Thakur Dass v. Deputy Director Of Consolidation And Others

B.L. Yadav, J.

1. This petition Under Article 226 of the Constitution of India is directed against the Order dated 16.02.1978 passed by the Deputy Director of Consolidation, Jhansi allowing the revision Under Section 48 of the U.P. Consolidation of Holdings Act, filed by Respondent Nos. 4 and 5.

2. The facts of the case are few and simple Plot No. 845 was in dispute which was recorded in the basic year in the name of Orange Prasad, father of the Petitioner, whereas during the consolidation Portal Respondent Nos. 4 and 5 were found to be in possession. An objection was filed by Respondent Nos. 4 and 5 Under Section 9A(2) of the U.P. Consolidation of Holdings Act claiming to be the bhumidhar on the basis of the provisions of Section 164 of the U.P. Zamindari Abolition and Land Reforms Act, (for short Act). As Ganga Prasad, father on the Petitioner being bhumidhar transferred the possession of the land in their favors by two deeds dated 19.05.1972 and 19.06.1972 just with a view to secure payment of money advanced which may give rise to pecuniary liability and thus they were entitled to be treated as vendees subject to conditions of Sections 154 and 164 of the Act and they prayed that their names may be entered as Bhumi-dhars and the name of the Petitioner or his father may be expunged.

3. The claim of Respondent Nos. 4 and 5 was contested by the Petitioner, who denied the aforesaid transaction and alleged that Respondent Nos. 4 and 5 were not in possession nor they were delivered possession in view of the aforesaid transaction nor they were entitled to the benefit of Section 164 of the it.

4. The Consolidation Officer decided the case against the Petitioner. But the Settlement Officer (Consolidation) allowed the appeal of the Petitioner and the revision filed by respond Nos. 3, 4 and 5 was allowed by the impugned Order dated 16.02.1978, which has been challenged by the Petitioner by way of this petition.

5. Sri R.C. Srivastava, learned Counsel for the Petitioner urged that Respondent Nos. 4 and 5 were not entitled to the benefit of Section 164 of the Act as the deeds dated 19.05.1972 and 19.06.1972 did not amount to sale nor Respondent Nos. 4 and 5 were in possession. He placed reliance on Deonandan v. Amardeo Singh, 1971 RD 270, Sukhambar v. Panwaroo 1976 KD 326 and also on Sati Prasad v. Deputy Director of consolidation Kanpur 1983 AWC 355.

6. Sri Shyam Narain, learned Counsel appearing on behalf of the contesting Respondents 4 and 5 on the other hand urged that Respondent Nos. 4 and 5 were entitled to the benefit of Section 164 of the Act and possession was transferred to them by virtue of the alleged mortgage deeds dated 19.05.1972 and 19.06.1972 and possession was also delivered to them as they had advanced a sum of Rs. 6000/- on two occasions and with a view to procure the payment of money advanced, the possession was delivered to them, hence it was a sale for all practical purposes and as contemplated by Section 164 of the Act. He placed reliance on Sati Prasad v. Deputy Director of Consolidation Kanpur 1983 AWC 355 (the same case which was relied upon by the learned Counsel for the Petitioner). Sri Shyam Narain also placed reliance on Hira Lai v. Dy. Director of Consolidation Allahabad 1980 ALR 312.

7. The main point which requires consideration is as to whether the transfer of possession by the Petitioner in favors of Respondent Nos. 4 and 5 for the purposes of securing payment of money advanced (by Respondent Nos. 4 and 5) would amount to sale in view of the provisions of Section 164 of the Act. It is better to set out the statutory provisions of Section 164 of the Act, which is as folio AS:

164, Transfer with possession by a bhumidhar will be deemed a sale. Any transfer of any holding or part thereof made by a bhumidnar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply.

8. In the instant case it is a fact that the Petitioners father obtained a sum of Rs. 6000/- on two occasions from Respondent Nos. 4 and 5 and for the purposes of securing payment of money advanced, Petitioners father transferred the possession of the land in dispute in favors of Respondent Nos. 4 and 5. There is no denying the fact that the amount received by the Petitioner was by way of loan which has given rise to pecuniary liability. Hence this transaction would certainly mean to a sale subject to the restrictions contained in Section 154 of the Act which only means that no transfer can be made to a person who as a result of the transfer would become a tenure holder of the land lore an area more than 12.50 acres. In the instant case there was no such allegation that Respondent Nos. 4 and 5 became entitled to land of more than 12.50 acres. Hence Respondent Nos. 4 and 5 became bhumidhar and the transaction meant to sale.

