Sangeeta Chandra, J. - I have heard the learned counsel for the petitioner, and Shri Manendra Nath Rai, who appears for the opposite party no.4 and the learned Standing Counsel Shri Atul Kumar Dubey, who appears for the State respondents.

This writ petition has been filed challenging the order dated 28.01.2015 passed by the Consolidation Officer, on an application under section 9A (2) Of the Consolidation of Holdings Act (herein after referred to as the'), and the order dated 12.06.2015 passed by the Settlement Officer Consolidation, and also the order dated 11.09.2015 passed in Revision by the Deputy Director Consolidation.

2. In brief, the case set up by the petitioner Rajendra Prasad is that plot nos.705 and 712 were originally recorded in the name of Shri Lakshmi Narayan son of Chhannu Lal who died during consolidation operations. After the death of original tenure holder the names of his three sons Rajendra Prasad, Vijay Kumar and Sushil Kumar were mutated by the Assistant Consolidation Officer by an order dated 20.10.1996. plot nos. 712 and 705 are adjacent to each other and both were consolidated as Chak No. 493, and recorded jointly in the names of the three brothers without their share being specified or divided.

3. Sushil Kumar sold of 1/3rd of his share of plot no. 705 and 712 through a sale deed dated 19.12.1996 to Shashikanti Devi, the opposite party no.4. The name of Shashikanti Devi was mutated by the Assistant Consolidation Officer on 26.12.1997. The petitioner's other brother Vijai Kumar also sold off 1/3rd of his undivided share to Smt. Shashikanti Devi on 30.07.1998 and her name was recorded on 15.06.1999 in the revenue record. Smt. Shashikanti continued to cultivate the undivided share of these two plots, (numbered as Chak No. 493 in the consolidation operations), for several years and then moved an application in 2013 under Section 9A (2) for partition on the basis of the sale deeds executed in her favour. The petitioner appeared before the Consolidation Officer and filed an application for spot inspection to be carried out before such partition can be ordered as the boundaries shown in the sale deeds by his two brothers were incorrect. The Consolidation Officer however did not accede to the request of the petitioner and without a spot inspection directed partition of Chak No. 493 on the basis of boundaries shown in the sale deeds. It observed that the sale deeds had been duly proved by the vendor and the Vendee and their witnesses and there was no reason to disbelieve the same. The Consolidation Officer in his order dated 28.01.2015 directed that partition be carried out in such manner that two thirds of south east portion of Chak No.493 remained with Shashikanti Devi and a small portion on the north east along with the western portion of the land was given to the petitioner. In the process of dividing Chak No. 493 in this manner the drain (Nali) and the Chak Road were also directed to be shifted by the Consolidation Officer.

4. The petitioner being aggrieved approached the Settlement Officer Consolidation in Appeal. Petitioner contended in the Appeal that since long Chak No. 493 was being cultivated by the three brothers on the basis of Family Settlement wherein each of the brothers was given 1/3rd in East - West direction so that each of the brothers had access to the Chak Marg on the East. Rajendra Prasad was given the Northern most 1/3rd strip whereas Vijai Kumar was given Southern most strip, and Sushil Kumar was given the strip in between. On the East the share of the petitioner and his each of his two brothers opened on the Chak marg and on the West towards the grove of Kunj Bihari on plot no. 706. It was submitted by the petitioner that if the boundaries given wrongly in the sale deeds were to be respected then the petitioner would be deprived of access to the Chak Marg. It was submitted that although an application for spot inspection was given to the Consolidation Officer he believed the boundaries as shown in the two sale deeds and did not carry out spot inspection. It was also argued that the Consolidation Officer exceeded his jurisdiction in passing the order dated 28.01.2015 directing that the drain and the Chak Marg be shifted. The consolidation operations of the village had been stayed in separate proceedings before the High Court and during such pendency of litigation before the High Court the Consolidation Officer's order directing shifting of drain and Chak Marg could not be carried out. As a result of shifting of Chak road leading to the closing of the drain, not only the petitioner but other tenure holders would also be affected. Since on the east there was already a Kharanja Marg each of the brothers were entitled to have access to the same. It was also argued that while partitioning the Chak No.493 in this manner the Consolidation Officer had also handed over to opposite party no.4 the Boring of the petitioner, his trees and his plantation of bamboos (Baans Kothi). The sale deeds had shown wrong boundaries shifting the petitioner's share to the Western side thus reducing its value and in pursuance of the order of the Consolidation Officer his share had been determined as an L-shaped plot thus further reducing its value.

