REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 8179 OF 2016

SITA RAM(DEAD) THROUGH LRS.      …..APPELLANT(S)

VERSUS

BHARAT SINGH(DEAD) THROUGH LRS & ORS.     …..RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). 8181 OF 2016

J U D G M E N T

Rastogi, J.

1. These appeals arise from the judgment dated 5th July, 2007

passed by the High Court of Allahabad in setting at naught the

inter se rights of the litigating parties initiated under the Uttar

Pradesh Zamindari Abolition and Land Reforms Act,

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1950(hereinafter being referred to as the “Act, 1950”) arising from

the registered deed of exchange dated 2nd March, 1974.

2. The brief facts of the case culled out from the record are

that Smt. Chando and Sita Ram (since deceased) who were

tenure holders of Plot No. 2902 ad­measuring 0.34 decimals

situated in Village Mathura Bangar, Tehsil & District Mathura,

U.P. sold the subject plot on transfer of consideration to late N.D.

Chaudhary(father  of respondent  nos.  10  & 11) vide registered

sale deed dated 24th  January, 1973.   Late Kesho Ram

(father/grandfather of respondent nos. 1 to 8), who was tenure

holder of plot nos. 2863 and 2888, with consent, exchanged his

plots  with plot  no.  2902 owned by late  N.D.  Chaudhary  by  a

registered deed of exchange dated 2nd March, 1974.  As a result of

the deed of exchange, plot no. 2902 ad­measuring 0.34 decimals

was transferred in favour of late Kesho Ram and plot nos. 2863

and 2888 in favour of late N.D. Chaudhary.

3. That at the time of field partal (chakbandi) in the village for

correction of revenue records conducted by the Assistant

Consolidation Officer (ACO) late Kesho Ram(father/grandfather of

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respondent nos. 1 to 8) filed application under Section 9A(2) of

the Uttar Pradesh Consolidation of Holdings Act, 1953

(hereinafter referred to as “the Act, 1953”) and prayed that his

name be recorded on Plot No. 2902 by virtue of  the exchange

deed executed between him and late N.D. Chaudhary dated 2nd

March, 1974.

4. It may be noticed that late N.D. Chaudhary who had

exchanged his Plot No. 2902 with Plot Nos. 2863 and 2888 from

late Kesho Ram also filed application in the consolidation

proceedings and supported the case of late Kesho Ram who was

the applicant in the proceedings for opening of mutation in his

name in the revenue records.

5. At this stage  Smt.  Chando  and  Sita  Ram who  were the

original tenure holders of Plot No. 2902 who had sold it to late

N.D. Chaudhary, by a registered sale deed dated 24th  January,

1973, raised an objection regarding validity of the registered sale

deed dated 24th January, 1973.   The Consolidation Officer, after

appraisal of the material on record, held that the sale deed dated

24th  January, 1973 executed by Smt. Chando and Sita Ram in

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reference to plot no. 2902 in favour of late N.D. Chaudhary was

genuine and valid and was jointly executed by Smt. Chando and

Sita Ram and in regard to the exchange of plots, the

Consolidation Officer held that the exchange was permissible

only with permission of the Assistant Collector in terms of

Section 161 of the Act, 1950 which, in the instance case, was not

obtained by the parties.   In the absence of permission which is

pre­requisite, he is not entitled to be recorded as Bhumidar

under the consolidation proceedings.  When the matter travelled

in appeal under Section 11 of the Act, 1953, it was observed that

the registered sale deed dated 24th January, 1973 was not proved

based on appreciation of evidence and further held that the deed

of exchange dated 2nd  March, 1974 was void for want of

permission from the competent authority provided under Section

161 of the Act, 1950 and the appeal was consequently dismissed

on 18th January, 1982.

6. The matter further travelled before the State Government in

its revisional jurisdiction under Section 48 of Act, 1953 filed at

the instance of late N.D. Chaudhary and late Kesho Ram before

Deputy Director, Consolidation, Mathura, both the revision

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petitions came to be dismissed although authority did not record

any finding regarding validity of the sale deed but from the order,

it reveals that the authority proceeded on the premise that

registered sale deed dated 24th  January, 1973 was genuine and

valid.

