- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order dated 27-12-1981 passed by the Prescribed Authority and the order dated 14-3-1983 passed by the IInd Additional District Judge, Varanasi, respondent No. 2 partly dismissing the appeal of the petitioner.
(2.) THE facts of the case in brief are that the proceedings under U. P. Imposition of Ceiling on Land Holdings Act, I960 (in short referred to as the Act) were initiated against the petitioner. He was issued a notice under Section 10 (2) of the Act proposing 38. 113 acres of land as surplus land. THE Prescribed Authority by its order dated 27-12-1981 declared 38. 033 acres of irrigated land as surplus land of the petitioner. THE petitioner filed appeal against this order. Respondent No. 2 has partly allowed the appeal by order dated 14-3-1983. THE petitioner has filed instant writ petition challenging the part of the order whereby his appeal has been dis missed. I have beard Shri Faujdar Rai, earned Counsel for the petitioner and the learned Standing Counsel on behalf of State of U. P. The first submission of the learned Counsel for the petitioner is that 16. 57 acres of land of village Vishwanathpur dis trict Gorakhpur belonged to Sitakant Mishra and that has wrongly been taken as land belonging to the petitioner while determining the surplus land of the petitioner. This submission is passed on the fact that one Sitakant Mishra filed suit for declaration of his right over the land in question covering area of 16. 57 acres on 4-9-1972, under Section 229-B of U. P. Zamindari Abolition and Land Reforms Act, before the Revenue Court against the petitioner. The State of U. P. was also im- pleaded as a party. The petitioner entered into a compromise. The suit of the plaintiff was decreed by the Revenue Court on 18-7-1974.
(3.) THE Prescribed Authority found that the decree was obtained after the ap pointed date i. e. 24th January, 1971 as such the decree has to be ignored in view of sub-section (6) of Section 5 of the Act. THE Appellate Authority upheld the view. It further found that decree was collusive. The learned Counsel for the petitioner contended that the Gaon Sabha and the State of U. P. were parties in the suit filed by Sitakant Misra. They did not contest the suit. The decree passed in the said suit is binding upon them. They can not challenge the decree in the present proceedings in regard to determination of the surplus land under the provisions of Ceiling Act. Clause (b) of Explanation I of sub- section (6) of Section 5 of the Act, specifically provides that a declaration of a person as a co-tenure- holder after the twenty-fourth day of January, 1971, any admission acknowledgment, relinquishment or declaration in favour of a person to the like effect made in any other deed or instrument or in any other manner has to be excluded. Sub-section (6) of Section 5 reads as under: (6) In determining the ceiling area ap plication to a tenure- holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account: Provided that nothing in this sub-section shall apply to - (a) a transfer in favour of any person (in cluding Government) referred to in sub-section (2 ). (b) a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration and under an ir revocable instrument not being a benami trans action or for immediate or deferred benefit of the tenure-holder or other members of his family. Explanation I-For the purposes of this sub-section, the expression transfer of land made after the twenty-fourth day of January, 1971, includes- (a) a declaration of a person as a co-tenure-holder made after the twenty-fourth day of January, 1971 in a suit or proceeding irrespec tive of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971; (b) any admission, acknowledgment, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner. Explanation H- The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit. ";