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PETITIONER: RAM AVTAR & ORS.

       Vs.

RESPONDENT: RAM DHANI & ORS.

DATE OF JUDGMENT:       26/09/1996

BENCH: N.P.SINGH, FAIZAN UDDIN

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      One Sehti,  the husband  of Smt. Phoola died in a state of jointness in the year 1911. The said Smt.Phoola continued to be  the member  of the  joint  family  along  with  other brothers of her husband. A dispute arose in the family and a compromise was  entered into on February 8, 1932 in which it was agreed  that Smt. Phoola who was the widow in the family should be  given some  lands for  maintenance. Her  name was also mutated in revenue records.      The said  Phoola executed  sale deeds  in favour of the respondents on  April 6,  1956 in  respect of  the lands  in question.  She  died  in  the  year  1966.  Thereafter,  the appellants filed  a suit  for declaration  that  Smt  Phoola having only  a limited  interest in  the said property could not have  transferred the same in favour of the respondents. That suit  abated in  view of  issuance of  the notification under the  provisions of  U.P.Consolidation of Holdings Act. Thereafter, the  same question  as to  whether the  transfer could have  been made or not by Smt. Phoola in favour of the respondents was raised before the Consolidation Officer. The Consolidation Officer  upheld the  right of  Smt. Phoola  to transfer the  lands in  question. The appeal filed on behalf of   the    appellants   before   the   Settlement   Officer (Consolidation) was  also dismissed  with the  same finding. However, on  revision application  being filed  on behalf of the appellants, the Deputy Director, Consolidation set aside the orders  passed by  the  Consolidation  Officer  and  the Settlement  Officer   (Consolidation).  Thereafter,  a  writ petition was  filed on  behalf of the respondents before the High Court.  A learned  Judge of the High Court after taking into consideration  the provisions  of  the  U.P.  Zamindari Abolition and  Land Reforms  Act, 1950  (hereinafter  to  be referred to  as the  Land Reforms Act) and the provisions of the Hindu  Succession Act  (hereinafter to be referred to as the Succession  Act) came to the conclusion that even before coming into  force of  the provisions  of the Succession Act Smt. Phoola  had acquired absolute right under Section 18 of the Land  Reforms Act  on the  basis of which she could have conveyed valid title to the respondents. The High Court also proceeded to  consider the  effect of  the provisions of the

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Succession Act  in  connection  with  the  arguments  raised before the High Court that the lands which had been given to Smt. Phoola  for maintenance, were in lieu of a pre-existing right.      Learned counsel  appearing for  the appellants took the stand that  in the  present case,  Section 11  of  the  Land Reforms Act  shall be  attracted and not Section 18. Section 11 and  relevant part  of Section 18 of the Land Reforms Act are as follows:           "Section 11.  Sir or Khudkasht      allotted  in  lieu  of  maintenance      allowance Notwithstanding  anything      contained in  Section 10, where sir      or Khudkasht  has been  allotted by      the sir or Khudkasht holder thereof      to a  person in lieu of maintenance      allowance,  such  person  shall  be      deemed  to  be  the  asami  thereof      entitled to  hold the  land for  so      long as  the right  of  maintenance      allowance subsists.           Section  18.   Settlement   of      certain lands  with  intermediaries      of cultivators  as Bhumidhar  - (1)      Subject  to   the   provisions   of      Sections 10,  15,  16  and  17  all      lands-           (a)  in possession  of or held      or  deemed   to  be   held  by   an      intermediary as  sir, Khudkasht  or      an intermediary’s grove,           (b)  held as a grove by, or in      the  personal   cultivation  of   a      permanent lessee in Avadh,           (c)  held  by   a   fixed-rate      tenant or  a rent-free  grantee  as      such, or           (d)  held as such by-           (i)  an occupancy tenant,           (ii) a hereditary tenant,           (iii)a tenant or Patta Dawami           or Istamrari referred to in           Section 17,           possessing   the    right   to           transfer the holding by sale,           (e) held by a grove holder,      on the  date immediately  preceding      the date of vesting shall be deemed      to  be   settled   by   the   State      Government with  such intermediary,      lessee, tenant,  grantee or  grove-      holder, as  the case  may  be,  who      shall, subject to the provisions of      this Act,  be entitled  to take  or      retain possession  as  a  bhumidhar      thereof.      .................................."      On a plain reading of Section 18(1) it appears that all lands in  possession of  an intermediary as sir or Khudkasht on the  date immediately preceding the date of vesting shall be deemed  to be  settled by  the State Government with such intermediary. The  High Court  was of  opinion that  as Smt. Phoola was  in possession  of the  lands in  question on the date immediately  preceding the date of vesting, it shall be deemed to have been settled by the State Government with her

