SITA RAM (DEAD) THROUGH LRS.versusBHARAT SINGH (DEAD) THROUGH LRS & ORS.

                         [2019] 13 S.C.R. 323                           323


              SITA RAM (DEAD) THROUGH LRS.                              A
                                 v.
       BHARAT SINGH (DEAD) THROUGH LRS & ORS.
                  (Civil Appeal No. 8179 of 2016)
                      SEPTEMBER 17, 2019                                B
      [A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
       Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950 – ss.161, 166, 167 – Appellants-original tenure holders (since
deceased) of Plot No.2902 sold it to late father of respondent nos.10
                                                                        C
& 11 vide sale deed dtd. 24 Jan. 1973 – Father/Grandfather of
respondent nos.1-8 was tenure holder of Plot Nos.2863 and 2888,
he exchanged his plots with plot no.2902 owned by father of
respondent nos.10 & 11, by exchange deed dtd. 2 March, 1974 –
Father/Grandfather of respondent nos.1-8 filed application for his
name to be recorded for Plot No.2902 –Appellants raised objection       D
to the validity of sale deed dtd. 24 Jan. 1973– Consolidation Officer
held that the exchange was permissible only with permission of the
Assistant Collector in terms of s.161 of the 1950 Act which was not
obtained, hence father/grandfather of respondent nos.1-8 is not
entitled to be recorded as Bhumidar under the consolidation
                                                                        E
proceedings – Eventually, High Court inter alia held that it was the
State Government who could apply for cancellation, if affected by
the exchange deed but, it was not open to be questioned by the
appellants– On appeal, held: Under the pre-amendment scheme of
the 1950 Act, any transfer in contravention of the Chapter referred
to u/s.166 which includes s.161 as well, were not to be automatically   F
void but voidable – As consequence u/s.167, a suit was to be filed
by the Gaon Sabha or the land holder, within six years from the
date of illegal transfer – In the present case, exchange deed was
executed on 2 March, 1974 – Period of limitation for filing the suit
expired in March 1980 – Indisputedly, no suit was filed either by
                                                                        G
Gaon Sabha or any land holder for ejectment as envisaged u/
s.167(1) – Under the pre-amended scheme of the 1950 Act, the
consequence for non-compliance of seeking permission from the
Assistant Collector, would in no manner take away or divest the

                                                                        H
                                323
324            SUPREME COURT REPORTS                      [2019] 13 S.C.R.


A     rights/interest of the parties inter se conferred under genuine sale
      deed dtd. 24 Jan.1973, executed in favour of father of respondent
      nos.10 & 11 – Said sale deed is nowhere related to the exchange
      proceedings, initiated at later point of time – Appellants do not have
      any locus standi to claim benefit of the defect in the exchange deed
      dtd. 2 March 1974 – Conclusions of the High Court in the impugned
B
      judgment does not call for interference – Uttar Pradesh
      Consolidation of Holdings Act, 1953 – s.9A(2) – U.P. Zamindari
      Abolition & Land Reforms Rules, 1952 – r.338 – U.P. Land Laws
      (Amendment) Act, 1982.
           U.P. Land Laws (Amendment) Act, 1982 – When not applicable
C     – Discussed.
            Dismissing the appeals, the Court
            HELD : 1.1 It emerges from the pre amendment (U.P. Act
      No. 20 of 1982 w.e.f. 3rd June, 1981) scheme of the Uttar Pradesh
D     Zamindari Abolition and Land Reforms Act, 1950 that any transfer
      made in contravention of this Chapter referred to under Section
      166 which includes Section 161 as well were not be automatically
      void but voidable and therefore, as a consequence of alleged void
      transfers under Section 167, a suit was required to be filed by the
      Gaon Sabha or the land holder, as the case may be, within
E     limitation of six years from the date of illegal transfer as indicated
      in Appendix III annexed to Rule 338 of U.P. Zamindari Abolition
      & Land Reforms Rules, 1952 but after the U.P. Act No. 20 of
      1982 amended w.e.f. 3rd June, 1981, the law has changed and
      every transfer made in contravention of this Act became void in
F     view of Section 166 and in consequence of void transfer, the
      subject land is deemed to have been vested in the State
      Government by operation of law free from all encumbrances, and
      sub-section (2) of Section 167, authorises Collector/Competent
      Authority to take over possession with the use of force as may
      be necessary. In the instant case, the exchange deed was executed
G     on 2nd March, 1974 indisputedly without permission from the
      Assistant Collector provided under Section 161 and its
      consequence was embedded under Section 167 of the Act, 1950
      authorising the Gaon Sabha or the land holder to file a suit for
      ejectment within a period of six years from the date of alleged
H
    SITA RAM (DEAD) THROUGH LRS. v. BHARAT SINGH                          325
                (DEAD) THROUGH LRS.

