STATE OF U P Vs. MADHO KUMAR SWARUP

JUDGEMENT

(1.) (for self and for J. M. L. Sinha, J.) :-Proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act no. 1 of 1961), here-in-after referred to as the "Act", against Hariraj Swarup, Gopal Raj Swarup and Bra-ham Swarup, who are real brothers, were taken for determining the surplus land owned and possessed by them. The surplus land in question was situated in two villages-Jaroda and Baghrajpur. The Prescribed Authority in due course determined the surplus land and a Notification was issued in the official Gazette declaring the said surplus land as standing transferred to and vesting in the State Government. Eight persons consisting of sons and wives of the above said three brothers filed objections under sub-Section (3) of Section 14 of the Act before the Prescribed Authority. Two separate objections were filed- one with regard to the land of village Jaroda and the other with respect to the land in village Baghrajpur. The objection was grounded on the allegation that the objectors were co-tenure-holders of the plots and were the owners thereof in their own right. They relied on two separate decree passed by the Revenue Court in regard to the land in each of the village. Before the Prescribed Authority in support of their claim each objector had filed copies of the plaints in the two suits and copies of orders passed in the two suits by the Judicial Officer. The objections were contested on behalf of the State mainly on the ground that the decrees of the Revenue Court having been made in proceedings which started after 20-8-1959 were liable to be ignored and the whole family, consisting of the three brothers their wives and sons was one unit. The Prescribed Authority holding that the decrees in the two suits being of a date subsequent to 20-8-1959 could not be taken into consideration in support of the plea of the objectors that they were co-tenure holders of the lands in their own right dismissed the objections. The objectors being aggrieved filed two appeals before the District Judge, who consolidated the same for hearing and delivered a common judgment allowing the appeals and upholding the objections. The State being aggrieved filed a petition under Article 226 of the Constitution attacking the validity of the appellate order on various grounds and praying for a writ of certiorari for quashing the appellate order. The learned Single Judge who heard the writ petition rejected all the pleas raised on behalf of the State and dismissed the petition. This Special Appeal before us has been preferred by the State against the judgment and order of the learned Single Judge.

(2.) FOR appreciating the contentions raised by the learned Standing Counsel for the appellant we may refer to certain facts. Before the Prescribed Authority no other plea seems to have been taken in opposing the objections except the one indicated above, i.e. that the decrees passed by the Revenue Court being subsequent to 20-8-1959 could not be relied upon in determining the rights of the objectors. In the appeal the following new grounds were taken raising the pleas which were not before the Prescribed Authority : -

(3.) HAVING given our serious consideration to the arguments raised at the bar before us by the learned counsel for the respective parties, we think it was a fit case in which the appellate court ought to have admitted the documents and entertained the plea as it was purely a legal plea, affecting the jurisdiction of the Court. No doubt, the plea raised, based on Section 49 of the U. P. C.H. Act, before it could be accepted, required filing of documents or adducing of evidence but when the evidence in support of the plea is furnised purely by documents prepared under the Authority of law to which presumption attaches as being valid documents and which could be admitted without any proof, the appellate court ought not to have been so much obsessed by the rule that a new ground has been raised which was not raised in the court of first instance and fresh evidence in support of that ground could not be admitted. On behalf of the respondents it was submitted that admission of fresh evidence in support of the plea, which may affect jurisdiction, would have entailed prolonged proceedings before the appellate court as the objector-respondents had a right to file evidence in rebuttal. It was within the discretion of the appellate court to refuse to admit the said documents and to entertain the new plea. As pointed out above, we think that since the policy of the law is that a matter or a question which could have been determined in the consolidation proceedings could never again be determined by any civil or revenue court after the final statement of tenure-holders had been issued and the entries on the basis of the determination of the rights recorded by the consolidation authorities and any plea based on Section 49 being a plea of jurisdiction, ought to be entertained by a court as it would be carrying out the policy of the law. We think, in the circumstances of the instant case the State ought to be afforded an opportunity to raise a plea that, in so far as the lands in village Jaroda were concerned, which had undergone consolidation operations neither the Prescribed Authority nor the appellate court had any jurisdiction to go behind the entries in the revenue records prepared on the basis of the determination of the rights under the U. P. G. H. Act. We refrain from making any further observation on this part of the case as to how far the statement prepared under Section 27 of the U. P. Consolidation of Holdings Act and Form 23 issued would affect the jurisdiction of the Court under Section 49 of that Act and the rights of the objector-respondents and in what manner will the objector-respondents rebut the presumption raised on the basis of the documents prepared in the consolidation proceedings which are official documents as we propose to remand the matter in regard to the lands in village Jaroda to the appellate court. We need not, therefore, further consider with regard to the land in village Jaroda the other questions which have been raised before us. However, since it is not the case of any party that the lands in village Baghrajpur had undergone consolidation operations, what we have observed above will not apply to those lands and we proceed now to consider the other grounds raised in regard to the land in village Baghrajpur, as nothing in Section 49 of the U. P. C. H. Act will affect the determination of rights in regard to those rights.