- (1.) S. P. Srivastava, J. Feeling ag grieved by the order of the prescribed authority in the proceedings under Sec tion l0 of the U. P. Imposition of Ceiling on Land Holdings Act, determining the ex tent of the surplus land of Pritam Singh, the petitioner No. 1 treating the land in dispute which was the subject-matter of the sale deed dated 11-8-1970 executed by Pritam Singh in favour of his sons Surjit Singh and Surendra Singh as continuing to be held by Pritam Singh, ignoring the said transfer rejecting the objections of the Petitioners No. 2 and 3 claiming to be exclusive tenure holders in possession thereof, the present writ petition has been filed by the father, Pritam Singh as well as his sons Surjit Singh and Surendra Singh seeking the quashing of the orders of the respondent No. 3, the prescribed authority as affirmed in appeal by the respondent No. 2 only in so far as the decision on issues No. 2, 5 and 7 are concerned.
(2.) I have heard Sri G. N. Verma, learned Counsel for the petitioners and the learned Standing Counsel repre senting the respondents and have carefully perused the record. The fact in brief, shorn of details and necessary for the disposal of this case lie in a narrow compass. The land in dis pute formed part of an area of 280 big has Pertaining to a Khata wherein Sardar ritam Singh was a co-sharer alongwith the several other persons. A sale deed was executed by Sardar Pritam Singh, Sardar Basant Singh and Sardar Surendra Singh disclosing their share in the aforesaid Khata to be 3/4th and transferring half thereof i. e. 3/sth share representing 105 bighas in favour of Sardar Surjit Singh, Sardar Surendra Singh, Sardar Ujagar Singh, Mahendra Singh, Kumari Dipak Alag and Shammi Alag for a consideration of Rs. 39, 000. 4, Proceedings were initiated under Section 10 of the Act against Pritam Singh in the year 1974. In the aforesaid proceed ings the total area held by Pritam Singh out of 280 bighas was taken to be 105 bighas. Pritam Singh filed an objection asserting that the land which had been transferred in favour of Surjit Singh and others vide the sale deed dated 11-8-1970 referred to hereinabove could not be clubbed with the land held by him as the sale deed was a genuine transaction which had been fully acted upon. 5. The prescribed authority vide the order dated 31-3-1995 upheld the objec tion of Pritam Singh and concluding that the entire area of the agricultural holding of which Pritam Singh could be held to be Bhumidhar could not exceed 35 bighas excluding the area transferred by him under the aforesaid sale deed discharged the notice treating the entire area held by Pritam Singh to be well within the ceiling limit. However, later on subsequent to the amendments made in the Ceiling Act in the year 1973, 1975 and 1976 fresh proceedings were initiated for determina tion of the extent of Surplus land held by Pritam Singh. The aforesaid matter came up for consideration by this Court in Civil Misc. Writ Petition No. 3687 of 1977 decided on 3-4-1979. 6. The first question which was framed by this Court for determination was whether the land purchased by the sons could be included in the holding of Pritam Singh. This Court taking into con sideration the facts and circumstances brought on record held that subsequent to the transfer dated 11-8-1970 it was not legally permissible to club the holding of the sons with that of Pritam Singh indicat ing clearly that the sons had purchased the land in their own independent rights and Pritam Singh could not be tenure holder of their land. Another question which was framed by this Court for determination was as to whether the sale deed executed on llth August, 1970 was liable to be ig nored or not. In this connection, it was noticed that since the transfer has been made on a date prior to 24th January, 1971, it should not be ignored unless it was found to be sham transaction. It was further noticed that no such question had been urged on behalf of the State nor there was anything to show that the transaction was sham and therefore in the absence of such a finding the transaction could not be held to be a sham transaction and was not liable to be ignored. However, finding that the appellate authority without taking into consideration the evidence adduced by the petitioner had held the transferor to be still in possession did not approve the find ings in this regard and the matter was remitted back to the appellate authority for deciding the appeal afresh in accord ance with the directing that the question in regard to the age of Yashpal another son of Pritam Singh be also decided afresh. This court sent back the case to the appellate authority for deciding afresh in accord ance with law. 7. During the pendency of t he appeal certain additional evidence was allowed to be brought on record. Taking into account the aforesaid fact, the appellate authority remanded the case to the prescribed authority for fresh decision in the light of the observations made in the judgment of this Court after considering the additional evidence admitted during the pendency of the appeal. 8. The prescribed authority there after proceeded to consider the matter. Holding that the burden to prove the genuineness of the sale deed dated 11-8-1970 rested on Pritam Singh, the trans feror the said authority examined the evidence on that basis. It was observed that there was no evidence on the record to indicate that the sale consideration as indi cated in the sale deed had intact been paid to the transferor. It was also found that the oral evidence led by the objector was self-contradictory and not reliable. So far as the question of possession over the land in dispute was concerned, the prescribed authority placed reliance upon the oral evidence led by the State and came to the conclusion that Sardar Pritam Singh the vendor was continuing to be in possession as before and the entry in regard to the names of his sons in the revenue record of right was of ostensible nature. The objec tion in regard to the exclusion of the area covered by the sale deed was therefore, rejected. 