9911796707
TMI Blog1990 (8) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. Respondents 1 to 3 are the descendants of Ram Dayal. They made an application under section 9 of the U.P. Consolidation of Holdings Act, 1954 before the Consolidation Officer. They claimed tenancy fights on the basis of the deed dated 30.7.1945 and they stated that their names had been recorded in the Khatauni of 1359 Fasli; they are in cultivatory possession and have become adhivasis and subsequently sirdars. They alleged that the names of the appellants herein have been wrongly entered in the Khatauni of 1353 Fasli and that the appellants have no right or possession over the land. The respondents prayed for entering their names as sirdars and scoring off the names of the appellants. This application was allowed by the Consolidation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted on 30.10.74. A revision was filed against that order before the Deputy Director of Consolidation which was also rejected by order dated 21.7.75. Thereafter the appellants filed C.M.W.P. No. 9943 of 1975 before the High Court on 7.8.75 against the order of the Deputy Director Consolidation. This writ petition came to be dismissed by order dated 18.9. 1975. This judgment of the High Court is challenged in Civil Appeal No. 1003 of 1976. When the High Court in the earlier Writ Petition No. 2726 of 1970 on the same subject matter had finally decided the matter in favour of the respondents by order dated 3.10. 1972, there was no question of giving any advice by any counsel in good faith to start proceedings afresh by moving a fresh applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide order dated 2.9. 1976 in both matters subject to the right of the respondents to argue the question of limitation and the applicability of section 14 of the Limitation Act at the hearing of the appeals. The first question that we have to decide is that of limitation. The delay of 1198 days according to the appellants had occurred unwillingly and the appellants had been prosecuting with due diligence the earlier proceedings before the appellate and the revisional authorities and on the basis of the advice given by their counsel. There is no proper affidavit of either the appellants or the counsel in support of the application for condonation of delay. There is also no other material to indicate that the appellants had exercised due di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of 2.8. 1945 patta was already granted in favour of the respondents. The circumstances under which the same was granted also weighed in finding title in favour of the respondents. The landlord had obtained a decree against Baijnath when the land was mortgaged in favour of Ram Dayal. The mortgagee later on obtained the decree against the landlord for an amount of ₹ 214 being the value of the crops in the land. An agreement was subsequently entered into between the landlord and the respondents settling the claim under the decree and granting patta in favour of the respondents. These facts have been found in favour of the respondents by the Consolidation Officer. The High Court in quashing the orders of the appellate and the revisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been contended before us that the appellants have a case on the principle contained in section 43 of the Transfer of Property Act. The learned counsel for the appellants maintained that even if the deed of 23.11. 1943 was inoperative or was not valid for the reason that the landlord had no possession since they obtained possession on 30.6.1944, the appellants acquired tenancy right and that has been confirmed by the deed of 2.8. 1945. The argument, though attractive, is not acceptable. Section 43 of the Transfer of Property Act embodies the rule of estoppel by deed. The section enables the transferee to whom a transfer is made on fraudulent or erroneous representation to lay hold at his option of any interest which the transferor may sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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