Netra Pal v. State of Uttar Pradesh — 1992 DIGILAW 150 (ALL)

ORDER S.R. Singh, J. - Present writ petition is directed against the orders dated 30-9-1981 and 15-4-1982 passed by the Prescribed Authority/Pergana Adhikari Kaul Aligarh and the 2 and Addl. District Judge, Aligarh respectively which arise out of the proceedings under S. 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (in short the `Act') as amended by the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act 1972, which admittedly came into force with effect from 8-6-1973. 2. The facts of the case are that initially an area of 30 Bighas, 19 Biswas and 17 Biswansis was declared surplus with the tenure holder Godhi Singh son of Sri Nanhu Singh by the Prescribed Authority by means of the order dated 3-9-1977. The matter came up to this court in writ petition earlier which was allowed with a direction to issue a fresh notice under S. 10(2) of the Act on account of reduction in area due to consolidation which took place in the village in question in the meantime. Consequently, a fresh notice was issued in which an area of 12 Bighas, 17 Biswas and 3 biswansis was proposed to be declared surplus with the tenure holder. On receipt of the fresh notice, an objection was filed inter alia on the ground that the land recorded in the name of one Bhauli Singh and the land recorded in the name of Smt. Rewa Devi were wrongly clubbed with the holding of the tenure holder Godhi Singh. Dhauli Singh also filed objection that the land which he purchased from the tenure holder by means of a registered sale-deed dated 10-2-1960, was wrongly included in the ceiling statement of the tenure holder Godhi Singh. Smt. Rewa Devi, wife of the tenure holder Godhi Singh was impleaded as a party in the proceeding, but she died during the pendency of the case before the prescribed Authority and the petitioners were brought on record, as her heirs and legal representatives. They also filed objection to the effect that the land which was recorded in the name of Smt. Rewa Devi during consolidation proceedings, was not liable to be clubbed with the holding of the tenure holder. The prescribed Authority by his order dated 30-9-81 rejected the objections and declared 12 Bighas, 17 Biswas and 3 Biswansis in terms of irrigated land as surplus with the tenure holder. The prescribed Authority by his order dated 30-9-81 rejected the objections and declared 12 Bighas, 17 Biswas and 3 Biswansis in terms of irrigated land as surplus with the tenure holder. The appeals preferred against the said judgment of the prescribed Authority were dismissed by the 2nd Addl. District Judge, Aligarh by means of the order dated 15-4-1982. It may be worthwhile to mention that one appeal against the order of the Prescribed Authority was filed by the petitioners as heirs and legal representatives of the tenure holder Godhi Singh. who died during the pendency of the proceedings and the other appeal was filed by Dhauli Singh. Both the appeals were decided by a common order dated 15-4-1990. 3. I have heard Sri G. N. Verma, Learned Counsel appearing for the petitioners and the learned standing counsel appearing for the respondents. Admittedly, tenure holder Godhi Singh had transferred his holding admeasuring 20 Bighas and I Biswa by means of sale deed dated 10-2-60 in favour of his brother-in-law (Sala) Dhauli Singh. It is also admitted that Dhauli Singh transferred the same very land in favour of Rewa Devi, wife of the tenure holder by means of a sale deed dated 2-3-1967. The Prescribed Authority recorded a finding, on the basis of Khasra entries referred to in its order that the land which was the subject matter of transfer in favour of Dhauli Singh was in cultivatory possession of Smt. Rewa Devi, wife of the tenure holder Godhi Singh and it was during consolidation operation that Ziman-9 entries in favour of Smt. Rewa Devi were expunged and the name of Godhi Singh was restored in the revenue papers on the basis of a collusive compromise order dated 21-11-1974, passed by the Consolidation Officer. The prescribed Authority recorded a finding that the sale deed dated 10-2-1960 was in fact a sham transaction and Godhi Singh continued to be the real tenure holder of the land which was transferred to Dhauli Singh. The Prescribed Authority further found that the land in the name of Rewa Devi was rightly clubbed with the holding of her husband Godhi Singh (Tenure holder) inasmuch as there was no evidence of any judicial separation between the wife and the husband. 