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2001 DIGILAW 935 (ALL)

DEVENDRA KUMAR v. ADDL. COMMISSIONER (JUDL. )

2001-09-17

S.K.SINGH

body2001
S. K. SINGH,J. ( 1 ) BY means of this writ petition, the petitioner has prayed for quashing of the judgments as passed by the respondents no. 1 and 2 dated 29. 4. 1992 and 29. 2. 1992 as contained in Annexures 5 and 4 to the writ petition respectively. ( 2 ) THE proceeding under section 10 (2) of u. P. Imposition of Ceiling on Land Holdings act (hereinafter referred to as the Act) was started against the petitioner. By notice under section 10 (2) of the Act, an area of 2. 522 hectare land was proposed to be surplus. ( 3 ) THE petitioner filed objection mainly on three grounds: (I) the land of Neeraj Kumar has been illegally clubbed with the holdings of the petitioner. Neeraj Kumar inherited the land from his grand father Sita Ram, the original tenure holder by means of registered will dated 13. 8. 1975 and therefore, he will be deemed to be exclusive owner of the said land. (II) the land belonging to Smt. Rajeshwari Devi should be separated while determining land as surplus a judicial separation was granted by the judgment dated 29-7-1982. (III) there exists grove in 20 beghas for the last 20 years and therefore, that land cannot be treated to be irrigated land. ( 4 ) THE petitioner in support of his case filed original registered Will dated 13. 8. 1975. Certified copy of judgment and decree dated 29. 7. 1982 passed in Matrimonial Petition No. 66 of 1981 regarding judicial separation. The relevant Khatauni and Khasra extracts have also been filed. The Prescribed Authority by its judgment and order dated 29. 2. 1992 confirmed the notice and declare an area of 2. 522 hectare land as surplus. Against the judgment of prescribed Authority, the petitioner filed appeal which too was dismissed by judgment dated 29. 4. 1992. It is against these two judgments dated 29. 4. 1992 and 29. 2. 1992, the petitioner has come up before this Court. ( 5 ) THE only point which was argued by learned counsel for the petitioner before this court is that the land in the name of Neeraj kumar has been wrongly treated as petitioners holding and therefore, determination of surplus land by the courts below is erroneous. 1992 and 29. 2. 1992, the petitioner has come up before this Court. ( 5 ) THE only point which was argued by learned counsel for the petitioner before this court is that the land in the name of Neeraj kumar has been wrongly treated as petitioners holding and therefore, determination of surplus land by the courts below is erroneous. It was argued by learned counsel for the petitioner that Sita Ram, the grand father of Neeraj kumar was not having land in excess to prescribed limit on 8. 6. 1973 and therefore, he has every right to execute the Will which is not covered within the definition of transfer as has been held by the courts below itself. In view of the fact that Sita Ram was not having excess land against the prescribed limit on 8. 6. 1973, the land as was given by him by means of registered will to Neeraj Kumar cannot be termed to be a transfer to avoid clutches of the Act and the land which came to Neeraj Kumar cannot be treated to be that of the petitioner. It was next contended that to attract Section 5 (c)of the Act, the land should be held by the tenure holder on 8. 6. 1973. In the present case, neither Sita Ram was having land in excess of the ceiling limit nor the petitioner received the land or could have received the land from Sita ram on 8. 6. 1973 as Sita Ram died on 1989 and as such presumption of the authorities about the rights of the petitioner over the land received by Neeraj Kumar by means of registered will being impermissible, the determination of surplus land is uncalled. In support of this submission learned counsel for the petitioner places reliance on a decision reported in State of U. P. v. Civil Judge, Nainital and others. In this decision, it has been laid down that the relevant date for determining the surplus land is 8. 6. 1973. The same view has been taken in a decision reported in Girraj v. State of U. P. Further reliance has been placed on the decision reported in Ahmad Husain v. State of U. P. and Others and Atibal Singh vs. Tenth Addl. Disgtrict Judge, Allahabad and others. 6. 1973. The same view has been taken in a decision reported in Girraj v. State of U. P. Further reliance has been placed on the decision reported in Ahmad Husain v. State of U. P. and Others and Atibal Singh vs. Tenth Addl. Disgtrict Judge, Allahabad and others. It has been held in the aforesaid cases that for adjudicating the validity of a deed it must be proved first that vendor was the tenure holder, obviously on the relevant date i. e. 8. 6. 