# Smt. Ram Dei & Ors v. Joint Director of Consolidation, Ghazipur & Ors

- **Citation:** (2021) 1 ILRA 1139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-23
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ram-dei-ors-v-joint-director-of-consolidation-ghazipur-ors-46105
- **Pages:** 32

## Headnote

S.C., Sri A.R. Dubey, Sri L.P. Singh, Sri S.
Rai, Sri Bhola Nath Yadav, Sri Ganesh
Pandey, Sri R.N. Singh, Sri Ram Niwas
Singh, Sri V.K. Chandel, Sri V.K.S. Chandel

A.
Civil
Law
-
Non-concurrent
determination of objections - Transfer of
Property Act: Section 6(a), 43; Uttar
Pradesh Consolidation of Holdings Act,
1953: Section 9-A(2); U.P.Z.A. & L.R. Act:
Section 174, 229-B.

Transfer of Property Act: Section 43 -
Feeding the estoppel - a right based on the
principle of feeding the estoppel is available, so
long as the transferee does not know for a fact
that the transferor who represents title in
himself, does not hold it. In a case where the
transferee knows for a fact that the transferor
does not hold title that he transfers by his deed,
a subsequent acquisition of that title by the
transferor, would not serve to feed the estoppel.
(Para 27)

Evidently, during proceedings before the Deputy
Director of Consolidation, the petitioner had
ample opportunity to take a plea based on
Section 43 of the Transfer of Property Act,
which she never did. The Revisional Authority's
judgment is testimony to the fact that no such
plea was taken before the said Authority by the
petitioner. (Para 33)

A plea based on Section 43 of the Transfer of
Property Act would always give rise to a mixed
question of fact and law. It is not a plea giving
rise to one of those pure questions of law that
may be determined, abstracted from facts by
this Court, at a stage as late as address of
arguments with no foundation laid for it. A plea
of that kind that may be urged, bereft of any
foundation is classically associated with a case
about total lack of jurisdiction in the Court,
relating to the subject matter. A plea and a
question of that kind is invariably based on
facts, of which the Court must take judicial
notice. The present plea based on Section 43 of
the Transfer of Property Act is far from it.

In the considered opinion of the Court, it cannot
be examined on the existing state of the parties'
pleadings here, and before the Revisional
Authority. (Para 34)

B. The opinion of the Authority of first
instance, on an issue that primarily rests
on evaluation of oral evidence, ought not
to have been disturbed by the Appellate
and the Revisional Authorities, who did
not see the witnesses. Wherever an issue
arises that is primarily to be decided on the
basis of oral evidence, the Appellate Court
should invariably accept the Trial Court's
evaluation, unless the conclusions drawn or the
reasoning adopted is patently flawed. (Para 37)

When there is a conflict of oral evidence on any
matter in issue and its resolution turns upon the
credibility of the witnesses, the general rule is
that the appellate court should permit the
findings of fact rendered by the trial court to
prevail unless it clearly appears that some
special feature about the evidence of a
particular witness has escaped the notice of the
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
trial cour

## Text

_Characters 0–39,866 of 113,363. This is a partial read: ask again with offset=39866 for what follows._

1 All. Smt. Ram Dei & Ors. Vs. Joint Director of Consolidation, Ghazipur & Ors.
1139
earlier order passed in the present appeal
may remain in deposit with him. It shall
abide by the final computation made by the
arbitrator, pursuant to this order.

18. With the above observations, the
appeal is disposed of. No order as to costs.
----------
(2021)01ILR A1139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ B-No. 3934 of 1985

Smt. Ram Dei & Ors. ...Petitioners
Versus
Joint Director of Consolidation, Ghazipur &
Ors. ...Respondents

Counsel for the Petitioners:
Sri Vishnu Singh, Sri A.K. Rai, Sri V.K. Rai,
Sri V.K. Singh

Counsel for the Respondents:
S.C., Sri A.R. Dubey, Sri L.P. Singh, Sri S.
Rai, Sri Bhola Nath Yadav, Sri Ganesh
Pandey, Sri R.N. Singh, Sri Ram Niwas
Singh, Sri V.K. Chandel, Sri V.K.S. Chandel

A.
Civil
Law
-
Non-concurrent
determination of objections - Transfer of
Property Act: Section 6(a), 43; Uttar
Pradesh Consolidation of Holdings Act,
1953: Section 9-A(2); U.P.Z.A. & L.R. Act:
Section 174, 229-B.

Transfer of Property Act: Section 43 -
Feeding the estoppel - a right based on the
principle of feeding the estoppel is available, so
long as the transferee does not know for a fact
that the transferor who represents title in
himself, does not hold it. In a case where the
transferee knows for a fact that the transferor
does not hold title that he transfers by his deed,
a subsequent acquisition of that title by the
transferor, would not serve to feed the estoppel.
(Para 27)

Evidently, during proceedings before the Deputy
Director of Consolidation, the petitioner had
ample opportunity to take a plea based on
Section 43 of the Transfer of Property Act,
which she never did. The Revisional Authority's
judgment is testimony to the fact that no such
plea was taken before the said Authority by the
petitioner. (Para 33)

A plea based on Section 43 of the Transfer of
Property Act would always give rise to a mixed
question of fact and law. It is not a plea giving
rise to one of those pure questions of law that
may be determined, abstracted from facts by
this Court, at a stage as late as address of
arguments with no foundation laid for it. A plea
of that kind that may be urged, bereft of any
foundation is classically associated with a case
about total lack of jurisdiction in the Court,
relating to the subject matter. A plea and a
question of that kind is invariably based on
facts, of which the Court must take judicial
notice. The present plea based on Section 43 of
the Transfer of Property Act is far from it.

