Hon'ble Prakash Krishna, J. - (1.) THESE two petitions were heard together and are being disposed of by a common judgment as was done by the authorities below also. The facts of the case are interwoven and interlinked. Fortunately, there appears to be no dispute on fundamental facts of the case. THESE petitions arise out of the proceedings under the U.P. Consolidation of Holdings Act. The admitted facts of the case are being noticed with reference to the writ petition No. 11924 of 1986 which are as follows : 1. In the basic year the land in dispute was recorded in the name of Havaldar, the respondent No. 6 in the writ petition, who on 20th of August, 1952 had mortgaged the three disputed plots numbered as 175 area 0.31, 177 area 0.11 and 374 area 0.19 (total area 0.61) in favour of Vishwanath and Raghunath sons of Janki. Vishwanath is respondent No. 4 herein and Raghunath has died and he is represented by his son Chhedi, respondent Nb. 5. There is some typographical error with regard to the third plot. Somewhere it is described as 375 area 0.19 acre and somewhere as plot No. 374 area 0.19 acre.
(2.) DURING the consolidation operation in village various persons, filed objections. It was registered as Case Nos. 837, 843, 842, 841, 840, 839 and 838. The respondent Nos. 4 and 5 filed objections under Section 9A (2) of the Consolidation of Holdings Act that they are in possession of land in dispute for more than 12 years and have perfected their title. A compromise was arrived at between the parties i.e. Havaldar, on one hand, and Vishwanath and Raghunath, on the other hand. It was agreed upon that Vishwanath and Raghunath sons of Janki may remain in occupation as an asami till the payment of mortgage money including interest amounting to Rs. 800/-. In pursuance of the aforesaid compromise, the Consolidation Officer passed the order dated 23rd of October, 1971 and ordered that the names of Vishwanath and Raghunath sons of Janki be recorded as mortgagee over the plot Nos. 175,177 and 375 on the share of Havaldar (mortgagor). In the final revenue record in pursuance of the aforesaid compromise, ultimately the name of Havaldar was recorded as Bhumidhar over the plots in question in addition to other plots. The petitioners, Lalji and Janardan sons of Hari Das purchased Chak No. 292 consisting of eleven plots measuring 1.34 acres by means of sale-deed executed by Havaldar after having obtained permission from the Settlement Officer of Consolidation.
(3.) THE petitioners on the strength of the sale-deed in their favour filed an application under Section 12 of the Consolidation of Holdings Act for mutation of their names over the plots purchased by them in place of Havaldar, giving rise to writ petition No. 11924 of 1986. The contesting respondent Nos. 4 and 5 also filed mutation application under Section 12 of the Act for mutation of their names as Bhumidhar on the basis that they have acquired Bhumidhari right being in adverse possession and their names may be recorded, giving rise to writ petition No. 11962 of 1986. 2. The parties led evidence in support of their respective cases. It was registered as Case No. 256/1029. These mutation applications were rejected. It was ordered that the existing entries shall continue by the order dated 26th of May, 1982. The said order was challenged by the petitioners of both the writ petitions separately by filing two separate appeals. Both the appeals were heard and rejected by a common order dated 30.7.1983 by the Settlement Officer Consolidation and the order of the Settlement Officer Consolidation has been confirmed in revision Nos. 615/216 and 616/223 by the common order dated 29th of May, 1986 by the Deputy Director of Consolidation. Hence, the present two petitions. 3. All the three authorities below have proceeded on the footing that the property was mortgaged after commencement of the U.P.Z.A. & L.R. Act, hence it is void and it shall be deemed to be a "sale" in favour of the contesting respondents herein. This being so, Havaldar lost his title and could not execute the sale-deed on 22.6.1976 in favour of the petitioners herein. This is crux of the impugned orders. 4. Heard Sri Arun Kumar, learned counsel for the petitioners, Sri Faujdar Rai, learned counsel for the contesting respondents and perused the record. 5. The learned counsel for the petitioners submitted that the plea, that mortgage is valid or not or it would amount to 'sale' within the meaning of Sections 154 and 164 of the U.RZ.A. & L.R. Act was not open to be gone into the proceedings under Section 12 of the Act. Only such limited questions which fall within the parameters of Section 12 of the Act can be gone into. The question with regard to the validity of the mortgage deed or it would amount to 'sale' was beyond the purview of Section 12 of the U. P. Consolidation of Holdings Act. Alternatively, the mortgage was valid mortgage as it was not mortgage with possession. A mortgage without possession by a Bhumidhar is permissible under the provisions of the U.P.Z.A. & L.R. Act. Secondly, in view of the compromise between the parties wherein the contesting respondents have admitted that they would be asami of the land in question, they cannot acquire any better title. The proceedings between Havaldar and contesting respondents under Section 9A(2) of the Act became final, conclusive and binding. The Chaks were carved out and the necessary entries regarding Havaldar as Bhumidhar were made in the revenue record. In view of Section 30 of U.P. Consolidation of Holdings Act, Havaldar became Bhumidhar of the plots in question free from all encumbrances and thus, validly executed the sale-deed in favour of the petitioners. Finally, it was also argued that in any case, the authorities below were not justified in rejecting the mutation application in its entirety for the reason that the mortgage was admittedly in respect of three plots total area 0.61 acre, while the petitioners have purchased eleven plots total area 1.34 acre. Meaning thereby, in any case, petitioners' names should have been mutated over the area other than the mortgaged area, at least. 6. In reply, Sri Faujdar Rai, learned counsel for the contesting respondent Nos. 4 and 5 (Vishwanath son of Janki and Chhedi son of Raghunath-mortagagee) submitted that the mortgage in question was transfer of land with possession, which is not permissible under the U.P.Z.A. & L.R. Act. In view of Section 164 of U.P.Z.A. & L.R. Act such transaction would amount to 'sale' and therefore, the contesting respondents have become Bhumidhar of land in question. Havaldar lost his right, title and interest and therefore, he could not execute the sale-deed in favour of the petitioners.;