HASAN IMDAD KHAN Vs. ADDL CIVIL JUDGE AZAMGARH

JUDGEMENT

(1.) THIS petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The facts, in brief, are these: A notice under section 10 (2) of the Act was issued to Haqdad Rhan and late Sri Annan Khan, the father of the petitioner no. 2 Walidad Khan. A pedigree has been set out in para no. 2 of the petition and from the same it appears that Hasan Raza Khan was the common ancestor. He left one son Nabidad Khan and one daughter Smt. Izazunnisan. Nabidad Khan died on 17th June, 1977, and left Walidad Khan, a minor who is the. petitioner no. 2 in the petition. The petitioner no. 1 Hasan Imdad Khan is the son of Smt. Izazunnisan. It will thus be seen that the petitioner no. 1 is a grandson of the common ancestor Hasan Raza Khan from the latter's daughters side and the petitioner no. 2, Walidad Khan, is a great-grandson of the said common ancestor, Hasan Raza Khan, from the latter's son's side. The notice under section 10 (2) was issued to the two sons of Nabidad Khan, namely, to Arman Khan and Haqdad Khan who were the grandsons of the common ancestor Hasan Raza Khan. Arman Khan filed an objection stating that the holdings were the ancestral property of his grandfather Hasan Raza Khan and were his Khudkast; that upon the death of Hasan Raza Khan the property devolved upon the latter's son Nabidad Khan and sister Smt. Izazunnisan under the Muslim Law of Succession in the ratio of two-third and one-third respectively. A similar objection was filed by the petitioner no. 1 Hasan Imdad Khan and it was further claimed that certain plots were un-irrigated and the objector had only 177 link area in village Adari. The Pres cribed Authority heard and decided the said objections by his order dated 25th March, 1978, a true copy whereof is Annexure 1 to the petition. Thereafter, an appeal was preferred to the District Judge, Azamgarh which was heard and decided by the Additional Civil Judge by his judgment dated 20-1-1977, a certified copy whereof is Annexure 2 to the writ petition. Now, the petitioners have come up in the instant petition and in support thereof I have heard Dr. Gyan Prakash, learned counsel for the petitioner. Learned counsel contended that the finding recorded by the authorities below holding that the petitioner no. 1 was not a co-tenure-holder in the plots in dispute is not warranted on the basis of the material and evidence on the record. According to him, once it was shown that Hasan Raza Khan was the common ancestor and that the land was Khudkast in his hand, then the Muslim Law of Inheritance was applicable and Nabidad Khan as his son got two-third interest and his daughter Smt. Izazunnisan inherited the remaining one-third interest. Nabidad Khan left two sons and each son inherited one-half of Nabidad Khan's two-third interest in the plots. In this manner Arman Khan, the father of petitioner no. 2 had only one-third share in the plots in question and not one-half as was held by the authorities below. The autho rities below hold that after the death of Hasan Raza Khan, Smt. Izazunnisan, his daughter, did not get any share in the plots in question and the entire plots went to his son Nabidad Khan. Dr. Gyan Prakash contended that in the case of co-owners the possession of each co-owner should be deemed to be on behalf of the other co-owners also and till ouster was proved, no adverse possession could run against any co-owner. He, therefore, contended that even though the name of Nabidad Khan alone might have been mutated in place of his father Hasan Raza Khan, it should be deemed that Nabidad Khan's name was mutated in a representative capacity and such mutation alone could not extinguish the right and title of his sister Smt. Izazunnisan and the latter continued to retain her one-third interest in the property in question. I have considered these submissions but in my view in the instant case the finding of fact recorded by the authorities below cannot be said to be erroneous in such manner as to warrant an interference in the writ jurisdiction of this Court. I should like to emphasize that I am not exercising an appel late jurisdiction and keeping in view this big distinction between the appellate jurisdiction and the writ jurisdiction of the Court, I find that the authorities below were entitled to come to the finding that Hasan Imdad Khan, petitioner no. 1, did not have any interest in the plots in question. It is the own case of the petitioners that Hasan Raza Khan died long ago, much prior to the abolition of Zamindari. There was no reason why the name of Nabidad Khan alone was mutated to the exclusion of his sister Smt. Izazunnisan over the plots in question. It should be seen that there is a big difference between the Hindu Law of Succession in respect of a Joint family and the Muslim Law of inheritance where definite shares are inherited after the death of 'a Muslim owner of