Ram Roop Singh vs State Of U.P. And Another
2023 Latest Caselaw 8720 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 17.03.2023
 
Delivered on: 24.03.2023
 
Court No. - 9
 
Case :- WRIT - C No. - 11900 of 1995
 
Petitioner :- Ram Roop Singh
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- V.S.Singh,Ishir Sripat
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Vishnu Saran Singh and Sri Rahul Sripat, learned Senior Counsel, assisted by Sri Ishir Sripat and Sri Vishwajeet Singh, learned counsel for the petitioner and Sri I.B. Singh, learned Standing Counsel for the State.

2. This writ petition is directed against the order dated 30.01.1995 passed by the Additional Commissioner, Jhansi Region, Jhansi in Ceiling Appeal No.111/102/20/9/1 of 1993-94 filed under Section 13 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "U.P. Act No.1 of 1961").

3. This case has a chequered history. The petitioner Ram Roop Singh was issued and served notice under Section 10 (2) of the Act of 1961, wherein 167 Bigha, 1 Biswa and 11 Biswansi land was proposed to be declared surplus land in terms of unirrigated land. Objections were filed, and Prescribed Authority by judgment and order dated 25.04.1977 partly allowed the objections and declared 67 Bigha, 13 Biswas and 10 Biswansi unirrigated land as surplus.

4. Against the order of Prescribed Authority, petitioner filed a Ceiling Appeal No.182 of 1977, while other tenure holder Smt. Anant Kunwar filed Appeal No.183 of 1977 before the District Judge, Banda.

5. By the judgment dated 26.07.1977, both the appeals were decided separately and in the appeal filed by the petitioner which was partly allowed and order of the Prescribed Authority was quashed, it was directed to re-determine the surplus area of land of the petitioner on the basis of 8 family members of the petitioner.

6. Similarly, in the appeal of Smt. Anant Kunwar, the family settlement which was relied by the tenure holders arrived in the year 1969 was accepted and the appeal was allowed and order of the Prescribed Authority was quashed leaving it to re-determine surplus area keeping in mind the family settlement arrived on 23.09.1969. Fresh notices were issued and objections were invited and the Prescribed Authority by judgment and order dated 31.03.1986 found that there was no surplus land of the original tenure holder Ram Roop Singh to be declared and discharged the notice.

7. The Prescribed Authority proceeded on the assumptions that the family of Ram Roop Singh consisted of 8 members which included his four sons, Samar Singh, Ratan Singh, Jabar Singh and Bhagat Singh excluding his major son Amar Singh, his daughter, his two wives Chhoti and Sukurtin. Further, the land of Amar Singh which was clubbed in the tenure holder was not taken into consideration.

8. Similarly, the Prescribed Authority recorded finding that Chunwadi, daughter of Shiv Nandan was not the wife of petitioner as the matter has already been settled by District Judge in the year 1977, against which, no writ petition was preferred by either of the party and order has become final. Further, the Prescribed Authority found that the land of Vimla Devi and Smt. Anant Kunwar cannot be clubbed together with the tenure holder relying upon the family settlement arrived. As far as the land of Shiv Rani, mother of petitioner was concerned, the Prescribed Authority recorded finding that she does not come under the definition of family while dealing with land of tenure holder (petitioner), the land of Shiv Rani cannot be clubbed with that of petitioner.

9. Aggrieved by the order of the Prescribed Authority, an appeal was preferred by the State which was ex-partly allowed vide decision dated 04.04.1988 by the Additional Commissioner, Jhansi declaring 30.26 acres of irrigated land as surplus. The order of the Appellate Authority was put to challenge through Civil Misc. Writ Petition No.11329 of 1988 before this Court. This Court after exchange of pleadings on 09.12.1993 allowed the writ petition and remanded back the matter to the Appellate Authority for deciding the same. By order impugned dated 30.01.1995, the appeal filed by the State has been allowed, hence the present writ petition.

10. Sri Rahul Sripat, learned Senior Counsel appearing for the petitioner submitted that by the order of the District Judge, Banda dated 26.07.1977, two issues were decided, which remained un-controverted, one in respect of 8 family members of the petitioner which included his four minor sons, daughter, two wives and the petitioner himself excluding his major son Amar Singh. Secondly, the issue in regard to family settlement having been decided by the District Judge upholding the settlement arrived on 23.09.1969 between the family members which included Smt. Anant Kunwar, Ram Roop Singh and Vimla Devi, Appellate Court could not have taken a different view and the order passed by the Prescribed Authority discharging the notice not taking into consideration the land of such persons.

11. Learned Senior Counsel invited the attention of the Court to the definition of family as mentioned in Section 3 (7) of the Act, which in relation to a tenure holder means himself, or herself and his wife or her husband and minor sons and minor daughters other than the married daughters. According to him, the order passed by the Appellate Authority including the land of Amar Singh, the major son of tenure holder was not correct. The finding of the Appellate Authority including land of Shiv Rani, the mother of petitioner is also against the provisions of law. According to him, the Appellate Court faulted in holding the land of Vimla Devi with that of the petitioner in view of the explanation 1 and 2 to Section 5.