5. The Settlement Officer Consolidation observed that after the death of the original tenure holder the three brothers had been recorded as joint tenure holders with undivided share over Chak No.493. Smt. Shashikanti Devi had bought undivided share of two brothers where the boundaries were perhaps shown in a confusing manner and it would have been proper for the Consolidation Officer to have allowed on the spot inspection of the land in question before passing the order impugned. The order dated 28.01.2015 was set aside and the matter was remanded to the Consolidation Officer to consider afresh and pass order after conducting on the spot inspection of the land in question.

6. It has been argued by the learned counsel for the petitioner that the Settlement Officer Consolidation could have himself examined the on spot inspection report dated 28.04.2015 of the Assistant Consolidation Officer which was already on record and should not have remanded the matter to the Consolidation Officer for reconsideration. Therefore, the petitioner filed Revision No. 371 of 2015. On the other hand the opposite party No.4 being aggrieved by the setting aside of the order dated 28.01.2015 and remanding of the matter to the Consolidation Officer approached the Deputy Director Consolidation by filing Revision No.368/2015. Both the Revisions were clubbed together and heard on 11.09.2015. The Revision of the opposite party no.4 was allowed and Revision No. 371 was rejected by the Deputy Director of Consolidation only on the ground that the sale deeds were registered documents and had not been challenged by the petitioner by filing appropriate proceedings in the competent civil court. The boundaries as given in the sale deeds had been verified by competent witnesses of the two sale deeds. The concerned Settlement Officer Consolidation should not have set aside the order passed by the Consolidation Officer and remanded it to him for consideration afresh.

7. In the counter affidavit filed by opposite party no.4, it has been stated that there was already a family settlement partitioning the land in question much before the sale deeds were executed by the two brothers of the petitioner. The registered sale deeds were never challenged by the petitioner in any competent court. On the spot inspection report of the Assistant Consolidation Officer was legally unsound and, therefore, rightly rejected by the Settlement Officer Consolidation who referred the matter to the Consolidation Officer to conduct a fresh on the spot inspection and pass appropriate orders thereafter. It has been also stated in the said counter affidavit that as per the sale deeds which are annexed as Annexure no.1 and 2 to the counter affidavit, it is evident that the Boring and the Bans Kothi and trees were also sold off by the two brothers of the petitioner to the opposite party no.4. The boundaries were clearly mentioned in the two sale deeds by the vendors who were educated people and the sale deeds were proved by competent witnesses before the Consolidation Officer. It has also been stated in the counter affidavit that measurement and demarcation proceedings were on in the village and the interim order granted initially by this Court on 07.10.2015 for the parties to maintain status quo had lapsed as it was never extended by the Court on various dates of listing.

8. The petitioner has challenged the orders passed by the Consolidation Officer, the Settlement Officer (Consolidation) and the Deputy Director of Consolidation on the ground that they have been passed without any reference being made to the law regarding co-sharers with undivided share having the competence to sell their share of the undivided holdings and deliver the transfer of the same.

9. Learned counsel for the petitioner has placed reliance upon a report submitted to the Settlement Officer (Consolidation) dated 28.04.2015 wherein on spot inspection was carried out and the opposite party no.4 was found in possession of Southern part of the undivided holding of Chak No.493 comprising of old plot nos.705 and 712. He has referred to several judgments of this Court for substantiating the legal proposition that unless shares are divided over joint holdings no transfer of possession can be made. He has also referred to the legal proposition that after formulation of CH-23, if any share is sold without following the Rules of partition; that the sale deed is void, the judgment relied upon by the learned counsel for the petitioner are Ram Dass Vs. Board of Revenue Allahabad, (1967) AIR Allahabad 481, Raghunath Singh Vs. Deputy Director of Consolidation and others,2006 100 RevDec 794, and Ajay Kumar Vs. Ram Swaroop, a Full Bench decision of the Board of Revenue rendered on 12.01.2009.