7. The order of the revisional authority dated 19th July, 1984

came to be challenged by late Kesho Ram in a writ petition under

Article 227 of the Constitution of India and taking note of the

pleadings  on record, the  High  Court  vide impugned judgment

dated 5th July, 2007 observed that the exchange deed dated 2nd

March, 1974 was in contravention of Section 166 read with

Section 167 of the Act, 1950 and any exchange in the absence of

permission from Assistant Collector was void by virtue of Section

166  at the same time further  observed that it  was the  State

Government who could apply for cancellation if affected by the

registered deed of exchange but it was not open to be questioned

at the instance of the original tenure holder Smt. Chando and

Sita Ram who are now being represented by their legal heirs of

plot no. 2902 who had sold with their consent to late N.D.

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Chaudhary on 24th January, 1973 through a registered sale deed

which was  not a subject matter of challenge in appeal before us.

8. The moot question which has been raised for consideration

is  as to  what  will  be the legal consequences if the registered

exchange deed dated 2nd March, 1974 has been executed without

following the procedure prescribed as provided under Section 161

of the Act, 1950.

9. Learned counsel for the appellants submits that the High

Court in its supervisory jurisdiction  under  Article 227 of the

Constitution of India has exceeded in its jurisdiction in

interfering with the concurrent finding arrived at by the

consolidation authorities holding that  late N.D. Chaudhary did

not get his name mutated in the revenue records based on the

registered sale deed dated 24th January, 1973 and at the time of

initiation of the consolidation proceedings, he did not put forth

any claim or filed any objection provided under Section 9A of the

Act, 1953.  At the same time, the exchange deed dated 2nd March,

1974 was executed without seeking permission from the

competent authority (Assistant Collector) as provided under

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Section 161 of the Act, 1950 and such exchange being void, late

Kesho Ram cannot claim any right over the plot in question to

open mutation and in consequence the appellants hold a right

over the subject plot no. 2902 even if it was sold by Smt. Chando

and Sita Ram(predecessor in interest)  jointly by registered sale

deed dated 24th January, 1973.

10. Learned counsel further submits that the High Court has

failed to appreciate the legal effect of Section 166 read with

Section 167 of the Act, 1950 and the action once being held to be

void by operation of law, they are entitled to hold their right and

possession over plot no. 2902.

11. Per contra, learned counsel for the respondents, while

supporting the finding recorded by the High Court, further

submits that once plot no.2902 ad­measuring 0.34 decimals was

sold  by the  appellants (predecessor in interest) jointly  by the

registered sale deed dated 24th  January, 1973 to late N.D.

Chaudhary, they have lost their rights and interest over the

subject plot in question and whatever the default, if any, being

committed by late N.D. Chaudhary, it will not give support to the

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present appellants in making their claim over the subject plot in

question and further submits that the permission of the

Assistant  Collector even if not obtained  would  not take  away

rights of the parties which have been conferred on transfer of the

property by the registered exchange deed dated 2nd March, 1974

and as per the scheme of the Act, 1950, transfers made prior to

3rd June, 1981 are not void but are voidable at the option of the

suit to be filed by Gaon Sabha or land holder within the period of

limitation.   Indisputedly,  no  action was taken either  by  Gaon

Sabha or land holder within the period of limitation.  In the given

facts  and circumstances,  no error has been committed by the

High Court in the impugned judgment which may call for

interference.

12. We  have  heard learned  counsel for the  parties  and  with

their assistance perused the material available on record.

13. The deed of exchange between late N.D. Chaudhary (father

of respondent nos. 10 and 11) and late Kesho Ram

(father/grandfather of respondent nos. 1 to 8) was executed by

the registered deed on 2nd March, 1974.   Section 161, 166 and

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167 of the Act, 1950 as existing prior to the amendment made on

3rd June, 1981 are ad infra:­

“Section 161 Exchange. [(1) A bhumidhar or sirdar  may exchange with :­

(a) any other bhumidhar or sirdar land held by  him, or

(b) any Gaon Sabha or local authority, lands for  the time being vested in it under Sec. 117 [ *  * *] :

Provided that no exchange shall be made except with the permission of an Assistant Collector who shall refuse permission if the difference between the rental value of land given in exchange and of land received in exchange calculated at hereditary rates is more than 10 per cent of the lower rental value.

(1­A) Where the Assistant Collector permits exchange he shall also order the relevant annual registers to be corrected accordingly.

(2)On exchange made in accordance with sub­section (1) they shall have the same rights in the land so received in exchange as they had in the land given in exchange.”

