YADUNATH Vs. STATE

JUDGEMENT

(1.) THESE two petitions under Article 226 of the Constitution have, on reference by a learned single Judge, been placed before us for making appropriate orders. Both the petitions arise out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act. Whereas, in view of an apparent conflict between two single Judge decisions of this Court in the cases of Ahmad Husain v. State of U.P. : 1978 AWC 299 and Hukum Singh v. State U.P., 1978 ALJ 291, the learned Judge has referred the whole case in writ petition No. 562 of 1977 to us for decision. He has, in writ petition No. 522 of 1977 formulated the following four questions of law and has referred the same to us for opinion:

(2.) PETITIONERS in writ petition No. 562 of 1977, which is directed against the judgment of the Civil Judge, Aligarh dated December 23, 1976 are Brij Bhushan Rathi, his four sons, Rekesh Kumar, Raghuwansh Kumar, Rasik Behari and Vishwa Behari and his daughter Kumari Aruna Rathi. It appears that notices under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act were issued jointly in the names of the Petitioners and one Ram Swarup stating that out of total area of 48.71 acres of. irrigated land belonging to Petitioner Brij Bhushan Rathi, area of 15.85 acres i.e. 27 Bighas, 16 Biswas, 15 Biswansis was proposed to be declared as surplus. Sri Brij Bhushan Rathi filed an objection contending that he had by means of a gift deed dated 27th March, 1970 gifted 41 bighas, 17 biswas of land in Khata No. 37 to his two sons Rasik Behari and Vishwa Behari (Petitioner Nos. 4 and 5). In due course the donees got their names mutated and have been in possession of the land in their own right ever since then. Subsequently in partition suit No. 75 of 1972, the civil court passed a decree on 18th May, 1972 holding that Rakesh Kumari Petitioner No. 2 was owner in possession of 9 Bighas, 16 Biswas, 3 Biswansis of land. It also held that Raghuwansh Kumar was in possession of 19 Bighas, 16 Biswas, 2 Biswansis land and that Kumari Aruna Rathi Petitioner No. 6 owned and possessed 5 Bighas, 16 Biswas, 2 Biswansis of land. The objector also claimed that he had, by means of a registered sale deed dated 15 -9 -1971, sold an area of 4 Bighas, 13 Biswas and 6 Biswansis of land to one Sri Ram Swarup for valuable consideration amounting to Rs. 12,000/ -and that in due course the name of Sri Ram Swarup also came to be recorded in the revenue papers in the year 1379 Fasti. Accordingly Sri Brij Bhushan Rathi was not a tenure -holder on 8th June, 1973 and no question of declaring any land as surplus arose. It was also claimed in the alternative that Brij Bhushan Rathi and his four sons were the co -tenure holders of the holding in respect of which notice has been issued to Brij Bhushan Rathi as the same had been their ancestral Sir and Khudkasht and that none of them possessed land in excess of the ceiling area applicable to him.

(3.) REGARDING the sale deed dated 28th December, 1971 executed by Sri Brij Bhushan Rathi in favour of Sri Ram Swarup in respect of 4 Bighas, 13 Biswas and 6 Biswansis the Prescribed Authority observed that as Petitioner No. 1 had failed to produce either the original sale deed or a copy thereof, it was not possible to accept the transaction merely because the name of Sri Ram Swarup stands recorded in the Khatauni. Alleged transfer of land in favour of Sri Ram Swarup did not appear to be bonafide and for adequate consideration. In the result, the Prescribed Authority ignored the gift deed dated 27th of March, 1970, sale deed dated 28th of December, 1971 and the partition decree dated 18th of May, 1972 and treating that entire holding as that of Brij Bhushan Rathi declared an area of 27 Bighas, 16 Biswas and 15 Biswansis land as surplus.