JUDGMENT 1. - Heard learned counsel for the parties. 2. All these appeals involve common question of law, hence, they are decided by this common judgment. 3. Ceiling proceedings were initiated against the appellants Gulab Singh and others. In those ceilings proceedings, determinations of ceiling area was made vide orders dated 17-7-1971 and 15-9-1971. The proceedings were firstly initiated under Chapter IIIB of the Rajasthan Tenancy Act. 1955 (referred to hereinafter as 'the Act'). Subsequently, it is informed to the Court that under the New Ceiling Act of 1973 also, proceedings have been initiated. We are not concerned with the proceedings initiated under the New Ceiling Act but are concerned only with the proceedings initiated under the Act. 4. The dispute which has to be decided in these appeals is as to which would be the area of land that will be acquired by the State consequent upon determination of the excess land in ceiling proceedings. The area held by the cultivator as unencumbered land or the area which the petitioner has indicated in his statement. In the statement, such areas have been included which had charge on them. They are the areas which have been transferred by the cultivator. Such transfer being a transfer not recognised by ceiling law. 5. It is in the above background, a petition was filed by the purchasers of land from Gulab Singh and Nathu. While the writ petition was entertained by the learned Single Judge, nobody appeared for the appellants Gulab Singh and Nathu. It was by agreement of the petitioners and the counsel for State that the case was decided in terms of a Division Bench decision of this Court reported in 1991(2) RLR 543, in case of Sukhvendra Singh v. Board of Revenue . 6. First handicap of the appellants before us was that he had not appeared before the learned Single Judge and contested the case despite service. Re that as it may. When we examine the provisions of Section 30E of Chapter IIIB of the Act the position becomes more than obvious. For ready reference, proviso (2) to sub-section (2). 6. First handicap of the appellants before us was that he had not appeared before the learned Single Judge and contested the case despite service. Re that as it may. When we examine the provisions of Section 30E of Chapter IIIB of the Act the position becomes more than obvious. For ready reference, proviso (2) to sub-section (2). sub-sections (3), (4) and (5) of Section 30E is reproduced herein below :Proviso (2) to sub-section (2):- "Provided further that the option afforded by the foregoing provisos shall be subject to the limitation that, where the person surrendering excess land under this sub-section holds lands, of which some are encumbered and some are not encumbered, the unencumbered lands. shall so far as may be. be surrendered in preference to encumbered lands." Sub-sections (3) to (5) : "(3) Any person failing intentionally to make a report or to surrender land as required by sub-section (2) shall on conviction, be punishable with fine which may extent to one thousand rupees. (4) Without prejudice and in addition to such conviction and fine the person retaining possession of any land in excess of the ceiling area applicable to him shall be deemed to be a trespasser liable to ejectment from such excess land and to pay penalty in accordance with clause (a) of sub-section (i) of Section 183 : Provided that the lands, from which a person shall be so ejected shall as far as may be, be unencumbered lands. (5) All lands coming to the State Government by surrender under sub-section (2) or by ejectment under sub-section (4) shall vest in it free from all encumberances." 7. A reading of proviso (2) to sub-section (2) enumerates the limitation under which a person surrendering excess land has to function. This proviso provides that if he holds lands which are encumbered and unencumbered, then preference should be given for surrendering unencumbered land and encumbered land should be surrendered, if necessary, thereafter. Proviso to sub-section (4) also makes a provision which says that a person shall be ejected as far as may be from the unencumbered lands. These provisions of Section 30E of the Act clearly demonstrate that the Legislature was clear in its mind when the scheme was formulated to make a providence for surrendering the land as and when the same is determined as excess area under the Ceiling Laws. These provisions of Section 30E of the Act clearly demonstrate that the Legislature was clear in its mind when the scheme was formulated to make a providence for surrendering the land as and when the same is determined as excess area under the Ceiling Laws. First such land has to be preferred to be surrendered which is not encumbered and thereafter, encumbered land should be subjected to surrender. In the instant case, the writ petitioners were purchasers of land and the private appellants were the sellers. The appellant's land came in ceiling. He, while giving his option, mentioned the land for surrender, which was sold to the writ petitioners. The lands sold to the writ petitioners could not have been offered by the appellant prior to offering his unencumbered land mentioned under second proviso to Section 30E of the Act. 8. There was a mistake committed, on the part of the appellants, while submitting statement before the designated authority, in relation to the land which was to be offered to the State. 