Mahfuzur Rahman And Others vs Addl. Commessioner Faizabad Div. ...
2013 Latest Caselaw 1587 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved/AFR
 

 
		Writ Petition No.4545 (Ceiling ) of 1990
 

 
Mahfuzzur Rahman and others                      .....Petitioners 
 

 
					 Vs.
 

 
The Additional Commissioner, 
 
Faizabad Division, Faizabad and others       ...Opp.Parties 
 

 
Hon'ble Shri Narayan Shukla,J.

Heard Mr A.R. Khan, Senior Advocate assisted by Mr.Mohd.Aslam Khan, learned counsel for the petitioners as well as Mr Rohit Verma, learned Standing Counsel.

Through the instant writ petition, the petitioners have challenged the order dated 30.1.1986 (Annexure no.1), passed by the Prescribed Authority, Kaiserganj district Bahraich as also the order dated 22.3.1990, passed by the Additional Commissioner, Faizabad Division, Faizabad in appeal, upholding the order passed by the Prescribed Authority .

The facts of the case, in brief, are that the Prescribed Authority issued a notice on 12.6.1974 under Section 10 (2) of the U.P Imposition of Ceiling on Land Holdings Act (in short Ceiling Act) to Sri Fazal Ali S/o Sri Hasmat Ali, the original tenure holder, who filed objection. The Prescribed Authority after considering the objection declared 9.763 acre land as surplus on 3.2.1975.

Petitioners are purchasers of the land in dispute through the registered sale-deed dated 8.9.1967. It is stated that in a suit filed under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act ( in short U.P.Z.A.& L.R. Act) the petitioner no. 3 was declared as Sirdar. The petitioners also claim that they had not been served with any notice under Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961 (in short Rule). However, after coming to know about the order of declaration, they filed objection under Section 11 (2) of the Act claiming ownership over the plots measuring 14.31 acre. They claimed that they had acquired it by the registered sale-deed executed on 8.9.1967 by the original tenure- holder. They also averred that the possession had also been delivered to them and since then they have been in continuous possession over the land in dispute. They further stated that their adverse possession has also been confirmed by the Sub Divisional Officer in exercise of power provided under Section 229-B of the U.P. Z.A.& L.R. Act. Therefore, the said land could not be included with the land of original tenure holder for the purpose of determination of ceiling area.

The petitioners no. 1 and 2 are the son and daughter of original tenure holders. It is stated by the petitioners that once the land was transferred in their favour by way of registered sale-deed, the original tenure holder cannot be said to be ostensible tenure holder. They further asserted that once they were declared Sirdars of the land in dispute under Section 229-B of the U.P.Z.A.& L.R. Act, the respondents cannot claim their right against the petitioners. It is further stated by them that the courts below misread the provisions of Section 5 (6), (7)(8) of the Act. It is also stated by them that on the date of execution of sale-deed, they were major in age, whereas the courts below have given finding that on the date of sale-deed the petitioners were minor. Thus, the findings of the Prescribed Authority are perverse.

In support of his submission, learned counsel for the petitioners cited the case of Brijendra Singh Vs State of U.P. reported in (1981) 1 Supreme Court Cases 597. In this case Hon'ble Supreme Court has given benefit of clause (b) of the proviso to sub-section(6) to a transfer made in good faith, that is, to a bona fide purchaser whereby the tenure holder genuinely and irrevocably transfers all right, title and interest in the land in favour of the transferee, in the ordinary course of management of his affairs and which is not collusive arrangement, device or subterfuge to enable the tenure holder to continue to hold the surplus land or any reserve interest in presenti or in futuro therein or merely to controvert it into cash and thus circumvent the ban under Section 5(1) of the Ceiling Act. Hon'ble the Supreme Court further held that in order to entitle to the benefit of proviso (b) a transfer made in good faith must satisfy the further conditions(i) to (iv), enumerated in the proviso (b). The positive conditions laid down in proviso (b) are that the transfer should be for adequate consideration; that it should have been made under an irrevocable instrument.

The negative conditions set out in clause (b) of the proviso are that it must not be benami transaction; that it must not be for immediate or deferred benefit of transferring tenure holder or other members of his family . On the point of benami transaction he cited

the case of Jaydayal Poddar vs. Mst Bibi Hazara and others reported in AIR 1974 Supreme Court 171. Relevant paragraph 6 is reproduced hereunder;

" It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either diretly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee. In the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances:(1) the source from which the purchase money came;(2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.

