D.S. Mathur, C.J. - (1.) THE learned Single Judge being of the opinion that the earlier decisions of this Court in Parmanand v. Board of Revenue U.P. Allahabad, 1966 AWR 32 and Jaishankar Singh v. The State of U.P., 1968 AWR 849, require reconsideration, has referred the following question to a larger Bench: Whether a sirdar after having executed a sale deed in contravention of law can still acquire Bhumidhari rights in respect of that land?
(2.) SECTIONS 167 and 190 of the U.P. Zamindari Abolition and Land Reforms Act (to be referred hereinafter as the Act) were amended under the U.P. Amending Act No. XXXVII of 1958, by incorporating Clause (cc) in Section 190(1) and Sub -section (2) to Section 167 of the Act. Section 190 makes a provision for extinction of the interest of a sirdar. Prior to the 1958 amendment the interest of a Sirdar in the holding or any part thereof did not stand extinguished on his making a transfer in contravention of the provisions of the Act. Section 166 of the Act merely declared the said transfer to be void and under Section 167 the Gaon Sabha could sue for the ejectment of the transferee or any person who had obtained possession of the holding. Upon the ejectment of the transferee or the person in possession under Section 167, all the rights and interest of the sirdar in the holding or any part thereof, were extinguished. Consequently, if the transferor was still in possession, no suit could be instituted under Section 167 and the rights of the sirdar inspite of the void transfer were not extinguished.
(3.) BY virtue of Clause (cc) of Section 190(1) of the Act, the interest of the Sirdar shall be extinguished when the holding or a part thereof has been transferred, let out or used in contravention of the provisions of the Act. If this was the only provision under the Act, only one view was possible, namely, that once the holding or a part of the holding was transferred, the rights of the sirdar stood extinguished in respect of the property under transfer. But as pointed out in the above mentioned earlier decision of the Court, the simultaneous amendment made in Section 167 does not lead to the same inference. The existing Section 167 which was renumbered as Sub -section (1) was not at all amended except that for the words "Gaon Sabha or the Collector on behalf of the Gaon Sabha" the words "Gaon Samaj" were substituted. "Gaon Sabha" was again substituted for "Gaon Samaj" by U.P. Act 33 of 1961. It is not necessary that there must be transfer of possession before the sale is complete. Consequently, it can happen that even though a legal sale -deed had been executed there is no actual delivery of possession. In such case, the Gaon Sabha cannot institute a suit under the existing Section 167(1) of the Act and once a suit cannot lie against the transferee or the person obtaining possession, then the transferor -sirdar cannot be ejected and his interest shall not by virtue of Section 168 be extinguished. The phrase "and every person who may have thus obtained possession" in Section 167(1) in the context in which it has been used cannot obviously refer to the transferor sirdar.;