In the considered opinion of the Court, it cannot
be examined on the existing state of the parties'
pleadings here, and before the Revisional
Authority. (Para 34)

B. The opinion of the Authority of first
instance, on an issue that primarily rests
on evaluation of oral evidence, ought not
to have been disturbed by the Appellate
and the Revisional Authorities, who did
not see the witnesses. Wherever an issue
arises that is primarily to be decided on the
basis of oral evidence, the Appellate Court
should invariably accept the Trial Court's
evaluation, unless the conclusions drawn or the
reasoning adopted is patently flawed. (Para 37)

When there is a conflict of oral evidence on any
matter in issue and its resolution turns upon the
credibility of the witnesses, the general rule is
that the appellate court should permit the
findings of fact rendered by the trial court to
prevail unless it clearly appears that some
special feature about the evidence of a
particular witness has escaped the notice of the
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
trial court or there is a sufficient balance of
improbability to displace its opinion as to where
the credibility lies. When there is a direct conflict
between the oral evidence of the parties, and
there is no documentary evidence that clearly
affirms one view or contradicts the other, and
there is no sufficient balance of improbability to
displace the trial court's findings as to the truth
of the oral evidence, the appellate court can
interfere only on very clear proof of mistake by
the trial court. (Para 38)

This principle about pre-eminence accorded to
the Trial Court, in the matter of appreciation of
oral evidence, is based on the reasoning that
the Trial Court had advantage of watching the
witnesses' demeanour, which the Appellate
Court or still higher fora did not. In judging the
truth of a statement in the testimony, it is of
prime importance that not only what the
witness says be considered, but also how
he says it. The demeanour reveals the
unspoken truth, or the truth or falsehood
of spoken words. (Para 40)

The principle that primacy be accorded to the
evaluation of purely oral evidence by the Trial
Judge/Court/Authority of first instance, must
show for a fact that the incumbent Judge or
Presiding Officer, who wrote judgment for the
Trial Court/Authority of first instance, was the
same Presiding Officer who had heard and
recorded evidence in the matter. This would
then be the modification which the long
standing principle must suffer in the changed
times. (Para 40)

In the present case, there is nothing on record
to suggest that the Presiding Officer in this case,
Sri. C.P.N. Singh, the then Consolidation OfficerII,
Jamania,
District
Ghazipur,
was
the
incumbent Presiding Officer, before whom the
witnesses testified. This is not asserted for a
fact in the writ petition, though a ground based
on the principle has been taken. This Court,
therefore, is not minded
to accept the
contention of the learned Counsel for the
petitioner that urges a blanket application of the
classical principle. This Court, may, however,
hasten to add that the principle would still apply
in all cases where a party urges a case on its
basis and shows that the Judge who heard
evidence was the same Judge/Presiding Officer,
who delivered judgment. (Para 41)

C. Mutation proceedings are summary
proceedings to identify the person to be
recorded, primarily for fiscal purposes.
There is absolutely no justification for the
Authorities below to have considered the
findings of the Mutation Authorities as
relevant evidence in title proceedings. The
proceedings in hand arise out of objections u/s
9-A(2) of the Uttar Pradesh Consolidation of
Holdings Act, 1953, which to all intents and
purposes, are title proceedings. (Para 50)

A perusal of findings by the Appellate and the
Revisional
Authorities
show
that
these
Authorities
have
considered
for
relevant
evidence,
the
decision
of
the
Mutation
Authorities inter partes as also the judgments in
the declaratory suit. The proceedings of the suit
never reached terminus ad quem. So far as the
decisions of the Mutation Authorities are
concerned, it is settled beyond cavil that those
findings are in no way relevant in title
proceedings. (Para 50)

D. Determination of identity through
finger print/thumb impression - The law
does not prohibit a Court at all from
undertaking a comparison of the disputed
and the admitted finger prints, but finger
print identification being a perfect and
highly evolved science by now, it is
perilous
to
undertake
an
unassisted
enterprise of this kind for any Court. A
perusal of findings reveal that the Settlement
Officer of Consolidation has ventured
to
compare the disputed and the admitted finger
prints. He has clearly done so without the
assistance of an expert. A simple magnifying
glass is all that has been called in aid. (Para 52)

The Indian Evidence Act, 1872: Section 73
and 45 are the statutory provisions that govern
and regulate the jurisdiction and powers of the
Court, to undertake a comparison of the
disputed
and
the
admitted
finger
print
specimens. In the case of an Authority invested
with judicial functions, like the Consolidation
Authorities to whom the
last mentioned
provisions of the Evidence Act may not apply
1 All. Smt. Ram Dei & Ors. Vs. Joint Director of Consolidation, Ghazipur & Ors.
1141
proprio vigore, the same would apply on
principle. (Para 55)

