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PETITIONER: SHABBIR (D)  BY LRS. & ORS.

       Vs.

RESPONDENT: ABDUL SATTAR AND ORS.

DATE OF JUDGMENT:       13/09/2000

BENCH: Syed Shah Mohammaed Quadri, J. & S.N. Variava, J.

JUDGMENT:

S. N. VARIAVA,J.

L...I...T.......T.......T.......T.......T.......T.......T.......J     This  Appeal  is  against an Order dated 21st  December  1981 passed  in Writ Petition No.  10508 of 1980 by the High Court  of Allahabd.

   Briefly  stated the facts are as follows:  Smt.Munni and Smt. Nanni were joint owners of the land in question.  On the death of Smt.   Munni,  after some dispute, her share devolved on  Nathua. Nathua  had  three sons, namely, Shabbir, Kalua and Abdul  Gafur. In  respect  of the land in question  consolidation  proceedings, under  the  U.P.   Consolidation of Holdings Act, 1953,  were  in progress.

   Smt.   Nanni had no issues.  She had, however, appointed four Mukhtarams  (Power of Attorney holders).  On 20th January,  1961, these four Mukhtarams executed a sale deed of her share in favour of  Abdul  Gafur,  Abdul  Aziz,  Abdul  Majid  and  Abdul  Sattar (hereinafter  referred to as the purchasers).  On 13th July, 1961 post facto permission was granted for such sale.  On the basis of this  sale  deed the A.C.O.  passed an order dated  28th  August, 1961,  directing  mutation  to  be  made   in  the  name  of  the purchasers.

   When Smt.  Nanni learned about the sale deed and the mutation of  her share in the name of the purchasers, she filed objections under Section 5 of the U.P.  Consolidation of Holdings Act, 1953. On  21st  June, 1963 her objections were rejected by  the  A.C.O. However, the revision filed by her was allowed by S.O.C.  on 29TH July,  1963.   The  S.O.C.  directed deletion of  the  change  in mutation,  inter  alia,  on  the ground that the  sale  deed  was invalid  as  no  prior permission had been  taken  under  Section 5(1)(c)(ii)  of  the U.P.  Consolidation of Holdings  Act,  1953. The  revision  filed  by these four persons was rejected  by  the Deputy  Director on 9th October, 1963.  Deputy Director also held that  the  sale deed was invalid as no prior permission had  been taken  under  Section 5(1)(c)(ii) of the U.P.   Consolidation  of Holdings  Act, 1953.  The purchasers then filed Writ Petition No. 323 of 1964, challenging the order dated 9th October, 1963 of the Deputy  Director.  During the pendency of the Writ Petition  Smt. Nanni  died.  On 6th May, 1969, a statement was made, before  the High  Court,  that Smt.  Nanni had died and that the  Petitioners (therein)  claiming  to be the heirs of Smt.  Nanni had  made  an application  for mutation in their favour on that basis.  On this statement  it  was  held  that   the  Writ  Petition  had  become

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infructuous.  The same was accordingly dismissed.

   Shabbir  (the first Appellant herein) then filed a case under Section  229(B) of the U.P.  Zamindari Abolition and Land Reforms Act,  1950.  He claimed that on the death of Nanni, he along with his brothers Kalua and Abdul Gafur had inherited Nanni’s share in the said land.  He applied for mutation of this land in the names of three brothers.  The purchasers i.e.  Abdul Gafur, Abdul Aziz, Abdul  Majid  and Abdul Sattar again made a claim to the land  on the basis of the sale deed dated 20th January, 1961.     The  case  was  decreed in favour of the  Appellant  on  21st September,  1973.  However, an Appeal filed by the purchasers was allowed  by  the  Commissioner  on   5th  February,  1974.    The Appellant,  therefore, filed a Second Appeal before the Board  of Revenue.   The Board of Revenue, allowed the Second Appeal on 8th October,  1980.   The Board of Revenue held that the order  dated 9th  October,  1963  passed  by the Deputy  Director  in  earlier proceedings  between  Nanni and the purchasers had become  final. It was again held that the sale deed dated 20th January, 1961 was invalid for want of prior permission under Section 5(1)(c)(ii) of the U.P.  Consolidation of Holdings Act, 1953.