“S. 166.Transfer made in contravention of this chapter to be void.  Any transfer, made by or on behalf of a sirdar or asami in contravention of the provisions of this chapter shall be void.”

By U.P. Act 30 of 1975, the words “in contravention of this

Chapter” were substituted by the words “in contravention of the

provisions of this Act”.

“S. 167.Consequences of void transfers.  [(1) Where a sirdar or asami  has  made any transfer in contravention of the provisions of this Act, the transferee and every person who may have thus obtained possession of the whole or part of the holding

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shall  be liable to ejectment on the suit  of  the [Gaon Sabha or the land holder, as the case may be,]

(2)A  decree for ejectment  under  sub­section (1)  may direct  the ejectment of the sirdar or asami  from the whole or part of the holding as the court may, having regard to the circumstances of the case, direct].”

14. It may be relevant to refer Rule 338 of the U.P. Zamindari

Abolition & Land Reforms Rules, 1952(hereinafter being referred

to as the “Rules 1952”) for the purpose as under:­

“338. The suit applications  and  other  proceedings specified in Appendix III shall be instituted within the time specified therein for them, respectively.

Appendix III (Rule 338)

Sl. No.

Section of the Act

Description of suit, application and other proceeding

Period of limitation

Time from which period begins to run

Proper court fees

19. 163 Suits for ejectment of bhumidhar.

Six Years. From the date of illegal transfer.

As in the Court Fees Act, 1870, on the year’s revenue.

20. 167 Suits for ejectment of a sirdhar or asami.

Do. Ditto. Ditto.

Substituted 2056/I­A­463­1952 dated 11th April, 1969”

15. It will be appropriate to take note of Sections 161, 166 and

167 amended by U.P. Act No. 20 of 1982(w.e.f. 3rd June, 1981) for

better appraisal ad infra:­

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“Section 161 Exchange. [(1) A Bhumidhar [* * *] may  exchange with :­

(a) any other bhumidhar [* * *] land held by  him, or

(b) any Gaon Sabha or local authority, lands  for the time being vested in it under Sec.  117 [ * * *] :

 Provided that no exchange shall be made except  with the  permission  of an  Assistant  Collector  who  shall refuse permission if the difference between the rental value of land given in exchange and of land received in exchange calculated at hereditary rates is more than 10 per cent of the lower rental value.

(1­A) Where the Assistant Collector permits exchange he shall also order the relevant annual registers to be corrected accordingly.

(2)On exchange made in accordance with sub­section (1) they shall have the same rights in the land so received in exchange as they had in the land given in exchange.   S. 166. Transfer made in contravention of this chapter to be void.­  Every transfer made in contravention of the provisions of this Act shall be void.

S. 167. Consequences of void transfers.  (1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely­

(a) the  subject­matter  of transfer shall,  with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;

(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances;

(c) the transferee may remove other movable property or the materials of any immovable

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property existing on such land on the date of transfer within such time as may be prescribed.

(2)Where any land or other property has vested in the State  Government  under sub­section (1), it shall be lawful for the  Collector to take  over  possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. From the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.]”

16. It emerges from the pre amendment (U.P. Act No. 20 of 1982

w.e.f. 3rd June, 1981) scheme of the Act, 1950 that any transfer

made in contravention of this Chapter referred to under Section

166 which includes Section 161 as well were not be automatically

void but voidable and therefore, as a consequence of alleged void

transfers under Section 167, a suit was required to be filed by the

Gaon  Sabha or the land  holder, as the case  may  be,  within

limitation of six years from the date of illegal transfer as indicated

in Appendix III annexed to Rule 338 of Rules, 1952 but after the

U.P. Act No. 20 of 1982 amended w.e.f. 3rd June, 1981, the law

has changed and every transfer made in contravention of this Act

became void in view of Section 166 and in consequence of void

transfer, the subject land is deemed to have been vested in the

State Government by operation of law free from all

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encumbrances,  and  sub­section (2)  of  Section  167,  authorises

Collector/Competent Authority to take over possession with the

use of force as may be necessary.    

17. In the instant case, the exchange deed was executed on 2nd

March, 1974 indisputedly without permission from the Assistant

Collector provided under Section 161 and its consequence was

embedded under Section 167 of the Act,  1950 authorising the

Gaon Sabha or the land holder to file a suit for ejectment within

a period of six years from the date of alleged illegal transfer which

in the instant case had expired in March 1980 much prior to the

U.P. Act No. 20 of 1982 was amended w.e.f. 3rd June, 1981.