If a Court is constrained to opine without the
assistance of one or more experts, about the
genuineness of a finger print/thumb impression,
its reasons must be expressed in terms
understood and known to the science of finger
print identification. For the purpose, the Court
must look into an authoritative text book on the
subject and seek assistance of Counsel, before
recording findings based on reputed and
recognized parameters. (Para 58)

In the present case, the opinion expressed by
the Settlement Officer of Consolidation, appears
to be utterly uninformed and based on no more
than what is popularly called, "common sense".
This kind of a reasoning bereft of reference to
the cardinal principles, evolved by the science of
finger print identification, cannot be accepted to
be any reason at all. The findings of the
Settlement Officer of Consolidation on this count
must be held to be bereft of reason. It would,
therefore, vitiate the conclusion. (Para 65)

Writ Petition allowed. (E-3)

Precedent followed:

1. Hardev Singh Vs Gurmail Singh (dead) By
LRs, (2007) 2 SCC 404 (Para 25)

2. Biswanath Sahu & ors. Vs Mrs. Tribeni
Mohan (dead) by L.R.s & ors., AIR 2003 Ori
189 (Para 26)

3. Jumma Masjid, Mercara Vs Kodimaniandra
Deviah & ors., AIR 1962 SC 847 (Para 28)

4. Jharu Ram Roy Vs Kamjit Roy & ors.,
(2009) 4 SCC 60 (Para 29)

5. Mahipat Missir & ors. Vs Ganpat Sah & ors.,
AIR 1963 Pat 277 (Par 30)

6. Ram Sarup Gupta Vs Bishnu Narain Inter
College, (1987) 2 SCC 555 (Para 31)

7.
Madhusudan
Das
Vs
Narayanibai
(Deceased) by LRs & ors., (1983) 1 SCC 35
(Para 38)

8. Thiruvengadam Pillai Vs Navaneethammal
& anr., (2008) 4 SCC 530 (Para 56)

Present petition assails impugned orders
dated
26.02.1985
and
04.12.1972
passed
by
the
Deputy
Director
of
Consolidation,
Ghazipur
and
the
Settlement
Officer
of
Consolidation,
Ghazipur.

(Delivered by Hon'ble J.J. Munir,J.)

1. This writ petition questions a
non-concurrent
determination
of
objections under Section 9-A(2) of the
Uttar Pradesh Consolidation of Holdings
Act, 1953 (for short, the Act) by the
Consolidation Authorities.

2. The objections were brought by the
petitioner, Ram Dei, since deceased and
represented by her LRs, against one Smt.
Sona Kunwar, represented before this
Court by Ramji Tiwari, since deceased.
Ramji Tiwari, original respondent no. 3 to
this writ petition, is now represented by his
heirs and legal representatives, substituted
pendente lite. The objections also sought
relief against respondent nos.4 and 5, that is
to say, Jagardev Tiwari and Mukhdev
Tiwari. Both these respondents have died
pending this petition and are represented by
their heirs and legal representatives. Before
this Court, the claim of the petitioner is
confined to the interest of Ramji Tiwari in
terms morefully set out hereinafter. So far
as respondent nos.4 and 5 are concerned, it
appears that parties have buried the hatchet
and are at peace with the way the event has
gone before the Authorities below. Thus,
there appears to be no conflict or lis inter se
the petitioner on one hand and respondent
nos.4 and 5 on the other, before this Court.
So far as respondent no.6 is concerned, the
said respondent asserts herself to be Sona
Kunwar, mother of the third respondent and
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
wife of one Sarju Tiwari. This Sona
Kunwar has been called an impostor by
another woman, who contested these
proceedings and claimed to be the real
Sona Kunwar. Sona Kunwar's interest is
represented by respondent no.3, now before
this Court through his legal representatives.

3. The dispute in this petition relates
to agricultural land located in two different
villages of District Ghazipur. One of these
is Khata no.52, admeasuring 2 bigha 2
biswa 5 dhoor, situate at Village Sindura,
Pargana Jamania, District Ghazipur. In the
basic year, this Khata was recorded in the
name of Ram Naresh Tiwari son of Devi
Tiwari, Smt. Ram Dei Kunwar wife of
Basdev Tiwari and Smt. Sona Kunwar
daughter of Ram Swarup Tiwari and wife
of Sarju Tiwari. The other part of land,
subject matter of dispute between parties is
located at Village Kusi, Pargana Jamania,
District Ghazipur. It comprises Khata
nos.245 and 542, admeasuring a total of 7
bighas 17 biswas 2 dhoors. In the basis
year, it is recorded in the name of Jagardev
Tiwari and Mukhdev Tiwari, both sons of
the late Ram Naresh Tiwari, Smt. Ram Dei
Kunwar wife of Basdev Tiwari and Smt.
Sona Kunwar daughter of Ram Swarup
Tiwari, wife of Sarju Tiwari.