12. Opposing the writ petition, learned Standing Counsel submitted that the Prescribed Authority was not correct in excluding the land of Amar Singh as he is admittedly the son of petitioner and his holding has to be clubbed with that of his father. He then contended that Vimla Devi in her oral statement had accepted that she is the sister of petitioner, hence the Appellate Authority had recorded correct finding that petitioner was in actual cultivatory possession after 24.01.1971 and the land was clubbed together for declaring it surplus. As far as, Shiv Rani the mother of petitioner is concerned, he submitted that she had executed a Will in favour of the sons of the petitioner, thus, they being minor sons and petitioner being their legal guardian, the land of minors will be clubbed with the original tenure holder.

13. I have heard respective counsel for the parties and perused the material on record.

14. This is a case where the Ceiling Authorities had proceeded to club the land of various tenure holders with that of the petitioner in proceedings for declaring the land of petitioner as surplus. The initial notice which was issued reflected that petitioner was holding unirrigated surplus land to the extent of 167 Bigha 1 Biswa 11 Biswansi. It was after the objections were filed that the area was reduced and 67 Bigha 13 Biswas and 10 Biswansi was declared surplus by the order of the Prescribed Authority dated 25.04.1977. This order was assailed through two appeals being Appeals No.182 and 183 of 1977 by different tenure holders including the petitioner. The District Judge, Banda vide his two judgments dated 26.07.1977 had decided two important issues, firstly in Appeal No.182 that petitioner's family consists of 8 members which included himself, his 4 sons, one daughter and two wives. The Prescribed Authority on this basis was directed to proceed to consider to declare the land surplus. Similarly, in Appeal No.183, the family settlement arrived between the family members on 23.09.1969 was accepted and the Prescribed Authority was required to proceed in the matter considering the family settlement in which Smt. Anant Kunwar, Vimla Devi, petitioner Ram Roop Singh and others were the party.

15. Basically, the Prescribed Authority was now to proceed in the light of the decision dated 26.07.1977 while considering the land of the petitioner as surplus. The Prescribed Authority found that Amar Singh, the elder son of petitioner who born in the year 1952 had become major when the proceedings were launched and thus, was not included in the definition of family and giving effect to the judgment of the District Judge, Prescribed Authority excluded the land of Amar Singh which was recorded in Khata No.9 to the extent of 10.14 acres.

16. Similarly, the Prescribed Authority had recorded finding that Shiv Rani, mother of the petitioner was not the family members and was separate tenure holder and by order dated 25.07.1977, her land was already excluded from the zone of consideration. The order dated 25.07.1977 was never challenged by the State in appeal.

17. Similarly, for Chunwadi, daughter of Shiv Nandan, categorical finding was recorded by the Prescribed Authority that she was not the third wife of the petitioner and her land cannot be clubbed with that of petitioner. The said finding was accepted by the appellate Court also.

18. As far as the land of Vimla Devi and Smt. Anant Kunwar are concerned, the Prescribed Authority had recorded a finding that their land had been wrongly included in the land of petitioner on the strength of benami transaction, though the tenure holders are recorded in their individual capacity.

19. In the Appeal filed by the State, the Appellate Authority while partly endorsing the order of the Prescribed Authority and extending benefit as to the land of Chunwadi and Anant Kunwar being not included in the land of petitioner had, however, proceeded to reverse of finding of the Prescribed Authority as far as land of Vimla Devi, Amar Singh and Shiv Rani is concerned.

20. The Appellate Court wrongly proceeded to include the land of Vimla Devi on the basis of the explanation 1 and 2 of Section 5 of the Act holding petitioner to be in the actual cultivatory possession merely on the statement of Vimla Devi that she is sister of the petitioner. Though, without any evidence on record that it was a sham transfer by petitioner in favour of her sister and he was in cultivartory possession.

21. Once, the Prescribed Authority had recorded a categorical finding, the Appellate Authority while discarding the said finding should have given cogent reasons to reverse the said finding. Merely, on an oral testimony of Vimla Devi wherein she has disclosed the relation with the petitioner would not amount to attracting explanation 1 and 2 of Section 5 for including her land with that of the petitioner without any material on record. The finding recorded by the Appellate Authority is totally perverse and without any material on record.

22. Coming to the finding recorded by the Appellate Authority in the matter of Amar Singh, it is clear that the District Judge by the order dated 26.07.1977 had found that family of petitioner consists of 8 members, the said finding remained unchallenged. The petitioner Ram Roop Singh had 5 sons, namely, Amar Singh, Samar Singh, Ratan Singh, Jabar Singh and Bhagat Singh. These 5 sons were born between the years 1952 to 1963. Amar Singh was born in the year 1952 and had become major when the proceedings were launched. Petitioner had one daughter and two wives, thus, his family consisted of 8 members as per the definition of Section 3 (7) of the Act. The Prescribed Authority had rightly excluded the land of Amar Singh who was major as on 08.06.1973. The Appellate Authority did not record any finding for reversal and wrongly interpreting the judgment dated 26.07.1977 proceeded to include the land of Amar Singh with that of petitioner. The said finding is unsustainable.

23. Thus from the above, it is clear that the Appellate Authority exceeded in its jurisdiction while proceeding to allow the appeal filed by the State by including the land of Vimla Devi, Amar Singh and Shiv Rani with that of petitioner and declaring 15.25 acres land as surplus.

24. Considering the facts and circumstances of the case, I find that the order dated 30.01.1995 is unsustainable in the eyes of law and the land of Amar Singh, Vimla Devi and Shiv Rani having been wrongly included in the land of original tenure holder Ram Roop Singh and the same is hereby set aside.

25. Writ petition succeeds and is hereby allowed.

Order Date:- 24.03.2023

SK Goswami

[Rohit Ranjan Agarwal, J.]