Daya Ram And Others vs Civil Judge And Others
2022 Latest Caselaw 8022 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										Reserved
 
Court No. - 20
 
Case :- WRIT - C No. - 3001831 of 1977
 
Petitioner :- Daya Ram And Others
 
Respondent :- Civil Judge And Others
 
Counsel for Petitioner :- A.R.Khan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Kumar,J.

1. Heard Sri Abdul Razzaque Khan, learned counsel for the petitioner and learned Standing Counsel for the State.

2. The present writ petition has been preferred for quashing of the order dated 11.03.1977 passed by the opposite party no. 1 in an appeal and the order dated 28.06.1976 passed by the Prescribed Authority- Opposite party no. 2

3. Brief facts of the present case as per the petitioners' are that a notice under Section 10(2) of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 as amended by Uttar Pradesh Act No. XVIII of 1973 (hereinafter referred to as the 'Act of 1973') was served upon the opposite party no. 4- Onkar Singh/the original tenure-holder (died during the pendency of the present writ petition) proposing to declare some land in the holdings of the opposite party no. 4 as surplus and wrongly alleged that the land holdings standing in the names of the petitioners are by virtue of a benami transaction. Notices were also served upon the petitioners.

4. Learned counsel for the petitioners has submitted that on 02.03.1970, an agreement to sell had been entered into between the petitioners and the opposite party no. 4 for purchasing the land bearing Plots no. 2/2.42, 4/0.80, 7A/45.63, 8/0.54, 9/0.21, 122/0.26, 124/0.32 and 125/3.81 total area 53.99 acres land situated in Village Maholi, Tehsil Misrikh, District Sitapur from opposite party no. 4. Possession over the said land was given to the petitioners on the very same day after the total payment of valuable consideration of Rs. 14,000/-.

It is further submitted that a notice under Section 10 (2) of the Act, 1973 was issued on 04.12.1975 to the original tenure holder i.e. opposite party no. 4 treating the transactions as a Benami. Notice under Section 10 (2) of the Act, 1973 was also issued to the petitioners. Against the said notices, the petitioners and the opposite party no. 4 had submitted before the Prescribed Authority that the land as mentioned above has been sold to the petitioners by the opposite party no. 4 and agreement to sell was executed on 23.03.1970. Subsequently, a registered sale deed was also executed by opposite party no. 4 in favour of the petitioners on 07.02.1972.

5. It is further submitted that the names of the petitioners have been entered into the revenue records and they are in cultivating possession over the said land. It is further submitted that the opposite party no. 2 while deciding the objections had framed issues out of which issue no. 1 is related to the case of the petitioners and opposite party no. 4. In support of his submission, learned counsel for the petitioner has placed reliance upon paragraph 3 of the judgment of Hon'ble Supreme Court in the case of Irshad Ali Khan vs. State of U.P. [(1981) 2 SCC 721]. Paragraph 3 of the judgment is being quoted hereinbelow for convenience:-

" 3. In these circumstances, therefore, we allow this appeal and remit the case to the prescribed authority for considering the question as to whether or not Mumtaz Ali was in cultivating possession of the land in 1971 when the Ceiling Act came into force after examining the contentions raised by the appellants before him. The prescribed authority will also determine whether the other grandsons of Mumtaz Ali were in separate cultivating possession of the lands claimed by them in 1971. The parties are directed to appear before the prescribed authority on March 25, 1981."

6 It is further submitted that during the proceedings before the prescribed authority, witnesses of the sale deed were produced by the opposite party no. 4 as well as the statement of some villagers were also recorded that the petitioners are in cultivating possession of the land since 1970. It is further submitted that the contract for sale was prior to the prescribed date provided under the Act, 1973 i.e. 24.01.1971. After making full payment to the opposite party no. 4 who had given possession to the petitioners so the sale deed executed in the year 1972 is to be read in continuation of the agreement to sell which was executed on 23.03.1970. It is further submitted that the prescribed authority as well as the appellate court without application of its own mind had passed the orders without appreciating the evidence. In support of his submission, the reliance has been placed upon the Paragraph 10 of the judgment of this Court in the case of Smt. Damyanti Devi and Anr. vs. Brindaban and Ors. decided on 01.08.1979 in Civil Misc. Writ No. 1256 of 1977. Paragraph 10 is being quoted hereinbelow, for ready reference:-

" 10. The duty cast upon a judicial appellate court is still greater in the case of affirmance. It is not necessary that every piece of evidence is considered once again but there must be sufficient discussion to show that the court has applied its own mind to the facts and circumstances of the case. The appellate court should also state the reasons why it finds itself in agreement with the prescribed authority. This procedure will enable the High Court to examine the impugned judgment more effectively and get an idea of the mind of the appellate court. In its absence it is not possible to find out what circumstances weighed with the court below making it to come to a certain conclusion. This will further ensure that no arbitrary order is passed by the appellate court."

