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SMT.RAZA DULARIYA versus STATE OF U.P.

High Court of Judicature at Allahabad

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Smt.Raza Dulariya v. State Of U.P. - WRIT - C No. 6226 of 1984 [2007] RD-AH 11302 (5 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment Reserved on 13.03.2007

Judgment Delivered on 05.07.2007

Civil Misc. Writ Petition No.5982 of 1984

State of U.P. Vs. Om Prakash and others

AND

Civil Misc. Writ Petition No.6226 of 1984

Smt. Raja Dulaiya Vs. State of U.P. and others

Hon'ble S.U. Khan, J.

Heard learned counsel for the parties.

Through both these writ petitions, same judgment dated 30.01.1984 of A.D.J./Special Judge (docaity affected area) Jalaun at Orai passed in Misc. Appeal No.86 of 1982, State of U.P. Vs. Om Prakash has been challenged.

These writ petitions arise out of proceedings under U.P. Imposition of Ceiling on Land Holdings Act. Notice was issued and proceedings were initiated against Om Prakash-respondent No.1 in the first writ petition and respondent No.2 in the second writ petition. Bhagwan Singh-husband of Raja Dulaiya and real brother of Om Prakash had executed a gift deed dated 28.06.1967 of his agricultural land in favour of Prem Prakash S/o Om Prkash. Prem Prakash is respondent No.3 in the second writ petition. At the time of gift Prem Prakash was minor. He was minor even when ceiling proceedings were initiated. Accordingly, the gifted land was clubbed with the land of Om Prakash-father of Prem Prakash. Om Prakash took the defence that his brother Bhagwan Singh had become Sanyasi (monk) resulting in his civil death and before that he had adopted Prem Prakash, hence land of Prem Prakash gifted to him by Bhagwan Singh could not be clubbed with the land of Om Prakash. In Para-6 of the second writ petition, it has been stated that Bhagwan Singh became sanyasi in the year 1957/58. Ultimately, Prescribed Authority through order dated 28.06.1976 held that Om Prakash had 5.5 acres of irrigated land as surplus land. All the objections raised by Om Prakash were rejected. The said order was maintained in appeal as well as writ petition being writ petition No.6081 of 1978 dismissed on 06.02.1980. S.L.P., filed before the Supreme Court against the judgment of the High Court being S.L.P. No.4376 of 1980, was also dismissed by the Supreme Court on 20.01.1981.

Thereafter, the village where land in dispute is situate came under consolidation. Om Prakash filed application under Section 13-A of Ceiling Act stating therein that the area of land held by him had been reduced due to change in valuation and compulsory contribution during consolidation operation. The Prescribed Authority by his order dated 25.11.1981 accepted the contentions of Om Prakash and reduced the surplus land from 5.5 acres to 3.23 acres holding that there was a reduction to the extent of 2.27 acres in the area of Om Prakash.

Om Prakash still did not feel satisfied and filed another application stating therein that reduction in area during consolidation operation was to the extent of 6.63 acres, hence it must be declared that he did not possess any surplus land. Another application was filed by Smt. Raja Dulaiya, W/o Bhagwan Singh-petitioner in the second writ petition. She stated that Bhagwan Singh had become sanayasi about 20-25 years before, hence gift deed executed by him in 1967 in favour of Prem Prakash was void and she was the owner of the entire property of Bhagwan Singh. Application of Om Prakash was dismissed on the ground that in the earlier order dated 25.11.1981, there was no error of calculation. As far as application of Smt. Raja Dulaiya was concerned, her husband Bhagwan Singh and some other persons appeared as her witness. Bhagwan Singh stated that he had taken sanyas about 5-6 years before. The Prescribed Authority held that in view of the earlier judgments and statements of other witnesses, Bhagwan Singh took sanyas after gift deed but before adoption.

The Prescribed Authority thereafter held that gift deed to the extent of 2.82 acres of land was not valid as it was sirdari land at the time of gift. For the said purpose, reliance was placed upon Khatauni of 1381 to 1383 Fasli. This point was not taken by Om Prakash in the earlier proceedings, which were carried till the Supreme Court. Even Raja Dulaiya in her application, and affidavit in support thereof, which are Annexures-1 and 2 to her writ petition, did not raise this point. In Para 3 of the application, she stated that since after taking sanyas by Bhagwan Singh, she was Bhumidhar of the land of Bhagwan Singh. The Prescribed Authority did not even mention the nature of tenancy mentioned in the gift deed (copy of the gift-deed has not been annexed with either of the writ petitions). In 1982 before Prescribed Authority witnesses stated that Bhagwan Singh had taken sanyas about 4 or 6 years before. If the land had been sirdari at the time of gift deed, there would have been no question of mutation of name of Prem Prakash. Smt. Raja Dulaiya in her application or affidavit, nowhere stated that any part of land held by Bhagwan Singh, was sirdari in 1967, i.e. at the time of execution of gift deed. The Prescribed Authority held that as no Court (it includes the Supreme Court) had considered this question earlier, hence he was competent to reverse the earlier judgments and hold that gift deed was invalid and void to the extent of sirdari land.

Smt. Raja Dulaiya nowhere stated that why after sanyas of her husband, she did not apply for mutation of her name over the agricultural land of her husband.

The Prescribed Authority further held that some land was unirrigated, and under the earlier orders uptill Supreme Court it was wrongly treated to be irrigated. Ultimately, the Prescribed Authority through order dated 25.08.1982 held that there was no surplus land with Om Prakash (or Raja Dulaiya ). Against the said order, State filed Misc. Appeal No.86 of 1982, which was allowed in part on 30.01.1984, which order has been assailed in both these writ petitions. Appellate Court affirmed the findings of Prescribed Authority to the effect that some of the land, which was subject matter of gift deed, was sirdari and gift deed to that extent was void. However, that portion of the judgment of Prescribed Authority, through which some irrigated land was held unirrigated was set aside by the Appellate Court on the ground that this question had become final earlier.

Smt. Raja Dulaiya had not stated anything regarding irrigated or unirrigated nature of land. Om Prakash has not challenged the order dated 30.01.1984. Even otherwise I do not find any error in the said findings of the Appellate Court. Appellate Court held that as plots in dispute had been treated to be irrigated in the earlier proceedings, hence under Section 13-A, the said decision could not be set aside.

As far as the question of certain plots of land, which were subject matter of gift deed being sirdari is concerned, the findings of both the courts below prima facie appear to be erroneous. However, no authoritative opinion may be expressed on this point as State has acted negligently in filing the first writ petition. Neither copy of the gift deed has been annexed nor copy of the Khatauni 1381 to 83 Fasli on the basis of which findings were recorded by the courts below has been annexed. Even copies of earlier judgments have not been annexed. It is quite possible that in the earlier judgments something may have been said regarding the nature of tenancy, bhumadhari or sirdari. The distressing fact is that in the first writ petition by the State, this Court on 19.04.1984 passed an order to the following effect:-

"The learned standing counsel prays for and is granted three weeks' time to file a supplementary affidavit annexing thereto. Copies of judgments of various courts including the Supreme Court.

List this writ petition for admission immediately upon the expiry of three weeks."

In spite of said order, no supplementary affidavit was filed.

Accordingly, both the writ petitions are dismissed.

Date:05.07.2007

NLY


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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