# Ram Sunder & Anr v. Joint Director of Consolidation, Sultanpur & Ors

- **Citation:** (2021) 6 ILRA 249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Case number:** Consolidation No. 2839 of 1980
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sunder-anr-v-joint-director-of-consolidation-sultanpur-ors-47039
- **Pages:** 10

## Headnote

Civil Law - U.P. Consolidation of Holdings
Act,
1953-Section
9-A(2)-challenge
towhether a widow, who got the land from
her husband which was coming from his
ancestors can transfer it to anybody or notthe land in dispute had come to Smt. Maina
as widow of Shital, her husband-therefore,
after her death property would revert back
to the family of her husband and devolve
upon the nearest surviving heirs according
to section 171 of the Act 1950-heirs of the
last male-holder and not that of the
deceased female bhumidhar who succeed to
the holding-her interest in the holding ends
with her death-(Para 1 to 29)

A bhumidhar with transferable rights can
transfer his or her interest in the land
subject to the conditions in the Act, 1950,
but it can be only in accordance with law
i.e. the Transfer of Property Act and
Indian Registration Act. no other mode of
transfer has been provided in the Act,

## Text

6 All. Ram Sunder & Anr. Vs. Joint Director of Consolidation, Sultanpur & Ors.
249
it is presumed that the possession of the
respondent no.1 was recorded in the year
1972 Fasli then also the six years had not
completed therefore this finding was purely
on presumption and on the basis of this
finding the rights under Section 210 of the
Act of 1950 could not have been perfected.
Even if the submission of learned counsel for
the respondent no.1 is accepted that the
petitioner had knowledge of the entry made
in the year 1966 i.e 1373 Fasli then also it
was within six year as the suit was filed in
1378 Fasli.

29. This Court in the case of Smt.
Jagwanta Vs. Smt. Nirmala and Others
(Supra) in paragraph-2 has noted that the
period of limitation prescribed for a suit, for
ejectment of a trespasser under Section 209 of
the Act of 1950 was six years during the period
between 27.03.1969 and 13.10.1971 and this
was increased to 12 years by notification dated
14.10.1971 amending the relevant entry no.30
of appendix-3 to the rules and the serial no.24
of Schedule-2 of the act. Therefore on the date
of filing of the suit by the petitioner on
15.11.1971 the limitation for filing the suit was
12 years so it was within limitation. The
appellate authority and the revisional authority
have not recorded any finding that the suit was
time barred. Therefore also the respondent no.1
is not entitled for benefit of Section 210 of the
Act of 1950.

30. The courts below have also not
recorded the concurrent finding because they
have recorded the finding on presumption and
the appellate authority and the revisional
authority have virtually affirmed the findings of
courts below as discussed above. The courts
below have dealt with the matter on the wrong
assumption that the respondent no.1 was
claiming his title on the basis of adverse
possession but failed to consider that the
respondent no.1 had neither filed any objection
nor proved his claim on the basis of adverse
possession. The courts below also failed to
consider that the name of the petitioner was
recorded as Bhumidhar in the basic year entry
therefore the objection was required to be filed
by the respondent no.1 asserting the claims
against the true owner which he failed to do.
Therefore this Court is of the considered
opinion that the impugned judgment and orders
dated 21.02.1975, 05.09.1975 and 20.09.1982
are perverse and have been passed in an
arbitrary and illegal manner, recording perverse
findings without application of mind and
considering the over all facts and circumstances
of the case and in the light of the law applicable.
Therefore they are not sustainable at all in the
eyes of law and liable to be quashed and the
name of the petitioner is liable to be allowed to
be continued in the revenue records as
Bhumidhar as was recorded in the basic year
and the possession of the respondent no.1 is
liable to be expunged.

