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2010 DIGILAW 3107 (ALL)

Devi Dayal (Deceased) By Lrs. v. State of U. P. and others

2010-10-05

ARUN TANDON

body2010
Arun Tandon,J.:- Proceedings under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act were initiated against recorded tenure holder culminating in an order of the Prescribed Authority dated 30.8.1976 declaring 66-7-9 bighas of land as surplus. 2. Not being satisfied with the orders so passed, the tenure holder filed an appeal before the District Judge, Banda which was allowed under order dated 14.12.1976 and the matter was remanded to the Prescribed Authority for reconsideration of the issued raised. The Prescribed Authority redetermined the ceiling limits vide order dated 30.1.1984 and held that the recorded tenure holder had 66-7-9 bighas of land as surplus. 3. Not being satisfied with the said order, the recorded tenure holder preferred an appeal under Section 13 of the Ceiling Act, which was allowed on 23.7.1984 and the matter was remanded for Prescribed Authority for reconsideration of the following issues: (a) What part of the holding of the petitioner was irrigated/unirrigated. (b) The transferee of the land under the alleged sale deed executed by the tenure holder be served with a notice and afforded opportunity and the matter be adjudicated afresh. 4. Accordingly, notices were issued to the transferees to put in their appearance. Both on behalf of the petitioner as well as transferees appeared and filed their objections and it was stated that the two sale deeds dated 7.7.1971 were executed by the recorded tenure holder whereunder he transferred 20 bighas of land by means of the first sale deed and 16-9 bighas of land by means of the second sale deed in good faith. It was claimed that the transferred land be excluded from the holding of the petitioner and ceiling limits be determined accordingly. Similar objections were raised qua certain land being treated as irrigated. The petitioner is stated to have pressed before the Prescribed Authority that he had four major sons and therefore two hectares of additional land for each major son be provided. 5. The Prescribed Authority under the order dated 20.2.1986 rejected the objections so raised by the petitioner taken as well as by the purchaser of the property and held that the tenure holder had 63-5-1 bighas of land as surplus and the earlier determination was affirmed. 6. Not being satisfied the petitioner tenure holder preferred an appeal under section 13. 5. The Prescribed Authority under the order dated 20.2.1986 rejected the objections so raised by the petitioner taken as well as by the purchaser of the property and held that the tenure holder had 63-5-1 bighas of land as surplus and the earlier determination was affirmed. 6. Not being satisfied the petitioner tenure holder preferred an appeal under section 13. It may be recorded that from the records of this petition, it is clear that the purchasers of the property did not file any appeal. The appeal filed by the petitioner was confined to the issues. (a) The land covered by the sale deeds to be excluded from the holdings of the tenure holder. (b) That the authorities have illegally determined that 13 plots of land were irrigated. 7. So far as the first contention raised on behalf of the appellant is concerned, it has been held that the sale deed had been executed subsequent to 24.1.1971 and that on the relevant date i.e. 8.6.1973 the name of the tenure holder continued to be recorded in the revenue records. The total consideration said to have been paid for the land transferred was under valued. It was further recorded that the transferees were family members of the recorded tenure holder and that he was in actual possession of property in dispute. It has therefore been held that the transactions were benami. 8. So far as the issue of irrigated land is concerned, it has been recorded that the entire holding of village Kamasin, Amlokhar and Lakhipur was irrigated while the entire holding of village Katohar was unirrigated. The recorded tenure holder could not establish otherwise. Accordingly, the appeal has been dismissed. 9. I have heard counsel for the parties and have examined the record. Although initially an attempt was made to allege before this Court that the plea raised by the petitioner that he was entitled two hectares of land each for his four major sons has not been considered by the appellate authority but such issue could not be demonstrated to have been actually raised/pressed before the Prescribed Authority/Appellate Authority. Neither the grounds of appeal have brought on record nor any such plea has been noticed in the appellate order. It is not the case of the petitioner that such ground was pressed before the Appellate Authority but has not been considered. 10. Neither the grounds of appeal have brought on record nor any such plea has been noticed in the appellate order. It is not the case of the petitioner that such ground was pressed before the Appellate Authority but has not been considered. 10. It is settled law that orders of the Authorities are to be judged for the reasons recorded, the petitioner has not pressed the plea qua additional land being provided in respect of his major sons, he cannot do so at this stage for the first time. The issue necessarily requires consideration of documentary as well as oral evidence, it has to be decided as to whether the sons were major on the relevant date for providing two hectares of land to each major son or not. 11. This Court may record that from the evidence brought on record in this writ petition, it could not be demonstrated that on the relevant date, the alleged four sons of the petitioner were major. This Court finds no good ground to interfere with the order of the Appellate Authority on the grounds not raised before it. 12. So far as the issue of exclusion of the land covered by two sale deeds dated 7.7.1971 is concerned, this Court finds that both the authorities have noticed that the land continued to be recorded in the name of the tenure holder up to the relevant date i.e 6.8.1973. He was in actual possession of the property. The property was sold to the close relatives of the tenure holder. The sale was under value. On the basis of the aforesaid facts it has been concluded that the sale transaction was benami. 13. This Court is of the firm opinion that the findings recorded by the Appellate Authority are based on appreciation of evidence brought on record. The same cannot be termed as perverse or based on no evidence. Such findings of fact cannot be substituted by the writ court on re-appreciation of evidence. Similarly, in respect of issue of land being irrigated/unirrigated, both authorities have recorded finding on the basis of evidence brought on record which could not be demonstrated to be perverse. This Court finds no good ground to interfere with the orders so passed by the Prescribed Authority as well as Appellate authority. 14. Writ petition lacks merit and is accordingly dismissed. This Court finds no good ground to interfere with the orders so passed by the Prescribed Authority as well as Appellate authority. 14. Writ petition lacks merit and is accordingly dismissed. At this stage, counsel for the petitioner submitted that because of the interim order he continues to be in possession of the surplus land also and one last opportunity be afforded to the recorded tenure holder to exercise his choice. Standing counsel opposes the prayer so made and submits because of interim order, the petitioner has continued for 22 years in unauthorised possession and use of surplus land. The litigation should be brought to an end. 15. In the totality of the circumstances on record and since the petitioner has been possession over the surplus land till date because of the interim order, this Court provides as follows: Petitioner may exercise his choice in respect of the land is still recorded in his name and qua which there is no litigation pending in any court of law within one month from today. The petitioner shall deliver his possession of the same without any demur to the authorities concerned. It is done than the choice exercised by the petitioner may be accepted by the authorities. In case, the petitioner fails to do so, the authorities are free to proceed in accordance with law.