Harihar Rai v. State of Uttar Pradesh — 1983 DIGILAW 702 (ALL)

ORDER M.P. Mehrotra, J. - This petition under Article 226 of the Constitution arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act. 2. The facts, in brief are these. The notice under Section 10 (2) of the Act was issued to petitioner No. 1, Hari Har Rai. He filed his objections, a true copy of which is annexure 1 to the petition. Another set of objections was filed by the sons of petitioner No. 1, who have been arrayed as petitioners Nos. 2 to 7 in the instant petition. A copy of the objections filed by petitioners Nos. 2 to 7 is annexure No. 2 to the petition. In para 3 of the objections of petitioner No. 1 (Annexure No. 1) a point was made that all the sons of petitioner No. 1 were adult and they were born before July 1, 1952 (the date of vesting under the U.P. Z. A. & L. R. Act. 1951). It was further claimed in the said para that the said sons who were in existence on July 1. 1952, had a vested right in the land recorded in the name of petitioner No. 1. It was also further claimed in the said para 3 of annexure No. 1 that on the basis of the said vested interest of petitioners Nos. 2 to 7, their claim had been recognised in the partition suit and a final decree had been passed whereunder the said petitioners Nos. 2 to 7's names had been mutated. In annexure 2, in para 2 thereof, the petitioners Nos. 2 to 7 took an objection that all the said petitioners were born before the date of vesting, namely July 1, 1952, and that the said petitioners, namely respondents Nos. 2 to 7 had a vested interest in the father's land and all of them were co-sharers in the said land. It was also asserted that the land in the name of petitioner No. 1 was ancestral in his hands and it was not the self acquired property of petitioner No. 1. The Prescribed Authority framed issue No. 2 to the effect that whether all the sons of the tenure-holder were born prior to the date of vesting under the U.P. Act No. 1 of 1951 and whether on the said basis in the partition suit their names were directed to be recorded. The Prescribed Authority framed issue No. 2 to the effect that whether all the sons of the tenure-holder were born prior to the date of vesting under the U.P. Act No. 1 of 1951 and whether on the said basis in the partition suit their names were directed to be recorded. After the petitioners Nos. 2 to 7 had filed their objections (annexure No. 2 to the petition), the Prescribed Authority framed issue No. 6. which was concerning the effect of the separate khatas in the names of the adult sons of the tenure-holder on the ceiling proceedings. The Prescribed Authority dealt with issues Nos. 2, 3 and 6 jointly. 3. The Prescribed Authority held that the petitioners could not prove the ancestral nature of the holding in question. Inter-alia, it was pointed out that Fard Mutabikat had not been filed to connect the present numbers of the plots in question with the plots mentioned in the khatauni of 1334 fasli, it was further pointed out that in the khatauni extract of 1334 fasli neither the name of petitioner No. I nor the name of his father stood recorded, therefore, the land in question could not be treated as ancestral. Lastly, the Prescribed Authority pointed out that the family tree had not been set up by the tenure-holder and his witnesses and, therefore, it was not clear as to how the tenure-holder (petitioner No. 1) stood in relationship to the tenure-holder, who stood recorded in the khatauni of 1334 fasli. The proceedings of partition suit between the petitioner No. I and his sons were disregarded as the partition suit was filed on 31st October, 1974, i.e., after the relevant date when the U.P. Imposition of Ceiling on I and Holdings (Amendment) Act. 1972 came into force. As is well known, the said Amendment Act came into force on 8th June, 1973. The petitioner No. 1 filed an appeal and a true copy of the memorandum of appeal is annexure 7 to the petition. In ground No. 3 of the said memorandum of appeal, it was claimed that "Mahabir Rai was the common ancestor of the petitioners. He had one son, Bhukam Rai and Bhukam Rai had one son Baldeo Rai, who was the appellants' father. In ground No. 3 of the said memorandum of appeal, it was claimed that "Mahabir Rai was the common ancestor of the petitioners. He had one son, Bhukam Rai and Bhukam Rai had one son Baldeo Rai, who was the appellants' father. Both Bhukam Rai and Baldeo Rai pre-deceased Mahbir Rai and that was the whole reason that after the death of Mahbir Rai the petitioner was recorded as tenant over the suit properties." 4. The appellate court dismissed the appeal by its judgment D/- 8-9-1981, a true copy of which is annexure 8 to the petition. A certified copy of the said judgment is also on record. Feeling aggrieved, the petitioners have now come up in the instant petition and in support thereof. I have heard Sri Sankatha Rai, learned counsel for the petitioners. In opposition, the learned Standing Counsel has made his submissions. 