Mahmood Rais And Others vs State Of U.P. And Others
2022 Latest Caselaw 30 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on - 3.12.2021
 
Delivered on - 17.1.2022
 
Court No. - 42
 

 
Case :- WRIT - C No. - 21916 of 2010
 
Petitioner :- Mahmood Rais And Others
 
Respondent :- State of U.P. and Others
 
Counsel for Petitioner :- Ch. N.A. Khan,Rizwan Ahmad,Thakur Pramod Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This case has a chequered history and this is the third round of litigation which has reached up to this Court. The facts in brief are that the for first time, proceedings were initiated against the Rais Ahmed predecessors of the petitioners under Section 10(2) of the U.P. Imposition of Ceiling on Land Holding Act, 1960 (hereinafter referred to as 'the Act of 1960') in the year 1961, which were dropped by the Prescribed Authority, by an order dated 1.5.1963 on the ground that their had been a family settlement in the year 1959 before the due date and the land with tenant holder was within ceiling limit.

2. Thereafter, a second notice was issued under 'the Act of 1960' in the year 1974 and again objections were filed. The notice was cancelled by the order dated 31.1.1975 passed by the Prescribed Authority again on the ground that there was a family settlement and due to that, there was no surplus land with the tenant holder. It appears that a recall/review application was entertained and it was allowed on 25.7.1975 on the ground that mutation order which had been carried out, pursuant to the family settlement, had been put in abeyance by the Additional Commissioner and consequently, declared certain land to be surplus. The said order was challenged by way of filing an Appeal No.26 of 1975 and the same was allowed by an order dated 24.9.1975 and the order impugned therein was set aside. It was held that review/recall application was not maintainable and the question of title which was finally decided by the Prescribed Authority on 31.1.1975, could not be reviewed on discovery of a mutation order only. The order dated 24.9.1975 was not challenged by the respondent State Authorities.

3. A third notice was served on the petitioners and the objections were filed by the tenure holder, however, the Prescribed Authority by an order dated 23.7.1976 declared certain land of the tenure holder to be surplus. The said order was challenged by way of filing two appeals before the District Judge, Hamirpur, which were allowed by an order dated 27.9.1977. The family settlement between Rais Ahmed and his minor sons was accepted. It was declared that there was no surplus land with the tenure holder. It was also noted that the then Lekhpal, who was examined on behalf of the State also accepted that there had been a family settlement amongst Rais Ahmed and his sons. Despite proceedings against the petitioners were dropped three times, a fourth notice was issued on 14.5.1982 in view of the amendment whereby Section 38(b) was inserted in 'the Act of 1960' (came into force w.e.f. 10.10.1976). The objections were filed, which were rejected by the Prescribed Authority by an order dated 26.4.1984 on the ground that neither any entry on the basis of the family settlement was on record in any revenue records nor any circumstance was brought on record under which the said family settlement took place. The said order was challenged by way of filing an appeal which was allowed by an order dated 19.3.1985 and the matter was remanded back. The Prescribed Authority passed a fresh order on 14.5.1987 whereby certain land of the tenure holder was declared surplus on the ground that it was an oral family agreement as well as it was already set aside by an order dated 22.10.1959 which was not brought on record by the tenure holder. The said order was challenged by way of filing an appeal, however, the appeals were rejected by the Additional Commissioner, Jhansi, Division Jhansi, by an order dated 18.11.1987. The said order was challenged by the tenure holders by way of filing Civil Misc. Writ Petition before this Court, which was allowed by judgment and order dated 15.5.2006 and the matter was sent back to decide afresh. The Court noticed that there was no doubt about the family settlement of the rights in favour of tenure holder and his minor sons.

4. In pursuance of the above order, the Prescribed Authority decided the matter afresh and by an order dated 5.3.2008, declared certain land as surplus. The Prescribed Authority held that the alleged oral family agreement was result of a fraud. There was no provision for oral family agreement under Zamindari Abolition Act, 1950. There was no reason with the tenure holder to execute family settlement to divide the land among his six children, aged about 3 to 15 years. The said order was challenged by way of filing an appeal, however, when no stay was granted, the tenure holder preferred a Writ Petition No.28072 of 2008, before this Court, which was allowed, vide order dated 27.4.2009 reported in 2009 (5) ADJ 529. This Court has observed that neither the family settlement was disbelieved by this Court in the earlier round of litigation nor the theory of any fraud or misrepresentation on the part of petitioners was believed by this Court or by the Authorities.