10. Learned counsel for the petitioner has submitted that the Consolidation Officer relied upon the sale deed made out by the petitioner's two brothers namely Sushil Kumar and Vijay Kumar in favour of the opposite party no.4 wherein wrong boundaries were mentioned. In fact boundaries could not have been mentioned at all as it was an undivided share in the property of all co-sharers where each co-sharer is the joint owner of every inch of the plot of land of the joint holdings. The Settlement Officer (Consolidation) in Appeal had directed an on the spot inspection to be made and the report to be submitted to him. The said report was submitted where clearly this fact had come on record that the Opposite party no.4 was in possession over the Southern part of the land and the petitioner was found in possession of 1/3rd portion on the Northern side and both the petitioner and the opposite party no.4 were found to be in possession of the land adjacent to the Chak Marg which ran on the East. However, the Settlement Officer (Consolidation) did not look into the report at all and although he could have decided the matter being the First Appellate Court on the basis of his findings recorded in the said report, he preferred to remand the matter to the Consolidation Officer to decide afresh, therefore, the petitioner filed a Revision challenging the order of the Settlement Officer (Consolidation). The opposite party no.4 also filed a Revision challenging the entire order on the ground that the Settlement Officer (Consolidation) had given a wrong findings. Both the Revisions were clubbed together and decided by the Deputy Director of Consolidation. The Deputy Director of Consolidation failed to exercise due diligence and the power of review even of facts that was vested in him and set aside the order of the Settlement Officer (Consolidation) and affirmed the order of the Consolidation Officer only on the ground that no Suit for cancellation of sale deed executed by Sushil Kumar and Vijay Kumar in favour of the opposite party no.4 had filed by the petitioner. Because of the registered sale deed being a valid document possession had to be delivered on the basis of description of boundaries made out in the said sale deed. He has submitted that the learned D.D.C. also failed to take into account that the Consolidation Officer far exceeded his jurisdiction when he directed the Nali on the other side of the Chak Marg to be converted in the Rasta and the Chak marg to be taken as part of the holdings of the opposite party no.4.

11. Shri Manendra Nath Rai, appearing for the opposite party no.4 has argued that it is admitted that the sale deed was never challenged and being a registered sale deed, the partition could have been made of the holding in question by the Consolidation Officer in terms of Section 9-C of the Act, the sale deed unless it is set aside by the Competent Court had to be followed. If the description of the boundaries had been given wrongly and the petitioner was aggrieved he should have challenged the same. He has referred to judgment of the Hon'ble Supreme Court where the reference has been made to void and voidable documents and even if the sale deed has wrongly described, it is a voidable document and unless it is set aside by the Competent Court it had to be followed by the Consolidation Officer. He has also argued that the Settlement Officer (Consolidation) had unnecessarily remanded the matter to the Consolidation Officer as no new issues were to be decided. He had all the evidence filed before him which he could have appreciated and passed appropriate orders. The sale deed in question had been proved by the competent witnesses. He has also argued that the D.D.C. is the final Court with regard to the finding of fact, a concurrent finding of fact by the Consolidation Courts should not be ordinarily interfered with in writ jurisdiction. He has also submitted that the tubewell and Banskothi that was existing on the North Eastern side of the holdings were also bought by the opposite party no.4 as is evident from the sale deeds copies of which have been filed alongwith counter affidavit.

12. Learned counsel for the respondents has placed reliance upon the judgment rendered in Smt. Dulara Devi Vs. Janardan Singh reported in AIR 1999, Krishnandan Vs. Deputy Director of Consolidation, (2015) 1 SCC 553 [LQ/SC/2014/1141] :-Gulzar Singh and Others Vs. Deputy Director of Consolidation, (2009) 12 SCC 590 [LQ/SC/2009/833] .

13. Learned counsel for the petitioner in rejoinder has submitted that as is evident from Page-15 of the counter affidavit filed by the opposite party no.4 Vijay Kumar had sold only the southern part of holding as per the family settlement between three brothers and in the sale deed executed by Sushil Kumar wrong boundaries have been mentioned showing Vijay Kumar on his west and Chak marg on his East. Learned counsel for the petitioner has argued that the Consolidation Officer was competent to look into the validity of the sale deeds in so far as the reference to wrong boundaries had been made therein by carrying out on the spot inspection.

14. Shri P.V. Chaudhary, has rendered his valuable assistance by referring judgment rendered by Hon'ble the Supreme Court in Ram Das Vs Sitabai,2009 108 RevDec 772.

15. I will first deal with the judgments relied upon by the learned counsel for the contesting respondent no.4. In Krishnanand versus Deputy Director of Consolidation, (2015) 1 SCC 553 [LQ/SC/2014/1141] the Supreme Court was considering the scope of judicial review under Article 226 of the Constitution of India in a case where concurrent findings recorded by three consolidation authorities, that is, the Consolidation Officer, the Settlement Officer Consolidation and the Deputy Director of Consolidation were set aside by the High Court. Supreme Court observed in paragraph 7 of the report that the High Court had committed an error in re-appreciating the evidence and setting aside findings of fact, which is normally impermissible in exercise of its jurisdiction under Article 226 of the Constitution of India. The Court observed that the three consolidation authorities had come to a certain conclusion regarding the respondent being a trespasser however the High Court in writ petition re-appreciated the entire evidence on record as if it was hearing an Appeal and came to the conclusion that she was not so. The Court observed in paragraph 12 that the High Court has committed an error in reversing the findings of fact recorded by the Authorities below in coming to the conclusion that there was a partition. No doubt the High Court did so in the exercise of jurisdiction under Article 226 of the Constitution but it is settled law that such jurisdiction cannot be exercised for re-appreciating the evidence and reversal of findings of fact unless the Authority which passed the order does not have jurisdiction to render the findings or has acted in excess of its jurisdiction, or the findings resulted in a perversity. The High Court in its order did not say that authorities below had acted in excess of jurisdiction or without jurisdiction or that the findings recorded were vitiated by perversity.