9. The appellate authority vide the impugned order upholding the order of the prescribed authority dismissed the ap peal observing that the transfer being in the name of sons and the sons being not in cultivatory possession over the land which was the subject-matter of the sale, the prescribed authority was quite justified in making the presumption that the transfer by the tenure holder Pritam Singh was sham and Benami transaction. It was fur ther observed that in view of amendment by Section 5 of the Act by virtue of Amend ment Act No. 2 of 1975, the prescribed authority had ample jurisdiction to hold as to whether a particular transfer was real transfer or it was just a Benami transac tion. 10. The appellate authority endorsed the finding in regard to possession recorded by the prescribed authority on the basis of the statement of the Lekhpal and the Supervisor Kanoongo. 11. The learned Counsel for the petitioner has strenuously urged that the respondent authorities have manifestly erred in omitting to consider the implica tions arising under the provisions con tained in Section 38-B of the U. P. Imposi tion of Ceiling on Land Holdings Act, 1960 and the finality of the findings recorded earlier in favour of Pritam Singh by the prescribed authority prior to the initiation of the proceedings afresh have been er roneously overlooked. In this connection, reliance has been placed on the decision rendered by a Division Bench in the case of Kedar Singh v. Additional District Judge, Varanasi and others, reported in 1979 AWC 692. In the aforesaid decision this Court referring to its decision in Civil Mic. Writ Petition No. 3073 of 1977, Krishna Kumar v. State of U. P. and others, decided on 21st September, 1979 had clarified that Section 38-B which had been introduced in the Ceiling Act by amending Act No. 20 of 1976 and came in force with effect from 10th October, 1975 applied only where retrial was necessitated by reason of the amendments introduced by the aforesaid amending Act becoming applicable. It was observed that if in a case any provision introduced by the aforesaid amending Act was applicable a previous decision or find ing will not bar retrial of such an issue or proceedings. 12. The question in the aforesaid case was in regard to the implications arising under the Explanation II added to Section 5 (1) of the Ceiling Act by amending Act of 1976. The aforesaid explanation provides: "explanation II.- If on or before January 24, 1971 any land was held by a person who continues to be in its actual cultivatory posses sion and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person. " 13. Under Explanation I however, in determining the ceiling area applicable to a tenure holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. 14. It was indicated by this Court in its decision in the aforesaid case that since the Explanation-I and the Explanation- II be came attracted in that case therefore, the proceedings could validly by reopened by issuance of the fresh notices after coming into force the amending Act No. 20 of 1976. 15. Obviously therefore, in such case Section 33-B became applicable and the findings given in the earlier ceiling proceedings could not be deemed to operate as res-judicata so as to bar the retrial of the issue relating to the genuine- ness of the transactions like sale etc. as involved in the present case. 16. It is in the aforesaid view of the matter, that while remanding the case, this Court in its decision dated 3-4-1979, referred to hereinabove had sent back the case to the appellate authority for deciding the appeal afresh in accordance with law making it clear that the case was being sent back to the appellate authority for decid ing the question of genuineness of the sale deed executed on llth August, 1970 in accordance with law. What is noticeable is that in the Explanation II to Section 5 of the Act, it has been specifically provided that the said explanation will come into play if on or before January 24, 1971 any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the formar or on the basis of a decree it shall be presumed unless the contrary is proved to the satisfaction of the prescribed authority that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of second mentioned person (emphasis sup plied ). 17. It is therefore, obvious that the presumption contemplated under Ex planation II referred to hereinabove could be available only if the name of any other person was shown to have been entered in the annual register after 24th January, 1971 i. e. 1378 Fasali, In case, therefore, if the entry of the name of the other person in the annual register had been made before 24th January, 1971, the presumption indi cated hereinabove could not be said to be available. 18. In the present case, what I find is that the sale deed had been executed on 11-8-1970. The Lekhpal examined as a witness by the respondent stated that the Khata pertaining to the holdings in ques tion was joint Khata and the name of Pritam Singh alone was not recorded and alongwith him the names of Surjit Singh and Surendra and Rajendra Singh had also been recorded therein. In the order dated 31-3- 1975 passed by the prescribed authority it had been noticed that Pritam Singh had filed the Khatauni for the period 1375 to 1378 Fasali as well as the Khatami for the period 1378 to 1380 Fasali. In para graph 19 of the writ petition it has been asserted that Khasra from 1375 to 1380 Fasali had been filed showing that the name of the transferees has been mutated immediately. The aforesaid assertions has not been specifically denied in the counter- affidavit. In fact the aforesaid assertions stand corroborated by the state ment of the Lekhpal examined on behalf of the State. 