Mahendra Singh vs State Of U.P.
2024 Latest Caselaw 16934 ALL

Allahabad High Court

Mahendra Singh vs State Of U.P. on 14 May, 2024

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


RESERVED
 
Neutral Citation No. - 2024:AHC-LKO:37067
 

 

 
Case :- WRIT - C No. - 3000048 of 1993
 

 
Petitioner :- Mahendra Singh
 
Respondent :- State of U.P.
 
Counsel for Petitioner :- Shafiq Mirza,Mohammad Aslam Khan,Sanjai Kumar Singh,Shafiq Mirza
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Mr. Mohd. Arif Khan, Senior Advocate assisted by Mr. Mohd. Aslam Khan, learned counsel for petitioner and Mr. G.K. Pathak, Additional Chief Standing Counsel appearing on behalf of opposite party.

2. Petition has been filed challenging order dated 15.02.1975 passed under Section 10 of U.P. Imposition of Ceiling on Land Holdings Act, 1960(hereinafter referred to as the Act of 1960) and the appellate order dated 18.10.1986 whereby an area of 8.772 acres of Plot No.152/2/4/2 M. situate in Village Suabhoj, Pargana Kukra, Tahsil Lakhimpur, District Kheri  has been declared surplus.

3.  Learned counsel for petitioner submits that the property in question was recorded in name of one Inder Singh to whom notice under Section 10(2) of the Act of 1960  was issued.  However, since the said person  did not reside in the Village and the Plot indicated in the notice under Section 10(2) was in actual possession of petitioner along with his brother Makhan Singh, they filed their objections on 14.08.1974 which have been rejected by means of impugned order dated 15.02.1975.  It is submitted that the Prescribed Authority has erred in ignoring the settled possession of petitioner over the plot in question over which he had perfected his rights on the basis of continuous twenty years' adverse possession with regard to which in consolidation operations, adverse possession of petitioner was also established vide order dated 30.05.1968.

4.  It is further submitted that petitioner had taken a specific plea that due to perfection of his rights over the plot in question, he along with his brother had attained Sirdari rights thereupon and therefore a separate notice under Section 10(1)  of the Act of 1960 was required to be issued for the plot in question which could not have been clubbed with other holding of the said Inder Singh. 

5.  It has also been submitted that even otherwise, even during pendency of appellate proceedings, petitioner was again held to have perfected his rights over the plot in question by means of order passed by the Consolidation Officer dated 06.05.1985 and the appellate authority also has erred in ignoring such rights which had already been declared in consolidation operations.  He has placed reliance on following judgments to buttress his submissions:-

(1) Dilbagh Singh v. The State of Uttar Pradesh and another, reported in 1978 ALL. L. J. 717 (a Division Bench decision of this Court);

(2)  Jabar Singh and another v. Addl. Commissioner, Meerut Division, Meerut and another (decision of a coordinate Bench)

(3) (Smt.) Awadh Rani v. 1st Addl. District Judge, Jhansi (decision of a coordinate Bench)

6.  Learned State Counsel on the basis of counter affidavit has refuted the submissions advanced by learned counsel for petitioner with the submission that in view of petitioner's claim of being in possession over the property in question, their objections under Section 10(2) of the Act of 1960 were entertained by the Prescribed authority but the petitioner was unable to adduce any evidence to substantiate their claim of Sirdari rights.  It has been submitted that earlier order dated 30.05.1968 conferring rights upon petitioner by the Consolation Officer was set aside by the Settlement Officer Consolidation whereagainst petitioner had filed a revision before the Deputy Director of Consolidation, which was dismissed as abated due to proclamation of Ceiling Proceedings and therefore no benefit of order dated 30.05.1968 can be claimed by petitioner. 

7.  It is further submitted that subsequent order dated 06.05.1985 on which petitioner is basing his claim while adjudicated upon his rights has clearly excluded the property which has been included in the Ceiling proceedings.  It has been submitted that petitioner's claim on merit was considered by the authorities but could not be substantiated by him.

8.  Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, it is quite evident that the claim of Sirdari rights on the basis of order dated 30.05.1968 passed by the Consolidation Officer in earlier consolidation proceedings would not be of much use to petitioner since a conjoint reading of paragraph-3 of the writ petition with paragraph 3 of  rejoinder affidavit makes it evident that the said order was set aside in Appeal by the Settlement Officer Consolidation and revision thereagainst before the Deputy Director of consolidation was dismissed as abated. 

9.  The only other order on which petitioner is basing his claim of Sirdari rights is the order passed by the Consolidation Officer dated 06.05.1985 which has been brought on record as Annexure-1 to the petition.  However a perusal of aforesaid order also indicates the fact that petitioner has been held  to have perfected his rights over the properties indicated in the order excluding the property which has been declared surplus in ceiling operations.  It is thus evident that no adjudication of petitioner's Sirdari rights by adverse possession has been done in any consolidation proceedings over the property in question. 

10.  So far as the aspect of notice under Section 10 of the Act of 1960 is concerned, it is evident from the order impugned passed under Section 10 itself that petitioner along with his brother had filed objections to the notice dated 14.08.1974 issued to the recorded tenure-holder, Inder Singh.  On the basis of petitioner's claim of Sirdari rights, their objections were entertained and were adjudicated on merits.

11.  A perusal of impugned order dated 15.02.1975 will make it apparent that the issue regarding rights of petitioner were dealt with as issue nos. 1 and 3 in which the aspect of petitioner's claim of adverse possession over the property and their Sirdari rights in lieu thereof has been considered but the order records that petitioner  has not been able to substantiate his claim by any documentary evidence and even the oral evidence led was only of the two bothers.