16. In Guljar Singh and others Vs. Deputy Director of Consolidation and others, (2009) 12 SCC 590 , [LQ/SC/2009/833] the Supreme Court was considering a case where in the first round of litigation orders passed by the Consolidation Authorities was set aside by the High Court and certain directions were issued by the High Court to be followed by the D.D.C. while deciding the matter afresh. After remand the D.D.C. allowed the Revision and the shares of the parties were decided in the manner indicated in the High Court's order. The appellant thereafter filed a writ petition challenging the order passed by the D.D.C. The High Court affirmed the order of the D.D.C. The appellant filed a Special Leave Petition before the Supreme Court. The Supreme Court observed that it could only interfere under Article 136 of the Constitution if there was some gross irregularity in the judgement of the High Court or any substantial grounds of law which were of public importance had been raised in such a petition. If these conditions were not satisfied, it would not be open for the Supreme Court to interfere with the concurrent findings of the High Court as well as the D.D.C. in exercise of its discretionary power under Article 136 of the Constitution. The Court observed that the concurrent findings of fact recorded by the D.D.C. and High Court were on consideration of all materials placed before the Court and after giving proper opportunity of hearing to the parties. The High Court in its order had observed that it was exercising revisional-cum-supervisory power and could not go into the intricate details of facts and decide the questions raised therein. The Supreme Court further observed that in exceptional cases, where orders were based on perversity and arbitrariness, the High Court can interfere even in concurrent findings of fact recorded by the learned Courts below. The High Court had observed that the D.D.C. had decided the dispute after considering all aspects of the matter and the entire materials including the oral and documentary evidence on record. The Supreme Court felt that the High Court had rightly rejected the writ petition. It also observed that in view of the law laid down in Sheonand versus Director of Consolidation, (2000) 3 SCC 103 , [LQ/SC/2000/262] under section 48 the D.D.C. has been conferred with wide powers. He may either suo moto on his own motion or on an application of any person, consider the propriety, legality, regularity and correctness of all the proceedings held under the and pass appropriate orders. These wide powers have been conferred on the Deputy Director so that the claims of the parties under the may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly. Normally, the Deputy Director in exercise of his powers is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer Consolidation, but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties, or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, the quality, or propriety of the orders passed by the authority subordinate to him. In the case of Sheonand (supra) being considered by the Supreme Court, it was observed that while scrutinising the evidence on record, the Deputy Director had noticed that the entries were fictitious and in recording some of the entries in the revenue records in favour of the appellants, statutory provisions including those contained in the U.P. Land Records Manual were not followed. In that situation, the Deputy Director was wholly justified in looking into the legality of the entire proceedings and disposing of the revision in the manner in which he had done. The Supreme Court in Guljar (supra) observed that the D.D.C. has a wide range of discretionary powers mandated under the by which he could proceed to modify even the basic year entries if found to be wrongly arrived at. Therefore, the contention that the D.D.C. could not have modified the Basic year entries was not correct.

17. It is clear that in both the cases cited by the learned counsel for the respondent no.4, the Supreme Court had carved out exceptions to the general rule of not interfering with concurrent findings of facts recorded by the trial courts and appellate courts, in exercise of extraordinary jurisdiction under Article 136 or Article 226 by the superior Courts. The Supreme Court had observed that interference can be made where there is a failure to exercise jurisdiction or where there is an exceeding of jurisdiction vested in the courts below or where the findings of facts have been arrived at on misreading of evidence or misinterpretation of law leading to perversity.

18. Now, this Court will consider whether the case at hand falls within the parameters of the exceptions carved out by the Supreme Court to interfere in concurrent findings recorded by the Consolidation Authorities.

19. In Shri Ram and others versus Ram Kishen and another, (2010) AIR Allahabad 125, this Court was considering the case of the plaintiff who had filed a suit for cancellation of sale deed and injunction against the transferee from interfering or seeking possession over the house in question. It was argued that the plaintiffs and the defendants nos. 2 to 7 were co-owners of a house situated in a village. The defendants nos. 2 to 7 had executed a sale deed of their share in the house in favour of defendant no.1, Ram Kishen who took possession forcibly. The plaintiffs filed a suit for cancellation of sale deed and for restraining the defendant no.1 from taking possession of the share purchased. The Court considered Section 44 of the Transfer of Property Act wherein an exception has been carved out against a transferee of a share of a dwelling house belonging to an undivided family and it is provided that if he is not a member of the family he would not be entitled to joint possession or part enjoyment of the house. Such a stranger transferee should file a suit for partition before he can be allowed to take possession on the basis of the sale deed.