31. The writ petition is, accordingly,
allowed.
The
impugned
orders
dated
21.02.1975, 05.09.1975 and 20.09.1982 are
hereby quashed. The name of the petitioner
shall continue in the revenue records as was
recorded in the basic year and the possession of
the respondent shall be expunged. No order as
to costs.
----------
(2021)06ILR A249
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.06.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Consolidation No. 2839 of 1980

Ram Sunder & Anr. ...Petitioners
Versus
Joint Director of Consolidation, Sultanpur
& Ors. ...Respondents
250 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
H.S. Sahai, Madhav Srivastava, R.D. Yadav,
Uma Shankar Sahai

Counsel for the Respondents:
D.P. Dwivedi, C.S.C., Ram Dhiraj Yadav

Civil Law - U.P. Consolidation of Holdings
Act,
1953-Section
9-A(2)-challenge
towhether a widow, who got the land from
her husband which was coming from his
ancestors can transfer it to anybody or notthe land in dispute had come to Smt. Maina
as widow of Shital, her husband-therefore,
after her death property would revert back
to the family of her husband and devolve
upon the nearest surviving heirs according
to section 171 of the Act 1950-heirs of the
last male-holder and not that of the
deceased female bhumidhar who succeed to
the holding-her interest in the holding ends
with her death-(Para 1 to 29)

A bhumidhar with transferable rights can
transfer his or her interest in the land
subject to the conditions in the Act, 1950,
but it can be only in accordance with law
i.e. the Transfer of Property Act and
Indian Registration Act. no other mode of
transfer has been provided in the Act,
1950. Section 166 of the Act 1950
provides
that
any
transfer
made
in
contravention of the provisions of this Act,
shall be void.(Para 25 to 29)

The peition is partly allowed. (E-5)

List of Cases cited:-
1. Jagdamba Singh & ors. Vs DDC & ors.
(1985) RD 281

2. Ramji Dixit & anr. Vs Bhrigunath & ors.
(1965) AIR Allahabad 1(V 52 C 1),

3. Devinder Singh & ors. Vs St. of U.P. & ors.
(2009) 1 ADJ 640
4. Umesh Chand & ors Vs Board of Revenue,
Allahabad & ors. (2002) 2 AWC 932

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Shri U.S.Sahai, learned
counsel for the petitioners and Shri Ram
Dhiraj Yadav, learned counsel for the
respondents no.3/1 and 3/2. Learned
Standing Counsel is present for the
respondents no.1 and 2.

2. The instant writ petition has been
filed
challenging
the
order
dated
26.06.1975 and order dated 24.05.1980
passed by the opposite parties no.1 and 2
respectively.

3. The dispute relates to Khata No.35
recorded in the name of opposite party
no.3-Ram Niwas in the basic year as
'bhumidhar'. On publication of records, the
petitioners had filed objection under
Section 9-A(2) of the U.P. Consolidation of
Holdings Act, 1953 (hereinafter referred as
the Act of 1953) alleging that the name of
opposite
party
no.3
was
recorded
incorrectly, whereas he had no right or title
over the land in dispute so his name should
be expunged and the Khata should be
recorded in the name of the petitioners. The
petitioners had stated in their objection that
Bhola @ Sheetal was son of Terhi and they
relied on the following pedigree:-

 TERHI
 _______|_______
 | |
Bhola alias Bhabhuti
Shital ___|______
 | | |
Smt.Maina Guru Din Sita Ram
(widow) ____|____
 | |
 Ram Sunder Ram Lal
6 All. Ram Sunder & Anr. Vs. Joint Director of Consolidation, Sultanpur & Ors.
251

4. The petitioners claim that the land
in dispute was acquired by Terhi and on his
death his two sons Bhola @ Shital and
Bhabhuti became the heirs. Since Bhola @
Shital was elder, so his name was recorded.
Bhola @ Shital died just before third
settlement and on his death the land came
to be recorded in the name of his widow
Smt.Maina. Accordingly Smt. Maina and
Bhabhuti came into joint possession. When
Smt. Maina died Bhabhuti was alive, who
was real brother of Bhola @ Shital so the
land, which was recorded by succession in
the name of Smt.Maina from her husband,
reverted to the family of her husband and
Bhabhuti, brother of her husband, being the
sole heir, was entitled for entire land and on
his death his two sons Guru Din and Sita
Ram came in possession. On the death of
Sita Ram his two sons Ram Sunder and
Ram Lal came in possession alongwith
Guru Din. It was further contended that
Smt. Maina died after the date of vesting
and the opposite party no.3 got his name
entered in the Khatauni by the Lekhpal
without any right or title, therefore the said
entry was illegal and without jurisdiction.

