Vijai Pratap Singh v. State of U. P. Others — 1985 DIGILAW 874 (ALL)

JUDGMENT K.N. Misra, J. - The petitioners in both the aforesaid writ petitions were served with a notice issued under Section 30(1) of the U.P. Imposition of Ceiling on Land Holdings Act (for short, the Act) wherein certain land was proposed to be declared as surplus land as the petitioners were said to have inherited the same from Jagan Nath Singh son of Chatra Pal Singh and thereby as a consequence of devolution by way of succession on them the land was found liable to be declared surplus in accordance with the provisions of Section 29 of the Act. These notices were served on the petitioners on 1st July, 1982 and they had filed objection (dated)30th July, 1982 asserting therein that they have not inherited any land from the deceased tenure holder Jagannath Singh. It was contended by them that Jagannath Singh had executed a will dated 471979 in favour of Nagendra Bahadur Singh, Shiva Bahadur Singh son of Jitendra Bahadur Singh and Smt. Shiva Kumari, widow of Kr. Bharat Singh. The names of the legatees were also mutated in the revenue records vide order dated 1151982 which was incorporated in the Khatauni of 1389 Fasli to 1394 Fasli on 15th June, 1982. This Khatauni also incorporates the order of mutation dated 18101981 passed in favour of the petitioners Vijai Pratap Singh and Raj Pratap Singh sons of Kr. Bharat Singh and Jitendra Bahadur Singh son of Jagannath Singh as heir and successors. This order of mutation appears to have been passed under Section 33A of the Land Revenue Act which according to petitioners became ineffective by subsequent aforesaid order of mutation dated 1151982. The petitioners had, thus, contended that they did not acquire any land beyond the prescribed ceiling limit, and, as such, notices issued to them under Sections 29/30 of the Act deserve to be cancelled. 2. The case was contested on behalf of the State and it was asserted that the land in dispute, which belonged to the deceased tenureholder Jagannath Singh, had devolved on the petitioners Jitendra Bahadur Singh and Vjjai Pratap Singh and also on his brother Raj Pratap Singh. It was asserted that Vijai Pratap Singh and Jitendra Bahadur Singh hold land beyond the prescribed ceiling limit, and, as such, notices have been correctly issued to the petitioners for determination of surplus land in accordance with the provisions of the Act. It was asserted that Vijai Pratap Singh and Jitendra Bahadur Singh hold land beyond the prescribed ceiling limit, and, as such, notices have been correctly issued to the petitioners for determination of surplus land in accordance with the provisions of the Act. The will executed by Jagannath Singh was also challenged. It was also indicated that notices were issued on 28th May, 1982 and on that date the name of the petitioners stood mutated in the revenue records as heirs and successors of the deceased tenureholder Jagannath Singh. The will in question was said to be inoperative as the same was executed to circumvent the provisions of Ceiling Act and to save the land from the operation of the Ceiling Act. 3. The Prescribed Authority (Ceiling) framed issues. The first issue was to the effect whether Jagannath Singh, the grand father of Vijai Pratap Singh had executed any will in favour of Nagendra Bahadur Singh, Shiv Bahadur Singh and Srimati Shiva Kumari and whether the will deed in question was given effect to and incorporated in the papers ? If so, its effect? The second issue was to the effect whether Vijai Pratap Singh had 27 Bighas 2 Biswas and 7 Biswansis land recorded in his name and whether it will be beyond the operation of the Ceiling Act? Similar issue was framed in respect of landholding of Jitendra Bahadur Singh. After taking evidence of the parties, the Prescribed Authority (Ceiling) vide order, dated 3081983 rejected the objection filed by the petitioners and declared land mentioned in the order as surplus land. He recorded a finding that no reliance can be placed on the will in question as it is said to have been executed after the appointed date, i.e. 2411971 and it has been executed to avoid the effect of the operation of the provisions of the Ceiling Act. Aggrieved by this order the petitioners filed appeal under Section 13 of the Act, which was dismissed by the District Judge, Rai Bareli vide order dated 12121984. It was held that the petitioners have failed to prove the genuineness of the will and its due execution by Jagannath Singh. The original will was not produced nor any attesting witness was produced in the case. It was held that the petitioners have failed to prove the genuineness of the will and its due execution by Jagannath Singh. The original will was not produced nor any attesting witness was produced in the case. It was, thus, held that the land belonging to Jagannath Singh had devolved on Jitendra Bahadur Singh to the extent of half share and the remainder half share on petitioner Vijai Pratap Singh and his brother Raj Pratap Singh. The order passed by the Prescribed Authority declaring some of the petitioners land as surplus land was maintained by the learned District Judge. These orders have been challenged in the present writ petition. 