviction or even for injunction where the
transferee threatens to get possession by
force. Thus an undivided share in a house
which was the joint property of several and
undivided could not have been transferred.
However, these cases do not refer to
agricultural land.

22. This court in Smt. Savitri Devi
versus Civil Judge (Senior Division)
Gorakhpur, 2003 (51) ALR 369, observed
with respect to an agricultural land, that
8 All. Rajendra Prasad Vs. D.D.C. Sitapur & Ors.
179
even if sale deed had been executed and the
purchaser had been put into possession of
the land sold to him, it could only be said
that the vendor had merely sold the
undivided share in the property in dispute.
Such purchaser could not be put into
possession if there had been no partition
prior to execution of the sale deed and no
partition had taken place subsequent
thereto.

23. In Guzara Vishnu Gosavi versus
Prakash Nana Sahib Kamble 2009 (10)
SCC 654, the Supreme Court after
referring to earlier judgements in Kartar
Singh versus Harjinder Singh 1990 3 SCC
517 and Ram Das versus Sitabai 2009 (7)
SCC 444, observed that in the absence of
partition of a property by metes and
bounds, either by a decree of a court or
partition suit or by settlement among coshareholders possession cannot be handed
over to Vendee who had purchased joint
family property. The Court observed that a
purchaser of a coparceners undivided
interest in joint family property is not
entitled to possession of what he had
purchased. He has a right only to sue for
partition of the property and ask for
allotment of his share in the suit property. It
also observed in paragraph 12: -

"there is another aspect of the
matter. An agricultural land belonging to
the coparcener or co sharers may be in
their joint possession. The sale of undivided
share
by
one
co-sharer
may
be
unlawful/illegal as various Statutes put an
embargo on fragmentation of holdings
below the prescribed extent"

It was held that in a given case an
undivided share of a coparcener can be
subject matter of a sale/transfer, but
possession cannot be handed over to the
vendee unless the property is partitioned by
metes and bounds either by a decree of
court in a partition suit or by settlement
among the co-sharers.

24. The Supreme Court in K. Adivi
Naidu and others versus E Duruvasulu
Naidu 1995 (6) SCC 150, observed in
paragraph 5 that "it is settled law that a
coparcener has no right to sell his
undivided share in the joint family property
and any sale of undivided and specified
items does not bind the other coparceners."

25. Another argument has been made
by the learned counsel for the respondent
no.4 is that the sale deeds were not
questioned and they being validly proved
by
competent
witnesses
before
the
Consolidation Officer, were bound to be
respected. Also such sale deeds even if they
could not have transferred the undivided
share of joint holding of Chak No.493,
were only voidable documents that could
not be ignored unless set aside by
competent court of law. This Court finds
from the weight of authorities of the
Supreme Court that a sale or any
instrument of transfer that violates the
provisions of the U.P.Z.A. & L.R. Act is a
void document. A sale deed which is
conceived in fraud and delivered in deceit
is void and could be ignored by the
consolidation authorities.

26. In Dulari Devi versus Janardhan
Singh and others 1990 (Supp) SCC 216,
the Supreme Court was considering a case
where the plaintiff appellant, an illiterate
lady, wanted to make a gift of her
properties in favour of her daughter. The
defendant nos.3 and 4 undertook to make
arrangements to execute and register the
necessary deed. They however practiced
the fraud on her. They made her to put her
180 INDIAN LAW REPORTS ALLAHABAD SERIES
thumb impression on two documents which
she had been told and she honestly believed
were the gift deeds in favour of her
daughter. She had in fact executed two
deeds, one of which was a gift in favour of
her daughter and the other a sale deed in
favour of the defendants nos.3 & 4. Later
when she came to know of the facts, she
filed a suit for cancellation of the sale deed.
Consolidation proceedings were pending in
respect of the area. The suit was decreed by
the trial court and that decree was
confirmed in Appeal by the first Appellate
Court. The High Court however found that
the plaintiff was totally deceived as to the
character of the document which she had
executed and the document was, therefore
void
and
of
no
effect
whatsoever.
Accordingly, it held that the suit was barred
by
reason
of
Section
49
of
the
Consolidation of Holdings Act. In the
Appeal by Special Leave, it was contended
for the appellant that since it was a case of
a document having been vitiated by fraud,
the transaction was voidable but not void
and therefore the bar of Section 49 of the
Act was not attracted. The Supreme Court
dismissed the Appeal and held that a
voidable document is one which remains in
force until it is set aside and such a
document can be set aside only by a
competent civil court. A suit for that
purpose would therefore be maintainable.
A claim that the transaction is void
however is a matter which can be
adjudicated upon by the consolidation
authorities also.

