JUDGMENT
Krishna Murari, J.
1. Heard Sri Shahid Masud, learned Counsel for petitioners and Sri M.C. Joshi appearing for contesting respondents.
2. Dispute relates to Khata No. 190 situate in village Akka Bheekampur Mustahkam, pargana and district Moradabad which belonged to one Yaseen, who had four sons, namely, Saadullah, Hamid Ullah, Peer Baksh and Saleem. After death of Yaseen, Khata in dispute was inherited by his aforesaid sons and since Hamid Ullah died issueless, his three remaining sons, namely, Saadullah, Peer Baksh and Saleem had one third share each. Peer Baksh sold one half of his one third share, i.e. One-sixth share in khata in dispute to petitioners No. 2 and 3 much before start of consolidation. His name came to be recorded in the revenue records on the basis of the said sale deed and the same is not in dispute in the present petition. He transferred his remaining one-sixth share in khata in dispute in favour of one Naseer son of Bunlyad Ali. Saadullah transferred 1/2 of his 1/3 share in khata in dispute, i.e” 1/6 share in favour of petitioner No. 1, Smt. Zakia Kausur vide sale deed dated 8.10.1987. Saleem transferred 1/2 of his 1/3rd share in khata in dispute, i.e., 1/6th share in favour of petitioners No. 2 and 3 vide sale deed dated 16.10.1987. Vide order dated 16.10.1987 passed by Tehslldar name of petitioner Nos. 2 and 3 was duly mutated in revenue records. Similarly, name of Smt. Zakia Kausar was also mutated in revenue records vide order dated 18.1.1988. Thus, in the basic year, khata in dispute was recorded in the name of petitioner No. 1, Smt. Zakia Kausar, petitioners No. 2 and 3 Raisul Hasan, Idris Hasan and Bashiran wife of Buniyad All.
3. During consolidation operation an objection was filed by Saleem and Saadullah (predecessor-in-interest of respondent Nos. 3 to 6) under Section 9A(2) of the U.P. Consolidation of Holdings Act (for short the ‘Act’) that their names have wrongly been expunged from the record and they had transferred 1/2 of their 1/3rd share, i.e., 1/6th share in khata and are entitled to be recorded as co-sharer to the extent of 1 /6 share. Another objection was filed by Chhidda son of Buniyad All claiming to be recorded in place of his mother Smt. Bashiran as her heir. Another objection was filed by Saadullah claiming that he had only transferred 1/2 of his 1/3rd share, i.e., 1/6th share in khata in dispute in favour of Smt. Zakia Kausar, petitioner No. 1, and her name has wrongly came to be -recorded over his entire share and he is entitled to be recorded as co-sharer to the extent of 1/6th share. Another objection was filed by one Shaukat claiming that he had purchased 1/6th share from Bashiran as such he is entitled to be recorded.
4. Before Consolidation Officer a compromise was filed with regard to share of parties.
5. Consolidation Officer finding that village has been notified under Section 4(2) of the Act on 10,10.1987 and sale deed dated 16.10.1987 executed by Saleem in favour of petitioner Nos. 2 and 3 and sale deed dated 8.10.1987 executed by Saadullah in favour of petitioner No. 1 were without any permission from Settlement Officer Consolidation as required under Section 5(1)(c)(ii) of the Act and their names were also wrongly directed to be mutated in proceedings under Land Revenue Act, after publication of notification under Section 4(2) of the Act directed to delete their names from khata in dispute. However, petitioner Nos. 2 and 3 were held to be entitled to be recorded as co-tenure holder on the basis of earlier sale deed executed in their favour by Peer Baksh. Aggrieved by the same, petitioners filed an appeal. Settlement Officer Consolidation finding that names of petitioners were directed to be expunged from record without affording any opportunity to them to lead evidence as no issue was framed in this regard allowed the appeal and remanded the case back to Consolidation Officer. Appellate order was challenged by contesting respondents by filing two revisions. Deputy Director of Consolidation consolidated both revisions and dismissed the same with finding that both sale deeds executed in favour of petitioners were after publication of notification under Section 4(2) of the Act and were without permission from Settlement Officer Consolidation hence void and maintained the order passed by Consolidation Officer. Aggrieved, petitioners have approached this Court.
