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Yatish Prasad & Others v. State Of U.P. & Others - WRIT - C No. 20799 of 1990  RD-AH 9728 (21 May 2007)
Civil Misc. Writ Petition No.20799 of 1990
Yatish Prasad and others.....................................................Petitioners
State of U.P. and others......................................................Respondents
The prescribed authority declared 87.74 acres as surplus land in the hands of petitioner No.1 and 43.89 acres as surplus land in the hands of Anil Prasad, now represented by the petitioner Nos.2 and 3. The appeal against the order of the Prescribed Authority was dismissed. A writ petition No.3302 of 1976 was filed which was allowed by a judgment dated 9.3.1977 and the matter was remitted back to the appellate authority to consider two questions, namely, whether the plots were to be treated as a grove land and secondly, whether the 5 sale deeds executed by the tenure holders were bonafide transaction under Section 5(6) of the Act.
Pursuant to the aforesaid judgment of the Court, the appellate authority, by an order dated 9.8.1990, again rejected the contention of the petitioners holding that the plots in question were no longer a grove, inasmuch as, crops were being grown on a portion of the land. The appellate authority further found that the five sale deeds executed after 2.1.1971 were liable to be ignored, inasmuch as, adequate consideration was not proved and that the motive for selling the land to repay the loan taken by the tenure holder for the purpose of the tractor was also not proved. The petitioners, being aggrieved by the appellate order has again filed the present writ petition.
Heard Sri R.N.Singh, the learned senior counsel assisted by Sri A.K.Rai, the learned counsel for the petitioners and Sri R.K.Chaubey the learned counsel for the respondents.
The learned counsel for the petitioners submitted, that the finding of the appellate authority that since a portion of the land was being used for agricultural purposes the said land was no longer a grove land is wholly erroneous. The provisions of Section 3(8) of the Act makes it apparently clear that if a considerable portion of the land in question was being used primarily as a grove, in that event, the entire land would be treated as grove. The authority itself has found that 210 trees were existing in the area of 7.33 acres which came to approximately 30 trees per bigha which, in the opinion of the learned counsel for the petitioners, was sufficient to be treated as a grove land. In support of his submission, the learned counsel for the petitioners placed reliance upon a decision of this Court in Shiv Sahai and others vs. Har Nandan and others, 1963 RD 119, in which it was held that the mere fact that a certain portion of the land was under cultivation would not exclude the said land from the definition of the grove land as defined under Section 3(8) of the Act . The Court held that if a major portion of the land was covered by trees, it would follow that the land was being used primarily for the purpose of cultivation and would be treated as a grove land. The Court in the said decision found 13 mango trees were existing in 1.92 bigha and held it to be a grove land.
In my opinion, the finding of the appellate court that since a portion of the land was being used for cultivation which were recorded in the relevant Khasra 1378 to 1380 fasli, the said land would not be treated as a grove land is erroneous and cannot be sustained. Section 3(8) of the Act defines a grove land as under:-
"(8) 'grove-land' means any specific piece of land in a holding having trees not including [guava, papaya' banana or vine plants] planted thereon before January 24, 1971, in such numbers that they preclude, or when full grown will preclude, the land or any considerable portion thereof from being used primarily for any other purpose, and the trees on such land constitute a grove;"
In Hamid Hussain vs. State of U.P. 1978 AWC 574 this Court interpreted the words ''considerable portion thereof' as
"The word 'considerable portion thereof" are significant. If considerable portion due to planting of trees cannot primarily be used for any other purpose the entire land would be grove. In other words even if smaller area is cultivable or denuded of trees the character of the land does not cease. The emphasis of the learned counsel for the State on words 'specific piece of land' does not carry conviction. It cannot be read in isolation. The definition of grove in the U.P. Tenancy Act was more or less similar. It was adopted in Z.A. Act as well."
In the present case, admittedly 30 trees per bighas are existing and, as per the judgment in Shiv Sahai and others(supra) the Court in that case held that 13 trees in 1.92 bighas was sufficient to be treated as a grove land. Consequently, in the present case, 30 trees per bigha is sufficient to treat the said land as a grove land. In view of the aforesaid, the finding of the appellate authority treating 7.33 acres of land as cultivated area is incorrect. This Court therefore holds that the said land would be treated as a grove land.
The appellate authority further found that the motive of the tenure holder to sell the land in order to repay the tractor land was not correct since only a sum of Rs.8492/- was paid during the relevant period when 5 sale deeds were executed. Consequently, the appellate authority held that the benefit under Section 5(6)(b) of the Act could not be given to the tenure holders.
The learned counsel for the petitioner submitted that the appellate authority wrongly placed the burden upon the tenure holders whereas the burden was upon the State to prove that the sale deeds was a benami transaction. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision of the Supreme Court in Jaydayal Poddar (deceased) through L.Rs. and another vs. Mst. Bibi Hazra and others, AIR 1974 SC 171 and P. Satyanarayan Murty vs. The State of Andhra Pradesh, JT 1992(4)SC 454 wherein the Supreme Court held that the burden of proof was upon the prosecution. In my opinion, the submission of the learned counsel for the petitioner is not correct. The decisions cited are not applicable in the present case. A perusal of explanation II of Section 5(6) makes it apparently clear that the burden of proof that a case falls within clause (b) of the proviso is upon the party claiming the benefit. For facility, Section 5(6) is quoted below:-
"5(6) In determining the ceiling area application to a 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 (including 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 irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family.
[Explanation 1.- For the purposes of this sub-section, the expression 'transfer to 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 proceedings irrespective 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-II. - The burden of proving , that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit."
In the present case, the petitioners being the tenure holders are claiming the benefit of the provisions of sub clause (b) of sub section (6) of section 5. The burden was clearly upon the tenure holder to prove that the transaction was a bonafide transaction for adequate consideration and executed in good faith under an irrevocable instrument and that it was not a benami transaction. The Supreme Court in Jaydayal Poddar (supra) case held-
"Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in a situations, can be laid down, yet in weighing the probabilities and for gathering the relevant indica, the courts are usually guided by these circumstances; (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."
In the light of the aforesaid judgment, the appellate authority found that adequate consideration had not been passed on to the seller and further found that the motive of the tenure holder to sell the land was not proved. The motive for selling the land was to repay the land taken by the tenure holder amounting to Rs.20,000/-. The appellate authority found that though the alleged sale consideration was for a sum of Rs.54,580/-, a sum of Rs.8491/- only was paid towards the loan during the period in question. Consequently, the appellate authority found that the motive for the sale of the land was not in existence. These are findings of fact which in the opinion of the Court, are based on adequate reasoning which are not perverse and therefore, this Court is not inclined to interfere in the findings of fact on this aspect of the matter.
In this view of the matter, the writ petition is partly allowed. The matter is remitted to the prescribed authority to redetermine the excess land after excluding 7.33 acres as grove land.
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