5. Thereafter, the appeals were rejected by order dated 23.2.2010 on the ground that the alleged oral agreement dated 15.6.1959 was not a real one and it was executed only in order to save the land from the ceiling proceedings. There was no explanation with the petitioners why the said family settlement was not registered and also that there was no possible good reason to divide the land among the minor children. By way of present writ petition, order dated 5.3.2008 passed by the Prescribed Authority and order dated 23.2.2010 passed by the Appellate Authority are impugned.

6. Shri Ch. N.A. Khan, learned Senior Counsel assisted by Shri Rizwan Ahmad, learned counsel for petitioners submitted that the findings in regard to the family agreement dated 15.6.1959 was upheld upto this Court in earlier three proceedings. Repeated notices issued under the 'the Act of 1960' were either dropped or set aside by a reasoned order on every occasion. Therefore, fourth notice and proceedings under 'the Act of 1960' are hit by principle of constructive res judicata. Learned Senior Counsel read out the relevant portion of the earlier orders whereby family settlement was considered to be genuine and further that there was no allegation of fraud or misrepresentation to disbelieve the family settlement. The issue in regard to the family settlement had already became final after contest and after having led evidence in this regard. Therefore, it cannot be reopened under the garb of provisions of Section 38-B of 'the Act of 1960'. In this regard, learned Senior Counsel has relied upon a judgment passed by the Supreme Court in the case of Devendra Nath Singh (Dead) through LRs. And others vs. Civil Judge and others; AIR 1999 Supreme Court 2264 that Prescribed Authority did not have the jurisdiction to reopen the question which was already settled on the basis of evidence. The relevant paragraph nos.2, 3 and 4 of the said judgment are mentioned hereinafter :-

"2. The learned Counsel appearing for the appellants contends that the power under Section 38B will not enlarge the power of redetermination of surplus land conferred on the Prescribed Authority under Section 13A of the Act and, therefore, the Prescribed Authority did not have the jurisdiction to reopen the question of the majority of the two sons. The learned Counsel appearing for the respondent on the other hand contended that the land holder having subjected himself to the jurisdiction of the Prescribed Authority and having lead evidence in the proceeding after the matter was reopened, is not entitled to challenge the jurisdiction of the authority and, therefore, the findings arrived at by those authorities cannot be annulled at this point of time.

3. Having examined the provisions of Section 13A and Section 38B of the Act, we are of the considered opinion that under Section 13A the Prescribed Authority has the power to reo pen the matter within two years from the date of the notification under Sub-section (4) of Section 14 to rectify any apparent mistake which was there on the face of the record. That power will certainly not include the power to entertain fresh evidence and re-examine the question as to whether the two sons, namely, Hamendra and Shailendra were major or not. The power under Section 38B merely indicates that if any finding or decision was there by any ancillary forum prior to the commencement of the said Section in respect of a matter which is governed by the Ceiling Act then such findings will not operate as res judicata in a proceeding under the Act. That would not cover the case where findings have already reached its finality in the very case under the Act. In this view of the matter we have no hesitation to come to the conclusion that the Prescribed Authority had no jurisdiction to reo pen the question of majority of the two sons in purported exercise of the power under Section 13-A. If the Authority had no jurisdiction, question of waiver of jurisdiction does not arise, as contended by learned Counsel for the respondent.

4. In the aforesaid premises the impugned orders of the Prescribed Authority as well as that of the High Court are set aside and it is held that in the computation of ceiling Hamendra and Shailendra will be treated as two major sons."