6. It has been urged by learned Counsel for petitioners that no objection was filed by any of the objectors against petitioners as such Consolidation Officer had no jurisdiction to expunge names of petitioners. It has further been contended that in any view of the matter, notification under Section 4(2) of the Act was published in Official Gazette on 10.10.1987 whereas declaration in the unit was made on 30th January, 1988 and both the sale deeds in favour of petitioner No. 1 and petitioner Nos. 2 and 3 were executed on 8.10.1987 and 16.10.1987 much before declaration in the unit, sale-deed would not be void for want of permission from Settlement Officer Consolidation. Reliance in support of contention has been placed on a decision of learned single Judge in the case of Ram Chandra v. Deputy Director of Consolidation, Ghaziabad and Ors. 2001 (92) RD 531 : 2001 (3) AWC 1799 and Madan Lal v. Deputy Director of Consolidation and Ors. 2004 (96) RD 8.
7. In reply, it has been contended by learned Counsel appearing for respondents that sale deeds relied upon by petitioners were without permission from Settlement Officer Consolidation as required by Section 5(1)(c)(ii) of the Act as such were void and no rights would flow to petitioners on the basis of said sale deed. It has further been submitted that impugned orders do not call for any interference by this Court and writ petition is liable to be dismissed.
8. I have considered the arguments advanced by learned Counsel for parties and perused the record.
9. From pleadings of parties, there is no dispute about fact that sale deeds executed by contesting respondents in favour of petitioners were admitted to them. Objections were filed by contesting respondents only claiming co-tenancy rights to the extent of their shares left in khata in dispute after execution of sale deeds. No challenge was made to sale deeds rather the execution of sale deeds was admitted by them. In this view of the matter, Consolidation Officer exceeded in his jurisdiction in expunging the names of petitioner entirely from khata in dispute holding the sale deed in their favour to be invalid for want of permission from Settlement Officer Consolidation.
10. Even in so far as validity of the two sale deeds is concerned, the conclusion arrived at by the Consolidation Officer and confirmed by Deputy Director Consolidation is wrong and illegal. Both the authorities have held the sale-deeds to be void for want of permission by the Settlement Officer Consolidation as required by Section 5(1)(c)(ii) of the Act on the ground that they were executed after publication of notification under Section 4(2) of the Act. Admittedly, notification was published in official Gazette on 10.10.1987, publication in the unit was made on 30.1.1988 and the sale deeds were executed on 8.10.1987 and 16.10.1987. In so far as sale deed dated-8.10.1987 in favour of petitioner No. 1 is concerned. It was executed before the publication of notification in the Gazette thus cannot be held to be void for want of permission by Settlement Officer Consolidation. Consolidation Officer and Deputy Director of Consolidation have held it to be void as the same was registered on 12.10.1987, i.e., after publication of notification under Section 4(2) of the Act in the Official Gazette. Section 5(1)(c)(ii) places a restriction on transfer of holding or any part thereof by a tenure holder after publication of notification under Section 4(2) of the Act except with the permission of Settlement Officer Consolidation. Section 5(1)(c)(ii) reads as under:
Notwithstanding anything contained in the U.P.Z.A. and L.R. Act, 1950, no tenure holder except with the permission in writing of the Settlement Officer Consolidation previously obtained shall:
(i) …
(ii) transfer by way of sale, gift or exchange his holding at any part thereof in the consolidated area.
