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2010 DIGILAW 1105 (ALL)

KRISHNA PAL v. STATE OF U. P.

2010-04-05

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—All the seven petitioners are the sons of Late Sri Sadashiv, resident of Village Bardwara, Tehsil Karvi, District Banda who have come up questioning the correctness of the order of the Prescribed Authority dated 31.3.1986 and of the learned Commissioner in appeal dated 4th of February, 1988 under the provisions of U.P. Imposition of Ceiling on Land Holdings Act. 2. A notice was issued under Section 10(2) of the Act proposing to declare 13.41 acres of land surplus in the hands of the tenure holders. The petitioner Krishna Pal and others filed objections which was pursued by one of the petitioners Krishna Pal. The authorities proceeded to record the statements of the revenue officials and, thereafter the prescribed authority proceeded to hold that the land proposed as surplus deserves to be declared as such. The petitioners were called upon to offer their choices under the order dated 31.3.1986. 3. An appeal was preferred by the petitioners and the order of the prescribed authority was affirmed on 4th February, 1988. The present writ petition was instituted and an interim order was granted on 18.3.1988 restraining the respondents from dispossessing the petitioners from the land in dispute. The writ petition was admitted on 12.5.1988 whereafter a counter-affidavit has been filed on behalf of the State to which a rejoinder has also been filed by the petitioners. An interim order was further passed by this Court on 19.5.1988 in favour of the petitioners. The rejoinder affidavit brings on record a judgment dated 20.6.1998 by the Sub-Divisional Magistrate in a suit under Section 229-B of the U.P.Z.A. & L.R. Act. A copy of the said rejoinder was served on the learned Standing Counsel as per endorsement thereon on 12.8.2002. 4. Learned counsel for the petitioner contends that the impugned order proceeds on erroneous assumption of facts and on a misconstruction and misconstruing of the evidence on record as a result whereof, both the authorities have arrived at a wrong conclusion. Not only this, the law which has been applied is on the basis of wrong facts and as such the impugned orders are liable to be set aside as there is no surplus land available in the hands of the petitioners. 5. Not only this, the law which has been applied is on the basis of wrong facts and as such the impugned orders are liable to be set aside as there is no surplus land available in the hands of the petitioners. 5. Learned Standing Counsel has taken a stand that the findings recorded are based on evidence and, therefore, this Court may not interfere with these findings of fact in relation to the date of death of Sadashiv and Raghu Nandan. 6. The facts in short are that there is an undisputed pedigree as noted below: Dwarika Prasad Sadashiv Raghu Nandan (died issueless) Krishna Gomti Tilak Ram Madan Jay Ram Badan Pal Narain Narain Prakash Mohan Narain 7. Sadashiv and Raghu Nandan were real brothers, who were admittedly the recorded tenure holders of the entire land. The date on which the tenure has to be calculated is 24th January, 1971 and for some transactions dated 9.6.1973. These are the two dates on which the land has to be determined in the hands of a tenure holder and which cannot exceed 18 acres of land in the irrigated sense. There is no dispute that both the brothers were alive in 1971 and 1973 respectively and, therefore, both of them had equal shares in the holding. The entire holding in the irrigated sense between two brothers is reported to be 32.29 acres. If the said land is divided into half, both the brothers Sadashiv and Raghu Nandan receive less than 18 acres individually and, therefore, they could not have been proceeded against for holding surplus land in respect of the shares that would come to them in terms of calculations under the Ceiling Act. 8. The dispute arose when one Mr. S.L. Tiwari the Sub Divisional Magistrate of Karvi during his tenure received information through reliable sources, that Raghu Nandan who was issueless, predeceased his brother Sadashiv in the year 1975 or 1976 and as a consequence thereof Sadashiv became owner and recorded tenure holder of the entire land. Sadashiv also reportedly died and, therefore, notices were issued to the sons of Sadashiv mentioned in the pedigree herein above, calling upon them to show cause as to why an area of 13.41 acres of land be not declared as surplus. This information to Mr. Sadashiv also reportedly died and, therefore, notices were issued to the sons of Sadashiv mentioned in the pedigree herein above, calling upon them to show cause as to why an area of 13.41 acres of land be not declared as surplus. This information to Mr. S.L. Tiwari was reportedly received after almost 10 years of the death of the two brothers, the source whereof is not disclosed but is alleged to be reliable. The notice proceeded on the presumption that after the enforcement of the Act, the younger brother Raghunandan predeceased his elder brother. As a result, the elder brother became owner of the entire land having succeeded Raghunandan who died issueless. Thus a according to the State Sadashiv had land in access of 18 acres and therefore, the notices were issued. 