4. Learned counsel for both the petitioners urged that since the names of the legatees were ordered to be mutated and the same were also incorporated in the revenue records, the said land holding belonging to deceased tenureholder Jagannath Singh could not be treated to be land of the petitioners. Learned counsel contended that the order of mutation, which was duly incorporated in the Khatauni was binding on the State in these ceiling proceedings and the Prescribed Authority (Ceiling) had no jurisdiction to determine the question of title with regard to the land in dispute of the deceased tenureholder Jagannath Singh. I have carefully considered this argument, but I find no substance in it. 5. It appears to be fairly well settled that mutation order is not conclusive so far as the title of the parties is concerned. Mutation order is passed in summary proceedings, and, as such, title in respect of any holding or part thereof could be gone into by the court of competent jurisdiction or any court before whom the question with regard to title is raised or is involved for determination. Sections 40A of the Land Revenue Act also provides that orders passed under Sections 33, 35, 39, 40, 41 or 54 shall not bar any suit in a competent court for relief on the basis of a right in holding. Thus, mutation orders cannot be said to be conclusive piece of evidence regarding title of the person recorded as tenureholder in the revenue records. Thus, mutation orders cannot be said to be conclusive piece of evidence regarding title of the person recorded as tenureholder in the revenue records. It carries rebuttable presumption, and, as such, this argument cannot be accepted that since the names of the legatees were ordered to be mutated and that order was also incorporated in the revenue records, the ceiling authorities could not proceed to determine surplus land with the petitioners by clubbing the land of the deceased tenureholder along with the land already held by them. Under Section 29 of the Ceiling Act it is clearly provided that if any land has come to be held by a tenureholder under a decree or order of any court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, and such land together with the land already held by him exceed the ceiling area applicable to him, it would be liable to be declared surplus. The Prescribed Authority (Ceiling) could, therefore, determine the question as regards succession in respect of the land belonging to the deceased tenureholder. Under Section 29 of the Ceiling Act, the Prescribed Authority (Ceiling) could also look into the question as to whether any person has in fact acquired any title in the land either by way of transfer, succession or prescription in consequence of adverse possession or not. Such questions would certainly involve determination of title with regard to the land in dispute and, in my opinion, the Prescribed Authority (Ceiling) would be competent to determine the question of title with regard to the land in proceedings under Section 29/30 of the Act. The Prescribed Authority (Ceiling) would have jurisdiction to go into the merits of the case and determine whether the land in dispute had devolved in law on the objectors or not by way of succession. In this view of the matter, I do not find any merit in the contention of the learned counsel for the petitioners that the Prescribed Authority (Ceiling) could not go into the question with regard to devolution of land in dispute on the petitioners and that he should have merely considered the entries made in the revenue records as a consequence of mutation order. 6. In the present case it is evident that mutation order was initially passed under Section 33A of the U.P. Land Revenue Act in favour of the petitioners. 6. In the present case it is evident that mutation order was initially passed under Section 33A of the U.P. Land Revenue Act in favour of the petitioners. This order was incorporated in Khatauni on 18th October, 1982. The Prescribed Authority (Ceiling) had, therefore, rightly issued notices to the petitioners under Section 29/30 of the Act for determination of surplus land. In these proceedings the Prescribed Authority (Ceiling) can determine whether the land in dispute had in fact devolved on the petitioners or not. The petitioners had raised objection that the land had not devolved on them on account of the fact that the deceased tenureholder had already executed a will in favour of Nagendra Bahadur Singh and others. An issue was also framed on this question. In these circumstances the question to be determined by the Prescribed Authority (Ceiling) was whether the deceased tenureholder had or had not executed the alleged will in favour of Nagendra Bahadur Singh and others. If the will was not executed by Jagannath Singh the land would, in law, devolve on the petitioners, and, thus, the proceedings for determination of surplus land under Section 29/30 of the Act would be taken to have been competently initiated by the Prescribed Authority (Ceiling). 