TEK CHAND Vs. DY. DIRECTOR OF CONSOLIDATION U.P. LUCKNOW CAMP AT KANPUR AND OTHERS

JUDGEMENT

(1.) THIS petition arises out of consolidation proceedings.

(2.) IN 1963 several bhumidhars entered into a transaction whereby they delivered possession of the plots of land to the Petitioner for purposes of digging earth and establishing a brick -kiln for a period of ten years. When proceedings under the Consolidation of Holdings Act commenced the Petitioner applied for mutation of his name as a bhumidhar over the plots which were the subject matter of the transaction. The Consolidation Officer held that the Petitioner had become a bhumidhar Under Section 154 read with Section 164 of the ZA and LR Act. He further found that the transferees had as a result of the transfer, not more than 12 1/2 acres of land with them. The Gaon Sabha who was also claiming title to these lands on the ground that by reason of the transaction the title of both the transferor and transferee had extinguished, went up in appeal. The appeals were dismissed and the findings were affirmed. Aggrieved some of the transferors alone went up in revision. The Deputy Director held that the transaction was not a sale. He seems to be of the opinion that the transaction was in the nature of a lease, but a case of this kind was not permitted by the ZA and LR Act. The transaction being a transfer and being "in contravention of the provisions of the ZA and LR Act, was void and the interest of the transferor extinguished, presumably Under Clause (aa) of Section 189 of the ZA and LR Act. He consequently directed that the land which was the subject matter of the transaction would be entered in the name of the Gaon Sabha. Aggrieved, the transferee has come to this Court.

(3.) THE operation of Sections 156, 166 and 189(aa) will have to be made harmonious with the scope of operation of Section 165. In the scheme of things, Section 165 is a proviso or an exception to the other three sections. In so far as a transfer is covered by Section 165, it will not be void Under Section 166 or bring about an extinction of the transferor's interest Under Clause (aa) of Section 189. In this view the Petitioner was entitled to be recorded over the land covered by the lease as a sirdar.