illegal transfer which in the instant case had expired in March           A
1980 much prior to the U.P. Act No. 20 of 1982 was amended
w.e.f. 3rd June, 1981. At least the amendment which has been
made by the U.P. Land Laws (Amendment) Act, 1982 with effect
from 3 rd June, 1981 has no application on the case in hand.
[Paras 16-18] [334-F-G; 335-A-D]
                                                                          B
      1.2 Under the pre-amended scheme of the Act, 1950, the
consequence for non-compliance of Section 161 of the Act, 1950
seeking permission from the Assistant Collector, was indeed the
requirement of law and the effect of contravention and its
consequence are embedded under Section 166 and 167 of the
Act, 1950 but its consequential effect, in no manner, would take          C
away or divest the rights and interest of the parties inter se
conferred in reference to the sale deed which was originally
executed in favour of late ‘NDC’ in reference to plot no.2902 ad-
measuring 0.34 decimals by the registered sale deed dated 24th
January, 1973. [Para 21] [335-G; 336-A-B]                                 D
      1.3 The registered sale deed dated 24th January, 1973 was
genuine and duly executed by the parties and it is nowhere related
in reference to the exchange proceedings which were initiated at
a later point of time. After the sale deed was registered and
executed on 24 th January, 1973 in favour of late ‘NDC’, the              E
ownership rights with possession stands transferred. It is true
that late ‘NDC’ had not initiated proceedings for claiming his
Bhumidari rights under the Act, 1953 but that, in any manner will
not, nullify his right of ownership vested on execution of a
registered sale deed dated 24th January, 1973 and there is no
prohibition or restriction to the contrary has been brought to            F
notice, if any, under the Act 1950. Indisputedly, no permission
was sought as contemplated under the mandate of law but under
the pre-amended scheme of the Act, 1950, the effect of exchange
in contravention to the provisions of the Act and its consequence
as embedded under Section 166 and 167 of the Act, 1950 makes              G
the action to be voidable and not void and it entails consequences
of void transfers, in the first instance, it only confines to sirdar or
asami and not applicable upon those who are claiming rights of
Bhumidar. At the same time, any transfer which has been made

                                                                          H
326            SUPREME COURT REPORTS                    [2019] 13 S.C.R.


A     in contravention of the provisions of this Act including permission
      from the Assistant Collector as required under Section 161, the
      ejectment may be possible only on filing of a suit by Gaon Sabha
      or the land holder, as the case may be, and after the decree of
      ejectment being obtained under sub-section (1) of Section 167 of
      the Act, ejectment under sub-section (2) of Section 167 be
B
      permissible and for filing of the suit, the limitation has been
      provided under Appendix III annexed to Rule 338 of the Rules,
      1952 of which reference has been made in terms thereof suit for
      ejectment could be filed within a period of six years from the
      date of the illegal transfer. The deed of exchange in the instant
C     case was executed between the parties on 2nd March, 1974 and
      the period of limitation for filing of the suit had expired in March
      1980 much before the U.P. Act No. 20 of 1982 amended w.e.f. 3rd
      June, 1981 came into force. Indisputedly, no suit was filed either
      by Gaon Sabha or any land holder for ejectment as envisaged
      under Section 167(1) of the Act, 1950. That apart, even assuming
D
      for the sake of argument, the deed of exchange executed on 2nd
      March, 1974 even if considered to be void, taking note of the
      post amended provisions of the Act, 1950, it will still confine to
      the deed of exchange dated 2nd March, 1974 which was obtained
      without taking permission from the Assistant Collector as
E     envisaged under Section 161 of the Act and at the best the rights
      to the parties on execution of exchange deed could not be given
      effect to and it remain inter se between parties to the exchange
      (late ‘KR’ and late ‘NDC’) at the same time, so far as the subject
      plot which was once transferred by the original tenure holders,
      who are throughout contesting the matter (plot no.2902 area 0.34
F
      decimals) to late ‘NDC’ by a registered sale deed dated 24 th
      January, 1973 which has been held to be genuine and valid, will
      not be under any legal impediment or having any effect on the
      rights of the parties, and the said transaction was not subject to
      compliance of Section 161 of the Act, 1950 and at least no rights
G     of any kind over plot no. 2902 area 0.34 decimals could be claimed
      by the original tenure holders (appellants herein) and their
      grievance that late ‘NDC’ had not claimed his Bhumidari rights
      under the Act, 1953, suffice it to say, that no such provision to