7. In the present case although there was an issue on the point whether Jagannath Singh had in fact executed a will in favour of Nagendra Bahadur Singh and others or not but no categorical finding appears to have been recorded by the Prescribed Authority (Ceiling) about the genuineness of the will and its due execution by the deceased tenureholder Jagannath Singh. He has observed that no reliance can be placed on the will in question, which is said to have been executed after the appointed date and it appears to have been executed to circumvent the provisions pf the Ceiling Act and to take out the land from the operation of the said Act, learned District Judge had, however, recorded a finding to the effect that the will in question has not been proved. But while arriving to this conclusion, he has held that no attesting witness had been examined by the petitioners nor the original will was produced. It has also been observed that since the original will has not been filed nor it has been proved, and, as such, the state could not urge against its validity. But while arriving to this conclusion, he has held that no attesting witness had been examined by the petitioners nor the original will was produced. It has also been observed that since the original will has not been filed nor it has been proved, and, as such, the state could not urge against its validity. Learned standing counsel had urged that in view of the said finding recorded by the learned District Judge in this case, no interference can be made by this Court in exercise of powers under Article 226 of the Constitution. 8. I have considered the said argument very carefully, but after looking to the facts and circumstances of the case I am constrained to observe that the learned District Judge, while recording the said finding, omitted to take into consideration the fact that it was not expected of the petitioners to have filed the original will because it could not be expected to be in their possession. The will could be summoned from the legatees, who are expected to be in possession of it. The petitioners had filed photostat copy of the will. From where they got it has not been explained by the petitioners. But the fact remains that before the Prescribed Authority (Ceiling) the photostat will in question was filed. It is also not disputed that the order of mutation in favour of the legatees was incorporated in the Khatauni on 15th June, 1982. The petitioners had also indicated this fact in their objection. In these circumstances it was incumbent for the Prescribed Authority (Ceiling) to have issued notices to the legatees as is required under Rule 8 of the Rules framed under the Imposition of Ceiling on Land Holdings Act. The first proviso to Rule 8 provides that where the statement in C.L.H. Form No. 3 also includes land ostensibly held in the name of any other person, the Prescribed Authority shall cause to be served upon such other person a notice in C.L.H. Form No. 4 together with a copy of the statement in C.L.H. Form 3 calling upon him to show cause within a period of 15 days from the date of service of the notice why the aforesaid statement be not taken as correct. 9. 9. In the present case notices were issued under Section 29/30 to the petitioners saying that the land belonging to the deceased tenureholder Jagan Nath Singh had devolved on them, and, as such, some of the land deserves to be declared surplus because they now hold land more than the prescribed ceiling limit. In the objection filed by the petitioners they had indicated that mutation order was passed in favour of Nagendra Bahadur Singh and others on the basis of will which was also incorporated in the Khatauni. This order was incorporated on 15th June, 1982 before the petitioners had filed their objection on 30th July, 1982. The Prescribed Authority (Ceiling) was, therefore, aware about the entries in the name of Nagendra Bahadur Singh and others, the alleged legatees. In these circumstances notices should have been issued to them so as to determine whether any will was executed in favour of Nagendra Bahadur Singh and others or not and whether the will was genuine and properly executed, and also whether the will deed in question was a valid and not a manipulated document prepared in order to circumvent the provisions of the Ceiling Act by the petitioners and others. If the will is not a genuine document and it was executed in order to circumvent the provisions of the Ceiling Act and to save the land from the operation of the said Act, the same could not be operative for the purpose of this Act and the petitioners would be taken to be tenureholders of the land belonging to the deceased tenureholder Jagannath Singh which would be taken to have legally devolved on the petitioners in the absence of any genuine document duly executed by the deceased tenureholder. 10. In this view of the matter the impugned orders in both these writ petitions cannot be sustained and deserve to be quashed. 11. Before parting with the case it may also be mentioned that the petitioners had taken a plea that some of the plots are unirrigated and some are grove plots. The Prescribed Authority (Ceiling) has not considered the said plea and has not recorded any finding on it. The Prescribed Authority (Ceiling) will, therefore, also consider the said plea of the petitioners while deciding the case on merits. 12. The Prescribed Authority (Ceiling) has not considered the said plea and has not recorded any finding on it. The Prescribed Authority (Ceiling) will, therefore, also consider the said plea of the petitioners while deciding the case on merits. 12. In the result, both the writ petitions succeed and are hereby allowed and the impugned order dated 12121984 passed by the Civil Judge, Rai Bareli and order dated 3081983 passed by the Prescribed Authority (Ceiling) are hereby quashed. The Prescribed Authority (Ceiling) is directed to restore the cases to original number and to decide them on merits in accordance with law and in the light of observations made above after giving notice to Nagendra Bahadur Singh, Shiv Bahadur Singh son of Jitendra Bahadur Singh and Smt. Shiva Kumari widow of Kr. Bharat Singh. 13. No order as to costs.