the property. It is well known that amongst Hindus as long as the family remains joint, no co-parcener can predicate that he has a particular definite share in the joint property. On the death of the Karta the joint family is not disrupted. It continues with another Karta and the mutation of the name of the Karta is truly held to be in a representative capacity on behalf of the co-parceners of the joint family. These aspects are missing in the case of Mohammedans where there is no joint family in existence. I do not suggest that the fact of the mutation of the name of Nabidad Khan was conclusive on the point that the sister had lost her right and interest in the property coming down from the father. It was still possible for the sister to contend that the name of the brother had been mutated in a representative capacity but this fact had to be established by her by cogent evidence other wise the fact of the plots having been exclusively mutated in the name of Nabidad Khan would be a strong evidence that the brother got the exclusive possession of the property on the death of the father and that the sister did not get such possession. After Nabidad Khan's death again it is admitted that the names of his two sons, Arman Khan and Haqdad Khan were mutated to the extent of one-half share each and at that stage also the petitioner no. 1 Hasan Imdad Khan or his mother Smt. Izazunnisan did not raise any objection and did not claim any right or interest in the plots. Again, it has been found by the authorities below that in the course of the consolidation proceedings the petitioner did not claim any right or interest in the plots in question. Whether section 49 of the U.P. Imposition of Ceiling on Land Holdings Act should be held applicable in such circumstances need not be considered. Even if section 49 did not apply, still, the authorities below were entitled to consider the conduct of petitioner no. 1 Hasan Imdad Khan in the course of the consolidation proceedings. Lastly, the Prescribed Authority has referred to the statement of the Lekhpal that the petitioner no. 1 did not have any possession over the plots in question. In these facts and circumstances, in my view, it was open to the authorities below to come to a finding that the petitioner no. I did not have any right or interest in the plots in question and even if the said finding were held to be erroneous (though) I am not convinced that the same is erroneous), still, in my limited writ jurisdiction I cannot interfere with the said finding. Learned counsel next contended that the plots nos. 23, 24, 275 of village Barsand and plots nos. 213 and 215 of village wrongly treated as irrigated. In my view, this contention is authorities below have failed to follow the requirements 4-A of the Act. They should have considered the case 96, 213 and Bibipur were correct. I he aid down in section of each of the said plots with reference to the two requirements which are laid down in the first category or in the second category or in the third category of section 4-A. In other words they should have specified as to how the particular plot was being treated as irrigated- whether on the basis of the first category or on the basis of the second category or on the basis of the third category and further they should have shown that both the requirements laid down in each of the said three categories were being fulfilled before the particular plot could be treated as irrigated. Section 4-A has been interpreted by the Division Bench in Jaswant Singh's case (1978 (4) A.L.R. 787), and the authorities below were bound to conform to the law laid down by the Division Bench. So far as the other grounds contained in the petition are concerned, no submission was made to substantiate the same, and, in any case, I am not convinced that the authorities below committed any manifest error in deciding the said controversies. Accordingly, this petition is allowed to the extent and 'in the manner that the order of the Prescribed Authority and the judgment of the Appellate Court are quashed in so far as the aforementioned plots in the village Barasend Bibipur have been treated as irrigated. The said controversy is remanded to the Prescribed Authority for a fresh decision in respect of the said plots on the basis of the law laid down in the aforesaid Division Bench pronouncement and in the light of the observations which have been made above. The Prescribed Authority shall allow the parties an oppor tunity to lead fresh evidence in respect of the said controversy in the light of the law laid down in the Division Bench pronouncement. No other con troversy shall be allowed to be raised before the authorities below hereafter. The Prescribed Authority shall calculate the ceiling area and the surplus land on the basis of his fresh decision in respect of the said plots. In the circumstances, there will be no order as to costs.