20. In M.V.S. Manikayala Rao Versus M. Narsimha Swami, (1966) AIR SC 470, the Supreme Court was deciding the issue relating to purchase of undivided shares of coparceners at an execution sale. It was held that the purchaser is not entitled to possession of what he has purchased. He had only a right to sue for partition and ask for allotment to him of that which on partition might be found to be the share of the coparcener whose share he had purchased. The Supreme Court held that such purchaser of share of a coparcener cannot claim to be put in possession of any definite piece of family property unless a partition has been made of the entire property.

21. In Dorab Kawasji Warden v Coomi Sorab Warden, (1990) 2 SCC 117 , [LQ/SC/1990/77] the Supreme Court relied upon another judgement in Nil Kamal Bhattacharya Versus Kamakshya Charan Bhattacharya, (1928) AIR Calcutta 539, and judgements of the Madras High Court and Orissa High Court and observed that if a member of the family transferred his share in the dwelling house to a stranger, paragraph 2 of Section 44 of the Transfer of Property Act comes into play and the transferee does not become entitled to joint possession or any joint enjoyment of the half house although he would have the right to enforce the partition of his share if such a transferee is able to get possession of a share without actual partition by metes and bounds, such a possession would be illegal and the co-owners would be entitled to get a decree for eviction or even for injunction where the transferee threatens to get possession by force. Thus an undivided share in a house which was the joint property of several and undivided could not have been transferred. However, these cases do not refer to agricultural land.

22. This court in Smt. Savitri Devi versus Civil Judge (Senior Division) Gorakhpur, (2003) 51 AllLR 369, observed with respect to an agricultural land, that even if sale deed had been executed and the purchaser had been put into possession of the land sold to him, it could only be said that the vendor had merely sold the undivided share in the property in dispute. Such purchaser could not be put into possession if there had been no partition prior to execution of the sale deed and no partition had taken place subsequent thereto.

23. In Guzara Vishnu Gosavi versus Prakash Nana Sahib Kamble, (2009) 10 SCC 654 , [LQ/SC/2009/1854] the Supreme Court after referring to earlier judgements in Kartar Singh versus Harjinder Singh, (1990) 3 SCC 517 [LQ/SC/1990/102] and Ram Das versus Sitabai, (2009) 7 SCC 444 , [LQ/SC/2009/1365] observed that in the absence of partition of a property by metes and bounds, either by a decree of a court or partition suit or by settlement among co-shareholders possession cannot be handed over to Vendee who had purchased joint family property. The Court observed that a purchaser of a coparceners undivided interest in joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property. It also observed in paragraph 12: -

"there is another aspect of the matter. An agricultural land belonging to the coparcener or co sharers may be in their joint possession. The sale of undivided share by one co-sharer may be unlawful/illegal as various Statutes put an embargo on fragmentation of holdings below the prescribed extent"

It was held that in a given case an undivided share of a coparcener can be subject matter of a sale/transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds either by a decree of court in a partition suit or by settlement among the co-sharers.

24. The Supreme Court in K. Adivi Naidu and others versus E Duruvasulu Naidu, (1995) 6 SCC 150 , [LQ/SC/1995/908] observed in paragraph 5 that "it is settled law that a coparcener has no right to sell his undivided share in the joint family property and any sale of undivided and specified items does not bind the other coparceners."

25. Another argument has been made by the learned counsel for the respondent no.4 is that the sale deeds were not questioned and they being validly proved by competent witnesses before the Consolidation Officer, were bound to be respected. Also such sale deeds even if they could not have transferred the undivided share of joint holding of Chak No.493, were only voidable documents that could not be ignored unless set aside by competent court of law. This Court finds from the weight of authorities of the Supreme Court that a sale or any instrument of transfer that violates the provisions of the U.P.Z.A. & L.R. Act is a void document. A sale deed which is conceived in fraud and delivered in deceit is void and could be ignored by the consolidation authorities.