1973. Further reliance has been placed by learned counsel on Rajeev Kumar v. State of U. P. and Others and Mohammad Abbas vs. State of U. P. and Others, in the aforesaid cases, it has been held that the Will executed by the tenure holder even after the relevant date cannot be ignored. Lastly, it has been submitted that it is not a case in which the petitioner has received any land by any mode as a subsequent acquisition and thus it being not case under sections 29 and 30 of the Act, which speaks that the land must come in the hands of tenure holder, the clubbing of the land held by neeraj Kumar was totally unjustified. In this connection, learned counsel places reliance on the decision reported in Suleman v. State of u. P. and others. ( 6 ) LEARNED Standing Counsel, in response to the aforesaid submission has argued that the Will as was executed by Sita Ram was just a device for getting the land saved from the clutches of the Act. It has been argued that in normal course, the petitioner being son, was to inherit the land of Sita Ram and therefore the courts below are fully justified in clubbing the land which stands in the name of Neeraj kumar and accordingly, the determination of the land as surplus is not illegal in any manner. ( 7 ) SECTION 5 (1) of the Act contemplates that on and from the commencement of U. P. Imposition of Ceiling on Land Holding (Amendment)act, 1973, no tenure holder shall be entitled to hold aggregate throughout U. P. any land in excess of ceiling area applicable to him. The date of commencement of the aforesaid amendment Act is 8. 6. The date of commencement of the aforesaid amendment Act is 8. 6. 1873 in view of Section 5 (1) of the Act, no tenure holder will be entitled to hold land in excess of ceiling area applicable to him on and from 8. 6. 1973 but before the ceiling could be determined of a person, such person should be tenure holder. It is only in proceedings for determination of ceiling area, of a tenure holder the question of consideration as to whether a deed executed by him after 24. 1. 1971 should or should not be ignored, can arise. Admittedly, Sita Ram was the tenure holder who has executed registered will in favour of Neeraj Kumar in the year 1975. There appears to be no dispute about the fact that Sita Ram was not having any land in excess of ceiling limit at any stage, either before 8. 6. 1973 or even thereafter and thus to my mind, he was legally entitled to execute registered Will in respect to the land held by him in favour of any body. Neeraj Kumar execution of Will in his favour thus on the death of Sita Ram in the year 1989, received property in his own rights. The present proceedings against the petitioner appears to have been started in 1991. Neither on the relevant date, sta Ram was having land in excess of ceiling limit nor the petitioner was having land in excess of ceiling limit and otherwise also, he has not acquired any additional land in any manner from Sita Ram, if the petitioner was having the land within permissible limit on 8. 6. 1973, it not being case under sections 29 and 30 of the Act, on the basis of any subsequent acquisition in any manner so provided, inclusion of land in the name of Neeraj Kumar which he received by the registered Will from sita Ram for which, Sita Ram was legally competent to do so, the authorities appears to have committed error. If the tenure holder was not having land in excess of ceiling limit on the relevant date, i. e. 8. 6. 1973, can only be proceeded on contingencies as, provided under the Act. If the tenure holder was not having land in excess of ceiling limit on the relevant date, i. e. 8. 6. 1973, can only be proceeded on contingencies as, provided under the Act. The Courts below has given a clear finding that the land is not covered within the definition of transfer but on the premises that the Will appears to have been executed for defeating the purpose of the Act and therefore, it is to be ignored, has included the land in the name of Neeraj Kumar in the holding of the petitioner. In my opinion, in view of the discussions as made aforesaid, as Sita Ram was not the tenure holder, having land in excess of ceiling limit at any stage, he was fully competent to execute the Will in favour of Neeraj kumar and therefore, on the death of Sita ram, the presumption as has been drawn by the courts below that in normal course, the land might have come to the petitioner and therefore, that land can be treated that of the petitioner, is not justified. The right of person who is to receive property on the basis of Will comes into existence on the date of death of executor of the Will. Sita Ram had died in 1989. Although the Will was executed on 13. 8. 1975 in favour of Neeraj Kumar when he was minor but at the time of death on own finding of the courts below. Neeraj Kumar appears to be aged about 30 years. In my opinion, the courts below have not properly appreciated the claim of the petitioner in this respect and have concluded the matter in sketchy manner. ( 8 ) IN view of the aforesaid discussions, the matter requires re-consideration in the light of the cases referred on behalf of the petitioner and the observations as has been made in this judgment. ( 9 ) ACCORDINGLY, this writ petition succeeds and is allowed. The impugned judgments dated 29. 4. 1992 and 29. 2. 1992 passed by respondents no. 1 and 2 respectively as contained in (Annexures 5 and 4 to the writ petition) are hereby quashed. The matter is remanded back to the Prescribed Authority concerned to redetermine the surplus land if any in the hand of the petitioner, in the light of the observations as made in this judgment. Parties are directed to bear their own costs. 1 and 2 respectively as contained in (Annexures 5 and 4 to the writ petition) are hereby quashed. The matter is remanded back to the Prescribed Authority concerned to redetermine the surplus land if any in the hand of the petitioner, in the light of the observations as made in this judgment. Parties are directed to bear their own costs. Petition allowed. .