The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No.1 viz. The source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another."

He further cited the case of Mamraj Singh Vs. The State of U.P. and others reported in 1978 All. L.J.1394. In this case this Court held that mere fact that the land sold was transferred under the sale deed to the daughter of the petitioner is by itself no ground for holding the transaction to be a sham one.

In reply the respondents have filed counter affidavit and have submitted that the suit under Section 229 under U.P.Z.A. & L.R. Act was between the father and minor son and daughter, as such it was collusive suit. Therefore, they are not entitled to get benefit of Section 5 (6) of the Act. Further the transfer deed of 8.9.1967 was in favour of minor son and daughter, who were included in the family of the tenure holders. They had no independent status or any income to purchase the land. Therefore, the transaction of sale was benami with the purpose to save the land from ceiling. Thus, it is stated that the sale deed was liable to be ignored being collusive transaction under Section 5 (6) Explanation 1 and 2 of the Act. It is further stated that the decree in suit under Section 229 -B of the U.P.Z.A.& L.R. Act was passed on the basis of compromise entered into between the parties, who were interested to each other. Therefore, the same was also collusive.

The witness Sri Murtaza Ali alias Tahir Ali stated the age of son of the tenure holder as 17/18 years and daughter as of 12/13 years on the date of execution of sale-deed. It is not in dispute that they are the real son and daughter of the tenure holder. The petitioner has failed to establish any source of income of his son and daughter on the date of execution of sale-deed before the courts below from which they purchased the land.

Undisputedly the decree in the suit filed under Section 229 of U.P.Z.A. & L.R. Act is based on compromise entered into between the parties. The parties are father, son and daughter. Therefore, collusiveness to save the land from declaration as surplus cannot be denied. The date of compromise is 8.6.1973. Therefore, that is liable to be ignored for the purpose of determination of ceiling as it is provided under the Act.

Explanation 2 of Section 5 (1) of the Act provides as under;

" If on or before January 24,1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person."

The notice under Section 9 was published in the month of November, 1973 and the date of compromise is 16.1.1974. Therefore, the petitioners' land are not covered under the exclusion clause to exclude from the determination of the ceiling of the original tenure holders' land.

Learned Standing Counsel in supported of his submission cited a decision of Hon'ble Supreme Court rendered in the case of State of U.P. Vs. Amar Singh reported in 1996 RD SC 1235. In this case Hon'ble the Supreme Court held that the object of the Amendment Act is to see that the transactions effected on or after January 21,1971 were null and void and were intended to defeat the provisions of the Act unless it is established that valid consideration has been passed and the alienation was for compelling legal necessity; that it was supported by adequate consideration and it was not a benami transaction.

Hon'ble Supreme Court however considered the effect of mutation and held as under;

" It is settled law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alienee as per Stamp Act and registered under Registration Act. The alienees being sons and daughters-in-law the tenure holder remained to be the owner and holder of the land. The sons and daughters-in-law are only ostensible owners under Explanation 1 to Section 5 (1) of the Act. It is true that Lekhpal has not categorically stated whether the respondents remained in possession in their own right after the alienation. It is not in dispute that the father and sons remained to be members of the joint family and were cultivating the land. Under these circumstances, one would normally expect that Lekhpal may not be in a position to categorical assert whether respondents remained in possession in their own right as owners or were cultivating land on their own or on behalf of the coparceners."

So far as sale-deed executed in favour of petitioners no. 1 and 2 in the case at hand is concerned, definitely that was executed on 8.9.1967 i.e, prior to the cut off date 24.1.1971 but it is worth to mention that the petitioners did not get it recoded in their name rather they got it recorded in their name only on 3.7.1973. Thus, the land remained continuously recorded in the name of original tenure holders even after 24.1.1971. Therefore, it is assumed that they took possession over the land in dispute in 1973, and till then the original tenure holder remained holder and remained in possession. They have also failed to establish any source of income to purchase the said land. Therefore, the transaction of sale made by father in favour of son and daughter appears to be sham transaction just to save the land from declaration of surplus land, whereas, the original tenure holders remained owner ostensibly.

The date of compromise is 8.6.1973. The declaration of their right is based on compromise. There is no adjudication of their right on merit. They are interested parties and acted to save the land from declaration of land as surplus.

Thus, I do not find any error in the orders impugned.

The writ petition stands dismissed.

Order Dated: 2nd of May, 2013

Tripathi