18. After the scheme of the Act has been referred to in extenso,

it is clear that at least the amendment which has been made by

the U.P. Land Laws (Amendment) Act, 1982 with effect from 3rd

June, 1981 has no application on the case in hand.

19. The proceedings were initiated in the first instance when an

application was filed by late Kesho Ram under Section 9A(2) of

the Act,  1953  for obtaining mutation  in his name  in the year

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1978 and late N.D. Chaudhary also joined him and filed an

application supporting the claim of late Kesho Ram.

20. It reveals from the record that the Consolidation Officer has

declined the claim of late Kesho Ram for seeking the Bhumidari

rights on the premise that the permission from the competent

authority has not been obtained before the exchange deed was

executed as mandated under Section 161 of the Act, 1950 and in

its absence, no proceedings could be drawn claiming Bhumidari

rights in his favour.   Although the Settlement Officer has made

adverse comments in reference to the registered sale deed dated

24th  January, 1973, but that appears to be a factual manifest

error committed in recording such finding.

21. To make it further clear that under the pre­amended

scheme of the Act, 1950, the consequence for non­compliance of

Section 161 of the Act, 1950 seeking permission from the

Assistant Collector, was indeed the requirement of law and the

effect of contravention and its consequence are embedded under

Section 166 and 167 of the Act, 1950 but its consequential effect,

in no manner, would take away or divest the rights and interest

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of the  parties inter  se  conferred  in  reference to the  sale  deed

which was originally executed in favour of late N.D. Chaudhary

by late Smt. Chando and Sita Ram in reference to plot no. 2902

ad­measuring 0.34 decimals  by  the registered sale  deed dated

24th January, 1973.   

22. It is true that at one stage, late Smt. Chando and Sita Ram

jointly raised objection in the consolidation proceedings initiated

under Section 9A(1) of the Act, 1953 in reference to the registered

sale deed dated 24th  January, 1973 but as we have already

observed that the registered sale deed dated 24th January, 1973

was genuine and duly executed by the parties and it is nowhere

related in reference to the exchange proceedings which were

initiated at a later point of time and this fact became clear that so

far as the grievance of Smt. Chando and Sita Ram is concerned,

after the sale deed was registered and executed on 24th January,

1973 in favour of late N.D. Chaudhary, the ownership rights with

possession stands transferred.   It is true that late N.D.

Chaudhary had not initiated proceedings for claiming his

Bhumidari rights under the Act, 1953 but that, in any manner

will not, nullify his right of ownership vested on execution of a

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registered sale deed dated 24th  January, 1973 and there  is no

prohibition or restriction to the contrary has been brought to our

notice, if any, under the Act 1950.

23. At a later stage, late N.D. Chaudhary(father of respondent

nos. 10 and 11) and late Kesho Ram(father/grandfather of

respondent nos. 1 to 8) who was the tenure holders of plot no.

2683 and 2888 got their plot exchanged by registered exchange

deed dated 2nd  March, 1974 which indisputedly was in

contravention of Section 161 of the pre­amended Act, 1950 where

it was postulated that no exchange shall be made except with the

permission of the Assistant Collector.   Indisputedly, no

permission was sought as contemplated under the mandate of

law but under  the pre­amended scheme of the Act,  1950,  the

effect of exchange in contravention to the provisions of the Act

and its consequence as embedded under Section 166 and 167 of

the Act, 1950 makes the action to be voidable and not void and it

entails  consequences of  void  transfers, in the  first instance, it

only confines to sirdar or asami and not applicable upon those

who are claiming rights of  Bhumidar.  At the same time,  any

transfer which has been made in contravention of the provisions

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of this Act including permission from the Assistant Collector as

required under Section 161, the ejectment may be possible only

on filing of a suit by Gaon Sabha or the land holder, as the case

may be, and after the decree of ejectment being obtained under

sub­section (1) of Section 167 of the Act, ejectment under sub­

section (2) of Section 167 be permissible and for filing of the suit,

the limitation has been provided under Appendix III annexed to

Rule 338 of the Rules, 1952 of which reference has been made in

terms thereof suit for ejectment could be filed within a period of

six years from the date of the illegal transfer.   