11. Admittedly, sale deed in favour of petitioner No. 1 was executed on 8.10.1987, however it was registered on 12.10.1987 after publication of notification under Section 4(2) of the Act on 10.10.1987 in the Official Gazette. Section 47 of the Registration Act specifies the time from which registered document starts operating. Said section reads as under:
47. Time from which registered document operates.–A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.
12. A plain reading of the aforesaid provision makes it clear that a document becomes operative from the time of its execution and not from the time of its registration. Thus the sale deed in favour of petitioner No. 1 became operative from the date of its execution, i.e., 8.10.1987. Publication of notification under Section 4(2) of the Act having been made subsequent to the said date, i.e., on 10.10.1987, no permission from Settlement Officer Consolidation was required on the date of execution and the sale-deed cannot be said to be hit by provisions of Section 5(1)(c)(ii) of the Act.
13. In so far as other sale deed dated 16.10.1987 in favour of petitioner Nos. 2 and 3 is concerned it was executed in between the period of publication of notification under Section 4(2)(a) of the Act in the Official Gazette on 10.10.1987 and publication in the Unit on 30.1.1988 as required by Section 4(2)(b) of the Act. The validity of sale deeds executed without permission of Settlement Officer Consolidation, in between the period of publication of notification in the official Gazette under Section 4(2)(a) of the Act and publication in the unit under Section 4(2)(b) of the Act has been subject matter of adjudication by this Court in a number of decisions. Reference may be made to the decision of a learned single Judge in the case of Nagina and Ors. v. Deputy Director of Consolidation, Muzaffarnagar and Ors. 1997 RJ 286 : 1997 (1) AWC 29. On a detail analysis of the provisions of the Act, it was observed by the learned single Judge as follows:
On analysing the aforesaid provision, I am of the view that the words on publication in the Official Gazette under Section 4(2) and Section 5(1) should be read to mean complete publication under Section 4(2) of the Act, i.e., publication in the Official Gazette as well as in the unit. The sale deed in favour of the petitioners was executed in regard to the holding, admittedly before the date of publication of Consolidation Scheme in the unit, as such, the consequence of Section 5(1)(c)(ii) are not attracted in the light I have interpreted Section 5(1)(c)(ii) of the Act aforesaid.
14. Same view has been taken by another learned single Judge in the case of Raj Singh v. Deputy Director of Consolidation, Saharanpur and Ors. 1997 (88) RD 348 : 1997 (2) AWC 2.239 (SC). In paragraph 12 of the judgment it has been observed as under:
In the present case, it is no doubt correct that the Notification under Section 4 was published in the Official Gazette on 22.6.1981, but the same was not published in the unit in question till 12.8.1981, nor there is any evidence on record to show that any public notice of the said declaration was given at convenient places in the Unit in question before 12.8.1981. The intention of Legislature, which is apparent from the aforesaid provisions is that till the Notification is brought to the notice of the tenure holder living in the particular unit, the consequence as enumerated under Section 5 of the Act shall not ensue.
15. I am in respectful agreement with the aforesaid view taken by two learned single Judges. Pacts being identical, the ratio of the aforesaid decisions is fully applicable to the present case.
16. On the basis of the aforesaid analysis I am of the considered view that two sale deeds executed in the favour of petitioners was not hit by provisions of Section 5(i)(c)(ii) of the Act. The Consolidation Officer as well as Deputy Director of Consolidation both have committed an error of law in holding otherwise.
17. Apart from above the two sale deeds were executed by the contesting respondents in favour of the petitioners after receiving valuable consideration the execution of which was not denied by them before the consolidation courts. Thus the petitioners are entitled for mutation of their names over the khata in dispute to the extent of the shares transferred to them through two sale deeds in their favour.
18. Accordingly, a writ of certiorari is issued quashing the judgments dated 13.5.1991 and 8.12.1999 passed by Consolidation Officer and Deputy Director of Consolidation respectively. Since the sale deeds have been held to be valid and petitioners have been held to be entitled for mutation of their names on the basis of said sale deeds, the remand order made by Settlement Officer Consolidation is modified to the extent that Consolidation Officer shall decide the dispute strictly in accordance with the claim made by the contesting respondents in their objection dated 17.8.1988.
19. Subject to aforesaid directions, writ petition stands allowed.
However, in the facts and circumstances, there shall be no order as to costs.