STATE OF U P Vs. GYAN KUNWAR

JUDGEMENT

(1.) This case comes before us upon a reference by learned Single Judge who felt that there is apparent conflict between a Bench decision and a Single Judge decision on the point set out below and being of considerable importance which require consideration by a larger Bench.

(2.) The facts, inter alia, before the learned Single Judge, in short were that respondents, Smt. Gaya Kunwari & Smt. Bimla Devi were the wives of late Banarasi Prasad. It is said that as per partition decree of the Civil Judge, Unnao, issued way back on 19.1.1948 the shares of respondents no.2 and 3 were separated and both of them have been living separately and managing their holdings independently. On the other hand, the State Government- had taken stand in the court below that the holdings of all the three respondents should be treated as one for the purposes of the Ceiling Act and surplus land. Before proceeding further, it would be relevant to point out that respondent no.1 Banarasi Prasad son of Ram Lal died on 18.2.1977 and, therefore, an application for substitution, which was registered as Civil Misc. Appln.No. 448(w) of 1978, was allowed by an order dated 19.9.1986 and Banshidhar, Sridhar and Sri Nivas, all son of Banarasi Prasad [deceased] were substituted as opposite parties nos. 1/3,1/4 and 1/5. Banshidhar- opposite party no.1/3 also died on 20.1.2003.

(3.) The Prescribed Authority by the judgment and order dated 20.7.1975 came to the conclusion on the basis of documentary evidence that respondents no.2 and 3 were living separately and their holdings cannot be included in the holdings of late Banarasi Prasad for the purposes of declaration of surplus land. Aggrieved by the said judgment, the petitioners filed a Civil Appeal No. 296 of 1975 in the court of Ist Addl. District & Sessions Judge, Unnao. The Appellate Court by the judgment and order dated 31.8.1976 approved the judgment of the Prescribed Authority and dismissed the appeal preferred by the petitioners. Hence the present writ petition.