B.L. Yadav, J. - (1.) THIS petition under Article 226 of the Constitution of India is directed against the judgment and order dated 27 -1 -1978, 6 -3 -1974 and 11 -9 -1972 passed by Respondents Nos. 1, 2 and 3 respectively in a suit under Section 229 -B/209 of the UP ZA and LR Act (hereinafter referred to as the Act for the sake of brevity). This suit was filed by Respondents Nos. 6 and 7 on the allegations that one Ajmer Singh was a tenant of the land in dispute. On his death he left behind bhumidhari and sirdari holdings. Smt. Sumitra inherited his holding after his death. She executed a sale deed on 13 -7 -1960 in favour of the Petitioner, Betal Singh during consolidation operation and the Petitioner applied for mutation of his name before the Assistant Consolidation Officer on the basis of the sale deed. The Petitioner's mutation application during consolidation operation was dismissed partly in respect of sirdari holdings and it was allowed in respect of bhumidhari holdings by the Deputy Director of Consolidation. As regards the claim in respect of sirdari holdings being disallowed, the Petitioner did not prefer any writ petition in this Court, whereas Jangjeet Singh who claimed rights from Smt. Sumitra on the basis of succession, alleging sale deed to be illegal, preferred a writ petition before this Court being Civil Miscellaneous writ No. 3140 of 1961, Jangjeet Singh v. Deputy Director of Consolidation, Agra. This petition was allowed by Hon'ble S.N. Dwivedi, J. as he then was, by his judgment and order dated 9 -12 -1966. It was held in the writ petition that as permission of the Deputy Director of Consolidation was not obtained as required by Section 5(c)(ii) of the U.P. Consolidation of Holdings Act, hence the same even in respect of bhumidhari holding was illegal and as Betal Singh, the Petitioner inspite of his sale having been held to be illegal interfered with the rights and title of the Plaintiffs, hence the necessity for the filing of suit for declaration and in the alternative for possession arose.
(2.) THE aforesaid suit was contested by the Petitioner in whose favour the sale deed was earlier held to be illegal in the aforesaid writ petition filed in this Court. He alleged that even though the sale deed in his favour may be held to be illegal, but as the sale deed was executed on 13 -7 -1960 when the consolidation operation was in progress, hence he matured rights by adverse possession as even though the sale deed may be illegal, but his possession became adverse from the date of sale and he further alleged that the suit was time barred and in any case the suit could have been filed by the Gaon Sabha and not by the Respondents Nos. 6 and 7. The Respondent No. 3 by his judgment and decree dated 11 -9 -1972 decreed the suit. Against that decree the Petitioner preferred an appeal before the Additional Commissioner who by his order dated 6 -5 -1974 allowed the appeal and dismissed the suit. The Respondents Nos. 6 and 7 preferred a second appeal before the Board of Revenue which was allowed on 27 -1 -1978 and the suit was decreed. Now the Petitioner has preferred the present petition against the judgment and order of the Board of Revenue dated 27 -1 -1978. I have heard Sri Prakash Chandra, learned Counsel for the Petitioner and Sri B.P. Agrawal, learned Counsel for the Respondents. It has been urged by the learned Counsel for the Petitioner that the Petitioner matured rights under Section 210 of the Act as the sale deed dated 13 -7 -1960 in favour of the Petitioner having been held to be illegal by the judgment of this Court, hence from the date of sale his possession would be deemed to be that of a trespasser. It was further contended that even though the sale deed was executed during consolidation operation but nevertheless the possession of the Petitioner would become adverse and as the suit under Section 209 was not filed by the Plaintiffs, the Respondents Nos. 6 and 7 within limitation, hence their claim became time -barred. He further contended that it is only the Gaon Sabha and the State Government who could have filed a suit for the ejectment of the Petitioner in case of void transfer in view of Section 163 read with Section 167 of the Act. But as no suit was filed by the Gaon Sabha and the State of U.P. the present suit filed by the Respondents Nos. 6 and 7 against the Petitioner was not maintainable and was liable to be dismissed. In this connection he relied upon Dilawar Singh v. Gram Samaj, 1972 AWR 557. This was a Division Bench decision of this Court. It was held in that case that right of appeal was a vested right and before the right to approach the superior court came to an end, notification under Section 52 was issued and that did not have the effect of destroying the right which the Petitioner had and the proceedings initiated under Section 12 of the Act (U.P. Consolidation of Holdings Act) had not come to end would revive later on and it was held that the revision under Section 48 of the U.P. Consolidation of Holdings Act was maintainable. This was cited by counsel for Petitioner with a view that even though the sale deed was executed during consolidation operation and mutation proceedings might have been fought out upto the High Court under Section 12 of the U.P. Consolidation of Holdings Act, but nevertheless its effect cannot be wiped out, rather it shall have to be considered and given effect to. He wanted to emphasize that even though his adverse possession started during consolidation operation, but that would continue and as no suit for ejectment was filed within time, hence the claim of the Respondents Nos. 6 and 7 became time barred.
(3.) HE next relied upon Bedeshi v. Board of Revenue, U.P. Allahabad : 1981 AWC 356. It has been ruled in this decision that even though the possession of the trespasser might have commenced during consolidation operation after delivery of possession by consolidation authorities, but nevertheless the limitation would run following the date of such trespass and not from the notification under Section 52 of the U.P. Consolidation of Holdings Act. The reliance was again placed on Faqirey v. Board of Revenue, 1968 RD 49. The ratio of this decision was that in case a sale deed has been executed in contravention of the provisions of Section 154, the transferee would be liable for ejectment on the suit of the Gaon Sabha and in case no such suit was filed, the transferee would mature his rights. Reliance was again placed on Kunwar Wasiq Ali v. Director of Consolidation, Agra, 1973 AWR 34 a Division Bench decision of this Court, the ratio being that if a person comes in possession under an invalid grant, the nature of his possession was adverse and if he continues in such possession, he acquires title by adverse possession on the expiry of statutory period.;