H
   SITA RAM (DEAD) THROUGH LRS. v. BHARAT SINGH                       327
               (DEAD) THROUGH LRS.

the contrary has been brought to our notice that if the holder has    A
not taken steps for claiming Bhumidari rights under the Act, 1953
that will take away or divest from the legal rights conferred to
the party in whose favour registered sale deed has been executed
under the mandate of law. [Paras 22-24] [336-C-G; 337-A-H;
338-A]
                                                                      B
       1.4 At least late original tenure holders, whose legal
representatives are contesting the case throughout are not
holding any locus standi to claim benefit of the defect in the deed
of exchange dated 2nd March, 1974 executed between different
parties who are holders to their respective plots in their own
rights and the procedure mandated under the law if not being          C
followed of taking permission from the Assistant Collector as
required under Section 161 of the Act, 1950, its consequences
would not revive/restore the rights to the legal heirs of original
tenure holders over the subject property in question. That apart,
the present appellants have never raised any plea for cancellation    D
of the registered sale deed executed in favour of late ‘NDC’ dated
24th January, 1973 which was otherwise not the subject matter to
be examined under the provisions of the Act, 1950. As regards
the rights and interests which were transferred by the present
appellants vide registered sale deed dated 24th January, 1973 in
favour of late ‘NDC’ was never the subject matter of scrutiny and     E
there was no violation/contravention of the provisions of Act, 1950
or of any other law has been pointed to this Court. At the same
time, so far as non-compliance of the mandatory requirement as
envisaged under Section 161 of the Act, 1950 while executing
the exchange deed dated 2nd March, 1974 is concerned, parties         F
have to bear its consequences of the void transaction as provided
under Section 166 read with Section 167 of the Act, 1950 but that
will not give any preference to the appellants for restoration of
their rights and to nullify the registered sale deed dated 24th
January, 1973 executed after taking due consideration in favour
of late N.D. Chaudhary. The conclusions of the High Court in its      G
judgment impugned are unassailable and does not call for
interference. [Paras 25-28] [338-B-G; 339-A-B]


                                                                      H
328             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8179
      of 2016.
            From the Judgment and Order dated 05.07.2007 of the High Court
      of Judicature at Allahabad in C.M.W.P. No. 11496 of 1984.
            With
B
            Civil Appeal No. 8181 of 2016.
           T. N. Singh, Vikas K. Singh, Ms. Aruna Mathur, Avneesh
      Arputham, Ms. Anuradha Arputham, Ms. Geetanjali, M/S. Arputham
      Aruna And Co, Mrs. Mona K. Rajvanshi, Anurag Kashyap, Ashwani
C     Kumar, Advs. for the appearing parties.
            The Judgment of the Court was delivered by
            RASTOGI, J.
             1. These appeals arise from the judgment dated 5th July, 2007
      passed by the High Court of Allahabad in setting at naught the inter se
D
      rights of the litigating parties initiated under the Uttar Pradesh Zamindari
      Abolition and Land Reforms Act, 1950 (hereinafter being referred to as
      the “Act, 1950”) arising from the registered deed of exchange dated 2nd
      March, 1974.
             2. The brief facts of the case culled out from the record are that
E     Smt. Chando and Sita Ram (since deceased) who were tenure holders
      of Plot No. 2902 ad-measuring 0.34 decimals situated in Village Mathura
      Bangar, Tehsil & District Mathura, U.P. sold the subject plot on transfer
      of consideration to late N.D. Chaudhary(father of respondent nos. 10 &
      11) vide registered sale deed dated 24th January, 1973. Late Kesho
F     Ram (father/grandfather of respondent nos. 1 to 8), who was tenure
      holder of plot nos. 2863 and 2888, with consent, exchanged his plots
      with plot no. 2902 owned by late N.D. Chaudhary by a registered deed
      of exchange dated 2nd March, 1974. As a result of the deed of exchange,
      plot no. 2902 ad-measuring 0.34 decimals was transferred in favour of
      late Kesho Ram and plot nos. 2863 and 2888 in favour of late N.D.
G     Chaudhary.
            3. That at the time of field partal (chakbandi) in the village for
      correction of revenue records conducted by the Assistant Consolidation
      Officer (ACO) late Kesho Ram(father/grandfather of respondent nos.
      1 to 8) filed application under Section 9A(2) of the Uttar Pradesh
H
    SITA RAM (DEAD) THROUGH LRS. v. BHARAT SINGH                              329
           (DEAD) THROUGH LRS. [RASTOGI, J.]

