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Vishwanath v. State - WRIT - C No. 3740 of 1978 [2007] RD-AH 7588 (24 April 2007)


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   Court No. 28

Civil Misc. Writ Petition No.3740 of 1978

Vishwa Nath Parmar  Vs.    State of U.P. & others


Hon'ble Tarun Agarwala, J.

Heard Sri Anil Sharma, the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.

In a proceeding under Section 10[2] of the U.P. Imposition of Ceiling on Land Holdings Act 1960, notice was issued to the petitioner to show cause as to why an area of 15.15 acres of irrigated land be not declared as surplus. The petitioner filed his objections which was accepted by the prescribed authority in part and 10.35 acres was declared as surplus land. The prescribed authority gave benefit of 5 bighas, and 17 biswa  under Section 5(6)(b) of the Act to the petitioner on the basis of a sale deed dated 14.3.1972 executed by the petitioner in favour of a third party,  holding that the sale deed was  bonafide. Against the finding of 10.35 acres of surplus land given by the prescribed authority, the petitioner preferred an appeal. The appellate court while allowing the appeal also considered the sale-deed on 14.3.1972 and held that the petitioner was not entitled to be given the benefit of 5 bighas and 17 biswa pursuant to the sale-deed executed on 17.3.1972, inasmuch as the said sale-deed was executed after the cut off date of 24.1.1971. Aggrieved, the petitioner has filed the present writ petition.

The learned counsel for the petitioner submitted that the benefit given  by prescribed authority on the  basis of the sale deed of 14.3.1972 could not be reopened by the appellate authority in the absence of any cross objection being filed or in the absence of an appeal being filed by the State Government. The learned counsel submitted that  in view of the provisions of Order 41 Rule 33 C.P.C., the finding of the prescribed authority on the sale deed dated 14.3.72 had become final and cannot be reopened by the appellate authority. In support of his submission, the learned counsel for the petitioner has placed reliance upon a decision of the Supreme Court in Nirmala Bala Ghose and another Vs. Balai Chand Ghose, AIR 1965 1874 wherein the Supreme Court has held as follows :

"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where inference in favour of the appellant necessitates inference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by  the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from."

In Raj Bahadur Vs. State of U.P. and others 1996, ALJ 1064, a Single Judge of this court held that it was not open to the appellate authority to reopen that part of the order which had become final and which had not been challenged by the State in appeal.

In view of the aforesaid decisions, I have no hesitation in holding that the appellate court had exceeded its jurisdiction in reversing the finding of the prescribed authority on the question of the validity of the sale-deed dated 14.3.72 which had not been challenged by any party before the appellate court. Consequently, the appellate court had committed an error in excluding the area mentioned in the sale deed dated 14.3.72 in the holding of the petitioner.

The learned counsel for the petitioner further pointed out that the land in question was recorded as 'Sir' and 'Khudkasht' in the revenue records in the name of the petitioner's father and therefore, upon the birth of the petitioner's son in the family, the petitioner and his son would have inherited the land as co-owners and this fact was also required to be considered by the appellate authority which was not considered.

Since, I have already held that the appellate authority had exceeded his jurisdiction, the impugned order cannot be sustained and is quashed. The writ petition is allowed. The matter is remitted back to the appellate authority to reconsider the matter afresh in the light of the observations made above and it would be open to the petitioner to raise the question of the land being recorded as 'Sir' and 'Khudkasht' in the name of the petitioner's father.


Ak/3740 /1978


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