Simply because the Exchange deed with the third party became void due to non obtaining permission from the collector, did not cloth any rights to the original vendors to reclaim their land once sold =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 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 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. At the same time, so far as non­compliance 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 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 theappellants 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8179 OF 2016
SITA RAM(DEAD) THROUGH LRS. …..APPELLANT(S)
VERSUS
BHARAT SINGH(DEAD)
THROUGH LRS & ORS. …..RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). 8181 OF 2016
J U D G M E N T
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 rights of the litigating parties initiated under the Uttar
    Pradesh Zamindari Abolition and Land Reforms Act,
    1
    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 Smt. Chando and Sita Ram (since deceased) who were
    tenure holders of Plot No. 2902 ad­measuring 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 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 ad­measuring 0.34 decimals
    was transferred in favour of late Kesho Ram and plot nos. 2863
    and 2888 in favour of late N.D. 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
    2
    respondent nos. 1 to 8) filed application under Section 9A(2) of
    the Uttar Pradesh Consolidation of Holdings Act, 1953
    (hereinafter referred to as “the Act, 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 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, 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
    3
    reference to plot no. 2902 in favour of late N.D. Chaudhary was
    genuine and valid and was jointly executed by Smt. 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
    pre­requisite, he is not entitled to be 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, 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
    4
    petitions came to be dismissed 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.
  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 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 represented by their legal heirs of
    plot no. 2902 who had sold with their consent to late N.D.
    5
    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 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 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 the same time, the exchange deed dated 2nd March,
    1974 was executed without seeking permission from the
    competent authority (Assistant Collector) as provided under
    6
    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 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.
  10. Learned counsel further submits that the High Court has
    failed 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 once plot no.2902 ad­measuring 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
    7
    present appellants in making their claim over the subject plot in
    question 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
    3
    rd June, 1981 are not void but are voidable at the option of 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.
  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 March, 1974. Section 161, 166 and
    8
    167 of the Act, 1950 as existing prior to the amendment made on
    3
    rd 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
    (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 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.
    (1­A) 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 sub­section
    (1) they shall have the same rights in the land so
    received in exchange as they had in the land given in
    exchange.”
    “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 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
    9
    shall be 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 sub­section (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 the case, direct].”
  1. 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 Appendix III shall be instituted within the
    time specified therein for them, respectively.
    Appendix III
    (Rule 338)
    Sl.
    No.
    Section
    of the
    Act
    Description of suit,
    application and
    other proceeding
    Period of
    limitation
    Time from which
    period begins to
    run
    Proper
    court
    fees
  2. 163 Suits for ejectment
    of bhumidhar.
    Six Years. From the date of
    illegal transfer.
    As in
    the
    Court
    Fees
    Act,
    1870,
    on the
    year’s
    revenue.
  3. 167 Suits for ejectment
    of a sirdhar or
    asami.
    Do. Ditto. Ditto.
    Substituted 2056/I­A­463­1952 dated 11th April, 1969”
  4. It will be appropriate to take note of Sections 161, 166 and
    167 amended by U.P. Act No. 20 of 1982(w.e.f. 3rd June, 1981) for
    better appraisal ad infra:­
    10
    “Section 161 Exchange. [(1) A Bhumidhar [* * ] may exchange with :­ (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 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.
    (1­A) 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 sub­section
    (1) they shall have the same rights in the land so
    received in exchange as they had in the land given in
    exchange.
    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 void by virtue of Section 166, namely­
    (a) the subject­matter 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 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
    11
    property existing on such 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 sub­section (1), it shall be
    lawful for the Collector to take over possession over
    such land or other property 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.]”
  5. It emerges from the pre amendment (U.P. Act No. 20 of 1982
    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 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
    became void in 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
    12
    encumbrances, and sub­section (2) of Section 167, authorises
    Collector/Competent Authority to take over possession with the
    use of force as may be necessary.
  6. In the instant case, the exchange deed was executed 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 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 w.e.f. 3rd June, 1981.
  7. 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.
  8. 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
    13
    1978 and late N.D. Chaudhary also joined him and filed an
    application supporting the claim of late Kesho Ram.
  9. 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 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.
  10. To make it further clear that under the pre­amended
    scheme of the Act, 1950, the consequence for non­compliance 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 away or divest the rights and interest
    14
    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
    ad­measuring 0.34 decimals by the registered sale deed dated
    24th January, 1973.
  11. 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 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 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
    15
    registered sale deed dated 24th January, 1973 and there is no
    prohibition or restriction to the contrary has been brought to our
    notice, if any, under the Act 1950.
  12. 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 which indisputedly was in
    contravention of Section 161 of the pre­amended 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 pre­amended 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 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 in contravention of the provisions
    16
    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
    sub­section (1) of Section 167 of the Act, ejectment under subsection (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.
  13. The deed of exchange in the instant 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 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
    17
    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 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 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) 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 has not taken steps for claiming Bhumidari
    rights under the Act, 1953 that will take away or divest from the
    18
    legal rights conferred to the party in whose favour registered sale
    deed has been executed under the mandate of law.
  14. We are of the view that at least late Smt. Chando and Sita
    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 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 which was otherwise not
    the subject matter to be examined under the provisions of the
    Act, 1950.
    19
  15. 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 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 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.
  16. At the same time, so far as non­compliance 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 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
    20
    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.
  17. In our considered view, the conclusions of the High Court in
    its judgment impugned are unassailable and does not call for our
    interference.
  18. Consequently, the appeals fail and are accordingly
    dismissed. No costs.
  19. Pending application(s), if any, stand disposed of.
    .…………………………J.
    (A.M. KHANWILKAR)
    ………………………….J.
    (AJAY RASTOGI)
    NEW DELHI
    SEPTEMBER 17, 2019

21