26. In Dulari Devi versus Janardhan Singh and others, (1990) Supp1 SCC 216, the Supreme Court was considering a case where the plaintiff appellant, an illiterate lady, wanted to make a gift of her properties in favour of her daughter. The defendant nos.3 and 4 undertook to make arrangements to execute and register the necessary deed. They however practiced the fraud on her. They made her to put her thumb impression on two documents which she had been told and she honestly believed were the gift deeds in favour of her daughter. She had in fact executed two deeds, one of which was a gift in favour of her daughter and the other a sale deed in favour of the defendants nos.3 & 4. Later when she came to know of the facts, she filed a suit for cancellation of the sale deed. Consolidation proceedings were pending in respect of the area. The suit was decreed by the trial court and that decree was confirmed in Appeal by the first Appellate Court. The High Court however found that the plaintiff was totally deceived as to the character of the document which she had executed and the document was, therefore void and of no effect whatsoever. Accordingly, it held that the suit was barred by reason of Section 49 of the Consolidation of Holdings Act. In the Appeal by Special Leave, it was contended for the appellant that since it was a case of a document having been vitiated by fraud, the transaction was voidable but not void and therefore the bar of Section 49 of thewas not attracted. The Supreme Court dismissed the Appeal and held that a voidable document is one which remains in force until it is set aside and such a document can be set aside only by a competent civil court. A suit for that purpose would therefore be maintainable. A claim that the transaction is void however is a matter which can be adjudicated upon by the consolidation authorities also.

27. In Gorakhnath Dubey versus Hari Narain Singh,1974 1 SCR and in Nigawwa Versus Byerappa and three others,1968 AIR SC 797, the Supreme Court had held that if the document in question evidenced a void transaction, and not a mere voidable transaction, no suit would be maintainable in view of the bar contained in Section 49 of the.

28. In Gorakhnath Dubey (supra) the Supreme Court had held that the object of the relevant provisions of the was to remove from the jurisdiction of any civil court or revenue court all disputes which could be decided by the competent authority under the during the consolidation proceedings. Questions relating to the validity of a sale deed or a gift deed and the like had to be examined in proceedings before the statutory authorities. The Court had drawn a distinction between void and voidable documents and said that a voidable document was one which remained in force until set aside and such a document could be set aside only by a competent civil court and a suit for that purpose would therefore be maintainable on the other hand the claim that the transaction was void was a matter which could be adjudicated upon by the consolidation courts. The Court observed:- "We think that a distinction can be made between cases where document is wholly or partially invalid so that it can be disregarded by any Court or Authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interest in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be vested with the jurisdiction, by necessary implication of the statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the Consolidation Authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiff's claim is that the sale of his half share by his uncle was invalid, inoperative and void. Such a claim could be adjudicated upon by consolidation courts."

29. In Gorakhnath Dubey (supra), the Supreme Court observed that questions relating to validity of sale deeds, gifts and wills can be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arise and have to be decided in the course of adjudication on the rights or interests in land which are the subject matter of consolidation proceedings. A distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of excess of power, invalid. An adjudication on the effect of such purported alienation would be necessarily implied in the decisions of a dispute involving conflicting claims.

30. In Gorakhnath Dubey (supra), the Supreme Court explained Ram Adhar Singh versus Ram Roop Singh, (1968) 2 SCR 95 [LQ/SC/1967/307] , and affirmed the decision of this court in Jagarnath Shukla versus Sita Ram Pandey,1969 AllLJ 768. The Supreme Court observed that in Ram Adhar Singh versus Ram Roop Singh, the question considered and decided by the Court was whether a suit for possession of agricultural land under Section 209 of the U.P. Zamindari and Land Reforms Act would abate when Section 5 of thedoes not mention suits for possession. It was held in the said case that the language of Section 5 of thewas wide enough to cover suits for possession involving declaration of rights and interests in land which can be the subject matter of decisions in consolidation proceedings. The whole object of this provision of the was to remove from the jurisdiction of ordinary civil and revenue courts, for the duration of consolidation operations, all disputes which could be decided in the course of consolidation proceedings before special courts governed by special procedure. Such adjudication by consolidation authorities were considered more suitable, just and efficacious for speedy decisions which had to be taken in order to enable consolidation operations to be finalised within a reasonable time. The Court observed that there was no decision of the Supreme Court directly on the question whether a suit for cancellation of a sale deed which was pending on the date of notification under Section 4 of the Act, abates under Section 5(2) of the. It then observed that a decision of a Division Bench of Allahabad High Court in Jagannath Shukla versus Sitaram Pandey, was cited before them and that it directly dealt with the question that was before the Supreme Court. The Supreme Court observed that the Allahabad High Court had given a fairly comprehensive discussion of the relevant authorities, the prepondering weight of which was cast in favour of the view that questions relating to validity of sale deeds, gift deeds and wills could be gone into in a proceeding before the consolidation authorities because such questions naturally and necessarily arose and had to be decided in the course of adjudication of rights or interests in land which are the subject matter of consolidation proceedings. The Court drew a distinction between void and voidable documents. A voidable document was one whose legal effect can only be taken away by setting it aside and for cancellation of such a document The consolidation authorities had no power, therefore it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. However, in the case before the Supreme Court in Gorakhnath Dubey (supra), the plaintiffs claim was that the sale of his half share by his uncle was invalid, inoperative, and void as it was joint Hindu family property. Such a claim could be adjudicated upon by the Consolidation Courts.