4. The land above described above,
shall hereinafter be called as ''the Khata in
question'.

5. It would be apposite to indicate the
relationship between parties traceable to
their ancestors before setting out the origin
and course of proceedings, that have led to
this petition. Ram Swarup Tiwari, Mathura
Tiwari and Ram Naresh Tiwari were
brothers. The Khata in question is part of
an ancestral holding of these brothers, the
fuller detail of which may not be very
relevant. Sona Kunwar is the daughter of
Ram Swarup Tiwari. Her mother is Smt.
Phula Kunwar, wife of Ram Swarup
Tiwari. Smt. Ram Dei Kunwar (the
petitioner) is wife of Basdev Tiwari son of
Mathura Tiwari. Jagardev Tiwari and
Mukhdev Tiwari are sons of the late Ram
Naresh Tiwari. It appears that Ram Swraup
Tiwari died sometime before the year 1938,
and Smt. Phula Kunwar inherited his rights
in the then larger joint khata of the family,
comprising his brothers and co-laterals. It is
common ground between parties that Phula
Kunwar sued for partition, that led to a
partition decree dated 31.03.1938. This
decree brought Smt. Phula Kunwar a share
of 1/6th in the joint khata of her husband's
two brothers and co-laterals. The aforesaid
1/6th share in the erstwhile joint khata, that
came to be partitioned and fell to the share
of Smt. Phula Kunwar vide decree dated
31.03.1983, makes for the land in dispute.

6. It appears from some stray remark
in the judgment of the Consolidation
Authorities that during the lifetime of Smt.
Phula Kunwar, her rights to the land in
dispute were questioned, despite the
partition decree. This was done by some
members of the family, like one Basgit and
some others, but that is of no consequence.
The land in dispute came to be recorded in
the name of Smt. Phula Kunwar during her
lifetime and her right to it is not in
question. Phula Kunwar had a lone child, a
daughter Smt. Sona Kunwar. Smt. Sona
Kunwar was married to Sarju Tiwari. Smt.
Sona Kunwar had a son, Ramji Tiwari and
a daughter, Shiv Kumari. Ramji Tiwari son
of Sarju Tiwari and Smt. Sona Kunwar is
the third respondent here. There is no claim
or issue about the land in dispute on behalf
of Shiv Kumari. Smt. Phula Kunwar
admitted Ramji Tiwari, her daughter's son
as a co-tenant along with herself, in the
1 All. Smt. Ram Dei & Ors. Vs. Joint Director of Consolidation, Ghazipur & Ors.
1143
land in dispute. This was done with the
permission of the then Zamindar. In
consequence, the name of Ramji Tiwari
came to be recorded as a co-tenant along
with Smt. Phula Kunwar. Smt. Phula
Kunwar passed away on 25.11.1958
intestate.
Immediately
before
Phula
Kunwar's death, the land in dispute was
jointly held by Ramji and Smt. Phula
Kunwar, with each co-sharer holding a half
share. Upon Smt. Phula Kunwar's death,
her share was inherited by her daughter,
Smt. Sona Kunwar, Ramji's mother.

7. It appears that there was some
resistance to Smt. Sona Kunwar's right to
inherit Smt. Phula Kunwar, her deceased
mother. This resistance was put up by colaterals of Phula Kunwar's father. It did not
take the form of an outright suiting of
rights in an action for title. Rather, it came
about in the form of a mutation application
made on behalf of Kapil Dev, Basgit and
Ambika on 16.12.1958, asking to be
mutated in place of the late Phula Kunwar.
In those proceedings, Sona Kunwar was
ordered to be mutated in place of Smt.
Phula Kunwar. It is recorded for a fact in
the Consolidation Officer's order that Smt.
Sona Kunwar did not apply for mutation in
her favour. However, mutation in her
favour was made on 30.09.1959. It does not
appear that co-laterals of Sona Kunwar's
mother's father, who initially applied for
mutation upon Phula Kunwar's death,
pursued the matter any further. However,
before mutation in favour of Smt. Sona
Kunwar regarding her half share in the land
in dispute, inherited from her mother could
be carried out, Ramji executed a registered
sale deed on 14.09.1959, relating to the
land in dispute (the entire land that was the
joint holding of himself and his maternal
grandmother, Smt. Phula Kunwar) in
favour of Smt. Ram Dei Kunwar and Ram
Naresh. Smt. Ram Dei Kunwar, the
petitioner here, made an application for
mutation on the basis of the last mentioned
sale deed. The application was objected to
by Smt. Sona Kunwar. The Sub-Divisional
Officer passed an order granting mutation
in favour of Smt. Ram Dei to the extent of
Ramji's share, that is to say, half share in
the land in dispute, whereas the other half
was allowed to stay back with Smt. Sona
Kunwar on the basis of succession. This
order was passed by the Sub-Divisional
Officer
in
mutation
proceedings
on
16.12.1960. The last mentioned order was
appealed by Smt. Ram Dei to the
Commissioner of the Division. The appeal
was dismissed and the mutation order was
affirmed by the Commissioner vide his
order of February the 22nd, 1961. Just a
few days before the Commissioner decided
the mutation appeal, the petitioner claimed
that a registered sale deed dated 15.02.1960
was executed in her favour by Smt. Sona
Kunwar, relating to that half share of the
land in dispute, without which the Mutation
Authority of first instance had determined
that it would go by succession to Smt. Sona
Kunwar.