27. In Gorakhnath Dubey versus Hari
Narain Singh 1974 (1) SCR and in
Nigawwa Versus Byerappa and three
others AIR 1968 SC 797, the Supreme
Court had held that if the document in
question evidenced a void transaction, and
not a mere voidable transaction, no suit
would be maintainable in view of the bar
contained in Section 49 of the Act.

28. In Gorakhnath Dubey (supra) the
Supreme Court had held that the object of
the relevant provisions of the Act was to
remove from the jurisdiction of any civil
court or revenue court all disputes which
could be decided by the competent
authority under
the
Act during
the
consolidation
proceedings.
Questions
relating to the validity of a sale deed or a
gift deed and the like had to be examined in
proceedings before the statutory authorities.
The Court had drawn a distinction between
void and voidable documents and said that
a voidable document was one which
remained in force until set aside and such a
document could be set aside only by a
competent civil court and a suit for that
purpose would therefore be maintainable
on the other hand the claim that the
transaction was void was a matter which
could
be
adjudicated
upon
by
the
consolidation courts. The Court observed:-
"We think that a distinction can be made
between cases where document is wholly or
partially invalid so that it can be
disregarded by any Court or Authority and
one where it has to be actually set aside
before it can cease to have legal effect. An
alienation made in excess of power to
transfer would be, to the extent of excess of
power, invalid. An adjudication on the
effect of such a purported alienation would
be necessarily implied in the decision of a
dispute involving conflicting claims to
rights or interest in land which are the
subject
matter
of
consolidation
proceedings. The existence and quantum of
rights claimed or denied will have to be
declared by the consolidation authorities
which would be deemed to be vested with
the jurisdiction, by necessary implication of
the statutory powers to adjudicate upon
8 All. Rajendra Prasad Vs. D.D.C. Sitapur & Ors.
181
such rights and interests in land, to declare
such documents effective or ineffective, but,
where there is a document the legal effect
of which can only be taken away by setting
it aside or its cancellation, it could be
urged that the Consolidation Authorities
have no power to cancel the deed, and,
therefore, it must be held to be binding on
them so long as it is not cancelled by a
court having the power to cancel it. In the
case before us, the plaintiff's claim is that
the sale of his half share by his uncle was
invalid, inoperative and void. Such a claim
could be adjudicated upon by consolidation
courts."

29. In Gorakhnath Dubey (supra), the
Supreme Court observed that questions
relating to validity of sale deeds, gifts and
wills can be gone into in proceedings
before
the
consolidation
authorities,
because such questions naturally and
necessarily arise and have to be decided in
the course of adjudication on the rights or
interests in land which are the subject
matter of consolidation proceedings. A
distinction can be made between cases
where a document is wholly or partially
invalid so that it can be disregarded by any
court or authority and one where it has to
be actually set aside before it can cease to
have legal effect. An alienation made in
excess of power to transfer would be, to the
extent of excess of power, invalid. An
adjudication on the effect of such purported
alienation would be necessarily implied in
the decisions of a dispute involving
conflicting claims.

30. In Gorakhnath Dubey (supra), the
Supreme Court explained Ram Adhar Singh
versus Ram Roop Singh 1968 (2) SCR 95,
and affirmed the decision of this court in
Jagarnath Shukla versus Sita Ram Pandey
1969 ALJ 768. The Supreme Court
observed that in Ram Adhar Singh versus
Ram Roop Singh, the question considered
and decided by the Court was whether a
suit for possession of agricultural land
under Section 209 of the U.P.