5. The aforesaid claim of the
petitioners was refuted by the opposite
party no.3. He asserted that Bhola and
Shital were two different persons. He
claimed himself to be the son of daughter
of Smt. Maina, wife of Shital. According to
him Shital and Maula are two different
persons and sons of Bhawani Bhikh. He
relied on the following pedigree:-

 Ganga

 |
 Bhawani Bheekh
 __________|___________
| |
Sheetal Maula
 |
Musammat Maina
 |
 Sahdei
 |
Ram Newaj

6. It appears that the dispute could not
be
reconciled
before
the
Assistant
Consolidation Officer therefore the case
was forwarded to the Consolidation Officer
for disposal. The parties tendered their oral
and documentary evidence before the
Consolidation Officer. On behalf of the
petitioners
khatauni
extracts
of
2nd
settlement, 3rd settlement and khasra
extracts of third settlement and khataui
extracts of 1371, 1360 fasli and 24 rent
receipts and khatauni extracts of 1362 fasli
were filed. Petitioners examined Ram
Sunder. On behalf of opposite party no.3
sanad
bhumidhari
dated
18.04.1951,
khatauni extracts of 1363 fasli, khasra
extract of 1363 fasli were filed. Ram
Niwas, opposite party no.3 had not entered
into witness box and on his behalf
Mukhtar-e-Aam
Ram
Dularey
was
examined and rent receipts were also filed.

7. The Consolidation Officer, after
considering
the
evidence
on
record,
allowed
the
objection
filed
by
the
petitioners and directed to record the name
of the petitioners after expunging the name
of opposite party no.3 by the order dated
27.12.1974. The opposite party no.3
preferred an appeal before the Settlement
Officer Consolidation, which came up for
hearing before the Assistant Settlement
Officer Consolidation, who allowed the
appeal by the order dated 26.06.1975.
Being aggrieved, the petitioners preferred
the revision, which came up for hearing
before the Joint Director of Consolidation,
who dismissed the revision by the order
252 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 24.05.1980. Hence the present writ
petition has been filed.

8. During pendency of the writ
petition the petitioners no.2, 3 and opposite
party no.3 died, therefore, their legal heirs
have been brought on record.

9. Submission of learned counsel for
the petitioners was that the land in dispute
was coming from Terhi and after death of
Bhola @ Shital name of his widow Smt.
Maina was recorded. She died issueless.
Therefore, as per law, the land in dispute
reverted to the family of her husband and
came to Bhabhuti, who was brother of her
husband. Thereafter to his successors. But
the opposite party no.3 had got his name
recorded illegally. He further submitted
that there was no evidence that opposite
party no.3 was son of the daughter of Smt.
Maina. Since neither the opposite party
no.3 nor his mother came in the witness
box, therefore evidence of power of
attorney holder could not have been relied.
In any case the entry in the Khatauni
extract of the 1362 fasali was not in
accordance with law inasmuch as no case
number and signature was found. He had
further submitted that the mother of the
opposite party no.3 i.e. Sahdei was not the
daughter of Smt. Maina and also asserted
that Smt. Maina had died issueless in 1953.
Therefore she could not have put the thumb
impression while the name of opposite
party no.3 was recorded allegedly on her
consent but her thumb impression was not
by way of consent, whereas the same could
also not have been recorded in the alleged
manner in accordance with law. He also
submitted that even if Sahdei was the
daughter of Smt.Maina and opposite party
no.3 was the son of Sahdei, the name of
opposite party no.3 could not have been
recorded during life time of Smt. Maina
and Sahdei because no Bhumidhar or
Sirdar can get the name of a person
recorded in his life time in the khatauni and
as per the law applicable at the relevant
point of time the land in dispute could not
have been devolved on her and it should
have been reverted to the family of his
husband. The name can be recorded only
on the basis of succession or transfer of
property in accordance with law and on the
basis of the order passed by the competent
authority, but the opposite parties no.1 and
2 have failed to consider it. He further
submitted that the opposite parties no.1 and
2 have committed manifest error of law in
not considering the question of succession
in accordance with Section 171 and 172 of
U.P.Zamindari
Abolition
and
Land
Reforms Act 1950 (hereinafter referred as
the Act of 1950) and considered under
Section 174.