5. I have anxiously considered whether within my well known limits, functioning as a Court exercising extraordinary jurisdiction under Article 226 of the Constitution, I can interfere with the impugned orders. Limits of my jurisdiction under Article 226 of the Constitution are, in a broad manner clear but it must be admitted that sometime borderline cases arise where difficulties arise to decide whether the Court is entitled to interfere with the orders passed by the authorities below within the limited jurisdiction under Article 226 of the Constitution. I feel, this is one such borderline case where the difficulty has arisen. Learned Standing Counsel very correctly reminded me that I have no jurisdiction to reappraise the evidence. He further contended that in view of the provisions contained in Sections 37 and 38 of the U.P. Imposition of Ceiling on Land Holdings Act, the objections filed by the petitioners should be construed and interpreted in the manner in which the pleadings are to be interpreted in terms of the rules contained under Order VI of the Civil Procedure Code. 6. Lastly, he contended that taking into consideration the law laid down by the Supreme Court in the State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Paragraphs Nos. 192 and 193), the manner in which the oral evidence should be appreciated regarding the proof of a pedigree should be followed in the instant case also. 7. 6. Lastly, he contended that taking into consideration the law laid down by the Supreme Court in the State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Paragraphs Nos. 192 and 193), the manner in which the oral evidence should be appreciated regarding the proof of a pedigree should be followed in the instant case also. 7. Sri Sankatha Rai, learned counsel for the petitioners, on the other hand, contended that in the instant case there has been miscarriage of justice because of an over-refined approach of the authorities below to the objections filed by the petitioners and further, the learned counsel contended, that the authorities below completely disregarded the oral evidence and the manner in which it stood on record. In this connection the learned counsel submitted that the only witness examined on behalf of the State, namely Sri Baijnath Lekhpal, clearly admitted in his statement on oath that the entire land in the name of petitioner No. 1 was ancestral (Inkee Sabhi Jamin Morusi Hai). Learned counsel for the petitioner then drew my attention to the statement made by petitioner No. 1 while he was in the witness-box. I may state that a true copy of the said statement of the Lekhpal is annexure No. 3 to the petition and a true copy of the statement made by Hari Har Rai is annexure 4 to the petition. The petitioner No. 1 stated that all his six sons were born before the date of vesting, i.e. before July 1, 1952, and that they had vested interest in the land in dispute and further that the entire land was ancestral. Learned counsel further pointed out that there was no cross-examination from the side of the State in regard to the statement of petitioner No. 1 that the entire land in question was ancestral. In this situation, Sri Sankatha Rai contended that the entire oral evidence from both sides as it stood, was to the effect that the land in question was ancestral. So far as the objections of the petitioners were concerned, learned counsel submitted that it was the clear averment made in the objection filed by the petitioner No. 1 (annexure 1 to the petition) that all his sons were adult and were born before the date of vesting and had vested interest in the land in question. So far as the objections of the petitioners were concerned, learned counsel submitted that it was the clear averment made in the objection filed by the petitioner No. 1 (annexure 1 to the petition) that all his sons were adult and were born before the date of vesting and had vested interest in the land in question. Counsel's point is that this was sufficient pleading which clearly implied that the petitioner No.1 was claiming the land to be ancestral. There is no reason for doubting the legal proposition that unless the land was ancestral in the the hands of the tenure-holder on the date of vesting, the sons in existence on the said date could not claim any vested interest in the same. In this view of the matter, the learned counsel submitted that the appellate court's criticism that a specific case of the ancestral nature of the land was not set up by the petitioner No. 1 in his objections (annexure No. 1 to the petition) was untenable. 