K. N. Misra, J. - (1.) THIS petition under Article 226 of the Constitution is directed against the order dated 7-4-1980 passed by the Deputy Director of Consolidation, Allahabad, allowing the revision filed by opposite parties Nos. 3 and 4 Bal Govind and Tulsi Ram and setting aside the orders dated 14th December 1979 and 8th February 1980 passed by the Consolidation Officer and further directing that the Amaldaramad of the order dated 8-11-1979 passed by the Consolidation Officer under section 12 of the U. P. Consolidarion of Holdings Act be made in the names of opposite parties nos. 3 and 4 on the plots in dispute which they had purchased from Smt. Phulwasi, opposite party No. 5, through registered sale deed dated 3rd October 1979.
(2.) THE petitioner Gulab Shanker Tewari filed an application before the Consolidation Officer for setting aside of the aforesaid order of mutation dated 8th November 1979 with the allegations that he is in possession over the land in question on the basis of loan advanced by him to Smt. Phulwasi on 24th December 1969. He thus became Bhumidhar of the land under section 164 of the UP ZA and LR Act. It was further pleaded that Smt. Phulwasi had not executed any sale deed in favour of opposite parties Nos. 3 and 4 and they had on the basis of fictitious and forged sale deed got the mutation order in their favour by practising fraud upon the court. It was further pleaded that since Smt. Phulwasi was left with no interest in the land in dispute and the objector-petitioner was in possession over it and as such she could not transfer it to opposite parties Nos. 3 and 4 and the mutation order passed in their favour be set aside. On this application the Consolidation Officer passed an order on 14th December 1979 directing notices to be issued to opposite parties nos. 3 and 4 on the ground that Gulab Shankar had no locus standi to apply for setting aside the mutation order passed in their favour, which was not obtained by playing fraud upon court. It was further asserted that Smt. Phulwasi had executed a valid sale deed in their favour and their names deserved to be mutated on the land in question and the aforesaid order setting aside Amaldaramad of mutation order in their favour be recalled and the application filed by the petitioner for setting aside the said mutation order be rejected being not maintainable. The Consolidation Officer vide order dated 8th February 1980 rejected the prayer and fixed 26th February 1980 for hearing. Against these orders revisions were filed. The revision filed by opposite parties Nos. 3 and 4 was allowed by the Deputy Director of Consolidation vide order dated 7th April 1980 and the orders passed by the Consolidation Officer were set aside and the mutation order dated 8th November 1979 was directed to be incorporated in papers by holding that Smt. Phulwasi, who had executed sale deed in favour of opposite parties Nos. 3 and 4, could alone seek setting aside of the mutation order if she had any grievance that it was obtained by playing fraud upon her or on court. It was further found that it does not appear that the mutation order was obtained by opposite parties Nos. 3 and 4 by playing fraud on court or on opposite party No. 5. The petitioner cannot apply for setting aside the said order. Hence his application was rejected. The petitioner has challenged the said order in this writ petition. Learned counsel for the petitioner contended that he is in possession over the land in dispute on the basis of loan advanced by him to Smt. Phulwasi on 24th October 1976 and as such under section 164 of the UP ZA and LR Act, the petitioner became Bhumidhar. He contended that since the land in question was mortgaged by Smt. Phulwasi to the petitioner hence possessory mortgage would be deemed to be sale under the aforesaid section in favour of the petitioner and Smt. Phulwasi was left with no interest in the land in dispute and as such the sale deed dated 3rd October 1979 was invalid and the mutation order deserved to be set aside. I am unable to agree with this contention.
(3.) ANNEXURE 1 to the rejoinder affidavit filed by the petitioner appears to be an agreement for sale said to have been executed by Smt. Phulwasi on 24th October 1976 in favour of the petitioner. The said document is not a mortgage deed nor it can be construed as such. It is also not registered. There is a recital in the said document that for a sum of Rs. 35, 000/- Smt. Phulwasi had contracted to sell it to the petitioner Gulab Shanker and a sum of Rs, 15, 000/- was paid as earnest money and that Gulab Shanker was put into possession over the land in dispute. It is also mentioned in the said document that the sale deed is to be executed within a period of three years in favour of Gulab Shanker. This document therefore purports to be an agreement for sale and not a possessory mortgage. The provisions of section 164 of the UP ZA and LR Act are, therefore, not attracted and the petitioner cannot claim to have acquired Bhumidhari rights on the basis of the said document. The genuineness of the said document is challenged and it has also not been proved. In this view of the matter the petitioner cannot urge on its basis to have acquired Bhumidhari rights in the land in dispute. It is now well settled that no rights accrue in the property on the basis of agreement for sale. Bhumidhari rights will accrue in the land only upon the execution of the sale deed and not on the basis of an agreement for sale although possession might have been delivered to the person in whose favour the agreement for sale was executed. The agreement for sale will be enforced on being established that it was a genuine document and that the party had contracted to sell the property in question. Since this question is not involved in the present case I do not express any opinion about the validity or the genuineness of the alleged agreement for sale. Learned counsel for the petitioner, however, contended that since he is in possession over the land in question and as such he is entitled to apply for setting aside the mutation order dated 8th November 1979 passed in favour of opposite parties Nos. 3 and 4. I am unable to agree with the contention. The petitioner was not a party to the mutation proceedings and as such he could not as of a right apply for setting aside the mutation order dated 8th November 1979. It has not been shown in the present writ petition that no mutation proclamation was issued or that the mutation proclamation issued was not valid one. In the absence of any averment to that effect it cannot be said that the mutation order was not passed after issuing valid mulation proclamation. In the impugned order there is a mention that the Assistant Consolidation Officer had got mutation proclamation issued. No objection was filed by the petitioner in the mutation case even on the basis of his alleged posseesion over the land in question, which he could do when mutation proclamation was issued in this case before passing of the mutation order dated 8th November 1979 in favour of opposite parties Nos. 3 and 4. Having not done so, he could not file an application for setting aside the mutation order which has been passed after issuing a valid proclamation.;