10. He further submitted that opposite
party no.3 had raised a fresh plea of
different pedigree at the appellate stage. As
such the stand as taken before the
Consolidation Officer was changed before
the Settlement Officer Consolidation and
Deputy Director of Consolidation. He also
submitted that opposite party no.3 was
habitual of committing fraud because he
had got his name removed from one of the
plots, the evidence in regard to which has
been filed by the petitioners alongwith
rejoinder affidavit. The opposite parties
no.1 and 2 have passed the order without
considering the law applicable on the facts
and circumstances of the case, therefore,
the impugned orders are not sustainable in
the eyes of law.

11.

Learned
counsel
for
the
respondents
vehemently
opposed
the
submissions of learned counsel for the
petitioners. He had submitted that the basic
6 All. Ram Sunder & Anr. Vs. Joint Director of Consolidation, Sultanpur & Ors.
253
year entry was in the name of opposite
party no.3 and in fact in the verification i.e.
partal the petitioners were not found in
possession. The petitioners have claimed
the land in dispute by alleging Bhola @
Shital as their ancestor without any basis
and evidence and the Consolidation Officer
had
considered
the
same
without
considering
the
evidence
and
law
applicable. He had further submitted that in
the present case provisions of Section 171
and 172 of the Act of 1950 are not
applicable and the provisions of Section
174 are applicable. The name of opposite
party no.3 was got recorded by Smt. Maina
by her consent in presence of the villagers
and the authorities and he had also put her
thumb impression which was recorded in
pursuance of the order passed by the
Tehsildar, but the same was not challenged
knowing fully well. Petitioners have tried
to create a doubt alleging that Smt. Maina
had died in 1953 without any basis or
evidence, whereas she was alive at that
time. Lastly he submitted that merely
because the opposite party no.3 had got his
name struck off from any record, as it was
wrongly recorded, cannot be a ground of
alleging that opposite party no.3 is habitual
of making fraud, rather it shows his
bonafide. In fact the fraud had been
committed by the petitioners by adding @
Shital alongwith Bhola. He had also
submitted that opposite party no.3 had
given Power of Attorney because he was
hard of hearing & blind and there was no
illegality or infirmity in the evidence
adduced by the Power of Attorney holder.

12. On the basis of above learned
counsel for the opposite party no.3/1 and
3/2 submitted that the orders passed by
opposite party no.1 and 2 are in accordance
with law and the writ petition has been
filed
on
misconceived
and
baseless
grounds, which is liable to be dismissed
with costs.

13. I have considered the submissions
of learned counsel for the parties and
perused the record.

14. The dispute relates to Khata
No.35 recorded in the name of opposite
party no.3 in the basic year as bhumidhar.
The claim of the petitioners under Section
9-A(2) of the Act of 1950 has been set up
on the ground that after death of Smt.Maina
widow of Bhola @ Shital the property was
reverted back to the family of her husband
and accordingly devolved on them being
the descendants of Bhabhuti brother of
Bhola @ Shital because the property was
acquired by their father Terhi. It is not in
dispute that the family of the petitioners
and the opposite party no.3 are different.
Both the parties does not dispute that Smt.
Maina was wife of Shital and the land in
dispute had come to her from her husband.
A claim has also been set up by the
opposite party no.3 on the ground that it
was self acquired by Smt. Maina. But it
could not be proved. The allegation of the
petitioners is also that Smt. Maina had died
issueless, whereas the claim of opposite
party no.3 is that Sahdei was her daughter
and during life time Smt. Maina had got the
name of the opposite party no.3, who is son
of the daughter of Smt. Maina, recorded in
the revenue records. This proceeding has
been alleged to have been held in presence
of the villagers and in pursuance of an
order passed by the Tehsildar, the name of
opposite party no.3 was recorded.