Consolidation of Holdings Act, 1953 (hereinafter referred to as “the Act,     A
1953”) and prayed that his name be recorded on Plot No. 2902 by virtue
of the exchange deed executed between him and late N.D. Chaudhary
dated 2nd March, 1974.
        4. It may be noticed that late N.D. Chaudhary who had exchanged
his Plot No. 2902 with Plot Nos. 2863 and 2888 from late Kesho Ram            B
also filed application in the consolidation proceedings and supported the
case of late Kesho Ram who was the applicant in the proceedings for
opening of mutation in his name in the revenue records.
       5. At this stage Smt. Chando and Sita Ram who were the original
tenure holders of Plot No. 2902 who had sold it to late N.D. Chaudhary,       C
by a registered sale deed dated 24th January, 1973, raised an objection
regarding validity of the registered sale deed dated 24th January, 1973.
The Consolidation Officer, after appraisal of the material on record, held
that the sale deed dated 24th January, 1973 executed by Smt. Chando
and Sita Ram in reference to plot no. 2902 in favour of late N.D.
Chaudhary was genuine and valid and was jointly executed by Smt.              D
Chando and Sita Ram and in regard to the exchange of plots, the
Consolidation Officer held that the exchange was permissible only with
permission of the Assistant Collector in terms of Section 161 of the Act,
1950 which, in the instance case, was not obtained by the parties. In the
absence of permission which is pre-requisite, he is not entitled to be        E
recorded as Bhumidar under the consolidation proceedings. When the
matter travelled in appeal under Section 11 of the Act, 1953, it was
observed that the registered sale deed dated 24th January, 1973 was not
proved based on appreciation of evidence and further held that the deed
of exchange dated 2nd March, 1974 was void for want of permission
from the competent authority provided under Section 161 of the Act,           F
1950 and the appeal was consequently dismissed on 18th January, 1982.
       6. The matter further travelled before the State Government in its
revisional jurisdiction under Section 48 of Act, 1953 filed at the instance
of late N.D. Chaudhary and late Kesho Ram before Deputy Director,
Consolidation, Mathura, both the revision petitions came to be dismissed      G
although authority did not record any finding regarding validity of the
sale deed but from the order, it reveals that the authority proceeded on
the premise that registered sale deed dated 24th January, 1973 was
genuine and valid.
                                                                              H
330            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A            7. The order of the revisional authority dated 19th July, 1984 came
      to be challenged by late Kesho Ram in a writ petition under Article 227
      of the Constitution of India and taking note of the pleadings on record,
      the High Court vide impugned judgment dated 5th July, 2007 observed
      that the exchange deed dated 2nd March, 1974 was in contravention of
      Section 166 read with Section 167 of the Act, 1950 and any exchange in
B
      the absence of permission from Assistant Collector was void by virtue
      of Section 166 at the same time further observed that it was the State
      Government who could apply for cancellation if affected by the registered
      deed of exchange but it was not open to be questioned at the instance of
      the original tenure holder Smt. Chando and Sita Ram who are now being
C     represented by their legal heirs of plot no. 2902 who had sold with their
      consent to late N.D. Chaudhary on 24th January, 1973 through a
      registered sale deed which was not a subject matter of challenge in
      appeal before us.
            8. The moot question which has been raised for consideration is
D     as to what will be the legal consequences if the registered exchange
      deed dated 2nd March, 1974 has been executed without following the
      procedure prescribed as provided under Section 161 of the Act, 1950.
              9. Learned counsel for the appellants submits that the High Court
      in its supervisory jurisdiction under Article 227 of the Constitution of
E     India has exceeded in its jurisdiction in interfering with the concurrent
      finding arrived at by the consolidation authorities holding that late N.D.
      Chaudhary did not get his name mutated in the revenue records based
      on the registered sale deed dated 24th January, 1973 and at the time of
      initiation of the consolidation proceedings, he did not put forth any claim
      or filed any objection provided under Section 9A of the Act, 1953. At
F     the same time, the exchange deed dated 2nd March, 1974 was executed
      without seeking permission from the competent authority (Assistant
      Collector) as provided under Section 161 of the Act, 1950 and such
      exchange being void, late Kesho Ram cannot claim any right over the
      plot in question to open mutation and in consequence the appellants hold
G     a right over the subject plot no. 2902 even if it was sold by Smt. Chando
      and Sita Ram(predecessor in interest) jointly by registered sale deed
      dated 24th January, 1973.