4. The Prescribed Authority further found that the land in the name of Rewa Devi was rightly clubbed with the holding of her husband Godhi Singh (Tenure holder) inasmuch as there was no evidence of any judicial separation between the wife and the husband. 4. Sri G. N. Varma, Learned counsel appearing for the petitioner contended before me that the Ceiling Authority had no jurisdiction to look into the genuineness or otherwise of the sale-deed dated 10-2-1960 inasmuch as in view of S. 5(6) of the Act, the Ceiling Authorities are competent to look into the bona fide or otherwise of a transfer made after the 24th day of January 1971. He has placed reliance upon the following observations of a Division Bench decision of this Court in Om Prakash Agarwal v. Addl. District Judge, 1981 All WC 775. "The U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 was enforced with effect from 8-6-1973. Therefore in view of the provision contained in sub-section (1), on and from 8-6-1973 a person is a tenure holder cannot hold land in excess of his ceiling area. In view of Explanation I to sub-section (1) all the land held by the tenure holder has to be taken into account while determining his ceiling and surplus areas, irrespective of the fact whether the land is held by the teunure-holder in his own name or in the name of some one else fictitiously. While considering the question whether a land held ostensibly in the name of another person actually belongs to the tenure-holder, the rule of evidence prescribed in Explanation II to sub-section (1) has to be followed. This rule of evidence applies to the case where on or before 24-1-1971 a land was held by the tenure holder but after this date it came to be recorded in the name of someone else although the tenure holder continued to be in its possession by cultivating the same. This rule will apply also to the situation where the name of the tenure-holder is not completely obliterated from the records and along with his name the name of someone else too comes to be recorded. In Both the situations the Prescribed Authority is required under this Explanation to presume that the land continues to be held by the tenure holder who held it prior to 24-1-1971." 5. In Both the situations the Prescribed Authority is required under this Explanation to presume that the land continues to be held by the tenure holder who held it prior to 24-1-1971." 5. I have given my anxious consideration to the submissions made by the learned counsel for the petitioners. I find myself unable to accept his contention. According S. 5(6) of the Act, any transfer of the land made after 24th day of January 1971, which but for the transfer, would have been declared surplus land under the Act has to be ignored and not taken into account except transfers covered by the provisos (a) and (b) to sub-section (6) of S. 5. It does not however, preclude the Ceiling Authority to look into a sale deed executed prior to 24-1-1971 and held that such sale deed in a sham transaction. Explanation to S. 5(1) inserted by U.P. Act 2 of 1975 with retrospective effect from 8-6- 1973, makes it abundantly clear that in determining the ceiling area applicable to the tenure holder, the land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. The sale deed dated 10-2-1960, has been found to be a `Sham' transaction by the Prescribed Authority and the fact that the name of transferee Dhauli Singh was recorded in the revenue papers on the basis of the said sale deed prior to 24-1- 1971 would not make any difference, as the entry continued to be so recorded even thereafter. The observation the name of any other person is entered in the annual register after the said date" occurring in the passage of the Division Bench case in Om Prakash Agarwal v. Addl. District Judge extracted, 1981 All WC 775 (supra), does not mean that if the name of an ostensible owner was entered in the revenue paper prior to 24-1-1971, the rule of evidence enunciated in Explanation II to S. 5(1) would cease to be applicable. District Judge extracted, 1981 All WC 775 (supra), does not mean that if the name of an ostensible owner was entered in the revenue paper prior to 24-1-1971, the rule of evidence enunciated in Explanation II to S. 5(1) would cease to be applicable. In my judgment, the expression 'the name of any other person is entered in the Annual Register after the said date' occurring in Explanation II to S. 5(1) only means this that the land which on or before January 24, 1971 was recorded in the name of the tenure holder and was in his actual cultivatory possession, has since been recorded either in addition to or to the exclusion of the tenure holder in the name of any other person. The correct import of the aforesaid expression