7. It is further submitted that the appellate authority has passed the order without recording a finding that on the prescribed date, petitioner alone was in possession, which is necessary for the appellate authority to record a finding that on that date it was the petitioner alone who was in possession. Without recording a finding on this question, explanation II Section 5 of the Act was not applied. In support of his submission, he has placed reliance upon the judgment of this Court in the case of Atibal Singh vs. State of U.P. decided on 03.05.1978 in Civil Misc. No. 4151 of 1976. Relevant paragraph is being quoted hereinbelow, for ready reference:-

"Assuming that the names were recorded after January 24, 1971, before applying Explanation II to Section 5 of the Act it was necessary for the appellate authority to record a finding that on that date it was the petitioner alone who was in possession and continued to be in possession. No such finding has been recorded by the appellate authority. Without recording a finding on this question Explanation II to Section 5 cannot be applied."

8. It is further submitted that the authorities erred in not recording any finding that the sale deed executed was in bad faith and the transaction was not genuine. In support of his submission, he has placed reliance upon paragraph 3 of the judgment of Hon'ble Supreme Court in the case of Nawal Singh vs. State of U.P. and Ors. [1995 Supp (1) SCC 204]. Paragraph 3 of the judgment is being quoted hereinbelow for ready reference:-

"3. We do not at all appreciate the approach of the courts below. If this approach is accepted that no transfer effected after 24-1-1971 can escape, sub-section (6) of Section 5 would be rendered meaningless and a dead letter in the statute. The facts as stated above have been asserted by the appellant clearly and openly. There is nothing on these facts to attract a finding that all what he did was in bad faith. We are satisfied that he has more than ordinarily proved that the transaction of sale was effected in good faith and the approach of the courts below was not in accordance with the spirit of the statute. We thus set aside the impugned orders of the High Court as also that of the courts below and hold that the transaction in question was entered in good faith and the land covered by it is not to be reckoned towards computing his holding for ceiling purposes. The appeal is accordingly allowed. No costs."

9. Reliance has also been placed upon paragraph 6 of the judgment of Hon'ble the Supreme Court in the case of Bhupendra Singh vs. State of U.P. and Ors. [(1981) 2 SCC 670]. Paragraph 6 of the judgment is being quoted hereinbelow for ready reference:-

"6. We have by our judgment in Brijendra Singh v. State of U.P. [(1981) 1 SCC 597] allowed the appeal of Brijendra Singh, in which the facts found by the Appellate Authority were almost identical. The sales in that case were also made to raise funds to meet the expenses of constructing a residential house in Delhi. In that case, also, the sales were found to be genuine and for adequate consideration, but were ignored merely on the ground that no impelling necessity for the sales had been established and that the purpose of raising funds for building a residential house at Delhi was not such a necessity. We have held in that case that: (SCC p. 603, para 20)

"Once it is established by the transferring tenure holder that the transfer in question was effected in the course of ordinary management of his affairs, was made for adequate consideration and he has genuinely, absolutely and irrevocably divested himself of all right, title and interest (including cultivating possession) in the land in favour of the transferee, the onus under Explanation II [to proviso (b) of Section 5(6)], in the absence of any circumstances suggestive of collusion, or an intention or design to defraud or circumvent the Ceiling Act, on the tenure holder to show that the transfer was effected in ''good faith', will stand discharged, and it will not be necessary for the tenure holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity."

This rule laid down in Brijendra Singh case [(1981) 1 SCC 597] squarely applies to the sales in question in the instant case. The sales were held to be genuine and for adequate consideration in favour of persons who were not alleged to be related to the appellant in any way. They were not benami sales; the tenure holder did not reserve any immediate or deferred benefit for himself or the other members of his family under these sales which were made under an irrevocable registered instrument. They were made in the course of ordinary management of his affairs by the transferor viz. to raise funds for building a house at Delhi. All the facts and conditions necessary to claim the protection of Section 5(6) proviso (b) were satisfied in this case."

10. On the other hand, learned Standing Counsel has submitted that sale deed executed on 07.02.1972 after the prescribed date was a sham transaction and not a bona fide one and has further submitted that agreement to sell as alleged by the petitioner was executed on 23.03.1970 but it is nowhere urged that it was registered.

11. It is further submitted that in the orders which are under challenge, there is a specific finding which is not disputed by the petitioner that the whole consideration amount was given at the time of agreement to sell in the year 1970 and not only this, the possession was also given which made the alleged transaction was sham & not bonafide.

12. It is further submitted that the petitioners failed to show by any documentary evidence that they were in continuous cultivating possession on the land.

13. It is further submitted that contract for sell/agreement to sell was prior to the prescribed date and submission made by the learned counsel for the petitioner that the same may be treated as in continuance of the execution of the sale deed on 07.02.1972, is not tenable. It is further submitted that it is an undisputed and admitted case that 18 acres of land was sold on the consideration of Rs. 14,000/- only, which is not adequate. It is further submitted that in the sale deed neither the agreement to sell was disclosed nor there was any disclosure how much money had been contributed by the petitioners for payment of consideration amount or what was the share of the petitioners.