7. Per contra, Shri Pranav Ojha, learned Additional Chief Standing Counsel submitted that Section 38-B as inserted by Amendment Act No.20 of 1976, (w.e.f. 10.10.1976), which provides that no finding or decision given before the commencement of this Section in any proceeding or on any issue (including order, decree or judgment) by any Court, Tribunal or Authority in respect of any matter governed by this Act shall bar the retrial of such proceedings or issue under this Act, in accordance with the provisions of the Act, therefore, the finding arrived in the earlier proceeding could not considered to be res judicata, and therefore, the finding arrived in the present proceedings by the Prescribed Authority as well as by Appellate Authority are not barred by principles of res judicata. The Prescribed Authority has considered every aspect of the case on fact as well as on law. It is not in dispute on 15.6.1959 when the alleged family agreement took place, all six sons of tenure holder were aged between 3 years to 15 years and therefore, they were minor. There was no evidence on record about any dispute among the minor sons, which led to the family settlement in order to maintain peace between family members. Therefore, the alleged reason for the family settlement to maintain peace, was not based on any valid ground. Learned counsel further submitted that mutation which was entered in the revenue record on the basis of the alleged family settlement was set aside by the Commissioner Jhansi, Division Jhansi, by an order dated 22.10.1959 and thereafter, the tenure holder had not taken any steps to correct the entries in the revenue record, which clearly indicates that family settlement was fake and it never took place. The only reason behind the alleged family settlement was to save the land from the ceiling proceedings.

8. Heard learned counsel for the parties and perused the record.

9. From the facts of the case, as mentioned above, undisputedly, all the three notices issued earlier were either dropped or set aside by the Prescribed Authority or by the Appellate Authority with the finding in favour of the petitioners that the family settlement was accepted and there was no issue of fraud or representation. Undisputedly, at the time when the family settlement took place, all the sons of the tenure holder were minor and further that there was no evidence on record regarding any dispute amongst the minor sons. Undisputedly, there were no revenue entries in pursuance of the said family settlement.

10. Section 38-B of 'the Act of 1960' specifically provides that there shall no bar to retrial of proceeding under the Ceiling Act and no finding or decision given before the Section 38-B came into force shall bar the retrial of proceeding or issue under the Act.

11. Now the only issue is left before this Court is to decide whether on the basis of the evidence on record, the family agreement dated dated 15.6.1959 was a genuine settlement? and whether it was executed only with the object to save the land from the ceiling proceeding? and what would be the effect of the fact that in earlier proceedings, similar notices were dropped or set aside?

12. The Prescribed Authority has held that on 15.6.1959 when the family settlement took place, the children of tenure holder were aged between 3 to 15 years and their age were 3, 5, 7, 9, 12 and 15 years. The ground for family settlement was alleged to maintain peace among the children, however, how peace was disturbed among the children of tender age, was not brought on record. This was the main ground to consider the family agreement a fraud and to pass the impugned order by the Prescribed Authority to declare certain land as surplus which was upheld by the Appellate Authority.

13. It would be relevant to consider finding given by the Authorities regarding family settlement in earlier three proceedings.

(a) First proceedings were dropped by order dated 1.5.1963 wherein the Prescribed Authority has held that family settlement took place before the due date and the land with the tenure holder was within ceiling limit. No doubt was expressed by the Lekhpal who had deposed during proceedings.

(b) Second notice was cancelled by the Prescribed Authority by detailed and reasoned order dated 31.1.1975. It was held that family settlement took place in the year 1956 and land was divided by tenure holder between his six minor son, who were major during second proceedings and were utilizing their respective land and and the tenure holder had no interference on the use of said land. In this proceeding also, no doubt was expressed on the family settlement. The order was reviewed/recalled by an order dated 25.7.1975 (not on record) and certain land was declared surplus. The order was challenged before the Appellate Authority and the Appeal was allowed by an order dated 24.9.1975, wherein it was held that there was no reason to recall/review the earlier order as well as right of title was not determined in mutation proceedings. Issue of res judicata was also decided in favour of petitioners. These findings were undisputedly remained unchallenged.

(c) In the third proceedings, the Prescribed Authority by an order dated 23.7.1976 (not on record), whereby certain land was declared surplus. Their order was challenged before the Appellate Authority, which was allowed by order dated 27.9.1977 and it was declared that petitioners had no surplus land. It was held that there was no ground to doubt the family settlement and that land was separately in possession of all sons. The Lekhpal also conceded before the Prescribed Authority about family agreement. Family agreement was accepted in specific terms.