31. The Full Bench decision of the Board of Revenue in Ajay Kumar versus Ramswarup and others (supra) had dealt with three questions that were framed by a single Member of the Board namely A) whether the sale deed is enforceable if the co-tenure holder sells his total share or part of his total share B) whether the sale deed is partially enforceable to the extent of his share and void to the extent of earmarking of physical demarcation of boundaries and transfer of possession on the earmarked boundaries C) whether the complete sale deed is non-enforceable because of earmarking of physical demarcation of boundaries and possession on the earmarked boundaries without following the due process of law as provided in Section 176 of the U.P.Z.A.&L.R. Act for formal partition and the decree demarcating the share and exact physical boundaries by the competent court

After considering judgements of the Allahabad High Court in Ram Kripal and another versus Abdul Wahid and another,1940 RevDec 132, that, "a co-sharer in undivided property who by an arrangement with the other co-sharers takes possession of a definite portion of the property is not entitled to claim to a third person as his exclusive property, the portion which she has been transferred by agreement with his co-sharers. The transferee acquires no right by the transfer and is not entitled in respect of the same".

32. It was observed that unless there is a division of the property by metes and bounds under Section 176 of the U.P.Z.A.&L.R. Act a co-sharer is entitled to every inch of the joint holding. Therefore if the Vendee from a co-sharer entered into possession of the property the possession would not be in accordance with law. It was also observed that if the sale deed clearly mentioned the factual location of the area of land in dispute which has been sold and that too without a formal partition having taking place, it could not be said that the co-tenure holder had an exclusive tenancy rights in the said portion of the whole land and such the sale deed being illegal could not be given effect to. Without formal partition and decree under Section 176 of the U.P.Z.A.& L.R. Act, no co-tenure holder can by way of any oral agreement on partition between co-tenure holders sell any specific portion of the common property. Where such a transfer of a share by a co-shareholder is done, the transferee steps into the shoes of the transferer and exclusive possession of such property cannot be given to the transferee unless the property was formally partitioned between the co-share holders as per the law. Such a transferee would enjoy "unity of title" and "commonality of possession" with other co-tenure holders but he cannot claim exclusive possession of a particular part of the joint holding.

33. In answering the third issue it was held that the entire sale deed is non-enforceable because of physical demarcation of boundaries and possession on the earmarked boundaries without following the due process of law as provided in Section 176 of the U.P.Z.A.&L.R. Act for formal partition that such sale deeds or transfer instruments whereby the seller had transferred his share in the joint holding and also in the same instrument demarcated the physical boundaries would be legally non-enforceable being violative of the provisions of the Statute that is, violative of Section 176 of the U.P.Z.A.&L.R. Act. In sum and substance, it was held that the sale deeds or transfer instruments where the seller had sold his share of a joint holding and also earmarked the physical demarcation of the boundaries and transferred the possession of the same without following the due process of law as provided in Section 176 of the U.P.Z.A.&L.R. Act for formal partition and decree, demarcating the share and exact physical boundaries by the competent court, would be not enforceable as the same was void ab initio.

34. In Ramdas vs. Sita Bai and others, (2009) 7 SCC 444 , [LQ/SC/2009/1365] the Supreme Court was considering the case of the appellant who had bought land from a co-tenure holder one Sudam, of a property of which the defendant no.1, his sister, Sitabai was co-sharer. The Property in question was the self acquired property of the deceased father jointly held by his son and daughter after his death. The transfer was made without the consent and knowledge of the defendant/Respondent. The Court considered the legality of such a transfer and held that Sudam could not have sold off more than his share nor he could have delivered possession of the property till its partition. It was held that under the Transfer of Property Act, a purchaser cannot have a better title than what his vendor had. The appellants claim to the possession of the entire land was therefore untenable. Decrees of the lower court to the extent of one half share of the respondent being not binding on her were affirmed. The court considered judgements rendered by it earlier in M.V.S. Manikyala Rao (supra) and Siddeshwar Mukherjee versus Bhubaneswar Prasad Narayan Singh, (1953) AIR SC 487, and the Court observed in paragraphs 17 and 18 as follows:-

"17. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put Vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this court in M.V.S. Manikayala Rao versus M. Narasimha Swami, Wherein this court stated as follows:-

5. .......Now, it is well settled that the purchaser of a coparcener undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased...."