15. In regard to the claim that Bhola
@ Shital was one and the same person the
petitioners had filed the copy of Intkhab
register of the year 1934 in which it has
been shown that Shital @ Bhola had died
254 INDIAN LAW REPORTS ALLAHABAD SERIES
on 19.02.1934 and the information of death
was given by Terhi. The opposite parties
had got summoned Shyam Singh, Incharge
Mohafizkhana (Record Room) Sultanpur
with original register of death. The witness
on the basis of the register stated that only
1089 applications for copies were filed in
the year 1974 while the application number
of the copy filed by the petitioners is 1234.
He also stated that no application for said
certified copy was filed on the date i.e.
12.04.1974. Accordingly it was proved that
a forged and false copy was produced in
the court, which could not prove that Shital
@ Bhola are one and the same person. In
support of the claim of the petitioners no
other evidence was adduced to prove that
Bhola @ Shital are one and the same
person. Therefore it is apparent that the
petitioners by adding @ Shital with Bhola
tried to include Shital in his family to get
the land in dispute. The Settlement Officer
Consolidation
and
Joint
Director
of
Consolidation have rightly considered and
recorded the finding in regard to it.

16.

The
learned
Consolidation
Officer, without recording any finding as to
how Bhola @ Shital is one and the same
person, had allowed the objection. It
appears that the Consolidation Officer was
impressed by the submissions of the
petitioners that Shital, who was eldest son
of Terhi, was of a very simple nature,
therefore, the villagers had named him
Bhola
but
mere
submission
without
evidence cannot be a ground to accept that
Bhola @ Shital is one and the same person.
It has also not come anywhere that Smt.
Maina was recorded as widow of Bhola @
Shital
and
she
has
been
recorded
everywhere as Smt. Maina widow of Shital.
Therefore, the claim set up by the
petitioners has not been proved by any
cogent evidence, rather the claim has been
tried to be set up on the basis of a forged
and fabricated document. Therefore the
claim of the petitioners is not sustainable in
the eyes of law. It is also settled law that a
party playing fraud with the court is not
entitled for any relief. The Hon'ble
Supreme Court, in the case of S.P.
Chengalvaraya Naidu (Dead) By LRs
Versus Joganath (Dead) by LRs and
others; (1994) 1 SCC 1 about fraud and
the effect of decree obtained by fraud, has
held as under in paragraph 1:-

"1. Fraud avoids all judicial acts,
ecclesiastical or temporal" observed Chief
Justice Edward Coke of England about
three centuries ago. It is the settled
proposition of law that a judgment or
decree obtained by playing fraud on the
court is a nullity and non est in the eyes of
law. Such a judgment/decree by the first
court or by the highest court has to be
treated as a nullity by every court, whether
superior or inferior. It can be challenged in
any court even in collateral proceedings."

17. It appears from the orders and
record filed before this court that the
disputed plot nos.401, 402, 403 and 414 of
land in dispute were recorded in the name
of Bhawani Bhikh in the first settlement.
Thereafter it was recorded in the name of
Maula son of ...... Caste Aheer in the
second settlement and plot nos.324 and 325
were recorded in the name of Bhola son of
Terhi. Therefore Bhola and Maula were
two separate persons. Both the parties had
also admitted that their families are
different and have no concern with each
other. It also appears that land was not
coming down in the identical form. This
court, in the case of Jagdamba Singh and
others
versus
Dy.Director
of
Consolidation and others; 1985 RD 281,
has held that in order to uphold the claim of
6 All. Ram Sunder & Anr. Vs. Joint Director of Consolidation, Sultanpur & Ors.
255
co-tenancy rights on the ground that the
holding in dispute is an ancestral property,
it is necessary that the holding should have
come down intact in the identical form
without any break and it would not be open
to pick up few plots of the holding which
initially belonged to common ancestor and
declare them to be ancestral property
giving a share to the claimant on that
ground.

