- (1.) HEARD Mr A.R. Khan, Senior Advocate assisted by Mr.Mohd.Aslam Khan, learned counsel for the petitioners as well as Mr Rohit Verma, learned Standing Counsel. Through the instant writ petition, the petitioners have challenged the order dated 30.1.1986 (Annexure no.1), passed by the Prescribed Authority, Kaiserganj district Bahraich as also the order dated 22.3.1990, passed by the Additional Commissioner, Faizabad Division, Faizabad in appeal, upholding the order passed by the Prescribed Authority .
(2.) THE facts of the case, in brief, are that the Prescribed Authority issued a notice on 12.6.1974 under Section 10 (2) of the U.P Imposition of Ceiling on Land Holdings Act (in short Ceiling Act) to Sri Fazal Ali S/o Sri Hasmat Ali, the original tenure holder, who filed objection. The Prescribed Authority after considering the objection declared 9.763 acre land as surplus on 3.2.1975. Petitioners are purchasers of the land in dispute through the registered sale-deed dated 8.9.1967. It is stated that in a suit filed under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act ( in short U.P.Z.A.& L.R. Act) the petitioner no. 3 was declared as Sirdar. The petitioners also claim that they had not been served with any notice under Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Rules, 1961 (in short Rule). However, after coming to know about the order of declaration, they filed objection under Section 11 (2) of the Act claiming ownership over the plots measuring 14.31 acre. They claimed that they had acquired it by the registered sale-deed executed on 8.9.1967 by the original tenure- holder. They also averred that the possession had also been delivered to them and since then they have been in continuous possession over the land in dispute. They further stated that their adverse possession has also been confirmed by the Sub Divisional Officer in exercise of power provided under Section 229-B of the U.P. Z.A.& L.R. Act. Therefore, the said land could not be included with the land of original tenure holder for the purpose of determination of ceiling area. The petitioners no. 1 and 2 are the son and daughter of original tenure holders. It is stated by the petitioners that once the land was transferred in their favour by way of registered sale-deed, the original tenure holder cannot be said to be ostensible tenure holder. They further asserted that once they were declared Sirdars of the land in dispute under Section 229-B of the U.P.Z.A.& L.R. Act, the respondents cannot claim their right against the petitioners. It is further stated by them that the courts below misread the provisions of Section 5 (6), (7)(8) of the Act. It is also stated by them that on the date of execution of sale-deed, they were major in age, whereas the courts below have given finding that on the date of sale-deed the petitioners were minor. Thus, the findings of the Prescribed Authority are perverse. In support of his submission, learned counsel for the petitioners cited the case of Brijendra Singh Vs State of U.P. reported in (1981) 1 Supreme Court Cases 597. In this case Hon'ble Supreme Court has given benefit of clause (b) of the proviso to sub-section(6) to a transfer made in good faith, that is, to a bona fide purchaser whereby the tenure holder genuinely and irrevocably transfers all right, title and interest in the land in favour of the transferee, in the ordinary course of management of his affairs and which is not collusive arrangement, device or subterfuge to enable the tenure holder to continue to hold the surplus land or any reserve interest in presenti or in futuro therein or merely to controvert it into cash and thus circumvent the ban under Section 5(1) of the Ceiling Act. Hon'ble the Supreme Court further held that in order to entitle to the benefit of proviso (b) a transfer made in good faith must satisfy the further conditions(i) to (iv), enumerated in the proviso (b). The positive conditions laid down in proviso (b) are that the transfer should be for adequate consideration; that it should have been made under an irrevocable instrument.
(3.) THE negative conditions set out in clause (b) of the proviso are that it must not be benami transaction; that it must not be for immediate or deferred benefit of transferring tenure holder or other members of his family . On the point of benami transaction he cited the case of Jaydayal Poddar vs. Mst Bibi Hazara and others reported in AIR 1974 Supreme Court 171. Relevant paragraph 6 is reproduced hereunder; " It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either diretly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee. In the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances:(1) the source from which the purchase money came;(2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No.1 viz. The source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another." ;