B.L.Yadav - (1.) -Whether those persons who have no interest in the land sold, or who are not heirs of the vendor, can file suit for cancellation of the sale deed ; and whether a private individual other than Gaon Sabha, can file suit for cancellation of sale dsed as contemplated by section 167 of the U. P. Zamindari Abolition and Land Reforms Act, 1950, (for short the Act) : and whether the sale deed in question can be cancelled just on the ground that the vendor died before preparation and issuance of the Sanad Bhumidhari ; and whether the vendor would acquire bhumidhari right in the land sold from the date of deposit in view of principles of feeding the grant by estoppel and by section 134 of the Act (as applicable on the date of deposit), are the short substantial questions of law which fall for determination in the prerent Second Appeal filed by the defendant appellants, the vendees in a suit filed by plaintiff respondents 1 and 2 for cancellation of sale deeds dated 31-1-1974 The first sale deed was in favour of appellants and the second was in favour of one Chabinath, against whom the respondents, the plaintiffs have filed a suit. However, in that suit they entered into a compromise upholding the validity of the sale deed.
(2.) THE plaintiff respondents filed written statement and alleged that there had been a partition about 10 years back in the family between the parties, and Sheobadan, the vendor, (as shown in the pedegree given at page 1 of the judgment of the lower appellate court) got possession separately over his share and even in consolidation proceedings he was allotted separate Chak, but he deposited 20 times rental on 31-1-74 and executed sale deed in favour of the appellants and he died on 12-2-74, before order for preparation of Sanad Bhumidhari could be passed on 13th March, 1974. or the same could be prepared in the name of deceased, hence the sale deed executed in favour of the defendant appellants was void and the vendees could not derive any title on that basis, and that the sale deed was obtained by the defendants by practising fraud, coercion and undue influence on the vendor. The suit was contested by defendant appellant? on the ground that the sale deed in their favour was legal and valid as the deposit was made on 31-1-74 and the sale deed was executed the same day in favour of appellants and they have paid sufficient consideration on the assurance of the vendor that he has got transferable rights, and as the sale deed was executed on the same day immediately after the deposit was made, hence the death of deceased would not make any difference, as the same was not contemplated to deprive the vendor from acquiring bhumidhari rights either under section 134 or 137 or under any other provision of the Act, and the sale deed was not obtained by fraud, coercion or undue influence, and in any case it is only the Gaon Sabha who can file suit and the plaintiffs, respondent nos 1 and 2 were not the heirs of Sheobadan in the family pedigree shown and hence they have got no right to sue and the suit was liable to be dismissed. The trial court by its judgment, and decree dated 14-2-76, decreed the suit and the lower appellate court dismissed the appellants' First Appeal and the present Second Appeal has been filed against the judgment and decree of the courts below.
(3.) SRI A. N. Bhargava, learned counsel for the appellants urged that the plaintiffs were not the heirs of Sheobadan, the vendor, who has got land in dispute in the family partition and even during consolidation operations the vendor was allotted separate Chak. The appellants did not challenge the rights of the vendor during consolidation! operation, and in any case even if the sale deed is assumed to be illegal or- void (though not conceded), nevertheless under section 167 of the Act only the Gaon Sabha has right to file the suit for cancellation and the plaintiffs, as private individuals, who have no interest in the land, nor were heirs of the vendor Sheobadan under the provisions of section 171 of the Act, which provides father's father's son's son, the last heir under section 171 (r) and plaintiff-respondents 1 and 2 being far away from the last category of heirs, cannot file suit for cancellation of sale deed in favour of appellants. The deposit was made under the provisions of section 134 of the Act and after deposit the vendor became entitled with effect from the date of deposit to a declaration of bhumidhari rights, that there are no provisions either under section 134 or 132 or 130 etc. providing that in case vendor dies before the issuance of Sanad Bhumidhari, he would not acquire bhumidhari rights. Hence that cannot be assumed as that would amount to legislation by the court. In case the intention of legislature would have been to deprive vendor from acquiring bhumidhari rights simply because the vendor dies before the Bhumidhari Sanad could be issued, that can be specifically provided under the relevant provisions of section 137-A of the Act which provides cancellation of certificate wholly in cases where the certificate was obtained fraudulently or by an untrue allegation of facts essentially on the point of law, or that a decree or order passed by a competent court in a suit or other proceedings has been granted showing that the appellant was not entitled to certificate and that the relief for cancellation of sale deed was an equitable relief and another sale deed executed by the same vendor on the same date in favour of Chabinath was in a compromise decree held to be valid by the plaintiffs, hence the plaintiff respondents were not entitled to equitable relief as the principle was 'he who seeks equity must do equality' lit was further urged that the substantial questions of law have been incorrectly decided by the courts below. Sri Sankatha Rai, learned counsel appearing for plaintiff respondents 1 and 2, on the other hand, urged that as the vendor Sheobadan died before the Bhumidhari Sanad could be issued in his name, hence he did not acquire bhumidhari rights and the sale deed executed by him was illegal and void and the plaintiffs have right to sue and can file suit for cancellation and the Gaon Sabha could, no doubt, file a suit for cancellation, but the plaintiff respondents 1 and 2 have right to file suit and the sale deed being executed by a person who did not acquire bhumidhari righs, rather who remained only as a sirdar, hence the sale deed was void under sections 166 and under section 167 the transferee was liable to ejectment and the interest of sirdar extinguished under section 190 (1) (cc) of the Act and the Gaon Sabha could only file suit under section 167 (1) of the Act and substantial questions of law were correctly decided by the courts below as contemplated under section 100 CPC and the present Second Appeal deserves to be dismissed. Reliance was placed on Ram Sabodh v. D.D.C., 1982 ALJ 1252. 1978 RD 183, AIR. 1968 Alld. 262 and Banshi Dhar v. Smt. Dhirajdhari, 197I ALJ 937.;