18. It is not in dispute that the land in
dispute had come to Smt. Maina as widow
from her husband Shital after his death.
Therefore,
the
first
question
for
consideration is as to whether a widow,
who got the land from her husband which
was coming from his ancestors can transfer
it to anybody or not. Section 171 and 172
of the Act of 1950 provides the general
order of succession. Since a bhumidhar
with transferable rights can transfer his
agricultural land subject to the restrictions
contained in Chapter VIII of the Act of
1950, therefore, a widow, acquiring the
bhumidhari rights from her husband, can
also transfer the land during her life time in
accordance with law. A Full Bench of this
court, in the case of Ramji Dixit and
another Versus Bhrigunath and others;
AIR 1965 Allahabad 1 (V 52 C 1), has
held that a female, who inherits the
bhumidhari rights from the family of her
husband, can transfer such holdings, which
shall be valid and effective even beyond
her life time. In view of above Smt.Maina
could have transfered the land in dispute
but in accordance with law.

19. However the question arises as to
whether Smt. Maina could have got the
land in dispute recorded with her consent in
the name of opposite party no.3, who is
alleged to be the son of her daughter
without transferring in accordance with law
because the alleged transfer was neither by
any mode of transfer nor succession. It has
also been alleged that the thumb impression
of Smt. Maina in the remark column is not
way of consent and the order of Tehsildar
is also not signed and there is no case
number and parties name. Section 152 of
the Act of 1950 provides that the interest of
a bhumidhar with transferable rights shall,
subject
to
the
conditions
hereinafter
contained, be transferable. Therefore a
bhumidhar with transferable rights can
transfer his/her interest in the land subject
to conditions in the Act of 1950, but it can
be only in accordance with law i.e. the
Transfer of Property Act and the Indian
Registration Act. No other mode of transfer
has been provided in the Act of 1950.
Section 166 of the Act of 1950 provides
that any transfer made in contravention of
the provisions of this Act, shall be void. In
the present case the alleged transfer has not
been made in accordance with any of the
mode or procedure prescribed under law
because it is no where provided that a
person can get the name of anybody
recorded without executing any deed of
transfer. Therefore the alleged transfer
made by Smt. Maina during her life time to
the opposite party no.3 is alien to law, as
such not sustainable in the eyes of law. Any
transfer of property can not be made which
is not covered by any statute or law.

20. This court, in the case of
Devinder Singh and others Versus State
of U.P. and Others; 2009 (1) ADJ 640,
has held that agricultural land cannot be
transferred through mutation application
and partition can take place among cotenure holders and not between the tenure
holders and stranger. The agricultural land
in U.P. is governed by U.P.Z.A. and
L.R.Act. The relevant paragraph 6 is
extracted below:-
256 INDIAN LAW REPORTS ALLAHABAD SERIES

"6. The A.D.M. was right in holding
that agricultural land cannot be transferred
through mutation application. Partition
among co-tenure holders may be effected
only through the suit under Section 176 of
U.P.Z.A. and L.R. Act filed before S.D.O.
Moreover, partition can take place amongst
co-tenure holders and not between tenureholder and stranger. Concept of the Joint
Hindu Family property where sons may
have right by birth in the ancestral
property, which is in the hands of their
father, is not applicable to agricultural land
in U.P. which is governed by U.P.Z.A. and
L.R. Act. As far as Ceiling Act is
concerned, such mutation is meaningless
for the Ceiling Act and under Ceiling Act
in spite of mutation, the entire land would
be treated to belong to the father/tenure
holder. However, the A.D.M. was not
correct in holding that stamp duty was
payable on the oral arrangement in between
father and sons and consequent mutation
order. Moreover, A.D.M. himself rightly
held that the mutation order was utterly
illegal and without jurisdiction and void ab
initio. This finding was additional reason
for not directing payment of any stamp
duty."

