N. D. Ojha, J. - (1.) THIS special appeal arises out of a dispute in regard to plot No. 867 situate in village Silla Vishanpur, Pergana Koil, district Aligarh. When Consoli dation proceedings started in the village afore said, the plot stood recorded inter alia in the names of the appellant and respondent No. 4. Respondent No. 4 filed an objection asserting that the appellant had no right in the plot and that his name may be expung ed. This objection was allowed by the Con solidation Officer, but on appeal by the ap pellant it was dismissed by the Settlement Officer, Consolidation. On second appeal by respondent No. 4, the Deputy Director of Consolidation set .aside the order of the Settlement Officer, Consolidation and restored that of the Consolidation Officer. A revision filed by the appellant was ordered to be dismissed by the Commissioner on the ground that it was not maintainable in view of the amendment of the Consolidation of Holdings Act in 1963. Thereafter, a writ petition was filed by the appellant which was dismissed by a learned Single judge by his judgment under appeal.
(2.) MOHAMMAD Ali Khan, Asghar Ali Khan, Mahmood Ali Khan and Hamid Ali Khan were the co-sharers of the aforesaid plot. The share of Asghar Ali Khan and Mohammad Ali Khan were auctioned in exe cution of a decree passed in suit No. 182 of 1932 by the Munsif Koil district Aligarh on 7-10-1942. It was purchased by the appel lant. In due course, a sale certificate was issued in his name and possession was deli vered through Court on 16-10-1943. It is not disputed that the name of the appellant was mutated in revenue records and continu ed to be recorded therein, As already point ed out. his name was recorded even in the relevant Khatauni when the consolidation pro ceedings started. The name of the appellant has been ordered to be expunged on the ground that the plot in dispute being agricultural land was not liable to be sold by a civil Court and, consequently, no title passed in favour of the appellant by virtue of the auction referred to above. The Deputy Direc tor of Consolidation, while allowing the second appeal of respondent No. 4, also held that the appellant was not in possession on his own admission. Learned counsel for the appellant made three submissions in support of the appeal; (1) that the notification and the order which had been relied upon by the Deputy Director of Consolidation and by the learned Single Judge for holding that the auction was void, having been held by a civil Court, did not apply to the land in ques tion, inasmuch as what was sold was not agricultural land within the meaning of the said notification; (2) that the finding of the Deputy Director of Consolidation in regard to the appellant's possession was in ignorance of the admissions made by respondent No. 4, as also on a misreading of the appellant's statement; and (3) that even if the sale was void, the appellant on account of his being in joint possession for a period of more than twelve years, became a co-sharer on the ex piry of twelve years from the date on which he entered possession in execution of the decree passed by the civil Court.
(3.) IN order to appreciate the first submission of counsel for the appellant, it is necessary to refer to the notification of the year 1934. The said notification is as fol lows: "No. 576-IA-93 dated 26th March, 1932. In supersession of notification No. 1887-1-238, dated 7th October, 1911 and in exer cise of the powers conferred by Section 68, Civil P. C., 1908, the Governor-in- Council is pleased to declare that with effect from 1st April, 1932, the execution of decrees in cases in which the civil Court has ordered any agricultural land situated in the United Provinces of Agra and Oudh, or any interest in such land to be sold, shall be transferred to the Collector." ;