9. Sri Krishna Pal S/o Late Sadashiv and his brothers filed their objections and a true copy of the same is brought on record as Annexure-2 to the writ petition dated 3.6.1985. The matter proceeded and the statements of the Revenue Officials including Madhav Prasad and Ram Lakhan have been recorded. The statement of the then Kanungo was also recorded. The petitioners filed copies of the extract of the family register prepared under the provisions of the U.P. Panchayat Raj Act and the Rules framed thereunder and also led oral evidence. The Prescribed Authority after assessing the said evidence came to the conclusion that Sadashiv was very much alive when the Ceiling Act came into force and Raghu Nandan had predeceased him. As a consequence of Raghu Nandan having predeceased Sadashiv, his entire land became the holding of Sadashiv as Raghu Nandan was issueless. For this the prescribed authority relied on certain deposits made on 19.1.1976 and 18.2.1976 by Sadashiv and Raghu Nandan respectively which were 20 times, the revenue of certain part of the holding in dispute for converting it into Bumidhari tenure under the provisions of Section 134 to 137 of the U.P.Z.A. & L.R. Act. The Prescribed Authority concluded that since these deposits were made on 19.1.1976 and 18.2.1976 respectively, it appears that the date of death as reflected by the petitioners in their objections are not correct and they had manipulated the date of death of their own father prior to the death of Raghu Nandan by getting the mutation order recorded incorrectly. 10. The Prescribed Authority concluded that since these deposits were made on 19.1.1976 and 18.2.1976 respectively, it appears that the date of death as reflected by the petitioners in their objections are not correct and they had manipulated the date of death of their own father prior to the death of Raghu Nandan by getting the mutation order recorded incorrectly. 10. On the strength of the aforesaid evidence the prescribed authority concluded that Raghu Nandan had predeceased Sadashiv and, therefore, Sadashiv was the sole tenure holder and as such there was land surplus in his hands. 11. The prescribed authority discarded the evidence of family register produced by the petitioner on the ground that the same was not proved by producing the concerned Gram Panchayat Adhikari who was the custodian of the said register. The same was, therefore, not found worth admitting in evidence. 12. The prescribed authority believed that the manner in which mutation was carried out does not inspire confidence and, therefore, the date of deaths mentioned in the mutation proceedings and recorded in the extracts of Khatauni also do not help the objectors. In effect the proceedings initiated on the reliable information of the then prescribed authority Mr. S.L. Tiwari after 10 years of the death of the tenure holders was believed to be true. 13. Having perused the entire records including the counter-affidavit and the rejoinder filed on behalf of the petitioners the central issue for determination in this litigation is about the date of death of the two brothers Sadashiv and Raghu Nandan. The State led evidence by calling upon their Lekhpals and the statement of Madhav Prasad was recorded. Madhav Prasad was the concerned Lekhpal who prepared the Ceiling Forms and submitted it to the then Sub Divisional Officer, Shyam Lal Tiwari. In his statement, which is Annexure-6 to the writ petition, the said Lekhpal states that he had prepared the file on the asking of the said Sub Divisional Officer/Prescribed Authority. He further states that it was Mr. S.L. Tiwari who said that the father of the petitioners Sadashiv was alive. He further states that he had remained Lekhpal for six years but he never saw Sadashiv or Raghu Nandan alive and that the land was in the possession of the petitioners. He also stated that he did not carry out any inquiry at all before submitting this report to Mr. He further states that he had remained Lekhpal for six years but he never saw Sadashiv or Raghu Nandan alive and that the land was in the possession of the petitioners. He also stated that he did not carry out any inquiry at all before submitting this report to Mr. S.L. Tiwari, the then Prescribed Authority and Mr. Ram Sajivan, the Kanungo never went with him for equiry on the spot. This key witness of the State has nowhere stated the exact date of death of Sadashiv or Raghunandan. 