SIBGHAT ULLAH KHAN,J. - (1.) THIS writ petition arises out of proceedings under U.P. Imposition of Ceiling on Land Holdings Act 1960. Earlier twice proceedings under the Ceiling Act were initiated against Ram Ratan Gupta and his wife, the original petitioner, Smt. Kanti Bai. On both the occasions proceedings were dropped, firstly, due to amendment in the Ceiling Act through U.P. Act No. 18 of 1973 and next time on the basis of amendment affected through U.P. Act No. 20 of 1976. Thereafter, third notice was issued to Shri R.R. Gupta, who filed objections before the prescribed authority. Even though notice had not been issued to the original petitioner Smt. Kanti Bai, however, she also filed objections before the prescribed authority. The prescribed authority Kanpur through order dated 02.02.1980 declared 286.77 acres (or 268.77 acre) land as surplus with Ram Ratan Gupta tenure holder. The land was situated in Districts Unnao and Nainital. (R.R. Gupta was residing at Kanpur.) Now, Nainital is in State of Uttaranchal. Against the order of prescribed authority, original petitioner filed Misc. Civil Appeal No.5 of 1980, which was dismissed on 29.01.1981, hence this writ petition.
(2.) THE objection of Smt. Kanti Bai, the original petitioner of this writ petition was that she was judicially separated wife of Ram Ratan Gupta who had contracted another marriage (respondent no. 4 and 5 who have been transposed as petitioners are sons of Ram Ratan Gupta from his second wife). Shri Ram Ratan Gupta did not file any appeal against order of the prescribed authority. Only the original petitoner Smt. Kanti Bai filed miscellaneous Civil appeal no. 5 of 1980 against the judgement and order dated 02.02.1980 passed by the prescribed authority. Learned second additional District Judge Unnao through well reasoned judgement dated 29.01.1981 dismissed the appeal, hence, this writ petition. As Ram Ratan Gupta or his sons did not file any appeal and as in the appeal the original petitioner contended that her land should not have been clubbed with the land of Ram Ratan Gupta as she was judicially separated wife, hence, the scope of this writ petition is limited. The only thing which can be seen is as to whether original petitioner was judicially separated wife of Ram Ratan Gupta and her land was wrongly clubbed with the land of Ram Ratan Gupta? In accordance with section 5(3), of the Act land of family member of a tenure holder is to be clubbed with his land and by virtue of section 3(7) wife is included in the definition of family of husband. Accordingly, there is no need to consider the argument of the learned counsel for the petitioner that some land which was situated in Nainital had subsequently been acquired etc.
(3.) AS far as question of the original petitioner being judicially separated wife of Ram Ratan Gupta is concerned petitioner only stated that she was residing separately from Ram Ratan Gupta for several years. The Supreme Court in A.I.R. 1992 Supreme Court 967 Darshan Prashad vs. Civil Judge Gorakhpur has held that a wife who is merely living separately from husband but has not obtained decree for judicial separation under section 10 of Hindu Marriage Act 1955 can not be held to be judicially separated wife and land held by such wife should be clubbed with the land of the husband. Admittedly, no judicial proceedings were taken for obtaining decree of judicial separation.;