H
    SITA RAM (DEAD) THROUGH LRS. v. BHARAT SINGH                               331
           (DEAD) THROUGH LRS. [RASTOGI, J.]

       10. Learned counsel further submits that the High Court has failed      A
to appreciate the legal effect of Section 166 read with Section 167 of the
Act, 1950 and the action once being held to be void by operation of law,
they are entitled to hold their right and possession over plot no. 2902.
       11. Per contra, learned counsel for the respondents, while
supporting the finding recorded by the High Court, further submits that        B
once plot no.2902 ad-measuring 0.34 decimals was sold by the appellants
(predecessor in interest) jointly by the registered sale deed dated 24th
January, 1973 to late N.D. Chaudhary, they have lost their rights and
interest over the subject plot in question and whatever the default, if any,
being committed by late N.D. Chaudhary, it will not give support to the
present appellants in making their claim over the subject plot in question     C
and further submits that the permission of the Assistant Collector even if
not obtained would not take away rights of the parties which have been
conferred on transfer of the property by the registered exchange deed
dated 2nd March, 1974 and as per the scheme of the Act, 1950, transfers
made prior to 3rd June, 1981 are not void but are voidable at the option of    D
the suit to be filed by Gaon Sabha or land holder within the period of
limitation. Indisputedly, no action was taken either by Gaon Sabha or
land holder within the period of limitation. In the given facts and
circumstances, no error has been committed by the High Court in the
impugned judgment which may call for interference.
                                                                               E
       12. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
       13. The deed of exchange between late N.D. Chaudhary (father
of respondent nos. 10 and 11) and late Kesho Ram (father/grandfather
of respondent nos. 1 to 8) was executed by the registered deed on 2nd          F
March, 1974. Section 161, 166 and 167 of the Act, 1950 as existing prior
to the amendment made on 3rd June, 1981 are ad infra:-
      “Section 161 Exchange. [(1) A bhumidhar or sirdar may
      exchange with :-
          (a)   any other bhumidhar or sirdar land held by him, or             G
          (b)   any Gaon Sabha or local authority, lands for the time
                being vested in it under Sec. 117 [ * * *] :


                                                                               H
332            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A           Provided that no exchange shall be made except with the
            permission of an Assistant Collector who shall refuse permission
            if the difference between the rental value of land given in exchange
            and of land received in exchange calculated at hereditary rates is
            more than 10 per cent of the lower rental value.
B           (1-A) Where the Assistant Collector permits exchange he shall
            also order the relevant annual registers to be corrected accordingly.
            (2) On exchange made in accordance with sub-section (1) they
            shall have the same rights in the land so received in exchange as
            they had in the land given in exchange.”
C           “S. 166. Transfer made in contravention of this chapter to
            be void. Any transfer, made by or on behalf of a sirdar or asami
            in contravention of the provisions of this chapter shall be void.”
             By U.P. Act 30 of 1975, the words “in contravention of this
      Chapter” were substituted by the words “in contravention of the provisions
D     of this Act”.
            “S. 167. Consequences of void transfers. [(1) Where a sirdar
            or asami has made any transfer in contravention of the provisions
            of this Act, the transferee and every person who may have thus
            obtained possession of the whole or part of the holding shall be
E           liable to ejectment on the suit of the [Gaon Sabha or the land
            holder, as the case may be,]
            (2) A decree for ejectment under sub-section (1) may direct the
            ejectment of the sirdar or asami from the whole or part of the
            holding as the court may, having regard to the circumstances of
F           the case, direct].”
            14. It may be relevant to refer Rule 338 of the U.P. Zamindari
      Abolition & Land Reforms Rules, 1952(hereinafter being referred to as
      the “Rules 1952”) for the purpose as under:-
            “338. The suit applications and other proceedings specified in
G           Appendix III shall be instituted within the time specified therein
            for them, respectively.




H
    SITA RAM (DEAD) THROUGH LRS. v. BHARAT SINGH                                      333
           (DEAD) THROUGH LRS. [RASTOGI, J.]