8. I have considered the aforesaid submissions of the learned counsel for the parties. I have myself stated above that this case seems to me to be a borderline case and, in my view, in such a situation, I should give the benefit of any doubt which I may be having regarding my power to interfere, to the petitioners with a view to further the claims of justice. In my view, there is clear possibility, that the petitioners' claim regarding the ancestral nature of the holding in question may be a correct and true one. However, I do not wish the authorities below to treat this statement of mine as equivalent to a finding by me. I am not recording any finding whatsoever. I only wist to point out that in the facts and circumstances it cannot be suggested that the petitioners have indulged in any kind of unreal thinking or that they have tried to over-reach themselves. I cannot accept the contention of the learned Standing Counsel that the technical rules contained in Order VI of the Civil Procedure Code should be held to be applicable to the objections which are filed under Section 10 (2) of the Act. I cannot accept the contention of the learned Standing Counsel that the technical rules contained in Order VI of the Civil Procedure Code should be held to be applicable to the objections which are filed under Section 10 (2) of the Act. In this connection a reference may be made to the following case :- (1) Kshetrapal Singh v. State, 1975 All WC 618 : 1976 All LJ 522 In this case the Division Bench laid down as follows:- "Sec. 37 applies to the procedure prescribed by the Code for the trial and disposal of suits to the inquiry or hearing of objections under the Ceiling Act. It does not apply all the provisions of the Code to the (2) Civil Misc. Writ Petri. No. 3053 of 1978 Lalit Mohan Singh v. 3rd Addl. Distt. Judge. decided on 19-9-1979. In this case it was laid down :- "Under Section 37 of the Act, Civil Procedure Code has been made applicable to the proceedings before the prescribed authority but it does not mean that the Prescribed Authority becomes a regular court and the objections are to be treated as a regular plaint." 9. Section 37 does not lay down that the entire procedure for the trial of a suit shall be applicable to the filing of the objections and decision thereon by the Ceiling Authorities. This Section merely lays down that any officer or Authority holding an inquiry or hearing an objection under this Act shall, in so far as it may be applicable, have all the powers and privileges that of a civil court and follow the procedure laid down in the Code of Civil Procedure, 1908 for the trial and disposal of the suits relating to the immovable property. This is far from suggesting that the objections which are filed by a tenure-holder under Section 10 (2) of the Act should be interpreted in the manner in which the pleadings are to be drafted and to be interpreted under the technical rules of Order VI. If these objections were to be treated as a plaint, then obviously they should be verified also as laid down under Order VI Rule 15, C. P. C. Under Rule 14-A of Order VI the address for service of notice etc. has to accompany the plaint when it is filed before the Prescribed Authority. If these objections were to be treated as a plaint, then obviously they should be verified also as laid down under Order VI Rule 15, C. P. C. Under Rule 14-A of Order VI the address for service of notice etc. has to accompany the plaint when it is filed before the Prescribed Authority. In my view, all this is really not called for because neither the Prescribed Authority is a regular court nor the objection filed under Section 10 (2) of the Act can be treated to be a plaint under Order VI, C. P. C. Therefore, I cannot accept the contention of the learned Standing Counsel that in the instant case the objections filed by the petitioners should be dealt with and interpreted in the light of the rules set out in Order VI of the Civil Procedure Code. 10. I further feel that Sri Sankatha Rai is right in his contention that the appellate court took an over-strict view of the matter when it criticised that the petitioner No. 1 in his objections (annexure 1 to the petition) did not raise a plea that the land in dispute was ancestral property. I feel that in the facts and circumstances of the case, when the petitioner No. 1 in his petition claimed that all his sons were in existence on the date of vesting (July 1, 1952) and that they had a vested interest in such lands on the said ground, in effect the petitioner No. 1 was setting up a plea that the lands in question were ancestral. I have already stated above that the legal proposition is well known that unless such lands were ancestral in the hands of the tenure-holder on the date of vesting, his sons in existence on the said date would not claim any vested interest in the same. Further, it should be seen that the petitioners Nos. 2 to 7 had clearly asserted in their objections that the land in question was ancestral. I have already stated above that the Prescribed Authority had framed issue No. 6 on the basis of the said plea raised by the petitioners Nos. 2 to 7. In this view of the matter, it seems to me that the appellate court really allowed itself to decide the controversy on the basis of a clear misinterpretation of the objections filed by the petitioner No. 1. 