8. It must be remarked here that the
petitioner's stand about this sale deed is that
it was secured from Smt. Sona Kunwar ex
abundanti cautela. This stand is founded on
the reasoning that Ramji, in fact, held title
to the land in dispute in its entirety and
nothing went to Smt. Sona Kunwar, but to
avoid
uncertainties
of
litigation,
the
petitioner took the half share from Smt.
Sona Kunwar through the registered sale
deed dated 15.02.1960. It must also be
remarked here that the contrary stand of
Smt. Sona Kunwar, now represented by
respondent
no.3
through
his
legal
representatives, is that the sale deed dated
15.02.1960 was never executed by Smt.
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
Sona Kunwar. Rather, the said sale deed is
a bogus document, secured by setting up an
impostor in place of Smt. Sona Kunwar.
This is a matter about which the parties are
much at issue, and details about it would
figure a little later in this judgment.

9. After dismissal of the appeal by the
Commissioner from the Sub-Divisional
Officer's order regarding mutation vide
order dated 22.02.1961, the petitioner, Smt.
Ram Dei applied for mutation afresh on
31.04.1961. This claim was apparently
founded on the sale deed dated 15.02.1960,
purportedly executed by Smt. Sona Kunwar
for
her
half
share.
This
mutation
application was brought arraying Smt. Sona
Kunwar as the opposite party, properly so
called. The application was rejected by the
Sub-Divisional Officer by an order dated
18th January, 1963.

10. Smt. Ram Dei, failing in her
endeavour to secure mutation over the
entire land in dispute, that is to say, one
that included the share inherited by Smt.
Sona Kunwar, filed a declaratory suit under
Section 229-B of the U.P. Z.A. & L.R. Act.
By her suit aforesaid, Smt. Ram Dei
claimed declaration of title to the land in
dispute on the basis of registered sale deed
dated 14.09.1959 from Ramji and the sale
deed dated 15.02.1960, claimed to have
been executed in her favour by Smt. Sona
Kunwar. The suit aforesaid was tried and
dismissed by the Sub-Divisional Officer
vide his judgment and decree of October,
the 29th 1965. The said decree was
appealed to the Commissioner by Smt.
Ram Dei. The appeal was dismissed by the
Additional
Commissioner,
Varanasi
Division, Varanasi vide judgment and
decree dated 30.12.1966. The Appellate
Court held Smt. Sona Kunwar entitled to a
half share in the land in dispute, whereas
the other half was held in favour of Smt.
Ram Dei and Ram Naresh, the assignees
from Ramji. A further appeal was carried to
the Board of Revenue from the appellate
decree by Smt. Ram Dei, the petitioner.
Pending the aforesaid second appeal before
the Board of Revenue, consolidation
proceedings were notified, under Section
4(2) of the Act, leading to abatement of the
appeal.

11. Post abatement of her second
appeal,
the
petitioner
brought
these
objections under Section 9-A(2) of the Act
on 21.09.1970. The case of the petitioner in
her objections as briefly extracted in the
order of the Consolidation Officer, is this:
Ramji was admitted as a co-tenant by Smt.
Phula Kunwar in the land in dispute with
the permission of the Zamindar. A Praman
Patra was issued in favour of Ramji, that
shows him to be a co-tenant along with his
maternal grandmother, Smt. Phula Kunwar.
Smt. Phula Kunwar died on 25.11.1958. In
consequence of her death, the land in
dispute, that is to say, the entire khata
devolved upon Ramji, whereof he became
the sole bhumidhar, under Section 174 of
the U.P. Z.A. & L.R. Act. Ram Dei
purchased the land in dispute from Ramji
on 14.09.1959 through a registered sale
deed.
The
petitioner
has
acquired
bhumidhari rights relating to the land in
dispute through the aforesaid conveyance.
The further case appears to be that the
petitioner entered possession of the land in
dispute to the extent of the whole of it on
the basis of the sale deed dated 14.09.1959,
executed by Ramji. However, a subsequent
sale deed dated 15.02.1960 was got
executed by Smt. Sona Kunwar, in order to
avoid litigation.

12.

Some
amendment
to
the
objections was sought which does not
1 All. Smt. Ram Dei & Ors. Vs. Joint Director of Consolidation, Ghazipur & Ors.
1145
appear to say anything to add to the case. It
was
nevertheless
allowed
by
the
Consolidation
Officer.
However,
in
consequence of the amendment, Ramji was
made a party to the objections. It is
recorded by the Consolidation Officer that
Ramji, respondent no.3, now represented
by his LRs, did not appear or file a written
statement. The case is recorded to have
proceeded ex parte against Ramji before
the Consolidation Officer. It was ordered to
so proceed vide order dated 11.01.1970.

13. Smt. Sona Kunwar - one of the two
Sona Kunwars - contested the objections with
the case that she has succeeded to a half share
in the land in dispute, that is to say, the share
of her mother, Smt. Phula Kunwar; the
remaining half share being held by her (Sona
Kunwar's) son, Ramji. It appears to have
been pleaded by Smt. Sona Kunwar before
the Consolidation Officer that the petitioner's
suit under Section 229-B, based on the same
cause of action, was tried and dismissed. Her
appeal from the Court of first instance failed
before the Additional Commissioner. It is
also her further case that no appeal from the
appellate decree was preferred by the
petitioner, resulting in the petitioner's claim
being barred by res judicata. This Sona
Kunwar urged that the petitioner's objections
be rejected.