                                Appendix III                                          A
                                 (Rule 338)
 Sl. Section     Description of suit, Period     of   Time from which     Proper
 No. of    the   application      and limitation      period begins to    court
     Act         other proceeding                     run                 fees
 19. 163         Suits for ejectment Six Years.       From the date of    As     in
                 of bhumidhar.                        illegal transfer.   the         B
                                                                          Court
                                                                          Fees
                                                                          Act,
                                                                          1870,
                                                                          on the
                                                                          year’s
                                                                          revenue.    C
 20. 167         Suits for ejectment Do.              Ditto.              Ditto.
                 of a sirdhar or
                 asami.


      Substituted 2056/I-A-463-1952 dated 11th April, 1969"
       15. It will be appropriate to take note of Sections 161, 166 and               D
167 amended by U.P. Act No. 20 of 1982(w.e.f. 3rd June, 1981) for
better appraisal ad infra:-
      “Section 161 Exchange. [(1) A Bhumidhar [* * *] may
      exchange with :-
                                                                                      E
           (a)   any other bhumidhar [* * *] land held by him, or
           (b)   any Gaon Sabha or local authority, lands for the time
                 being vested in it under Sec. 117 [ * * *] :
      Provided that no exchange shall be made except with the
      permission of an Assistant Collector who shall refuse permission                F
      if the difference between the rental value of land given in exchange
      and of land received in exchange calculated at hereditary rates is
      more than 10 per cent of the lower rental value.
      (1-A) Where the Assistant Collector permits exchange he shall
      also order the relevant annual registers to be corrected accordingly.           G
      (2) On exchange made in accordance with sub-section (1) they
      shall have the same rights in the land so received in exchange as
      they had in the land given in exchange.

                                                                                      H
334            SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A            S. 166. Transfer made in contravention of this chapter to
            be void.- Every transfer made in contravention of the provisions
            of this Act shall be void.
            S. 167. Consequences of void transfers. (1) The following
            consequences shall ensue in respect of every transfer which is
B           void by virtue of Section 166, namely-
                (a) the subject-matter of transfer shall, with effect from the
                    date of transfer, be deemed to have vested in the State
                    Government free from all encumbrances;
                (b) the trees, crops and wells existing on the land on the date
C                   of transfer shall, with effect from the said date, be deemed
                    to have vested in the State Government free from all
                    encumbrances;
                (c) the transferee may remove other movable property or
                    the materials of any immovable property existing on such
D                   land on the date of transfer within such time as may be
                    prescribed.
            (2) Where any land or other property has vested in the State
            Government under sub-section (1), it shall be lawful for the
            Collector to take over possession over such land or other property
E           and to direct that any person occupying such land or property be
            evicted therefrom. From the purposes of taking over such
            possession or evicting such unauthorised occupants, the Collector
            may use or cause to be used such force as may be necessary.]”
             16. It emerges from the pre amendment (U.P. Act No. 20 of 1982
F     w.e.f. 3rd June, 1981) scheme of the Act, 1950 that any transfer made in
      contravention of this Chapter referred to under Section 166 which includes
      Section 161 as well were not be automatically void but voidable and
      therefore, as a consequence of alleged void transfers under Section 167,
      a suit was required to be filed by the Gaon Sabha or the land holder, as
      the case may be, within limitation of six years from the date of illegal
G
      transfer as indicated in Appendix III annexed to Rule 338 of Rules, 1952
      but after the U.P. Act No. 20 of 1982 amended w.e.f. 3rd June, 1981, the
      law has changed and every transfer made in contravention of this Act


H
    SITA RAM (DEAD) THROUGH LRS. v. BHARAT SINGH                            335
           (DEAD) THROUGH LRS. [RASTOGI, J.]

became void in view of Section 166 and in consequence of void transfer,     A
the subject land is deemed to have been vested in the State Government
by operation of law free from all encumbrances, and sub-section (2) of
Section 167, authorises Collector/Competent Authority to take over
possession with the use of force as may be necessary.
       17. In the instant case, the exchange deed was executed on 2nd       B
March, 1974 indisputedly without permission from the Assistant Collector
provided under Section 161 and its consequence was embedded under
Section 167 of the Act, 1950 authorising the Gaon Sabha or the land
holder to file a suit for ejectment within a period of six years from the
date of alleged illegal transfer which in the instant case had expired in
March 1980 much prior to the U.P. Act No. 20 of 1982 was amended            C
w.e.f. 3rd June, 1981.
        18. After the scheme of the Act has been referred to in extenso,
it is clear that at least the amendment which has been made by the U.P.
Land Laws (Amendment) Act, 1982 with effect from 3rd June, 1981 has
no application on the case in hand.                                         D

