- (1.) This writ petition is directed against an order of the Additional Commissioner. Bareilly dated 15-2-1988, dismissing the appeal arising out of an order dated 30-7-1986 passed by the Prescribed Authority, Bareilly in case no. 55 of 1974 under Section 13 of the U.P. Imposition of Ceiling of Land Holding Act.
(2.) I have heard Sri G.N. Verma, counsel for the Petitioner and Sri S.N. Singh and Standing Counsel for the Respondents. The brief facts giving rise to the writ petition are as follows : A notice under U.P. Imposition of Ceiling of Land Holdings Act was issued under Section 10(2) of the Act to Smt. Chandra Devi who have been impleaded as Respondent No. 4 to the writ petition. Smt, Chandra Devi filed an objection against the notice and the Prescribed Authority declared 1.95 Hectare in terms of irrigated land as surplus. On 3-2-1976 Petitioner filed an objection praying that he is interested party and as such his objection be heard and decided on merit. The Prescribed Authority rejected the objection of the Petitioner. Thereafter the Petitioner filed a restoration application and the case was restored but thereafter again the Prescribed Authority rejected the objection of the Petitioner against said order both the parties, Petitioner and Smt. Chandra Devi went in appeal before the District Judge. The appeal was heard by Additional District Judge, Bareilly who by his order dated 6-10-1981 set aside the order of the Prescribed Authority on 12-11-1979 and 24-9-1979 and remanded the case for fresh decision after hearing the parties. Prior to this the District Judge by his order dated 31-8-1971 set aside the order of the Prescribed Authority dated 11-10-1978 and remanded the case with the direction that the Petitioner Rang Bahadur Bhartiya be impleaded as party and his title should be decided. There was a further direction that the points given by Smt. Chandra Devi be also considered regarding irrigated and unirrigated land. The Prescribed Authority after impleading Petitioner as a party gave opportunity of filing objection and producing the evidence. The main objection of the Petitioner was that Respondent No. 4 had remarried with Ram Bahadur after the death of her husband as such she has lost her right in laud in suit. The disputed plots are in his possession for a very long time and he was matured adverse right in the land in dispute. The Prescribed Authority after hearing the parties and after considering the matter dismissed the objection of the Petitioner. Against this order Petitioner filed an appeal as appeal no. 21 of 1987 under Section 13 of the Ceiling Act before Commissioner, Bareilly but it was transferred to Additional Commissioner, Bareilly who by his order dated 15-2-1988 dismissed the appeal hence this writ petition.
(3.) Sri G.N. Verma appearing for the Petitioner has very strongly urged that Respondent No. 4 who was the vidow of the elder brother of the Petitioner Shyam Bahadur who died in 1960 and thereafter she remarried with Ram Bahadur brother of Shyam Bahadur and two daughters were born to her and as she was remarried, she has lost her right under Section 172(1)(B) of the U.P. Zamindari Abolition and Land Reform Act and on account of remarriage she has no preferential share under Section 171 also. In support of his contention a number of witnesses were adduced and neither Chandra Devi appeared in the witness box nor the State has contested the case of the Petitioner and as such according to Sri Verma it has been fully proved from the materials on the record in the absence of any rebuttal evidence that the re-marriage is proved and as such the issuance of the notice against Smt. Chandra Devi or treating the property to be of Chandra Devi is misconceived and the Prescribed Authority and the District Judge, Additional Commissioner, appellate authority both have committed clear illegality in exercise of their jurisdiction in rejecting the objection of the Petitioner and dismissing the appeal. His further attack is on the finding of the two authorities, especially that of the appellate authority, that the judgments are no judgments in the eye of law neither they have discussed or considered the material evidence on the record especially when there was no rebuttal and Smt. Chandra Devi having failed to appear in the witness box and the State does not contest this issue. Authorities have no option except to believe the case of the Petitioner of remarriage of Smt. Chandra Devi and Chandra Devi had no necessity nor she was entitled to execute sale deed in favour of 3rd person in the year 1989.;