Janardan Sahai - (1.) -By a sale deed dated 18.12.1969 Shiv Prasad transferred two chaks to the respondents 4 and 5. The respondents 4 and 5 applied under Section 12 of the U.P. Consolidation of Holdings Act for mutation of their names. By a subsequent sale deed dated 28.1.1970. Shiv Prasad transferred the same chaks to the petitioner after obtaining permission under Section 5 (1) (c) (ii) of the U. P. Consolidation of Holdings Act. On the basis of the sale deed the petitioner also applied under Section 12 of the U. P. Consolidation of Holdings Act. The Consolidation Officer allowed the application of the petitioner but dismissed that of the respondents 4 and 5. Against the order an appeal was filed by respondents 4 and 5 which was allowed by the Settlement Officer Consolidation and the application of the petitioner for mutation was rejected and that of the respondents 4 and 5 was allowed. A revision was filed by the petitioner against the order which was dismissed by the Dy. Director of Consolidation by his impugned order dated 24.8.1974.
(2.) I have heard Sri Radhey Shyam, counsel for the petitioner and Sri P. N. Misra, holding brief of Sri N. C. Rajvanshi, counsel for respondents 4 and 5. The sale deed of the petitioner is a subsequent sale deed and therefore, the sale deed of the respondents 4 and 5 would prevail. However it is submitted by Sri Radhey Shyam, counsel for the petitioner that there was no permission obtained under Section 5 (1) (c) (ii) of the Act before the sale deed was executed in favour of respondents 4 and 5 and therefore, their sale deed is not valid and would not be recognised and therefore, the sale deed of the petitioner would prevail. Clause (c) of Section 5 (1) was added in the Act by Section 4 of the U. P. Consolidation of Holdings (Amendment) Act, 1958 (U. P. Act XXXVIII of 1958) and reads as under : "(c) Notwithstanding anything contained in the U. P. Zamindari Abolition and Land Reforms Act, 1950, no tenure holder except with the permission in writing of Settlement Officer Consolidation, previously obtained shall- (i) use his holding or any part thereof for purpose not connected with agriculture, horticulture, animal husbandry including pisciculture and poultry farming ; or (ii) transfer by way of sale, gift or exchange his holding or any part thereof in consolidation area : Provided that a tenure holder may continue to use his holding or any part thereof, for any purpose for which it was in use prior to the date specified in the notification issued under sub-section (2) of Section 4." The Dy. Director has taken the view that the transfer of a chak does not require permission because it is not transfer of a part of the holding. The question which has arisen in this case is whether the transfer of the two chaks would be a transfer of a part of the holding as there were certain plots in the holding which were not part of the chaks and those plots were not transferred.
(3.) "Holding" has been defined under Section 3 (4C) of the Act as under : 'Holding' means a parcel or parcels of land held under one tenure by a tenure holder singly or jointly with other tenure-holders'. The expression came up for interpretation by a Full Bench of this Court in Smt. Asharfunisa Begum v. Dy. Director of Consolidation, 1970 RD 532. It was held by the Full Bench as follows : "'Holding' under the Act consists of plot or plots under one tenure and not under several tenures. That being so there might be several Khatas of Bhumidhari, each Khata comprising a single or several plots, but all these Khatas should be deemed to be under one tenure. If a farmer has sirdari Khastas as also bhumidhari Khatas, the sirdari Khatas will constitute one tenure while the bhumidhari Khatas will constitute a second tenure and the two tenures will be separate and not one tenure." Chak has been defined under Section 3 (1A) of the Act to mean a parcel of land allotted to a tenure holder on consolidation. It is to be noticed that while the definition of "Holding" contains as a necessary requirement that the land should be held under one tenure, that requirement is wanting in the definition of chak. Thus a chak may consist of several tenures like Bhumidhari with transferable right, Bhumidhari with non-transferable rights and of assami rights. A holding and a chak are therefore, not synonymous.;