JUDGMENT Hon’ble S.U. Khan, J.—Heard learned Counsel for the parties. 2. Musammat Veeren Kunwar was a big tenure holder. She mortgaged part of her agricultural land comprised in plot No. 153 area about 50 bighas with Punjab National Bank. The area of the land mortgaged is 49 Bigha 13 Biswa 6 Biswansies and 10 Kachwansies (about 50 Bigha) comprised in Plot No. 153, Khata No. 65 Village Paharpur Tehsil Anupshahr district Bulandshahr (para 4 of the writ petition). The mortgage was without possession hence there was no question of inclusion of the name of the Bank in the revenue records. Proceedings for declaration of surplus land under U.P. Imposition of Ceiling on Land Holdings Act, 1960 were initiated against Smt. Veeren Kunwar. About 55 Bigha land belonging to her was declared as surplus land. Thereafter she gave the choice of the land to be taken as surplus land and mentioned in the said choice that the land of plot No. 153 might be taken as surplus land (this land she had already mortgaged with the bank). When bank came to know about these proceedings, it filed application under Section 13-A of the Ceiling Act before the prescribed authority under Ceiling Act of Tehsil Anupshahr, district Bulandshahr in case No. 158. The matter was decided by the prescribed authority against the Bank on 6.10.1980. The prescribed authority held that according to the report of the Tehsil, if the land in dispute was not taken as surplus land then there would be no land available to the tenure holder Smt. Veeren Kunwar as all other land had been sold by her. Against order dated 6.10.1980, petitioner bank filed Appeal No. 30 of 1985-86. Additional Commissioner, Meerut Division Meerut through judgment and order dated 24.7.1986, dismissed the appeal hence, this writ petition. 3. It has been stated in para 5 of the writ petition that for recovery of its amount, petitioner bank commenced recovery proceedings against Smt. Veeren Kunwar under Section 11 of the U.P. Agricultural Credit Act, 1973 and an order/decree was passed on 13.2.1975 in favour of the Bank. However, the said order/decree could not be executed as District Magistrate reported that the mortgaged land had been taken as surplus land. Thereafter petitioner Bank filed objections before prescribed authority under the Ceiling Act which were rejected by above orders. 4. However, the said order/decree could not be executed as District Magistrate reported that the mortgaged land had been taken as surplus land. Thereafter petitioner Bank filed objections before prescribed authority under the Ceiling Act which were rejected by above orders. 4. The case of the petitioner is based upon Section 12-A (c) of the Ceiling Act, which is quoted below : “(c) where any person holds land in excess of the ceiling area including any land mortgaged to the State Government or to a [bank as defined in clause (c) of Section 2 of the Uttar Pradesh Agricultural Credit Act, 1973] or to a co-operative land development bank or other co-operative society or to the Corporation or to a Government Company, the surplus land to be determined shall, as far as possible, be land other than that so mortgaged;” 5. The appellate Court held that the name of the bank was not entered in the revenue records and the fact of mortgage was also not recorded in the revenue records hence bank could not raise any objection. The reason given is not at all tenable. There is no provision under which the name of simple mortgagee is recorded in the revenue records. Moreover Section 12-A(c) does not require that for its attraction name of the Bank etc. should be recorded in the revenue records. 6. As far as the question of availability of some other land with Smt. Veeren Kunwar for being taken as surplus land is concerned, the Courts below held that she had sold all other lands. No tenure holder can frustrate the ceiling proceedings by selling his/her property. No dates of the sale deeds have been mentioned in the impugned order. If the sale deeds were executed during the continuance of ceiling proceedings or after their conclusion then the same were void by virtue of Section 5(8) of the Act vide Rajendra Singh v. State of U.P and others, AIR 1999 SC 124 . However, in case sale deeds were executed after 24.1.1971 but before commencement of ceiling proceedings in relation to tenure holder then the sale deeds could either by held to be perfectly valid if the transfer was in good faith and for adequate consideration otherwise such transfer is to be ignored by virtue of Section 5(6) of the Act. However, in case sale deeds were executed after 24.1.1971 but before commencement of ceiling proceedings in relation to tenure holder then the sale deeds could either by held to be perfectly valid if the transfer was in good faith and for adequate consideration otherwise such transfer is to be ignored by virtue of Section 5(6) of the Act. Even if under the said provision a sale deed in between 24.1.1971 and commencement of ceiling proceedings is to be ignored still by virtue of Section 12-A (d) of the Act the transferee could ask the prescribed authority not to take the said land as surplus land. Section 5(6) without explanations and Section 5(8) and Section 12-A (d) are quoted below : "5 (6). In determining the ceiling area applicable to a tenure holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account : Provided that nothing in this sub-section shall apply to— (a) a transfer in favour of any person (including Government) referred to in sub-section (2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder of other members of his family. 