18. It may be mentioned herein that the aforesaid findings and conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgement of this Court in Siddeshwar Mukherjee versus Bhubaneswar Prasad Narayan Singh, wherein this court held as under:-

11. .....All that Vendee purchased at the execution sale was the undivided interest of the coparceners in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour..."

35. I have carefully perused the sale deed executed by Vijay Kumar. Vijay Kumar intentionally does not say that he is the co-tenure holder of the land being sold by him. He says that he is the sole tenure holder. He further says that of the two plots of land 705 Minjumla and 712 Minjumla, he is selling off 1/3rd of his entire share on the southern side. He further says that there is a Bans Kothi and a Boring on the said lands the value of which has also been paid by the Vendee. The land is bounded on the East by the field of the Vendee Shiv Kanti Devi. On the West by the field of Ramsewak. On the North by the field of Ajay Kumar and on the South by the field of Khushi Ram. There is no mention of any family settlement leading to partition of the two plots of land amongst the three brothers. In fact there is no mention at all of other co-sharers of the property.

36. In the sale deed of Sushil Kumar although it is mentioned that the vendor is the owner of 1/3rd share of the land in question which he is selling off to the Vendee Shivkanti Devi but there is no mention of any family settlement and there is also no mention of his brothers Rajendra Prasad and Vijai Kumar Being co-shareholders of the property. There is also no mention that by means of family settlement the vendor Sushil Kumar had been given a definite share of the land in question of which he had sole possession and which he could sell to the Vendee. The area sold off has been mentioned as 1/3rd share of the two plots of land ad-measuring 1 acre 26 decimals. The boundaries mentioned in the sale deed say that on the east is the Chak Marg, on the West is the field of Vijai Kumar and the remaining portion of the land being sold, on the north is the field of Ajay Kumar and on the South is the field of Khushiram. There is again no mention of any consent being given by Rajendra Prasad or by Vijai Kumar to the selling of his 1/3rd share by Sushil Kumar.

In the counter affidavit filed by the respondent no.4, it has been stated in paragraph 13 that the sale deeds have been executed on the basis of family settlement of the shares that were given to Vijai Kumar and Sushil Kumar who were educated persons and who had properly described the boundaries of the land that they intended to sell to the respondent no.4. Respondent no.4 in counter affidavit also says that the Bans Kothi and the Boring were mentioned in the sale deed executed by Vijai Kumar and that she had paid for the same therefore no claim on them could be made by the petitioner.

It is settled law that an undivided share in a joint family property cannot be sold off by one of the co-sharers without there being any partition by metes and bounds. Even if there is an assertion that an oral partition took place, the value of the property involved in the partition being more than hundred rupees, such oral partition is not permissible. Registration of such partition was also required. If the partition has not been proved by independent and competent witnesses before the court of law, such partition could not be said to have taken place at all. The Consolidation Officer in his order says that the sale deeds were proved by the witnesses of the Vendee. The Consolidation Officer also says that the boundaries were verified by by such witnesses. However, he does not say in his order that the share of the Vendee was proved to have been determined by a family partition by such witnesses. This property in question was still a joint property of the petitioner and his brothers and, therefore, if his brothers alienated the same without the consent of the petitioner, such as sale would be void and not a voidable document. Every alienation of joint Hindu family property without the consent of the coparcener makes the sale deed void. Even if such land was not joint Hindu family property, it being a property having joint ownership of the petitioner and his brothers without a regular partition between them any sale of such property would be void.

37. The facts of this case are a glaring example of failure to exercise jurisdiction by the Consolidation Authorities to consider the validity of the sale deeds set up by the brothers of he petitioner of a joint holding which had mentioned definite boundaries demarcating the share of vendors allegedly sold off to the vendee without the family settlement being proved at any stage of the proceedings. Also, the question of fragmentation of Chak No.493 was not considered which would render such sale deeds void in terms of Section 168A of the U.P.Z.A. & L.R. Act. The first sale made in 1996 was made to a stranger who had no contiguously situated land near Chak No.493. It was made before the cut off date of 23.08.2004 leaving only 1.26 acres with the petitioner and 1.26 acres with Vijay Kumar. This aspect of the matter was not looked into at all by the Consolidation Authorities. A misreading of evidence in the form of two sale deeds resulted in a finding being recorded against the petitioner which was perverse to say the least.

38. The impugned orders dated 28.01.2015, 12.06.2015 and 11.09.2015 deserves to be set aside and are set aside.

39. The writ petition is allowed.

40. The matter is remanded to the Deputy Director of Consolidation to consider the report dated 28.04.2015 of the Assistant Consolidation Officer and also the evidence if any to be produced by the parties and to pass fresh order in accordance with law. The entire exercise be completed expeditiously, say, within a period of six months from the date of production of a copy of this order.