21. This court is of the considered
view that the transfer of an agricultural land
cannot be made by a mode, except as
provided under law, which may be by way
of sale, gift etc. It is also apparent from
reference made in various Sections of Act
of 1950. Such as section 154 provides that
no bhumidhar shall have the right to
transfer by sale or gift, section 155
provides that no bhumidhar shall have the
right to mortgage any land belonging to
him as such where possession of the
mortgaged land is transferred or is agreed
to be transferred in future to the mortgagee
as security for the money advanced or to be
advanced. Similarly in Section 157-A and
157-AA, the transfer of the land by way of
sale, gift, mortgage or lease has been
referred. The alleged mode by which the
name of opposite party no.3 was recorded
is not provided anywhere. Therefore the
transfer of an agricultural land, being an
immovable property, can be made by a
bhumidhar with transferable rights only in
accordance with the Transfer of Property
Act and Indian Registration Act and not
otherwise.
Learned
counsel
for
the
respondents no.3/1 and 3/2 could also not
show any other mode of transfer and
validity of the alleged transfer under any
law. This court in the case of, Umesh
Chand and others Versus Board of
Revenue, Allahabad and others; 2002(2)
AWC 932, has held as under in paragraph
15:-

"15................No right or interest can
pass in immovable property in a manner
contrary to provisions of Transfer of
Property Act and Indian Registration
Act...................."

22. In view of above, claim of the
opposite party no.3 on the basis of alleged
transfer by Smt. Maina during her life time,
by a mode not provided under any law, is
illegal and not sustainable in the eyes of
law and fails.

23. Now the question arises as to
whether the opposite party no.3 is entitled
for inheritance of the land in dispute of
Smt. Maina, being the grandson of Sheetal
and Smt.Maina, who had inherited the land
in dispute from her husband as widow.
Section 171 of the Act of 1950 provides the
general order of succession. According to
sub-section (1) subject to the provisions of
Section 169, when a bhumidhar or asami,
being a male dies, his interest in his holding
6 All. Ram Sunder & Anr. Vs. Joint Director of Consolidation, Sultanpur & Ors.
257
shall devolve upon his heirs being the
relatives specified in sub-section (2) in
accordance with the principles given in
sub-section (i) to (iv) of sub-Section (1).
Sub-section (2) provides that the following
relatives of the male bhumidhar or asami
are heirs subject to the provisions of subsection (1) and sub section (a) provides the
first
category
i.e.
widow,
unmarried
daughter and the male lineal descendant,
therefore, after the death of a male
bhumidhar the property shall devolve on
his widow. Therefore, since Shital had no
male lineal descendant or unmarried
daughter, therefore, it was rightly devolved
on Smt. Maina, widow of Shital.

24. Section 172 of the Act of 1950
provides the succession in the case of a
woman holding an interest inherited as a
widow, mother, daughter, etc. According to
sub-section(1) (a), when a bhumidhar or
asami who has after the date of vesting,
inherited an interest in any holding as a
widow,
dies,
marries,
abandons
or
surrenders such holding or part thereof, the
holding or the part shall devolve upon the
nearest surviving heir (such heir being
ascertained
in
accordance
with
the
provisions of Section 171) of the last male
bhumidhar or asami. Therefore after the
death of a widow, who has inherited the
land on account of death of her husband,
the land shall revert back to the family of
her husband and devolve upon to the
nearest surviving heirs in accordance with
Section 171 of the Act of 1950.

25. In the present case, admittedly the
land in dispute had come to Smt. Maina as
widow of Shital; her husband. Therefore,
after her death the property would revert back
to the family of her husband Shital and
devolve upon the nearest surviving heirs
according to Section 171. The Full Bench, in
the case of Ramji Dixit and another Versus
Bhrigunath and others (Supra), has held
that it is worthy to note that on the death of a
female bhumidhar succession to the holding
goes not to her heirs but to the "nearest
surviving heir of the last male bhumidhar". In
other words it is the heirs of the last maleholder and not that of the deceased female
bhumidhar who succeed to the holding. This
would again indicate that her interest in the
holding ends with her death.