14. It is further submitted that the land which was shown to be purchased was situated in different village as the petitioners are the residents of different village and creates doubt of their cultivating possession.

15. After considering the aforesaid, the prescribed authority and the judicial appellate authority have rightly came to the conclusion that the sale deed executed is not in a good faith. It was executed just for the purpose of saving the land from the clutches of ceiling.

16. It is further submitted that the submission raised by learned counsel for the petitioners are related to the findings of facts which cannot be re-opened or questioned in the writ jurisdiction.

17. In support of his submission, he has placed reliance upon the judgment of Hon'ble Supreme Court in the case of Syed Yakoob vs. K.S. Radha Krishnan [AIR 1964 SC 477] which has been followed by this Court in the case of Jaleshwar Nath Tewari vs. State of U.P. and Ors. passed on 28.03.1989 in W.P. No. 2731 of 1982. The relevant paragraphs of the judgment is being quoted hereinbelow for ready reference:-

".As mentioned in clause (b) if sub-Section (6) only these transfers which are prooved to the satisfaction of the Prescribed Authority made after 24.01.21971 to be in good faith and for qdequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family are to be excluded in determining the ceiling area. Burden of proving that a case falls within clause (b) of the proviso rests with the party claiming its benefit as mentioned in Explanation II.

According to the findings of the prescribed authority and that of the District Judge the transfers in question are not proved to their satisfaction to be in good faith and for adequate consideration. The High court in exercise of its jurisdiction under Article 226 of the constitution of India does not act as an appellate Court. In the words of the Hon'ble Supreme Court in Syed Yakoob Vs. K.S. Radha Krishnan (1), the jurisdiction of High Court to issue a writ of certiorari is a supervisory jurisdiction of the court exercising it is not entitled to act as n appellate court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of the evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. The observations of the Hon'ble Supreme Court are quoted below:-

" There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of fact reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the fact of the record can be corrected by a writ but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. Syed Yakood Vs. K.S. Radha Krishnan(supra).

18. After hearing learned counsel for the respective parties and going through the records, the position which emerges out is that the petitioners are claiming their continuous cultivating possession over the land in question on the basis of agreement to sell dated 23.03.1970 as they had paid the total consideration amount i.e. Rs. 14,000/- and thus, the possession was given to them.

19. Agreement to sell does not confer any right over the land. In the present case, it seems that just to make the benami transaction a legal one, registered sale deed was executed on 07.02.1972 before the Registering Authority .

20. One of the essential ingredients for registration of execution of sale deed is payment of consideration before the Registering Authority.

21. In the present case, it is an admitted fact of the petitioner's case that the payment was made at the time of agreement to sell which was never registered.

22. It may be noted that the basis of the claim regarding ownership and possession is mainly agreement to sell dated 23.03.1970. The authorities have considered and discussed the evidence produced by the parties and after appreciation of the facts and circumstances of the case, came to the conclusion that agreement to sell was not bonafide and was for the purposes of avoiding the land being declared in surplus. It is rightly pointed out that the full sale consideration was paid on the date of agreement to sell and possession was also said to have been delivered to the purchasers on the very same day. As a matter of fact nothing remained to be done anymore for the purposes of execution of sale deed, rather the sale was complete on the very same date. As a matter of fact, instead of agreement to sell, the sale deed itself would be executed and registered. It is also rightly pointed out that in the sale deed, there is no mention about the agreement to sell. The authorities have appreciated the facts and circumstances whereafter recorded the finding that it was a benami transaction.

23. Section 5(6)(b) of the Act of 1960 provided two things to see the genuineness of the instrument i.e. good faith and adequate consideration. For convenience, the provision is quoted hereinunder:-

" (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 or other members of his family. "

24. Considering the aforesaid observations, it emanates that there is a concurrent finding relating to the execution of the sale deed dated 07.02.1972 i.e. after the prescribed date and declaration of the said transaction as benami by the prescribed authority and the judicial appellate authority after appreciating the evidences and as the Hon'ble the Supreme Court in the case of Syed Yakoob (supra), which has been followed by this Court in the Case of Jaleshwar Nath Tewari (supra) has held that the High Court in exercise of its jurisdiction conferred under Article 226 of the Constitution of India does not act as an appellate court. Further as per the settled law, if the authorities have reached to the finding of fact after appreciating the evidence, then it cannot be re-opened or questioned in writ jurisdiction. Undisputedly, this Court can interfere while exercising its power under Article 226 of the Constitution of India if there is an error of law which is apparent on record but not on error of fact.

25 In the present case, learned counsel for the petitioner has not urged that the orders under challenge are having error of law, which are apparent on record.

26. For the foregoing reasons, the present petition is dismissed.

Order Date :- 26.07.2022

Ashish