RANG BAHADUR BHARTIYA Vs. STATE OF U P

JUDGEMENT

(1.) This writ petition is directed against an order of the Additional Commissioner. Bareilly dated 15-2-1988, dismissing the appeal arising out of an order dated 30-7-1986 passed by the Prescribed Authority, Bareilly in case no. 55 of 1974 under Section 13 of the U.P. Imposition of Ceiling of Land Holding Act.

(2.) I have heard Sri G.N. Verma, counsel for the Petitioner and Sri S.N. Singh and Standing Counsel for the Respondents. The brief facts giving rise to the writ petition are as follows :

(3.) Sri G.N. Verma appearing for the Petitioner has very strongly urged that Respondent No. 4 who was the vidow of the elder brother of the Petitioner Shyam Bahadur who died in 1960 and thereafter she remarried with Ram Bahadur brother of Shyam Bahadur and two daughters were born to her and as she was remarried, she has lost her right under Section 172(1)(B) of the U.P. Zamindari Abolition and Land Reform Act and on account of remarriage she has no preferential share under Section 171 also. In support of his contention a number of witnesses were adduced and neither Chandra Devi appeared in the witness box nor the State has contested the case of the Petitioner and as such according to Sri Verma it has been fully proved from the materials on the record in the absence of any rebuttal evidence that the re-marriage is proved and as such the issuance of the notice against Smt. Chandra Devi or treating the property to be of Chandra Devi is misconceived and the Prescribed Authority and the District Judge, Additional Commissioner, appellate authority both have committed clear illegality in exercise of their jurisdiction in rejecting the objection of the Petitioner and dismissing the appeal. His further attack is on the finding of the two authorities, especially that of the appellate authority, that the judgments are no judgments in the eye of law neither they have discussed or considered the material evidence on the record especially when there was no rebuttal and Smt. Chandra Devi having failed to appear in the witness box and the State does not contest this issue. Authorities have no option except to believe the case of the Petitioner of remarriage of Smt. Chandra Devi and Chandra Devi had no necessity nor she was entitled to execute sale deed in favour of 3rd person in the year 1989.