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in view  of Section  18(1) and  she had  right to retain the same as Bhumidhar thereof.      On behalf  of the  appellants it  was pointed  out that Smt. Phoola  shall not be deemed to be an intermediary so as to avail  the benefit  of Section  18(1). The  Consolidation Officer, the Settlement Officer (Consolidation) and the High Court have  proceeded  on  the  assumption  that  after  the compromise in  the year  1932 Smt. Phoola came in possession of the  lands which  are the  subject matter  in dispute, in lieu of  maintenance on  the  basis  of  compromise  in  the family. The family was joint. There is no finding that there was any  partition at  any stage later. As such, it shall be deemed that  Smt. Phoola  continued to  be a  member of  the joint family which was admittedly an intermediary within the meaning  of   provisions  of   Land  Reforms  Act.  In  this background, according  to  us  Section(5)  18(1)  was  fully attracted and  on the  basis thereof it shall be deemed that the land  which she  was holding  as sir  or  Khudkasht  was settled by  the  State  Government  with  her  and  she  was entitled to retain possession as Bhumidhar thereof.      This Court  in the  case  of  Ramji  Dixit  &  Anr.  v. Bhrigunath  &   Ors.  reported  in  (1968)  2  SCR  767  has considered the  scope of  the provisions of the Land Reforms Act in connection with a widow holding a life estate and has held that  in view of the provisions of the Land Reforms Act she will be deemed to be Bhumidhar. Learned counsel tried to distinguish the  judgment by  saying that  in that case, the land had devolved on the widow from her husband directly and not on  the basis  of any  compromise. According  to us, the ratio of  that judgment  cannot  be  distinguished  on  this ground.      The High  Court has  rightly rejected  the stand of the appellants that  as Smt.  Phoola got  the lands  by  way  of maintenance it  will be covered by Section 11 of the Act and after vesting  she will  be deemed  to be  the asami and not Bhumidhar. It  appears Section  11 shall be applicable where the holder  of sir or Khudkasht lands allots such lands to a person in  lieu of  maintenance allowance.  In  the  present case, Smt. Phoola got the lands on the basis of a compromise entered into  in the  year 1932  and she  was in  possession thereof.      We are surprised as to how the Deputy Director(6) while exercising the  revisional power  entered into all questions of fact  and came  to the conclusion on pure conjecture that the appellants  before this  Court shall  be deemed to be in possession  of   the  lands   since  1932.  This  Court  has repeatedly pointed  out that  howsoever wide the power under statutory revision  may be in contrast to Section 115 of the Code of  Civil Procedure,  still while exercising that power the authority  concerned cannot act as court of appeal so as to  reappreciate   the  evidence  on  record  for  recording findings on  questions of  fact. According  to us,  the High Court  should  have  set  aside  the  order  of  the  Deputy Director, on  this ground alone and should have restored the order  of  the  Consolidation  Officer  and  the  Settlement Officer  (Consolidation).  We  are  in  agreement  with  the conclusions arrived  at by the High Court. Accordingly, this appeal fails and is dismissed. No costs.