9. Learned counsel for appellants emphasised that the land held by the purchasers have to be held to be unencumbered as the sale in their favour has not been recognised by operation of law. Thus, land held by the purchasers have to be considered to be unencumbered land. To understand this proposition, we may here make a reference to the relevant provision of law i.e. Section 30D of the Act:- "30D. Certain transfers not to be recognised for fixing ceiling area under Section 30C - (1) For the purpose of determining, the ceiling area in relation to a person under Section 30C, any voluntary transfer effected by him on or after the 25th day of February, 1958, otherwise than - (i) by way of partition, or (ii) in favour of a person who was a landless person before the said date and continued to be so till the date of transfer, of the whole or a part of his holding shall be deemed to be a transfer calculated to defeat the provisions of this Chapter and shall not be recognised and taken into consideration: and the burden of proving whether any such transfer falls under clause (i) or (ii) shall lie on the transferor. Provided that if by way any such transfer as is o mentioned in clause (ii) land in excess of the ceiling area applicable to the transferee has been transferred to him, such transfer to the extent of such excess shall not be recognised or taken into consideration for the purpose of this sub-section: Provided further that no such transfer as is mentioned in clause (ii) shall also be taken into consideration or recognised if it has been made after the 9th day of December, 1959. (2) Every such transfer as is mentioned in subsection (1) shall, notwithstanding anything contained in this Act or in any other law for the time being in force in the whole or in any part of the State, be not enforceable as against the State Government in respect of any land forming the subject-matter of such transfer and coming to the State Government under Section 30E." 10. The aforesaid provision of law only speaks of effect of transfer for the purposes of defeating the ceiling laws. Apart from that, the sale as made has to be seen in the light of Transfer of Property Act. It is not otherwise invalid. It will be a sale in the light of Transfer of Property Act. Thus, a valid sale would thus create an encumbrance on the property. The word "encumbrance" has been defined in the Black's Law Dictionary in the following words : "Encumbrance.- Any right to, or interest in, land which may subsist in another to diminution of its value, but consistent with the passing of the fee by conveyance. Knudson v. Weeks, D.C.OKI., 394 F.Supp. 963, 976 . A claim, lien, charge, or liability attached to and binding real property; e.g. a mortgage; judgment lien; mechanics' lien; lease; security interest; easement or right of way; accrued and unpaid taxes. If the liability relates to a particular asset, the asset is encumbered." 11. Thus, it is seen that the transfer, referred to by the appellants, may be an unrecognised one for the purposes of ceiling laws, would be seen as an encumbrance if it is otherwise in accordance with law. There can be many instances of encumbrances. We don't mean to define it exhaustively. It is in the context of the facts obtaining the present case. The instance here is only illustrative not exhaustive. 12. There can be many instances of encumbrances. We don't mean to define it exhaustively. It is in the context of the facts obtaining the present case. The instance here is only illustrative not exhaustive. 12. Learned counsel for the appellants emphasised that in terms of Section 30D of the Act, any sale could not concern the State as delineated in sub-section (2) of Section 30D. We have given our thoughtful consideration to sub-section (2) of Section 30D which has been reproduced herein above. It has to be read in the context of the purposes defined in Section 30E of the Act. 13. There is a clear demonstration of intention of the Legislature which says that such providence has been made in the law to safeguard the interest of the State with reference to Section 30E of the Act. In terms of Section 30E of the Act, the lands which have to first come to the State Government have to be in the nature of unencumbered lands. That being the position, the sale made by the private appellant makes a curious exposition of intention of the parties. It was in 1971 when the ceiling area was determined and the sale was made in the years 1974 and 1977. There was a clear intention of the seller to defraud the provisions of the Ceiling Laws. To further these intentions, only that land was mentioned in the statement which has been sold by the appellants. Such appellants cannot be held to have come to the Court with clean hands. Their intention is to somehow defeat the law. It is more than obvious when the land is sold in 1974 and 1977 after computation of land in Ceiling Laws has already been made in 1971. 