M.P.MEHROTRA,J. - (1.) THIS writ petition arises out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960.
(2.) THE relevant facts given briefly are these:- The petitioner is a tenure-holder in village Faridpur, Tahsil Bazpur, district Nainital. He was issued a notice under section 10 (2) of the afore­said Act by the Prescribed Authority, Kashipur, district Nainital proposing the 127 bighas and 7 biswas of his land would be declared surplus. The petitioner contested the said notice and, inter alia, he relied on the two sale deeds both dated 22-2-1971 which were executed on his behalf by his Mukhtar-e-am Sri Balbir Singh. By one deed 74 bighas and 6 biswas of bhumidhari land were sold to one Smt. Jogender Kaur and by the other document 83 bighas and 6 biswas of land were sold to Smt. Ajeet Kaur. The first deed was executed for a sum of Rs. 13,000/- and the other deed for Rs. 11,640/-. The true copies of the sale deeds have been filed by the petitioner along with the writ petition and they have been marked as Annexure T (A and B). In the objection the petitioner stated that the transactions were at the prevalent market rate, hence for an adequate consideration and were in good faith and were by irrevocable instruments and were not benami transactions. The Prescribed Authority, however, while disposing of the objection of the petitioner, did not accept the said contention and held that the transactions were not genuine. The Prescribed Authority held that as the consideration mentioned in the documents was not paid before the Sub-Registrar at the time of the registration, therefore, he felt that the transactions lacked genuineness. Adverting to the question of posses­sion, he observed that the said consideration was not relevant under the afore­said status. The petitioner filed an appeal and the same was heard by the Civil Judge, Nainital. The appeal was partly allowed but so far as the aforesaid two sale deeds were concerned, the Appellate Court maintained the finding of the Prescribed Authority and held that they were rightly ignored by the said authority in view of section 5(6) of the aforesaid Act. The petitioner has now come up in the instant petition and in support thereof I have heard Sri S. P. Gupta, his learned counsel. In opposition learned Standing Counsel has made his submissions. Sri Gupta raised the following contentions:- (1) The appellate Court did not give any definite finding in reference to the requirements of law as laid down in section 5(6) of the said Act. The appellate authority was a regular Civil Court and it was not an administrative tribunal and, therefore, was bound to record a definite categorical find­ing in the manner in which Civil Courts should record findings on contro­versies raised before them. (2) The authorities below were not justified in dis-regarding the aspect of actual possession and it was a relevant consideration which should have been taken into account. (3) The lower appellate Court did not care to consider the aspect of con­sideration involved in the said transaction. (4) The necessity under which a transaction has to be affected is a matter of relative assessment and a finding cannot be based merely in the absence of proof in support of the alleged finding. Learned Counsel relied on Daryao v.State of U.P.( A.IR. 1961 S.C. p. 1457),in Para 19 whereof the Court observed as under:- "If the petitition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res-judicata. It is true that, prima facie, dismissal in limine even without pass­ing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what fac­tors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitute a bar of res judicata against a similar petition filed under Art. 32.
(3.) IN opposition, the learned Standing Counsel drew my attention to Para 4 of the writ petition and pointed out that the land had been sold for grossly low amount and such a transaction could never be said to be a bona fide one in good faith and for adequate consideration. He also drew my attention to the fact that the Prescribed Authority has observed that consideration passed dur­ing the registration proceedings.;