occurring in Explanation 11 as interpreted by Division Bench in Om Prakash Agarwal's case (supra), is to my mind, that the land which was held by the tenure holder Godhi Singh on 10-2-60 the date of sale i.e. before 24-1-71 though recorded in the name, of his brother-in-law, Dhauli Singh on the basis of the sale deed dated 10-2-60 sometime before 24-1-1971 and the entry continued even after 24-1-1971 would he presumed, unless the contrary is proved to the satisfaction of the prescribed Authority, that Godhi Singh continued to hold the land on the relevant date i.e. 8-6-1973 and since the contrary could not be proved as held by the Ceiling Authority it was rightly held to be the land of Godhi Singh. The finding that the sale deed in favour of Dhauli Singh was a Sham transaction is a finding of fact based on 1992 All. L. J./31 VI (1) appraisal of evidence and even if the sale deed dated 10-2-60 is held to be genuine, the land covered by the said sale deed having been transferred to Smt. Rewa Devi wife of the tenure holder, who being a member of his family her land was rightly clubbed with the holding to the tenure holder in view of the finding that there was no judicial separation between the two. The order dated 21-11-74 of the Consolidation Officer would not create a bar of res judicata in view of S. 38-B of the Act. The order dated 21-11-74 of the Consolidation Officer would not create a bar of res judicata in view of S. 38-B of the Act. Accordingly, in view of the finding that there was no judicial separation, the land transferred to Smt. Rewa Devi by Dhauli Singh by means of the sale deed dated 2-3-1967, was rightly included in the holding of her husband Godhi Singh who was the tenure holder, for purposes of determination of surplus area under the provisions of the Act. The term `Tenure holder' as defined in S. 3 (17) of the Act means a person, who is the holder of a holding but except in Chapter III, does not include a woman whose husband is a tenure holder. In the instant case, the husband being the tenure holder, Smt. Rewa Devi cannot be said to he the tenure-holder of the land purchased by her by means of the sale deed dated 2-3-1967 and the same has to be included in the holding of the husband. This irresistible conclusion flows from a combined reading of clauses (7) and (17) of S. 3 read with sub-sections (31) and 3 of S. 5 of the Act. Entries in the record of right are not decisive. What is decisive is, who is the 'holder of a holding'. U.G. Sugar Mills v. Civil Judge, Bijnor, AIR 1970 All 130 (FB) may be adverted to if at all for the sake of authority on the point. The Division Bench decision relied upon by the learned counsel for the petitioner, is therefore, of no avail to him. 6. The learned counsel for the petitioner then contended that Smt. Rewa Devi was never recorded on the basis of the sale deed dated 2-3-1967. This contention of the learned counsel for the petitioner is also misconceived inasmuch as in view of the above discussion, it would not make any difference whether Smt. Rawa Devi was recorded in the revenue papers on the basis of the sale deed dated 2-3-1967. 7. The learned counsel for the petitioner then contended before me that there was no finding that Godhi Singh continued to be in possession over the land which was the subject matter of sale dated 10-2-60. 7. The learned counsel for the petitioner then contended before me that there was no finding that Godhi Singh continued to be in possession over the land which was the subject matter of sale dated 10-2-60. This submission of the learned counsel has no force inasmuch as the Prescribed Authority has recorded a categorical finding on the basis of Khasra extracts of 1374, 1375, 1378 fasli and the Khatauni extracts of 1376-78 Fasli that Smt. Rewa Devi was in possession over the land covered by sale deed dated 10-2-60. This coupled with the fact that the said land was transferred to her by means of sale deed dated 2-3-1967 and the fact that Dhauli Singh was none-else than the brother-in-law of the tenure holder, was sufficient to lead to a conclusion that the sale deed dated 10-2-1960 was a Sham transaction designed to evade the provisions of the Act. 8. The learned counsel for the petitioner lastly contended before me that the petitioners were not given opportunity to exercise their choice. I do not find any substance in this contention of the learned counsel. The order passed by the Prescribed Authority clearly indicates that the choice given by the petitioners was taken into account. 9. In the result, the petition fails and is dismissed. The parties are directed to bear their own costs.