(d) In the proceedings carried out in pursuance of fourth notice dated 14.5.1982, the matter was examined afresh in view of Section 38-B (enforced w.e.f. 10.10.1996) of 'the Act of 1960' which provides 'bar against res judicata', however, without appreciating earlier proceedings and finding arrived in favour of family settlement, held that family settlement was a fraud as there was no reason for family settlement to divide land amongst six minor sons in order to maintain peace.

14. Section 38-B of the 'the Act of 1960' (amended) was considered by a Single Bench of this Court in Ram Lal vs. State of U.P. and others; 1978 ALJ 1197; 1978 SCC Online All 419, wherein it was held that :-

20. A change in law can thus affect the decision of a court only to the extent that the decision becomes contrary to law. If the change in law does not touch the question decided by the competent court, the decision is not affected, and would continue to be binding between the parties. We shall examine the provisions of Section 38-B of the Act in the light of the above discussion. Sec­tion 38-B provides as follows:

"No finding or decision given before the commencement of this Section in any proceeding or any issue (including any order, decree or judgment) by any Court, tribunal or authority in respect of any matter governed by this Act, shall bar the retrial of such proceeding or issue under this Act, in accordance with the provisions of this Act as amended from time to time."

21. This provision to our mind was introduced to achieve the object of the various amendments introduced in the principal Act and to give effect to them. Section 38-B, in our view, contemplates that if by the amendments made in the principal Act a certain findings or decisions had become contrary to law, those findings or decisions could be reopened and the principle of res judicata would not bar a retrial of those issues in accordance with the provisions of the principal Act as amended. This provision, in our opinion, did not autho­rise the Ceiling authorities to ignore the decisions rendered or decrees passed by competent courts, tribunals or authorities in respect of matters which were not affected by the changes made in the principal Act. Such decisions, in our opinion, would continue to be binding on the parties and would operate as res judicata between them,see State of Uttar Pradesh Vs Nawab Hussain :(1997) 2 SCC 806.

15. The Prescribed Authority has reconsidered the issue of nature of family settlement and its effect and while considering the issue has not consider the finding given on the issue in earlier proceedings by Prescribed Authority, Appellate Authority and High Court. The Prescribed Authority gave much emphasis to nature of agreement being oral, outcome of mutation proceedings and at the time of family settlement, all sons were minor and come to conclusion that there was no valid ground for family settlement among the minor children to maintain family peace.

16. Section 38-B of 'the Act of 1960' through provides that there will be bar against res judicata, however, it does not permit to reopen each and every issue, which has already been settled by way of multiple proceedings more so on the ground of mere assumption, without any evidence or material on record. In the present case, the Prescribed Authority has reopen the issue of family settlement only on the basis of an assumption that there was no ground to execute family settlement among minor children, without any independent evidence in this regard. The Prescribed Authority has failed to consider the observations made by this Court by the judgment and order dated 15.5.2006 and again in judgment and order dated 27.4.2009, wherein family settlement was not doubted and submission of fraud and concealment raised by Authorities was also rejected. It was also observed that mutation proceedings does not create any right of title and finding could not be disturbed on the ground that mutation was not carried out on the basis of family settlement.

17. In view of above discussion on law as well on facts, the Prescribed Authority has erred in reconsidering the issue of family settlement in absence of any material on record to support its finding that there was no reason for family settlement among minor sons. The Prescribed Authority has also failed to consider the earlier orders passed by the Authorities and by this Court on the issue of family settlement. Therefore, in the present case, Authorities have gone beyond the power under Section 38-B of 'the Act of 1960' and wrongly redetermined the issue of family settlement, without any legal and vailid ground and wrongly doubted the family settlement only on basis of an assumption. The Appellate Authority has further erred in upholding the order passed by the Prescribed Authority. It is also relevant to note here that after the amendment carried out in the year 1976, proceeding could be reopen within two years as contemplated in Section 31(b) of 'the Act of 1960' (as amended), however, in the present case, notice was issued in the year 1982 i.e. after 6 years.

18. The petitioners have made out a case for interference and accordingly, the impugned order dated 5.3.2008 and 23.2.2010 are set aside and the writ petition is allowed.

19. Parties are directed to bear their own costs.

Order Date :- 17.1.2022

Rishabh

[Saurabh Shyam Shamshery, J.]