24. The  deed of exchange in the instant case was executed

between the parties on 2nd  March, 1974 and the period of

limitation for filing of the suit had expired in March 1980 much

before the U.P. Act No. 20 of 1982 amended w.e.f. 3rd June, 1981

came into force.   Indisputedly, no suit was filed either by Gaon

Sabha or any land holder for ejectment as envisaged under

Section 167(1) of the Act, 1950.   That apart, even assuming for

the sake of argument, the deed of exchange executed  on  2nd

March, 1974 even if considered to be void, taking note of the post

amended provisions of the Act, 1950, it will still confine to the

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deed  of exchange  dated  2nd  March,  1974  which  was  obtained

without taking permission from the Assistant Collector as

envisaged under Section 161 of the Act and at the best the rights

to the parties on execution of exchange deed could not be given

effect to and it remain inter se between parties to the

exchange(late Kesho Ram and late N.D. Chaudhary) at the same

time, so far as the subject plot which was once transferred by the

original tenure holders, namely, Smt. Chando and Sita Ram who

are throughout contesting the  matter (plot  no.2902  area  0.34

decimals) to late N.D. Chaudhary by a registered sale deed dated

24th January, 1973 which has been held to be genuine and valid,

will not be under any legal impediment or having any effect on

the rights of the parties, and the said transaction was not subject

to compliance of Section 161 of the Act, 1950 and at least no

rights of any kind over plot no. 2902 area 0.34 decimals could be

claimed by the  original tenure holders (appellants  herein)  and

their  grievance that late  N.D.  Chaudhary had not  claimed his

Bhumidari rights under the Act, 1953, suffice it to say, that no

such provision to the contrary has been brought to our notice

that if the holder  has not  taken steps  for  claiming Bhumidari

rights under the Act, 1953 that will take away or divest from the

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legal rights conferred to the party in whose favour registered sale

deed has been executed under the mandate of law.    

25. We are of the view that at least late Smt. Chando and Sita

Ram, whose legal representatives are contesting the case

throughout are not holding any locus standi to claim benefit of

the   defect in the deed of exchange dated 2nd  March, 1974

executed between different parties who are holders to their

respective plots in their own rights and the procedure mandated

under the law if not being followed of taking permission from the

Assistant  Collector  as required  under  Section  161  of the  Act,

1950, its consequences would not revive/restore the rights to the

legal  heirs of late  Smt.  Chando  and  Sita  Ram(original tenure

holders) over the subject property in question.   That apart, the

present appellants have never raised any plea for cancellation of

the registered sale deed executed in favour of late N.D.

Chaudhary dated 24th  January, 1973 which was otherwise not

the subject matter to be examined under the provisions of the

Act, 1950.

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26. The submission of learned counsel for the appellants that

interference in the concurrent finding  and the exchange  deed

being void as  the permission  from Assistant  Collector  has  not

been obtained and in consequence they are entitled for

restoration/possession of plot no.2902 (area 0.34 decimals)

which was originally sold by registered sale deed dated 24th

January, 1973 to late N.D. Chaudhary is without substance for

the reason that these are two separate transactions which has

taken place of the subject plot in question.  As regards the rights

and interests which were transferred by the present appellants

vide registered sale deed dated 24th  January, 1973 in favour of

late N.D. Chaudhary was never the subject matter of  scrutiny

and there was no violation/contravention of the provisions of Act,

1950 or of any other law has been pointed out to us.   

27. At the same time, so far as non­compliance of the

mandatory requirement as envisaged under Section 161 of the

Act, 1950 while executing the exchange deed dated 2nd  March,

1974 is concerned, parties have to bear its consequences of the

void transaction as provided under Section 166 read with Section

167 of the Act, 1950 but that will not give any preference to the

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appellants for restoration of their rights and to nullify the

registered sale deed dated 24th  January, 1973 executed after

taking due consideration in favour of late N.D. Chaudhary.

28. In our considered view, the conclusions of the High Court in

its judgment impugned are unassailable and does not call for our

interference.   

29. Consequently, the appeals fail and are accordingly

dismissed.  No costs.

30. Pending application(s), if any, stand disposed of.

.…………………………J. (A.M. KHANWILKAR)

………………………….J. (AJAY RASTOGI)

NEW DELHI SEPTEMBER 17, 2019                                                           

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