14. The aforesaid statement of the witness of the respondent State, who is said to be the initiator of the proceedings, itself indicates that there is no statement about the date of death of Sadashiv or Raghu Nandan by the said Lekhpal. Not only this, he also categorically states that he did not make any inquiry before proceeding to submit the report. Apart from this he further stated that he was Lekhpal for six years of the said village and he never saw Sadashiv and Raghu Nandan alive. 15. A perusal of the said statement of the Lekhpal who is the key witness of the initiation of the proceedings as well as the status of the tenure holders whether they were dead or alive, does not in any way establish or support the assumption of Mr. S.L. Tiwari, the then prescribed authority who is alleged to have received some news from reliable sources. There is no disclosure as to what was the reliable source of information of Sri. S.L. Tiwari, the then Sub Divisional Officer. The impugned order neither discusses the aforesaid aspect of the statement of the Lekhpal nor does it indicate disclosure of any relevant evidence as to the source of information received by Mr. S.L. Tiwari for initiating the proceedings. 16. In the absence of any such material, either in the statement of the Lekhpal or any evidence in relation to the alleged information received by Mr. S.L. Tiwari or its source the prescribed authority appears to have proceeded to draw conclusions on mere surmises and against the weight of evidence on record. The prescribed authority has not even indicated his opinion on the said statement and has concluded that the mutation was carried out in collusion with the Officials. S.L. Tiwari or its source the prescribed authority appears to have proceeded to draw conclusions on mere surmises and against the weight of evidence on record. The prescribed authority has not even indicated his opinion on the said statement and has concluded that the mutation was carried out in collusion with the Officials. In my opinion, the aforesaid conclusion is founded on surmises and conjectures and against the weight of evidence on record. 17. The second issue is with regard to the date of death of Sadashiv recorded as 25.11.1975 in the family register. A family register is a public record in terms of the Evidence Act inasmuch as the same is prepared under the statutory provisions of Section 15 (xxiii)(e) of U.P. Panchayat Raj Act read with Rule 2, Rule 67, Rule 142 to 144 of the U.P. Panchayat Raj Rules, 1947. The family register is prepared under the Uttar Pradesh Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It is to be noted that Form(A) also records the date of death of a family member. There is yet another Form namely Form (D) which is for registering the date of birth and death. Both these Forms, therefore, record the date of death of a person and they are prescribed under the Rules. Needless to say that the rules are framed by the State Government and the registers prescribed for particular purposes are notified under the rules. Reference may be had to Section 110 (vii) of the 1947 Act for the said purpose. 18. In my opinion, a presumption has to be drawn in respect of the said public document and it cannot be merely disbelieved if the Gram Panchayat Adhikari had not been produced to prove it. The copy of the family register is a public document and a presumption as to its genuineness is accepted under Section 79 of the Indian Evidence Act. No doubt was ever raised by the State of its issuance or genuineness. In such circumstances there was no occasion for the petitioners to produce the Gram Vikas Adhikari for proving a public document maintained under rules and defined in Section 74 of the Evidence Act. No doubt was ever raised by the State of its issuance or genuineness. In such circumstances there was no occasion for the petitioners to produce the Gram Vikas Adhikari for proving a public document maintained under rules and defined in Section 74 of the Evidence Act. On the contrary, the extract of the family register was produced and filed by the petitioners, and if the authority had any doubt about it, it could have summoned the family register as also the concerned Gram Panchayat Adhikari to satisfy the