12.  The appellate order also records that the Consolidation Officer has clearly excluded the land held to be surplus in Ceiling proceedings and therefore no benefit of the said order can be granted to petitioner.

13.  Once the petitioner had set up a claim of Sirdari rights by adverse possession over the plot in question and there not being any authoritative pronouncement with regard to their rights over the plot in question,  onus of proof was  upon petitioner to have substantiated such a claim by adducing evidence before the Prescribed Authority particularly in terms of provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950 whereby Sirdari rights can be conferred. 

14. Section 3(21) of the United Provinces Tenancy Act, 1939 defines 'Sir holder' to mean a landlord, an under-proprietor or a permanent tenure-holder, who possesses sir.

15. The rights of Sir have thereafter been conferred upon those intermediaries or cultivators as bhumidhars who were in possession of or held or were deemed to hold certain land as Sir, Khudkasht or an intermediary's grove on the date immediately preceding the date of vesting in terms of U.P. Zamindari Abolition and Land Reforms Act, 1950.

16. The aforesaid aspect has been expounded by Hon'ble the Supreme Court in Kailash Rai v. Jai Jai Ram reported in (1973) 1 SCC 527 in the following manner:-

"7. This will be the convenient stage to refer the material provisions of the Abolition Act. Section 3 defines the various expressions. In clause 26, it is provided that certain other expressions referred to therein, including khudkasht and sir, shall have the meaning assigned to them in the United Provinces Tenancy Act, 1939 (hereinafter referred to as "the Tenancy Act"). Section 3(9) of the Tenancy Act defines khudkasht as "land other than sir cultivated by a landlord, and under-proprietor or a permanent tenure-holder as such either himself or by servants or by hired labour". Sir is defined in Section 6 occurring in Chapter II of the Tenancy Act. Section 4 of the Abolition Act provides for vesting of estates from a date to be specified by notification. Section 18(1) of the Abolition Act, which is relevant for our purpose, runs as follows:

"18. Settlement of certain lands with intermediaries or cultivators as bhumidhars.--(1) Subject to the provisions of Sections 10, 15, 16 and 17, all lands--

(a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary grove,

(b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh,

(c) held by a fixed-rate tenant or a rent-free grantee as such,

or

(d) held as such by--

(i)

an occupancy tenant,

Possessing the right to transfer the holding by sale.

(ii)

a hereditary tenant,

(iii)

a tenant on patta damami or istamrari referred to in Section 17.

(e) held by a grove-holder,

on the date immediately proceeding the date of vesting shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as bhumidhar thereof.

"8. There is no controversy that the date of vesting is July 1, 1952 and the date immediately preceding the date of vesting is June 30, 1952. Under Section 18(1)(a), broadly speaking, it will be seen, all lands in possession of, or held, or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove on June 30, 1952, shall be deemed to be settled by the State Government with such intermediary. The said intermediary is entitled to take or retain possession as bhumidhar subject to the provisions of the Abolition Act. In order to claim rights under clause (a), it is necessary that the lands should be (1) in possession of an intermediary as khudkasht or sir or (2) held by an intermediary as khudkasht or sir or (3) deemed to be held by an intermediary as khudkasht or sir. If any one of these alternatives is established, clause (a) will stand attracted. Khudkasht, as we have already pointed out, means land, other than sir cultivated by a landlord either by himself or by servants or by hired labour."

17. Aforesaid judgment has thereafter been followed by a coordinate Bench of this Court in Jabar Singh (supra) which has been relied upon by learned counsel for petitioner in his support.

18. It is thus evident that in terms of statutory provisions as well as law propounded thereupon, it was incumbent upon petitioner to have substantiated by evidence his claim that he was in possession of the property in question as Sir prior to the date of vesting i.e. 30.06.1952.

19. In the considered opinion of this Court, the petitioner having failed to establish his claim of Sirdari rights by any documentary evidence, such a claim was rightly rejected by the Prescribed Authority particularly since in terms of Section 37 of the Act, Code of Civil Procedure and Evidence Act are applicable in ceiling proceedings.

20.  So far as the judgments relied upon by learned counsel for petitioner are concerned, in Dilbagh Singh(supra), rights of tenure-holders under Section 11(2) have been considered to hold that the term 'tenure-holder' would include those who claims  to be tenure-holder even though they have not been served with notice and statement under Section 10(2) of the Act of 1960 . 

21.  There is obviously no truck with  the proposition of law as laid down by the Division Bench of this Court.  However, the same would be inapplicable in the present facts and circumstances where objections preferred by petitioner under Section 10(2) of the Act were considered on merit.

22.  In Jabar Singh (supra), it has been held that in terms of Full Bench decision of this Court in Shantanu Kumar v. State of U.P. and others, 1979 (5) ALR 564 (FB), objections of persons alleging themselves to be tenure-holders are required to be entertained and disposed of on merits under Section 11(2) of the Act of 1960.  Again the said judgment would not be having any applicability in the present case where objections of petitioner's claim to be tenure-holder of the plot in question was entertained and decided on merits. 

 23. The case of (Smt.) Awadh Rani(supra) is in fact with regard to rights in terms of section 5(6) of the Act of 1960  which also would be inapplicable since present case does not pertain to any transfer of holdings subsequent to imposition of ceiling.

24.  In view of discussion made herein above, it is evident that petitioner has not been able to substantiate his claim of  Sirdari over  the plot in question by adducing any cogent evidence.

25.  Consequently, the petition fails and is dismissed.  The parties to bear their own costs.

Order Date :- 14.05.2024

kvg/-