14. Before the Consolidation Officer on
17.10.1970, another woman claiming herself
to be Sona Kunwar, appeared in Court and
sought impleadment. She admitted the
execution of the sale deed dated 15.02.1960
by her and urged that she is the real Sona
Kunwar, wife of Sarju Tiwari and Ramji's
mother.

15. On the pleadings of parties, the
Consolidation Officer framed the following
issues:

"(1)
Whether
Smt.
Ramdeo
Kunwar (sic Ram Dei) took sale deed from
Smt.
Sona
Kunwar
and
she
is
in
possession?

(2) Whether the name of Smt.
Sona Kunwar is fictitiously recorded?

(3) What is the share of the
parties?

(4) What is the share of the
parties?

(5) Whether Smt. Sona Kunwar or
Ramji had right to executed (sic execute)
the sale deed?

(6) Which of the two Sona
Kunwar is genuine Sona Kunwar and its
effect?"

16. The petitioner, Ram Dei examined
four witnesses in support of her case, which
does not include herself. She filed eight
documents on 06.08.1971. Smt. Sona
Kunwar, who supported execution of the
sale deed dated 15.02.1960 in favour of the
petitioner, examined two witnesses in
support of her case, including herself. She
filed eight papers on 06.08.1971, that
constitute her documentary evidence. She
was represented before the Consolidation
Officer by Sri Bachchu Singh, Advocate.
She is described by the Consolidation
Officer and by the other Consolidation
Authorities in the judgments impugned in a
rather long-winded description, that says
"Sona Kunwar represented by Sri Bachchu
Singh, Advocate". This Sona Kunwar is
impleaded as respondent no.6 to this
petition. For ease of reference, the Sona
Kunwar, last mentioned, who supports the
petitioner's case, shall hereinafter be called,
''Sona Kunwar-I'. The other Sona Kunwar,
who contested the objections, examined
herself in the witness-box, besides five
other witnesses. This Sona Kunwar filed
some 101 papers by way of documentary
evidence. She was represented before the
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation Officer by Sri Mohd. Taufiq
Khan, Advocate. Again, she is identified in
the judgment of the Consolidation Officer
and the Superior Consolidation Authorities
by reference to her learned Counsel's
identity. In this judgment, Sona Kunwar,
who contested the petitioner's claim, shall
be
called,
''Sona
Kunwar-II'.
These
references to Sona Kunwar as ''I" or "II",
shall figure hereinafter where the issue
related to her identity is considered;
elsewhere she would be referred to as
''Sona Kunwar'.

17. The Consolidation Officer tried
the objections and allowed the petitioner's
claim by his judgment and order dated
04.06.1972. He ordered the name of Smt.
Sona Kunwar to be expunged from the land
in dispute, and a fortiori from the khata in
question. It was furthered ordered that in
the khata in question, the name of Ram
Dei, the petitioner be recorded to the extent
of a 4/5th share in both villages, whereas a
1/5th share be recorded in the name of
Jagardev and Mukhdev, sons of Ram
Naresh. Noting the fact that the name of
Ram Naresh, since deceased, continued to
be recorded in the khata relating to Village
Sindura, it was ordered to be expunged and
the names of Jagardev and Mukhdev, sons
of Ram Naresh, entered.

18. From the aforesaid judgment of
the Consolidation Officer, five appeals
were carried to the Settlement Officer of
Consolidation; two by Smt. Sona Kunwar
and three by the petitioner, Ram Dei. Smt.
Sona Kunwar's Appeals were numbered as
1862 and 1863 whereas those by the
petitioner, Ram Dei, were numbered as
Appeals nos.1895, 1896 and 1897. Smt.
Sona Kunwar by her two appeals sought
reversal
of
the
judgment
of
the
Consolidation Officer to the extent her
name was ordered to be expunged for her
half share in the land in dispute. The
appeals were two in number, inasmuch as
the land in dispute was located in two
different villages. The petitioner's appeals
sought exclusion of the names of Jagardev
and Mukhdev, sons of Ram Naresh, on
ground that the petitioner was entitled to
the entire land comprising the khata in
question that she had purchased from
Ramji, who had title to the whole of it.

19.

The
Settlement
Officer
of
Consolidation heard and determined the five
appeals vide judgment and order dated
04.12.1972, in the manner that Smt. Sona
Kunwar's appeals were allowed and the
petitioner's appeals, numbering three, were
dismissed.
The
Settlement
Officer
of
Consolidation declared a share for the parties
in the manner that the petitioner, Ram Dei
was held entitled to a 2/5th share in the khata
in question, whereas Jagardev and Mukhdev
were found to have a 1/10th share. Smt. Sona
Kunwar was entitled to a half share in the
said khata. This determination of shares in
the Khata in question was made on the basis
that Smt. Sona Kunwar was entitled to a half
share in the land in dispute. It must be
remarked here that it is not clear how a half
share in the land in dispute led the Settlement
Officer to determine a half share for Smt.
Sona Kunwar in the Khata in question. This
Court says so as the case of the parties is
about a dispute whether Smt. Sona Kunwar
holds a half share in the land in dispute or
none at all. Even if, Sona Kunwar is held to
have a half share in the land in dispute, it is
not indicated in the order of the Settlement
Officer how that half share would extend to
the Khata in question that is much larger than
the land in dispute.