correctness or otherwise of the said entries or in the alternative could have called upon the State to produce it. The petitioners, in my opinion, had discharged their burden and the onus lay on the State to disprove the same. The statements of the revenue officials do not indicate any denial of the aforesaid documents. The State did not rebut the said evidence by questioning the entry or issuance of the extract by the competent authority. In such a situation the prescribed authority committed a manifest error by not accepting the date of death of Sadashiv as 25.11.1975 as indicated in the family register and the revenue records. The mutation orders that were in favour of the petitioners were admitted to have been recorded by the Lekhpal and Kanungo. 19. The petitioners had come out with a clear case that Sadashiv had died earlier on 25.11.1975 and Raghu Nandan died later on 12.2.1976 as is evident from the mutation orders entered in Form P.A. 11. 20. The respondent State has relied on the deposit receipts dated 19.1.1976 and 18.2.1976 of 20 times of revenue in the name of Sadashiv and Raghu Nandan respectively. On the strength of these receipts it was contended by the State that both Sadashiv and Raghu Nandan were alive and their deaths had not taken place on the dates as mentioned by the petitioners i.e. 25.11.1975 and 12.2.1976. The prescribed authority has nowhere recorded that the aforesaid receipts which had been issued were upon deposits made by Sadashiv and Raghu Nandan themselves in person. No official was produced to prove the said receipts. The petitioners or their witnesses were never put to cross-examination about any such evidence. The prescribed authority has nowhere recorded that the aforesaid receipts which had been issued were upon deposits made by Sadashiv and Raghu Nandan themselves in person. No official was produced to prove the said receipts. The petitioners or their witnesses were never put to cross-examination about any such evidence. Apart from this merely because the mutation order was carried out on the same Form recording the date of death of Sadashiv as 25.11.1975 and that of Raghu Nandan 12.2.1976 simultaneously the same cannot lead to the conclusion that it was done collusively. Collusion has to be established through actual evidence and not by mere inference or bald allegations. 21. In order to prove collusion, something more has to be indicated about the overt and covert acts of the authorities. The presumption, that the said mutation was carried out with a view to avoid the Ceiling proceeding is absolutely misconceived and an additional reason for this is that if according to the State both Sadashiv and Raghu Nandan were alive and their date of deaths had been wrongly recorded, then there was no occasion to issue any notice or take steps under the Ceiling Act as both Sadashiv and Raghu Nandan in their respective shares were entitled to hold the entire land which individually would be less than 18 acres in their hands. In such a situation, if Sadashiv and Raghu Nandan were individually holding land, there was no occasion for them to be a party to any such attempt of collusion. 22. The entire case of the State is, therefore, based on the alleged information of Mr. S.L. Tiwari and on the two receipts dated 19.1.1976 and 18.2.1986. The said receipts do not establish the date of death of Sadashiv or Raghu Nandan. The manner in which a deposit confers a right of bhumidhari tenure under the provisions of the then existing Section 134 to 137 of the U.P.Z.A. & L.R. Act, has been dealt with in the decision of the Apex Court in the case of Deo Nandan and another v. Ram Saran and others, (2000) 3 SCC 440 . The said proceedings are a certification of the change of tenure and they do not relate to the date of death or the date of actual physical presence of the concerned person. The said proceedings are a certification of the change of tenure and they do not relate to the date of death or the date of actual physical presence of the concerned person. The reliance placed on the said receipts, therefore, do not conclude or establish the exact date of death of the tenure holders. The Prescribed Authority as well as the Commissioner both committed an error by placing heavy reliance on the said receipts and by discarding a documentary evidence which was substantial proof, namely the family register extract, indicating the exact date of birth corroborated by the mutation order in their favour. An evidence which was established and proved in law could not have been discarded on the strength of a mere information, the source whereof was neither known nor proved or also on the basis of receipts of deposit which did not indicate the date of death. The said evidence of the State, therefore, having failed to establish the date of death of Sadashiv and Raghu Nandan, the issuance of the notices on the mere information of Mr. S.L. Tiwari was absolutely erroneous and remains uncorroborated. 