B.L.Yadav- - (1.) BY the present petition under Article 226 of the Constitution of India the prayer is that a writ of Certiorari may be issued quashing the order dated 20-12-90 passed by the Deputy Director of Consolidation (Annexure 14 to the petition) and the order dated 27-8-90 passed by the Asstt. Settlement Officer (Consolidation) (Annexure- 12 to the petition).
(2.) FACTUAL matrix reflects a chequered history of litigation. Plots in dispute contained in Chak Nos. 100 and 113 situate in village Parsurampur, Pergana Sikanderpur East. Tahsil Rasra, district Ballia, were recorded in basic year in the name of Smt. Dularia, the respondent no 3 as her transferable bhumidhari land. It was the case of the petitioners that they obtained bhumidbari land on the basis of a registered sale deed dated 16-9-1971 executed by Smt. Dularia, widow of Ram Nagina Singh, respondent no. 3, the recorded tenure holder. The petitioners made an application under Section 12 of the U P. Consolidation of Holdings Act, 1953 (for short the Act), with the prayer that their names may be entered as bhumidhars in place of the vendor Smt. Dularia and the name of vendor may be expunged. The case set up by the petitioners was contested by respondent nos. 3 and 4 with the averments that respondent no 3 the alleged vendor has executed not a sale deed but in fact a gift deed in favour of her daughter Smt Rameshwari Devi, wife of Yogendra Singh, respondent no 4 and she did not nor ever intended to execute any sale deed in favour of petitioners. A suit for cancellation of the sale deed was filed by respondent no. 3, the vendor, in the Civil Court alleging that she did not execute nor ever intended to execute the sale deed, rather she has only executed the gift deed. She was a Pardanashin lady and totally illiterate and unacquainted with court proceedings. It was prayed that the sale deed may be cancelled.
(3.) THE petitioners contested the civil suit alleging that the sale deed was void, hence the civil court has no jurisdiction to enteriain the suit. THE learned Munsif dismissed the suit, holding that the civil court has no jurisdiction. Against that decree first appeal was preferred which also met the same fate. A second appeal was filed in this Court and the same was allowed on the ground that the sale deed executed in favour of petitioners was void, hence it can be ignored, in such matter not the civil court but consolidation authorities can decide the matter Special appeal was filed by respondent no. 3 before the Supreme Court That appeal was also dismissed by the Supreme Court by its judgment dated 2-3-1990 (vide Annexure-1). In that judgment it was held by their Lordships of the Supreme Court (page 45 of the paper book) as follows : "She honestly believed that the instrument which she executed and got registered was gift deed in favour of her daughter. She believed that the thumb impressions taken from her were in respect of that single document. She did not know that she executed two documents, one of which alone was the gift deed, but the other was a sale of property in favour of all the defendants. This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect. THE plaintiff appellant never intended to sign what she did sign She never intended to enter into the contract to which she unknowingly became the party. Her mind did not accompany her thumb impressions. This is a case that falls within the principle enunciated in Ningawwa v. Byrappa, (supra) and it was, therefore, a totally void transaction. Accordingly as stated in Gorakh Nath Dubey (supra) the suit is not maintainable." It was held in brief that the mind of the executant, namely, respondent no. 3 did not accompany her thumb impression and that the transaction of sale deed by the petitioners was totally void The matter was agitated before the consolidation authorities afresh and the Consolidation Officer by his order dated 18-1-87 (Annexure-11) held that the sale deed set up by the petitioners was valid and genuine. An appeal was preferred under Section 11 of the Act by Smt. Dularia, respondent no. 3, which was allowed by the judgment dated 27-8-90 (Annexure-12) and the revision under Section 48 of the Act against the judgment preferred by the petitioners was dismissed by order dated 6-12-90 (Annexure-13). Against these judgments dated 27-8-90 and 6-12-90 the present petition has been filed.;