14. By operation of law, the lands vested in the State Government when the lands were declared to be surplus. It was only to be specified. Having first sold and then entered the same in the statement filed by them shows the intention of the appellants. Such persons who have oblique motives in using the technicalities of law cannot be considered to be bona fide. In the instant case, the law is clear and unambiguous. Section 30E of the Act clearly demonstrates that such lands have to be first surrendered which are unencumbered. That has not been done by the appellants. Such persons who have oblique motives in using the technicalities of law cannot be considered to be bona fide. In the instant case, the law is clear and unambiguous. Section 30E of the Act clearly demonstrates that such lands have to be first surrendered which are unencumbered. That has not been done by the appellants. That being the position, the law emphasised by the petitioners that the purchaser of the land should not be heard, is of no consequence. As far as the case of Gulab Singh is concerned, the land vested in State in 1971 and the same was sold in 1974, it has demonstrated the appellant's intention of playing against the law. 15. In that view of the matter, the judgment of the learned Single Judge is not liable to be interfered. We find support for the proposition which has been aforesaid, from the Division Bench judgment of this Court reported in 1991(2) RLR 543 in case of Sukhvendra Singh & Ors. v. Board of Revenue & Ors . Accordingly, the appeal filed by Gulab Singh deserves to be dismissed and the same is hereby dismissed. 16. This takes us to the appeal of the State Government filed in this relation. The State Government has challenged the order of the learned Single Judge because they were proceeding under Section 91 of the Rajasthan Land Revenue Act against the purchasers. May be that the action of the State Government was right but before determining the case of surrender of unencumbered land, it would not be proper for the State to proceed under Section 91 of the Rajasthan Land Revenue Act against the purchasers. Therefore, after taking possession of unencumbered land, if thereafter any land remains to be acquired, then only the State can proceed under Section 30E of the Act against the purchasers whose transfer has not been recognised and in that view of the matter, to that extent, no interference is made in this appeal. 17. Therefore, after taking possession of unencumbered land, if thereafter any land remains to be acquired, then only the State can proceed under Section 30E of the Act against the purchasers whose transfer has not been recognised and in that view of the matter, to that extent, no interference is made in this appeal. 17. In the matter of appellant Murar Dan, while deciding the case, the learned Single Judge has framed the issue involved in that case in the following terms : "The issue in this case is confined to that where a person is found to be holding land in excess of the ceiling limit and surplus land is to he acquired by the State, whether surrender be acquisition of the surplus land first reach the lands which are in possession of the holder or irrespective of the lands in possession of the holder, the lands of the transferees from the holder whose transfer for the purpose of computing holding in the hands of the cultivator having been not recognised, can be reached with out making any attempt to satisfy the acquisition of surplus land by surrender of lands which continue to be held and possessed by the cultivator." 18. The above question has been answered in the following terms : "This Court has categorically answered on more than one occasions the aforesaid question in negative, against acquisition of lands of transferees by surrender in preference to lands which are in possession of the cultivator on the relevant date........" "Thus, for this Court, the matter stands concluded that so long as the transferor remains in possession of the lands, the acquisition of the surplus lands cannot be from the lands held by the transferees whose transfers have not been recognised. It is only after acquiring the lands in possession of the holder, by forcing him to surrender such land if any land still remains to be acquired as surplus land as per the determination, the lands in possession of the transferees can be reached...." 19. Thus, the learned single Judge has held in conformity with the law laid down by us in the aforesaid paras, therefore, that is approved. The land which is unencumbered has to be first acquired and if after that, there remains more land to be acquired to fulfil the obligation of Ceiling Law, the land of the transferees will be acquired. 20. The land which is unencumbered has to be first acquired and if after that, there remains more land to be acquired to fulfil the obligation of Ceiling Law, the land of the transferees will be acquired. 20. In view of the aforesaid, all these appeals are hereby dismissed.Appeals dismissed. *******