9. There is however a restriction that a bhumidhar cannot mortgage the land with possession as contemplated by Section 154 of the Act. I am of the view that Sections 164 and 155 of the Act are not contradictory to each other. It is well known principle of interpretation that all the parts of statutes must be harmoniously interpreted so as to assign some specific meaning and so that all the parts of the statute may work together satisfactorily with the object sought to be attained. In the instant case what Section 155 prohibits is that a bhumidhar cannot create a mortgage with possession. The legislature has enacted Section 164 with a view that in case a bhumidhar has obtained some payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, in that end if the possession is transferred by the bhumidhar to the transferee as satisfaction for payment of that loan, that would amount to a sale. I am, therefore, of the opinion that Sections 155 and 164 operate in different fields and there is no conflict between the provisions of these two sections. In view of the facts as found proved by the Deputy Director of Consolidation, the father of the Petitioner having received the amount mentioned above and to secure payment of the same had transferred the possession to Respondent Nos. 4 and 5, hence that became sale. It is, however, important to mention that the period mentioned in the two deeds dated 19.05.1972 and 19.06.1972 has also expired and hence the Petitioner or his father had no right left in the land in dispute.

10. In Deonandan v. Amardeo Singh (supra), relied upon by the learned Counsel for the Petitioner, there in lieu of the interest of money advanced the Defendant was to cultivate the land and he could not get the land sold for nonpayment of the loan. Hence the facts of that case would not help the Petitioner, as under those circumstances of the case the Defendant was not held to be entitled to the benefit of Section 164 of the Act. Similarly learned Counsel for the Petitioner relied upon Sati Prasad v. Deputy Director of Consolidation, Kanpur 1983 AWC 355. But that case helps Respondent Nos. 4 and 5 rather the Petitioner. In that case it was held that where a bhumidhar mortgages his land with possession and the mortgagee enters into possession that would be deemed to be sale in view of Section 164 of the Act. Hence this case would also not help the petitioner.

11. In Hira Lai v. Deputy Director of Consolidation, Allahabad (supra), relied upon by the learned Counsel for the contesting Respondents, the facts were similar and possession was transferred by the bhumidhar for the purposes of securing payment of loan advanced and it was held that the transaction amounted to sale and it was not a mortgage and the transaction was held to be covered by Section 164 of the Act. Similarly in the instant case also the father of the Petitioner who was bhumidhar having obtained loan twice transferred the possession of land to Respondent Nos. 4 and 5 with a view to secure payment of the money advanced. Hence that transaction would become a sale. Accordingly the case of Hira Lai applies to the present case with all fours.

12. Sri Shyam Narain, learned Counsel for the Respondent Nos. 4 and 5 also relied upon Sati Prasad v. Deputy Director of Consolidation 1983 AWC 355. This case applied to the facts of the present case. Here in the instant case also the bhumidhar has transferred the possession to Respondent Nos. 4 and 5 as the Petitioners father has obtained loan twice and to secure payment of the same he has transferred the possession of the land to Respondent Nos. 4 and 5 I am of the view that Sections 154 and 164 read together apply in different fields. Where possession has been transferred by a bhumidhar for the purposes of securing any payment of money advanced, in that event the said transfer of possession would become a sale and in respect of such sale the provisions of Section 164 shall apply, inasmuch as the vendee as a consequence of the transfer of possession should not hold the land (in area) more than 12 50 acres.

13. No bhumidhar shall have right to mortgage any land belonging to him where possession of the mortgaged land is also transferred. It obviously means that in case possession is transferred then it shall cases to remain mortgage rather it would become outright sale and in case possession is not transferred by a bhumidhar, in that case it may remain a mortgage. In other words a mortgage can be created by a bhumidhar but not by transfer of possession, but otherwise. To put it in other language a simple mortgage of a bhumidhari land, is allowed (where possession is not transferred), but if possession is also sought to be transferred, that is prohibited.

14. In view of the discussions made above, I am of the view that the possession was correctly transferred by the father of the Petitioner in favors of Respondent Nos. 4 and 5 and in view of the provisions of Section 164 that became a sale. The provisions of Section 155 create a bar against the bhumidhar who wants to transfer possession in favors of a mortgagee. In other words a bhumidhar cannot transfer possession and thereby create a mortgage. But a bhumidhar can create a mortgage without transfer of possession.

15. In view of the discussion made herein before, the writ petition lacks merit and is hereby dismissed. There shall, however, be no order as to costs.