      19. The proceedings were initiated in the first instance when an
application was filed by late Kesho Ram under Section 9A(2) of the
Act, 1953 for obtaining mutation in his name in the year 1978 and late
N.D. Chaudhary also joined him and filed an application supporting the
claim of late Kesho Ram.                                                    E

       20. It reveals from the record that the Consolidation Officer has
declined the claim of late Kesho Ram for seeking the Bhumidari rights
on the premise that the permission from the competent authority has not
been obtained before the exchange deed was executed as mandated
under Section 161 of the Act, 1950 and in its absence, no proceedings       F
could be drawn claiming Bhumidari rights in his favour. Although the
Settlement Officer has made adverse comments in reference to the
registered sale deed dated 24th January, 1973, but that appears to be a
factual manifest error committed in recording such finding.
       21. To make it further clear that under the pre-amended scheme       G
of the Act, 1950, the consequence for non-compliance of Section 161 of
the Act, 1950 seeking permission from the Assistant Collector, was indeed
the requirement of law and the effect of contravention and its

                                                                            H
336             SUPREME COURT REPORTS                          [2019] 13 S.C.R.


A     consequence are embedded under Section 166 and 167 of the Act, 1950
      but its consequential effect, in no manner, would take away or divest the
      rights and interest of the parties inter se conferred in reference to the
      sale deed which was originally executed in favour of late N.D.
      Chaudhary by late Smt. Chando and Sita Ram in reference to plot no.
      2902 ad-measuring 0.34 decimals by the registered sale deed dated 24th
B
      January, 1973.
             22. It is true that at one stage, late Smt. Chando and Sita Ram
      jointly raised objection in the consolidation proceedings initiated under
      Section 9A(1) of the Act, 1953 in reference to the registered sale deed
      dated 24th January, 1973 but as we have already observed that the
C     registered sale deed dated 24th January, 1973 was genuine and duly
      executed by the parties and it is nowhere related in reference to the
      exchange proceedings which were initiated at a later point of time and
      this fact became clear that so far as the grievance of Smt. Chando and
      Sita Ram is concerned, after the sale deed was registered and executed
D     on 24th January, 1973 in favour of late N.D. Chaudhary, the ownership
      rights with possession stands transferred. It is true that late N.D.
      Chaudhary had not initiated proceedings for claiming his Bhumidari rights
      under the Act, 1953 but that, in any manner will not, nullify his right of
      ownership vested on execution of a registered sale deed dated 24th
      January, 1973 and there is no prohibition or restriction to the contrary
E     has been brought to our notice, if any, under the Act 1950.
             23. At a later stage, late N.D. Chaudhary(father of respondent
      nos. 10 and 11) and late Kesho Ram(father/grandfather of respondent
      nos. 1 to 8) who was the tenure holders of plot no. 2683 and 2888 got
      their plot exchanged by registered exchange deed dated 2nd March, 1974
F     which indisputedly was in contravention of Section 161 of the pre-
      amended Act, 1950 where it was postulated that no exchange shall be
      made except with the permission of the Assistant Collector. Indisputedly,
      no permission was sought as contemplated under the mandate of law
      but under the pre-amended scheme of the Act, 1950, the effect of
G     exchange in contravention to the provisions of the Act and its consequence
      as embedded under Section 166 and 167 of the Act, 1950 makes the
      action to be voidable and not void and it entails consequences of void
      transfers, in the first instance, it only confines to sirdar or asami and not


H
    SITA RAM (DEAD) THROUGH LRS. v. BHARAT SINGH                                337
           (DEAD) THROUGH LRS. [RASTOGI, J.]

