B. L. Yadav, J. - (1.) C
(2.) BY the present petition under Article 226 of the Constitution of India the order dated 17th July, 1974 is sought to be quashed by issuing a writ of Certiorari. The facts of the case need not detain much. Plot No. 494, area .15 and plot no. 986, area .04 were recorded in the basic year in the names of petitioners. Respondent nos. 2 and 3, namely Moti Chand and Girja Prakash, sons of Ram Ratan, filed objection under Section 9-A (2) of the U. P. Consolidation of Holdings Act, (for short the Act), claiming bhumidhari rights on the basis of sale deeds dated 3-4-65 and 30-8-65 and also the compromise dated 25-8-65 and 3-4-65 in a suit filed in the Civil Court for redemption of mortgage and possession, and that by over-sight even though in the registered sale deed dated 3-4-65 (Annexure 4 to the petition), these plots were mentioned, but with different area. To be precise plot no. 986/1 was mentioned with an area of 10 (to the west) and plot no. 494/1 was mentioned with an area 17 (to the west) and the present area could not be mentioned. After the execution of this sale deed a compromise dated 3-4-65 (Annexure CA 1), was arrived at on the same date and it was mentioned In para C (Sa) of the said compromise that the plaintiffs as bhumidhars of the plots in dispute have executed the sale deed dated 3-4-65 in favour of respondent nos, 2 and 3, namely, Moti Chand and Girja. But these two plots with the area specified above were not mentioned in the sale deed. On a correct interpretation of the sale deeds and the compromise these plots would be deemed to have been included in the sale deed. Primarily it was a case of rectification of instrument. Respondent nos. 2 and 3 were entitled to be recorded as bhumidhars of these plots and they were incorrectly entered in the name of the petitioners. It was accordingly prayed that the basic year entries may be expunged. These plots with areas specified may be entered in the name of respondent nos. 2 and 3 as bhumidhars. The petitioners, on the other hand, contested the case of respondent nos. 2 and 3 alleging that these two plots did not find place in the sale deed dated 3-4-65, rather plot no. 986/1 with an area of 10 (to the west) and plot no, 494 with an area of 17 (to the west) were sold which were sub-divisions of plot nos. 986 and 494. The plot no. 494 area .15 and plot no. 986 area .04 which were in dispute were of the vendors and were not sold. The plots sold were the basis for the compromise and as these plots in dispute were not sold, the respondents nos. 2 and 3 cannot seek rectification of the instrument nor they can become bhumidhars. A suit under Section 229-B of the UP ZA and LR Act was also filed by respondent nos. 2 and 3 in respect of the plots in dispute for declaration of bhumidhari rights and the same was dismissed in default in 1970 and no restoration application or appeal was filed for more than three years till the commencement of the consolidation operation. The restoration was filed only when the objections were filed in consolidation operation and that the relief of rectification of the instrument was never sought by an appropriate suit in the civil court within the limitation prescribed. From the compromise and the sale deed, if read together, the only irresistible conclusion was that the petitioners never intended to transfer these plots, with these areas in favour of respondent nos. 2 and 3 and the basic year entries in favour of the petitioners were correct and the objection of respondents nos. 2 and 3 may be dismissed.
(3.) THE Consolidation Officer by his order dated 9-11-73 (Annexure 2 to the petition), dismissed the objection of respondent nos. 2 and 3 and their appeal failed on 5-6-74 (vide annexure-3 to the petition) met the same fate. But their revision was allowed by the impugned order dated 17-4-74. This order has been challenged by the present petition. Learned counsel for the petitioners urged that on correct construction of the sale deeds dated 3-4-65 and 30-8-65 and both the compromise dt. 3-4-65 and 25-8-65 and copy of the plaint, the only inference possible was that in respect of the plots in dispute neither any sale deed was intended to be executed by the petitioners in respect of the plots in dispute nor in the compromise these plots were sought to be given to respondent nos. 1, 2 and 3. In case respondent nos. 2 & 3 had got any right they could have filed a suit for rectification of the instruments, namely, the sale deeds and the compromise under Section 26 of the Specific Relief Act, 1963, within a period of three years as provided by Article 113 of the Limitation Act, 1963. As no such suit was filed, the rights of respondent nos. 2 and 3 came to an end. The suit under Section 229-B of the UP ZA and LR Act for declaration of bhumidhari rights filed by respondent nos. 2 and 3 was dismissed in default in 1970. No restoration application was filed by them till the commencement of consolidation operations after three years. Further in view of Sections 91 and 92 of the Indian Evidence Act, 1872, as the sale deeds were document pertaining to the disposition of property rights and reduced to the form of a document and the rectification of instruments sought by the contesting respondents amounts to the varying, contradicting, adding to or substracting from the terms of the sale deeds, which Could not be done nor any evidence was admissible for that purpose.;