19. In the circumstances, therefore, it was obvious that the name of the trans ferees had been mutated immediately after the transfer in question had been effected but there is no evidence or material on record, to indicate that the names of the transferees had been entered in the revenue record subsequent to 24-4-1971. It may further be noticed that in view of the amendment Act of 1972 (Act No. 3 of 1973) which came into force with effect from June 8, 1973, the crucial date on or from which no tenure holder was entitled to hold land in excess of the ceiling area was June 8, 1973. However, as observed by the Apex Court in its decision in the case of Brijendra Singh v. State of U. P. and others, reported in AIR 1981 SC 636, when sub section (6) of Section 5 provided that in determining the ceiling area and surplus area, any transfer of land which but for the transfer would have been declared surplus land under the Act, shall be ignored, it proceeds on the presumption that the tenure-holders being aware of the resolu tion or manifesto adopted by the ruling All India Congress Party on January 24, 1971, and of the consensus at the Chief Ministers' Conference held in July, 1972, to take measures to lower the ceiling on agricultural holdings, might make at tempts to defraud, defeat and evade the ceiling law, then in offing, by making fic titious transfers of land in favour by other persons. 20. It was indicated that a transfer made after January 24, 1971 which is designed to serve as a cloak for retention of a right of interest of the transferor in the ostensibly transferred land in excess of the ceiling area, even on or after June 8, 1973, will be patently not in 'good faith' and even if a transfer is not an ostensible transfer and the transferor divests himself of all interest and rights in presentii in the trans ferred land, but reserves some benefit in future for himself or other members of his family, then also the transfer will be not in 'good faith'. 21. Having given my anxious con sideration I am clearly of the opinion that in the circumstances indicated hereinabove, in the present case, the presumption contemplated under II Ex planation of Section 5 of the Ceiling Act could not be deemed to be available. As a consequence, in the absence of the presumption the onus to prove that the transfer effected on 11-8-1970 was a sham transaction or a transfer ostensible in na ture where transferor had not divested himself of all interest and rights in praesentii in the transferred land and had reserved some benefits in future for him self or other person of his family had to be established by cogent evidence led by the State. 22. The appellate authority had placed reliance upon the oral statement of the Lekhpal and the Supervisor Kanoon-go. True copies of their statements made before the prescribed authority have been filed alongwith the writ petition. The State had also examined Shibba Singh the Prad-han. Shibba Singh had stated that he had no personal knowledge in regard to the possession over the land in dispute and what he had stated was hear say based on what had been stated by the servant. The Lrkhpal as has already been indicated hereinabove had stated that the land in dispute pertained to a Khata in which the name of the transferees had also been recorded alongwith Pritam Singh and the Khata was a joint Khata. He had further stated that he had been posted in the Halka for the past six months only and it was incorrect to state that Pritam Singh alone was cultivating the land. The Supervisor Kanoongo in his deposition had admitted that he was told by the servant that the land in dispute was being cultivated by Pritam Singh and there was no demarcation separating the land claimed by the trans ferees. He failed to disclose the name of the servant who had given him the infor mation. 23. It may further be noticed that none of the aforesaid witnesses had stated any thing which could in any manner go to indicate that the sale deed in question was not a genuine and bonafide transaction. 24. It is further evident from the evidence led by the State itself that at the worst, the status of the transferees was that or a co-sharer with undivided share. There was no admissible material on the record which could indicate that the land in dis pute was in exclusive cultivatory posses sion of Pritam Singh. Intact on the evidence led by the respondent State the joint possession of the transferees could not be ruled out. 25. In the aforesaid view of the mat ter, I am of the considered opinion that the respondent authorities have acted with manifest illegality in proceeding on a statutory presumption for which the necessary foundation had not been laid which has resulted in wrong placing of the burden of proof as a consequence whereof manifestly erroneous conclusions were reached vitiating the impugned orders. 26. In the circumstances, therefore, sufficient ground has been made out for interference by this Court. 27. In the result this writ petition succeeds. The impugned orders passed by the prescribed authority dated 19-10-1981 as well as that of the appellate authority dated 3-11-1982 are quashed with the directions to the prescribed authority to redetermine the extent of the surplus land held by Pritam Singh excluding the area transferred in favour of Surjit Singh and Surendra Singh vide the sale deed dated ll-8- 1970inquestion. 28. There shall however, be no order as to costs. Petition allowed. .;