   The  purchasers then filed Writ Petition No.  10508 of  1980. This  was  allowed by the impugned judgment dated 21st  December,@@       JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 1981.   Relying on a Full Bench decision in the case of Smt.  Ram@@ JJJJJ Rati  and  others vs.  Gram Samaj, Jehwa and others, reported  in AIR  1974  Allahabad  106, it has been held  that  under  Section 5(1)(c)(ii)  prior  permission is required only if a part of  the holding  is  being transferred by sale, gift or exchange.  It  is held  that if the whole of the holding is being transferred  then no  permission is required.  It is held that the sale was of  the entire share of Nanni and therefore it was not a Sale of the part of  the  holding.   It  is also held that  the  order  dated  9th October,  1963  was  passed  in a proceeding  for  correction  of records and, therefore, that order would not be final and binding in a proceeding where the rights or interests of the parties were being  decided.   Mr.  Mehrotra informs us that this  Full  Bench decision  has  been overruled by a Bench of seven Judges  in  the case  of Mata Badal Pandey vs.  Board of Revenue & Ors.  reported in  1976 A.L.R.  392.  However, this subsequent authority was not shown to this Court.  As the subsequent authority is not shown to this  Court,  for purposes of this Order, we will proceed on  the basis  that  the learned Judge was bound by Ram Rati’s case.   In our  view even on the basis that no permission would be  required for  transfer of the whole of the holding, the order of the  High Court  is  not sustainable.  The purpose of providing  for  prior permission   is  that  during   pendency  of  the   consolidation proceedings  complications should not arise.  Complication  would arise  if  parts  of the holdings were transferred.   Then  there would be two or more tenure holders and separate lands would have to  be allotted to each one.  In this case the land was in  joint names  of Smt.  Munni and Smt.  Nanni.  Admittedly what had  been sold  was  only the share of Smt.  Nanni.  This was an  undivided share  in  the land.  Thus what was sold was a 1/2 share  in  the holding.  Thus there was no transfer of the whole of the holding. There was a transfer of a part of the holding.  This could not be done  without  prior permission under Section 5(1)(c)(ii) of  the U.P.   Consolidation  of Holdings Act, 1953.  If that be so  then the  sale  without  prior permission was invalid  and  no  rights accrued  to the purchasers.  We are also unable to agree with the finding given by the High Court that the order dated 9th October, 1960,  did not become final.  Undoubtedly, those proceedings were under  Section  5 for correction of records.  But even  in  those

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proceedings  the question of title was gone into.  Without  going into  the question of title it could not be decided in whose name the  mutation  was to be made.  After going into the question  of title  it  had  been held that the sale deed was  invalid  as  no permission  had been taken under Section 5(1)(c)(ii) of the  U.P. Consolidation   of  Holdings  Act,   1953.   The  writ   petition challenging  this  finding  was allowed to be  got  dismissed  as infructuous.   Once  that was done it was no longer open  to  the purchasers  to  again place reliance on the sale deed.   On  that ground also the writ petition could not have been allowed.  Faced with  this situation Sh.  Bagga sought to submit that the earlier proceedings  were  Revenue  proceedings   and  findings  in  such proceedings are not binding.  We have not permitted Mr.  Bagga to take  up  this  contention as in the Writ Petition filed  by  the Respondents  no such ground is taken.  For the above reasons  the impugned Judgment cannot be sustained.  Accordingly the appeal is allowed.   The impugned judgment dated 21st December, 1981 is set aside.  The order of the Board of Revenue dated 8th October, 1980 is restored.  There will, however, be no order as to costs.