20. The petitioner, Ram Dei assailed
the judgment and order of the Settlement
1 All. Smt. Ram Dei & Ors. Vs. Joint Director of Consolidation, Ghazipur & Ors.
1147
Officer of Consolidation through five
revisions, under Section 48 of the Act, that
she preferred to the Deputy Director of
Consolidation, Ghazipur. These revisions
were numbered as Revisions nos.465, 581,
464, 463 and 366. Of these five revisions,
two revisions were referable to the
appellate judgment rendered in the appeal
preferred by Smt. Sona Kunwar, by which
the Consolidation Officer's order directing
her name to be expunged from the land in
dispute was set aside, granting Sona
Kunwar a half share. The other three
revisions were directed against that part of
the appellate judgment by which the
petitioner's claim to exclude Jagardev and
Mukhdev was rejected by the Settlement
Officer of Consolidation. All the revisions
were heard together by the Deputy Director
of Consolidation with Revision no.581
being treated as the leading case. The
Deputy Director of Consolidation by his
judgment and order dated 26.02.1985
dismissed all the revisions and affirmed the
Settlement Officer of Consolidation.

21. Disillusioned by the Revisional and
the Appellate orders, the petitioner has
instituted this writ petition.

22. Heard Sri Vishnu Singh, learned
Counsel appearing on behalf of the petitioners
and Sri Bhola Nath Yadav, learned Counsel
appearing on behalf of respondent nos. 3/1, 3/2
and 3/3. No one has appeared at the hearing on
behalf of the heirs and legal representatives of
respondent nos. 4, 5, as also respondent no.6.

23. The Court has perused the writ
petition, the two counter affidavits filed on
behalf of respondent nos. 3/1 to 3/3 and the
relative rejoinder affidavits.

24. Sri Vishnu Singh, learned Counsel
for
the
petitioners
has
assailed
the
judgments of the Revisional and the
Appellate Authorities on various counts.
The foremost that he urges is based on a
development that took place in the mortal
course of human nature. He has invited the
attention of the Court to the Revisional
Authority's judgment, where it is recorded
that Smt. Sona Kunwar died pending
revision and her interest is now represented
by Ramji, her son. Sri Vishnu Singh has
made it bold to say that even if it be
assumed that when Ramji executed the sale
deed dated 14.09.1959, relating to the
whole of the land in dispute, he had no
more title than to a half share in it, the
petitioner's claim now stands established
owing to the supervening death of Sona
Kunwar. He submits that if the third
respondent's case were accepted that at the
time of execution of the sale deed of 1959
all that Ramji could transfer was a half
share in the land in dispute, the other half
being inherited by Smt. Sona Kunwar from
her mother, once Ramji has inherited the
remainder
from
Smt.
Sona
Kunwar,
pending proceedings before the Revisional
Authority, he is bound by his deed of 1959
to the extent of whole of the land in
dispute. According to the learned Counsel
for
the
petitioners
the
supervening
acquisition of title by Ramji for the
deficient half from his mother, if that be the
case, makes the sale deed of 1959 an
effective conveyance for the whole of the
land in dispute by dint of the principle
known as, "feeding the estoppel". He
submits that the right based on this
principle flows from the provisions of
Section 43 of the Transfer of Property Act,
1882. According to the learned Counsel,
the principle embodied in Section 43
(supra) mandates that a transferor's interest
in immovable property, who fraudulently
or mistakenly represents that he holds a
certain interest in the property which, in
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
fact, he does not have but subsequently
acquires, goes to the transferee who has
taken
the
property
believing
the
representation,
whether
mistaken
or
fraudulent,
to
be
true.
In
these
circumstances, according to the learned
Counsel, the transferor cannot be heard to
say that at the time he made the transfer, he
had no interest in the subject matter of
conveyance. Once he acquires the nonexistent interest, transferred by his solemn
deed, the subsequently acquired interest
would go to the transferee.

25. Sri Vishnu Singh, learned Counsel
for the petitioners has relied on a decision
of the Supreme Court in Hardev Singh vs.
Gurmail Singh (dead) By LRs, (2007) 2
SCC 404. He has invited this Court's
attention to paragraphs 14 and 15 of the
report in Hardev Singh (supra), where it is
held:

"14. The doctrine of feeding the
estoppel envisages that "where a grantor
has purported to grant an interest in land
which he did not at the time possess, but
subsequently acquires, the benefit of his
subsequent acquisition, goes automatically
to the earlier grantee, or as it is usually
expressed, feeds the estoppel".