26. The claim of the opposite party no.3
is that he is son of the daughter of
Smt.Maina, therefore the question arises as to
in the case of reversion of property after
death of Smt. Maina it would devolve to him
under Section 172 read with Section 171 or
not because after reversion of holding or part
of property thereof shall devolve upon the
nearest surviving heir (such heir being
ascertained in accordance with the provisions
of Section 171) of the last male bhumidhar,
therefore, after reversion to the husband of
Smt. Maina it would have to be seen as to
whether it can devolve on the opposite party
no.3 or not. The married daughter and
daughter's son have been included in Section
171. Therefore if after the death of Smt.
Maina and reversion of the property to her
husband's family it could have been devolved
on Sahdei the daughter of Smt. Maina, as it
has been said that she was alive at that time,
though her name was not recorded in the
revenue records, it may devolve on the legal
heirs of her daughter, in which the opposite
party no.3 could have got any share or as a
whole then the opposite party no.3 can get the
same. Otherwise daughter's some has also a
right under the above provision.

27. That a dispute has been raised that
Smt. Maina had no daughter and the opposite
party no.3 is not the son of the daughter of
Smt.
Maina.
The
Settlement
Officer
258 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation and the Joint Director of
Consolidation on the basis of family register
and uncertified copy of the voter list have
come to the conclusion that Sahdei was the
daughter of Smt. Maina and the opposite
party no.3 was the son of Sahdei. Whereas
Sahdei has been shown as wife of Shree at
one place and as daughter of Shree at another
place. Therefore, first it is to be ascertained
on the basis of cogent evidence, if any
available on record, as to whether Sahdei was
the daughter of Sheetal and Smt. Maina and
the opposite party no.3 was the son of Sahdei
and in case on the basis of some cogent
evidence it is found that opposite party no.3
was the son of daughter of Smt.Maina, he
may get the land in dispute as discussed
above and in accordance with law failing
which the interest shall stand extinguished on
the death of Smt. Maina under Section 189 of
the Act of 1950 and the Land Management
Committee
shall
be
entitled
to
take
possession of the land under Section 194 of
the Act of 1950 and accordingly it may be
considered and the order may be passed
under Section 11-C of the Act of 1953.

28. In view of above, this court is of the
considered opinion that the writ petition is
liable to be partly allowed and the matter is to
be remanded to the Settlement Officer
Consolidation to re-consider the case afresh
in the light of aforesaid discussion only to the
extent as to whether the opposite party no.3
was a legal heir of the male lineal descendant
after reversion of the property after death of
Smt. Maina and if so whether the same shall
devolve on him in accordance with law or
not, failing which the decision shall be taken
in light of the observations made here-inabove under Section 11-C of the Act of 1953.

29. With the aforesaid the writ
petition is partly allowed. The impugned
order dated 24.05.1980 passed by the
Deputy
Director
of
Consolidation,
Sultanpur in Revision No.5989/2884, under
Section 48 of the Consolidation of
Holdings Act is quashed and the order
dated 26.06.1975 passed by the Assistant
Settlement Officer Consolidation is also
quashed to the extent of continuance of the
entry of basic year and the order is upheld
to the extent of quashing of the order
passed by the Consolidation Officer. The
matter is remanded to the Settlement
Officer Consolidation, Sultanpur to decide
a fresh in light of the observations made
here-in-above.

30. The matter being old, shall be
decided expeditiously say within a period
of six months from the date of receipt of a
certified copy of this order. Let a copy of
this
order
be
communicated
to
the
Settlement
Officer
Consolidation,
Sultanpur forthwith.

31. No order as to costs.
----------
(2021)06ILR A258
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.06.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Consolidation No. 22455 of 2020

Rakesh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Pratap Singh 'Vatsa'

Counsel for the Respondents:
C.S.C., Dilip Kumar Pandey

A. Civil Law - U.P. Consolidation of
Holdings
Act,
1953-Section
19(1)(e)-