BRIJ NARAIN TEWARI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) A notice under Section 10 (2) of U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act) was served on the petitioner. He filed an objection. Apart from others, two main objections were raised by the petitioner. He alleged that the land was ancestral sir and khudkasht and two sons were born prior to the date of enforcement of U. P. Zamindari Abolition and Land Reforms Act and as such they were also entitled to the share in the property. Benefit on the basis that members of the family were ten was also claimed. The Prescribed Authority held that the two major sons were not entitled to any share as the petitioner failed to establish that the land was ancestral sir and khudkasht but he granted relief of additional six hectares land on the basis of strength of the members of the family. The State of U. P. did not prefer any appeal. The petitioner alone preferred an appeal against the order of the Prescribed Authority refusing to grant the relief on the basis that the land was ancestral sir and khudkasht. The appellate authority allowed the appeal and held that the land was ancestral sir and khudkasht and granted share to the two major sons of the petitioner. But while deciding the appeal he held that the petitioner bad no right to the additional land of six hectares as granted by the Prescribed Authority. The petitioner applied for review of the judgment or the appel late authority on the ground that there was a mistake in its order. The review application was rejected on the ground that although it was estab lished that strength of the members of the family of the petitioner was more than five but as to daughters who were three and five years old were not established to be unmarried by the petitioner, he was not entitled to such benefit. Aggrieved, the petitioner has come to this Court under Article 226 of the Constitution. Learned counsel for the petitioner has urged that the Prescribed Autho rity granted additional land on the ground that the strength of the family of the petitioner was more than five. But the appellate authority did not grant the relief hence a review application was moved and the appellate authority while disposing of the review application also held that the strength of the family of the petitioner was more than five, but the relief has not been granted merely on the ground that the two daughters who were aged about three and five years were not established to be unmarried. The judgment of the appellate authority cannot sustain so far as the aforesaid ground is concerned. The appellate authority while deciding the appeal misinterpreted the provisions of Section 5 (3) (b) of the Act. Section 5 (3) (b) reads as follows : "(b) In the case of a tenure holder having family of more than five members, 7. 30 hectares of irrigated land (including land held by other members of his family), besides, each of the members exceeding five and for each of his adult sons who are not themselves tenure holders or who held less than two hectares of irrigated land, two additional hectares of irrigated land or such additional land which together with the land held by such adult son aggregates to two hectares, subject to a maximum of six hectares of such additional land. The aforesaid provision clearly shows that if there are major sons in the family of a tenure holder, the tenure holder is entitled for additional land provided the major sons are themselves not tenure holders. Similarly it also provides that even if there are no major sons but if the strength of members of the family is more than 5 then the tenure holder is entitled for additional land of two hectares for each members of the family. It is not in dispute in the present case that the string the of members of the family of the petitioner was eight after excluding the two major sons who were themselves held to be the tenure holders by the appellate authority. If strength of the members of the family was eight, it cannot be disputed that the petitioner was entitled for additional land of six hectares. The Prescribed Authority rightly granted this additional land, but the appellate authority erroneously upset that order. The reason for refusing to grant six hectares of land by the appellate autho rity is manifestly erroneous. Once it was established that the daughters aged three and five years were members of the family, it was not at all necessary to establish that they were not married. It is really very strange that the daughters of three and five years of age cannot be presumed to be unmarried. The State did not set up any such case, that they were married. The presumption drawn by the appellate authority that in the absence of evidence to establish that the two daughters were not married they have to be presumed to be married is wholly erroneous. Neither under the Hindu Law nor under the Child Marriage Restraint Act is permissible to marry a daughter of three to five years old. If anybody would have claimed that they were married, the burden lay upon him to establish that fact. When State of U. P. did not dispute this fact nor did it lead any evidence to that effect, the appellate authority was not right to draw such an inference. The result, is, that this writ petition is allowed and both the judgments of the appellate authority (IV Additional District Judge, Deoria) dated 26-7-1975 and 2-2-1976, so far as they relate to the additional six hectares land, are hereby quashed. The Prescribed Authority is directed to recalculate to the surplus area after granting six hectares a land in addition as granted by the Prescribed Authority on account of the additional members of the family of the petitioner. In these circumstances of the case, the parties shall bear their own costs. The stay order shall stand discharged.