15. The principle is based on an
equitable doctrine that a person who
promised to perform more than he can
perform must make good his contract when
he acquires the power of performance. The
difference between the ambit of Sections 41
and 43 of the Act is apparent. Whereas
Section 41 provides that a transfer by an
ostensible owner cannot be avoided on the
ground that the transferor was not
authorised
therefor,
subject
to
the
condition that the transferee should take
reasonable care to ascertain that the
transferor had power to make the transfer
and to act in good faith before a benefit
thereof is claimed by him. Section 43, on
the other hand, enables the transferee to
whom a transferor has made a fraudulent
or erroneous representation to lay hold, at
his option, of any interest which the
transferor may subsequently acquire in the
property, unless the right of any subsequent
purchaser for value without notice is in
effect."

26.

Learned
Counsel
for
the
petitioners has placed further reliance, in
support of his submission, upon a decision
of the Orissa High Court in Biswanath
Sahu and others vs. Mrs. Tribeni Mohan
(dead) by L.R.s and others, AIR 2003
Ori 189. It has been held in paragraph 10
of the report in Biswanath Sahu and
others (supra) thus:

"10. If the case is looked from
another angle, it will be evident that
execution of the sale deed has to be upheld
as valid. Reference may be made to S. 43 of
the Transfer of Property Act. Said Section
provides as follows:

"Transfer by unauthorised person
who subsequently acquires interest in
property transferred -- Where a person
(fraudulently or erroneously) represents
that he is authorised to transfer certain
immovable property and professes to
transfer such property for consideration,
such transfer shall, at the option of the
transferee, operated on any Interest which
the transferor may acquire in such property
at any time during which the contract of
transfer subsists."

There is no dispute that after
death of Amulyanath Mitra, defendant No.
3 has succeeded to the property. Even if
contention of the learned counsel for the
appellant is accepted that the deed (Ext. 2)
had been executed during lifetime of
1 All. Smt. Ram Dei & Ors. Vs. Joint Director of Consolidation, Ghazipur & Ors.
1149
Amulyanath Mitra by Sailendranath Mitra
as Power-of-attorney holder, the sale was
not valid because of the reasons stated
earlier, the property having devolved on
defendant No. 3 after death of Amulyanath
Mitra, the provision contained in S. 43 of
the Transfer of Property Act comes Into
operation and, therefore, such sale is not
only valid but also binding on defendant
No. 3..............."

27. Sri Bhola Nath Yadav, learned
Counsel for respondents nos.3/1 to 3/3 has
refuted the contention of the learned
Counsel for the petitioners on this score.
He submits that fair and square the
principle embodied in Section 43 of the
Transfer of Property Act or the principle of
feeding the estoppel, is not at all attracted
to the facts of this case. In the submission
of Sri Bhola Nath Yadav, a right based on
the principle of feeding the estoppel is
available, so long as the transferee does not
know for a fact that the transferor who
represents title in himself, does not hold it.
He submits that in a case where the
transferee knows for a fact that the
transferor does not hold title that he
transfers by his deed, a subsequent
acquisition of that title by the transferor,
would not serve to feed the estoppel. In
short, in the submission of the learned
Counsel for the respondents, this principle
is available only in cases where the
transferee
does
not
know
that
the
transferor, in fact, holds no interest in the
immovable property that he represents to
possess, when he executes the conveyance;
not if the transferee is also aware about the
absence of title in the transferor at the time
of conveyance. He submits that the
petitioner, Ram Dei was aware about the
fact that Phula Kunwar's interest was
inherited by Smt. Sona Kunwar, being her
heir entitled and Phula Kunwar having died
intestate. He points out that the petitioner is
a relative of Smt. Sona Kunwar, Smt. Phula
Kunwar, her mother and also of Ramji,
Sona Kunwar's son, her vendor. In these
circumstances, he urges that the petitioner
was well aware that half share in the land in
dispute devolved upon Smt. Sona Kunwar,
and not upon Ramji, who held as a cotenant to the extent of a half share along
with Smt. Phula Kunwar, since deceased.
Learned Counsel for the respondents,
therefore, submits that the provisions of
Section 43 of the Transfer of Property Act
would not apply and the transfer would fail
under Section 6(a) of the Act, last
mentioned.

28. In support of his contention,
learned Counsel for the respondents has
placed reliance on a decision of the
Supreme
Court
in
Jumma
Masjid,
Mercara vs. Kodimaniandra Deviah and
others, AIR 1962 SC 847. He has drawn
the Court's attention to paragraph 15 of the
report
in
Jumma
Masjid,
Mercara
(supra), where it is held:

"15. This reasoning is open to the
criticism that it ignores the principle
underlying
Section
43.
That
section
embodies, as already stated, a rule of
estoppel and enacts that a person who
makes a representation shall not be heard
to allege the contrary as against a person
who acts on that representation. It is
immaterial whether the transferor acts
bona fide or fraudulently in making the
representation. It is only material to find
out whether in fact the transferee has been
misled. It is to be noted that when the
decision under consideration was given,
the relevant words of Section 43 were,
"where a person erroneously represents",
and now, as amended by Act 20 of 1929,
they are "where a person fraudulently or
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
erroneously
represents",
and
that
emphasises that for the purpose of the
section
it
matters
not
whether
the
transferor acted fraudulently or innocently
in making the representation, and that what
is material is that he did make a
representation and the transferee has acted
on it.