JAGDISH PRASAD SINGH Vs. STATE OF U P

JUDGEMENT

(1.) B. K. Sharma, J. Both these writ petitions are directed against the judgment and order dated 3-3-84 (Annexure 5 to the writ petition) passed by the then IIIrd Additional District Judge, Mirzapur in Ceiling Misc. Appeal No. 11of 83, Archana Devi v. State of U. P and others; Ceiling Misc. Appeal No. 18 of 1983, Jagdish Prasad Singh v. State of U. P and others and the order of the prescribed Authority, Chunar, Mirzapur Km. Archana Devi and others (Annexure 3 to the writ petition) under the U. P Imposition of Ceiling on Land Holding Act, 1960. It is proposed to dispose of these writ petitions by this common judgment.

(2.) CHANDRA Deo Singh had three sons, Bhanu Pratap Singh. Inderedeo Singh had the son Gulab Singh who was married to Smt. Urmila Devi Km. Archana Devi was the daughter of Gulab Singh and Urmila Devi. Bhanu Pratap Singh had four sons. Three of them were Jawahar Singh, Jagadish Prasad Singh and Krishna Kumar Singh. After death of her husband Gulab Singh, Smt. Urmila Devi executed three registered sale deed on 8. 10. 69. One was about 20 bighas and in favour of Jawahar Singh, other was about 14 bighas land in favour of Jagdish Prasad Singh and the third one was about 14 bighas land in favour of K. K Singh aforesaid Smt. Urmila Devi remarried Jawahar Singh after death of Gulab Singh and by their union Brijesh Kumar Singh was born. Jagdish Prasad Singh and Brijesh Kumar Singh are the petitioners in writ petition No. 5229 of 84 and Km. Archana Devi is the petitioner in Writ Petition No. 5231 of 84 Jawahar Singh is said to have died n 25-6-81. They claim that the aforesaid remarriage of Smt. Urmila Devi took place on 18-5-70 i. e subsequent to the aforesaid three sale deeds.

(3.) LEARNED counsel for the petitioner has relied on the division Bench Authority in Jadunath v. State, 1979 AWC 187. In this case four points were referred to the said Bench for determination:-- (1) Whether the ceiling authorities are precluded from examining the transferor deed or the decree which is prior to 24-1-1971 while determining the ceiling area of a tenure-holder? (2 ). . . . . . . . . . . . . . . . . . (3) Whether the burden is upon the department to prove that a transaction executed by a tenure holder is sham, fictitious or no transaction in the eye of law or the burden is upon the tenure holder to prove genuineness and bonafide nature with regard to the transaction prior to 24-1-1971. The Division Bench made following observations in para 18: "of course a decree obtained prior to 24-1-1971 or a sale deed executed before that date shall not be held by the Prescribed authority to be collusive or not affecting the rights of the person who are parties to it unless there are such circumstances appearing in the case which show that the decrees and transfer deeds were collusive or sham transactions. . . . . . . . . . . . . . . . . . . . . . . . . . In this view of the matter we answer the four questions referred to us n Writ Petition No. 522 of 1977 as follows:-- (1)While determining the ceiling are applicable to a tenure holder the Ceiling Authorities can look into and examine whether a transfer deed executed before or a decree passed prior to 24th January, 1971, was a sham, fictitious or collusive transaction. (2 ). . . . . . . . . . . . . . . . . (3) Subject to Explanation II to Section 5 (1) the initial burden of proving that a transaction entered into by a tenure holder prior to 24th January, 1971, is a genuine transaction is on the tenure holder. Where, however the material on record indicates circumstances which satisfy the Prescribed Authority either that as a result of the transaction the title in the holding has passed to some other person or that circumstances exist which indicate that a prudent person should act upon the supposition that the title has passed to a third person, the burden shifts and it would be for State Government to show that the transaction in question was really a sham transaction" The Division Bench further said in para 20:-- "however, so far as the gift deed executed by Brij Bhushan Rath on 7th March, 1970, in favour of his two sons Rashik behari and Vishwa Behari is concerned, we find that it is a registered gift deed (under section 123 of the Transfer of Property Act, a gift of immovable is to be affected by means of a registered document) and even mutation of the names of the donee was effected in revenue records on May 15, 1970. This provides prima facie evidence for acting upon the supposition that the title to the plots passed to the donee. Apart from observing that the donor appears to have executed the gift with a view to avoid application of ceiling laws, the Prescribed Authority did not in its order indicate anything to show that the gift in question was really a sham transaction in the sense that it was not intended to be acted upon and that actual title in the gifted property did not pass to the donee. No evidence has been quoted in support of the observation made in the order that the donor who had continued to remain in physical possession of the gifted property. It was asserted on behalf of the petitioner that there was no such evidence on the record. . . . . . . . It is primarily for the appellate court to consider the evidence and boose its finding thereon. In case there is no evidence either to show that the possession in pursuance of the gift deed was actually not transferred to the donees or that there are no such circumstances to show that the gift deed in question was a sham transaction in the sense that the real title to the property never passed to the donees and continued to be retained by the donor, the Ceiling Authorities would not be justified in ignoring the same or to treat the land covered by the deed as still continuing to belong to Brij Bhushanrathi. " After making this observations the Court sent the case to the appellate authority to decide it afresh in the light of the aforesaid observations.