5 (8) Notwithstanding anything contained in sub-sections (6) and (7), no tenure- holder shall transfer any land held by him during the continuance of proceedings for determination of surplus land in relation to such tenure holder and every transfer made in contravention of this sub-section shall be void. Explanation.—For the purposes of this sub-section, proceedings for determination of surplus land shall be deemed to have commenced on the date of publication of notice under sub-section (2) of Section 9 and shall be deemed to have concluded on the date when an order in relation to such tenure holder is passed under sub-section (1) of Section 11 or under sub-section (1) of Section 12, or as the case may be, under Section 13. 12-A. (d) Where any person holds land in excess of the ceiling area including land which is the subject of any transfer or partition referred to in sub-section (6) or sub-section (7) of Section 5, the surplus land determined shall, as far as possible, be land other than land which is the subject of such transfer or partition, and if the surplus land includes any land which is the subject of such transfer or partition, the transfer or partition shall in so far as it relates to the land included in the surplus land, be deemed to be and always to have been void, and— (i) it shall be open to the transferee to claim refund of the proportionate amount of consideration, if any, advanced by him to the transferor, and such amount shall be charged on the [amount] payable to the transferor under Section 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to be sold in satisfaction of the charge, notwithstanding anything contained in Section 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950; (ii) any party to the partition (other than the tenure-holder in respect of whom the surplus land has been determined) whose land is included in surplus land of the said tenure-holder shall be entitled to have the partition reopened].” 7. If both the sub-sections i.e. 12-A (c) and (d) are attracted then deed/ transaction which is prior in time will have to be given preference. In the instant case mortgage was executed earlier in favour of the bank and sale deeds were executed afterwards. Accordingly, mortgage under Section 12-A (c) will have to be given preference over sale deeds even if they are covered by Section 12-A (d) of the Act. 8. Accordingly, writ petition is allowed. Both the impugned orders are set-aside. Matter is remanded to the prescribed authority to decide the question of taking surplus land. The prescribed authority shall at once issue notice to respondent Nos. 4 and 5 who are legal representatives of Smt. Veeren Kunwar, original tenure holder. 9. 8. Accordingly, writ petition is allowed. Both the impugned orders are set-aside. Matter is remanded to the prescribed authority to decide the question of taking surplus land. The prescribed authority shall at once issue notice to respondent Nos. 4 and 5 who are legal representatives of Smt. Veeren Kunwar, original tenure holder. 9. However, it is clarified that even though petitioner has got first charge over the mortgaged land, and as it has obtained an order/decree of recovery under Section 11 of U.P. Agricultural Credit Act, 1973 and as that order/decree is to be executed and the amount determined therein is to be recovered like arrears of land revenue; but the Collector (which term include his subordinate/delegatee/Assignee) shall recover the decreed/ordered amount due to the petitioner bank by attaching and selling only as much area of the mortgaged land as may be sufficient to satisfy the said amount. If the entire amount due to the bank is satisfied by selling part of the mortgaged land then the remaining part/area of the mortgaged land shall be taken by the ceiling authority as surplus land and proceedings must be taken for taking remaining surplus land from the agricultural land which was sold by the tenure holder. However, if the entire mortgaged land is necessary to be sold for satisfying the dues of the bank then the entire declared surplus land/area shall be taken from the land sold by the tenure holder. 10. Writ petition is accordingly allowed. ————