applicable upon those who are claiming rights of Bhumidar. At the same          A
time, any transfer which has been made in contravention of the provisions
of this Act including permission from the Assistant Collector as required
under Section 161, the ejectment may be possible only on filing of a suit
by Gaon Sabha or the land holder, as the case may be, and after the
decree of ejectment being obtained under sub-section (1) of Section 167
                                                                                B
of the Act, ejectment under sub-section (2) of Section 167 be permissible
and for filing of the suit, the limitation has been provided under Appendix
III annexed to Rule 338 of the Rules, 1952 of which reference has been
made in terms thereof suit for ejectment could be filed within a period of
six years from the date of the illegal transfer.
       24. The deed of exchange in the instant case was executed                C
between the parties on 2nd March, 1974 and the period of limitation for
filing of the suit had expired in March 1980 much before the U.P. Act
No. 20 of 1982 amended w.e.f. 3 rd June, 1981 came into force.
Indisputedly, no suit was filed either by Gaon Sabha or any land holder
for ejectment as envisaged under Section 167(1) of the Act, 1950. That          D
apart, even assuming for the sake of argument, the deed of exchange
executed on 2nd March, 1974 even if considered to be void, taking note
of the post amended provisions of the Act, 1950, it will still confine to the
deed of exchange dated 2nd March, 1974 which was obtained without
taking permission from the Assistant Collector as envisaged under Section
161 of the Act and at the best the rights to the parties on execution of        E
exchange deed could not be given effect to and it remain inter se between
parties to the exchange(late Kesho Ram and late N.D. Chaudhary) at
the same time, so far as the subject plot which was once transferred by
the original tenure holders, namely, Smt. Chando and Sita Ram who are
throughout contesting the matter (plot no.2902 area 0.34 decimals) to           F
late N.D. Chaudhary by a registered sale deed dated 24th January, 1973
which has been held to be genuine and valid, will not be under any legal
impediment or having any effect on the rights of the parties, and the said
transaction was not subject to compliance of Section 161 of the Act,
1950 and at least no rights of any kind over plot no. 2902 area 0.34
decimals could be claimed by the original tenure holders (appellants herein)    G
and their grievance that late N.D. Chaudhary had not claimed his
Bhumidari rights under the Act, 1953, suffice it to say, that no such
provision to the contrary has been brought to our notice that if the holder

                                                                                H
338            SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A     has not taken steps for claiming Bhumidari rights under the Act, 1953
      that will take away or divest from the legal rights conferred to the party
      in whose favour registered sale deed has been executed under the
      mandate of law.
             25. We are of the view that at least late Smt. Chando and Sita
B     Ram, whose legal representatives are contesting the case throughout
      are not holding any locus standi to claim benefit of the defect in the
      deed of exchange dated 2nd March, 1974 executed between different
      parties who are holders to their respective plots in their own rights and
      the procedure mandated under the law if not being followed of taking
      permission from the Assistant Collector as required under Section 161
C     of the Act, 1950, its consequences would not revive/restore the rights to
      the legal heirs of late Smt. Chando and Sita Ram(original tenure holders)
      over the subject property in question. That apart, the present appellants
      have never raised any plea for cancellation of the registered sale deed
      executed in favour of late N.D. Chaudhary dated 24th January, 1973
D     which was otherwise not the subject matter to be examined under the
      provisions of the Act, 1950.
             26. The submission of learned counsel for the appellants that
      interference in the concurrent finding and the exchange deed being void
      as the permission from Assistant Collector has not been obtained and in
E     consequence they are entitled for restoration/possession of plot no.2902
      (area 0.34 decimals) which was originally sold by registered sale deed
      dated 24th January, 1973 to late N.D. Chaudhary is without substance
      for the reason that these are two separate transactions which has taken
      place of the subject plot in question. As regards the rights and interests
      which were transferred by the present appellants vide registered sale
F     deed dated 24th January, 1973 in favour of late N.D. Chaudhary was
      never the subject matter of scrutiny and there was no violation/
      contravention of the provisions of Act, 1950 or of any other law has
      been pointed out to us.
            27. At the same time, so far as non-compliance of the mandatory
G     requirement as envisaged under Section 161 of the Act, 1950 while
      executing the exchange deed dated 2nd March, 1974 is concerned, parties
      have to bear its consequences of the void transaction as provided under
      Section 166 read with Section 167 of the Act, 1950 but that will not give

H
    SITA RAM (DEAD) THROUGH LRS. v. BHARAT SINGH                               339
           (DEAD) THROUGH LRS. [RASTOGI, J.]

any preference to the appellants for restoration of their rights and to        A
nullify the registered sale deed dated 24th January, 1973 executed after
taking due consideration in favour of late N.D. Chaudhary.
       28. In our considered view, the conclusions of the High Court in
its judgment impugned are unassailable and does not call for our
interference.                                                                  B
     29. Consequently, the appeals fail and are accordingly dismissed.
No costs.
      30. Pending application(s), if any, stand disposed of.

                                                                               C
Divya Pandey                                              Appeals dismissed.




                                                                               D




                                                                               E




                                                                               F




                                                                               G




                                                                               H