Sunil Ambwani - (1.) -Heard Shri P. K. Pandey, learned counsel for appellant and Shri A. N. Bhargava, learned counsel for respondent.
(2.) THE defendant's second appeal arises out of O.S. No. 518 of 1971 for cancellation of sale deed dated 28.7.1970. THE suit was dismissed on 26.3.1977. THE Civil Appeal No. 156 of 1977 was allowed by Ist Additional District Judge, Muzaffarnagar on 8.8.1977, decreeing the suit for cancellation of sale deed dated 28.7.1970. The second appeal was admitted on ground Nos. 1 and 6 as substantial questions of law as under : "1. Whether the plaintiff-respondent had any right to file the suit for cancellation of a sale deed which was void under Section 168A of the U. P. Zamindari Abolition and Land Reforms Act as in view of the provision of Section 189 (aa) of the U. P. Zamindari Abolition and Land Reforms Act the plaintiff-respondent would also have no right whatsoever left in the disputed land. The suit should have therefore been dismissed on this ground alone. 6. Whether Section 168A of the U. P. Zamindari Abolition and Land Reforms Act has absolutely no application in the present case because the plaintiff-respondent has no where pleaded that the area in dispute is a consolidated area." The trial court held that the plaintiff had sold one half share of khasra Nos. 1667, 1668, 1672, 1693. The plaintiff Smt. Shashi Bala was an illiterate lady and her husband was present at the time of sale deed and was also a witness to the document. The allegation made by her that Khasra No. 1667 was included in the document fraudulently, is not a correct fact. Smt. Jahani the defendant is 50 year's old Harijan woman, who was not in a position to play fraud on the plaintiff. The trial court further found that P.W. 2 Surendra Kumar, husband of the plaintiff stated that the land in dispute was earlier owned by Sher Singh and Kishna. Kishna is the husband of the defendant. The plaintiff had purchased Kishna's share, and that the entire land purchased from Kishna was sold back by the plaintiff to Kishna's wife the defendant. This transaction was in lieu of loan taken by Kishna, the defendant's husband and was proved by the receipt dated 28.7.1970. In her statement, P.W. 1 accepted in her statement that she had purchased the share of Kishna for Rs. 4000 and that she had sold entire share back to his wife. The issue, that the sale was for inadequate consideration, was not proved on record.
(3.) THE trial court considered the plea that the sale was void as it amounted to fragmentation of the agricultural holdings under Section 168A of U. P. Zamindari Abolition and Land Reforms Act, 1950 (the Act). It was found that khata No. 174A and 174B are parts of the same khata. THE village was subjected to consolidation operation. THE area of land sold by the sale deed was less than 3-1/8 acre. On the date of the sale, the plaintiff and Sher Singh were owner of the half share each of the land. He found that entire plot was for more than 3-1/8 acres. It was not partitioned between the plaintiff and Sher Singh. THE plaintiff had sold her share in the undivided plot, and as such even if the undivided plot was less than 3-1/8 acres, the transaction will not be void under Section 168A of the Act. THE trial court further found that the even otherwise the consequence of such transaction is that the land included in the void transaction will under Section 189A of the Act, vest in the Gaon Sabha with no benefit to the plaintiff. The appellate court considered the appeal only on the question of effect of Section 168A of the Act on the sale. It found from the extract of khatauni (Ext. 3) of the year 1383 fasli that khata No. 274 consists of 6 plots in which plaintiff had half share with other half share of Sher Singh. The plaintiff executed sale deed of half share of the khata in respect of four plots 1968, 1677, 1678 and 1693 and one plot 1667 as a whole leaving out plot No. 1711. The total area of these plots was less than 3-1/8 acres. The vendee did not have any other plot contiguous to these plots and as such the sale deed was void under Section 168A of the Act as it fragmented the land for an area less than 3-1/8 acres. The fact, that the plaintiff was co-bhumidhar of plot Nos. 1667 and 1711, to the extent of half share, will not be of much help. The appeal was as such allowed and sale was declared to be of void transaction.;