11. 2 to 7. In this view of the matter, it seems to me that the appellate court really allowed itself to decide the controversy on the basis of a clear misinterpretation of the objections filed by the petitioner No. 1. 11. While admitting that it is not the task of this Court in this jurisdiction to reappraise the evidence, it is to be pointed out, as was done by the learned counsel for the petitioners that the entire oral evidence on record from both the sides was to the effect that the land in question was ancestral. I have already stated above that the only witness produced on behalf of the State admitted this land to be ancestral in the hands of petitioner No. 1. When the petitioner No. 1 was in the witness-box he clearly asserted the land to be ancestral and no cross-examination was done from the side of the State on the said statement. In a situation of this kind, one has to decide whether the criticism which has been offered by the appellate court was justified to throw out the claim, of the petitioners. The petitioner No. 1 in the appeal had filed a certified copy of the Fard Mutabigat, which, it seems, went to establish that the land in question in the hands of petitioner No. 1 was substantially identical with the land which was mentioned in the khatauni of 1334 fasli. I wish to make it clear that this statement of mine should not be treated as a clear cut finding hecause such a finding on the closer scrutiny of the Fard Mutabiqat and a certified copy of the khatauni for 1334 fasli will be called for hereafter before the Prescribed Authority. I am broadly suggesting what has struck me on the basis of the judgment of the appellate court itself. 12. So far as the learned Standing Counsel's reliance on AIR 1983 SC 684 (supra) is concerned, I wish to observe with deep respect that the ratio which has been laid down therein for the appreciation of the oral evidence in respect of the proof of the pedigree, must be borne in mind while appreciating such evidence on the said controversy. The law laid down in Paragraphs Nos. The law laid down in Paragraphs Nos. 192 and 193 shall be followed by the Prescribed Authority after the case is re-examined and decided by the said Authority on the basis of the remand order, which I am passing in the instant petition. 13. In the totality of the circumstances mentioned above and while admitting that this case is a border line case where I have felt considerable difficulty whether I should or should not interfere in the interest of justice, I feel that if this petition is thrown out, then what ultimately may be found to be a genuine claim may be lost on account of what I feel to be an erroneous interpretation of the petitioners' objections on record and further, because in my view, the authorities below committed an error of law in completely failing to appreciate the oral evidence of both the parties, which was to the effect that the land in question was ancestral. 14. Accordingly, I quash both the orders of the Prescribed Authority (Annexure 6) and the appellate court (Annexure 8 to the petition) only in so far as the aforesaid controversy is concerned, namely, whether the land in dispute was ancestral in the hands of petitioner No. 1 on the date of vesting. The case shall now go back to the Prescribed Authority with a view to enable both the parties to lead additional evidence, both oral and documentary, in respect of the said controversy alone. I wish to make it clear that no evidence on any other controversy shall be allowed to be led by the parties. I further clarify that so far as the dates of births of the petitioners Nos. 2 to 7 are concerned, no further evidence will be led by the parties. Further, I wish to emphasise that while appreciating the oral evidence on the question of pedigree, the Prescribed Authority shall follow the law as laid down by the Supreme Court in Paragraphs Nos. 192 and 193 of the said case reported in AIR 1983 SC 684 (supra). Further, I wish to emphasise that while appreciating the oral evidence on the question of pedigree, the Prescribed Authority shall follow the law as laid down by the Supreme Court in Paragraphs Nos. 192 and 193 of the said case reported in AIR 1983 SC 684 (supra). In case the Prescribed Authority finds on the basis of the entire evidence on record, both as it exists at present and that which may be led hereafter, that the land in question is proved to be ancestral in the hands of the petitioner No. 1 and that such land on the date of vesting was such that it was governed by the Hindu Law in the matter of succession, then the petitioner No. 1 will be held to be holder of his proportionate share only and if the finding be to the contrary then the petitioner's objection on the said ground in regard to the said plea shall stand rejected. 15. There will be no order as to costs.