23. The statement of the revenue officials fails to point out the exact date of death of Raghu Nandan or Sadashiv. In the absence of any such positive material there was absolutely no reason to disbelieve the evidence about the date of death as projected by the petitioners. The burden is always on the State to prove a fact in relation to the date of death which was being inferred on the basis of the two receipts referred to herein above. The State, in my opinion, failed to discharge that burden of fixing the date of death of the tenure holders. Conversely the petitioners had discharged their burden by producing conclusive evidence about the date of death namely their oral evidence supported by documentary evidence in the shape of a family register extract maintained as a public document and the orders of mutation under the provisions of the U.P. Land Revenue Act, 1901. Having discharged its burden, the onus stood shifted on the State to disprove the same. The State did not discharge its onus as recorded herein above. Having discharged its burden, the onus stood shifted on the State to disprove the same. The State did not discharge its onus as recorded herein above. Accordingly, the State which was under an obligation to prove its facts namely the contents of the family register by leading evidence, there was no occasion for the Prescribed Authority or the Commissioner to have rejected the claim of the petitioners. The finding, therefore, recorded by the prescribed authority on this score cannot be sustained. The Commissioner has also committed the same error by recording that the petitioners did not lead any evidence to support their contention in relation to the date of death as indicated above. The petitioners led oral evidence as well as documentary evidence to establish their claim which could not be successively rebutted by the State. The Commissioner, therefore, totally ignored the aforesaid aspects of the matter and thus arrived at an incorrect conclusion. 24. The learned Commissioner instead of attending to these issues which were raised in the appeal and have been noted by him has simply reiterated all the findings of the prescribed authority and has affirmed the same. The entire inquiry which has been made by the authorities does not make out a case of any reassessment of the land in the hands of the petitioners that too even after 10 years of the death of the tenure holders on the strength of a mere hearsay information. In my opinion, the authorities have committed an error as pointed out herein above and their conclusions are absolutely erroneous. The order of the learned Commissioner is equally bad for the reasons for which the order of the prescribed authority is infirm. 25. The Prescribed Authority has failed to take notice of the statement of Madhav Prasad, Lekhpal which itself narrates that he had not made any inquiry prior to the preparation of the Ceiling Forms and, therefore, in the absence of any such prior inquiry there was no occasion for calling upon the petitioners to file any objections. The initiation of the notice itself was absolutely unfounded and based on no evidence in relation to the date of death of Sadashiv. 26. The petitioners, in my opinion, had conclusively proved that Raghu Nandan died later on after the death of Sadashiv. The initiation of the notice itself was absolutely unfounded and based on no evidence in relation to the date of death of Sadashiv. 26. The petitioners, in my opinion, had conclusively proved that Raghu Nandan died later on after the death of Sadashiv. The petitioners accordingly inherited the entire shares of Sadashiv to the tune of 1/7th each and when Raghu Nandan died thereafter they again inherited his share accordingly. If the aforesaid calculation is taken to be correct then there is no surplus land in the hand of the petitioners. The impugned orders, therefore, in my opinion, being erroneous are liable to be set aside. Accordingly, the order of the prescribed authority dated 31.3.1986 and that of the learned Commissioner dated 4.2.1988 hereby quashed. The prescribed authority shall accordingly, proceed to maintain the revenue records in relation to the claim of the petitioners and pass an appropriate order to that effect in the light of the conclusions and observations hereinabove. 27. The writ petition is allowed with no orders as to costs. ————