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State Of U.P. v. Ram Pragas And Others - WRIT - C No. 461 of 1986  RD-AH 10987 (2 July 2007)
(Judgment reserved on 19.03.2007)
(Judgment delivered on 02.07.2007)
Civil Misc. Writ Petition No.461 of 1986
State of U.P Versus Ram Pragas and another.
Hon'ble S.U. Khan, J.
At the time of hearing no one appeared on behalf of contesting respondent No.1 inspite of sufficient service, hence, only the arguments of learned counsel for the petitioner were heard.
Ceiling Proceedings under U.P Imposition of Ceiling on Land Holdings Act, 1960 were initiated against respondent No.1 in the form of case No. 41 of 1984 under section 10(2) of the Act. Prescribed Authority, Bara district Allahabad decided the matter on 11.7.1984. Prescribed authority held that respondent No. 1 possessed 24.17 acres of land (in terms of irrigated land) as surplus land. As no choice had been given by the tenure holder, hence, number of plots to be taken as surplus land were also mentioned in the order. Against the order passed by the prescribed authority respondent No.1 filed Revenue Appeal No. 489 of 1989. II Additional District Judge, Allahabad through judgement and order dated 15.5.1985, allowed the appeal, set-aside the order of the prescribed authority and declared that tenure holder did not possess any surplus land. The said judgement and order of the appellate court has been challenged by the State through this writ petition.
Prescribed authority had clearly held that the tenure holder respondent No.1 had only one major son by the name of Indra Bhan Singh @ Banke Lal and the tenure holder did not have any other son. Appellate court held that tenure holder had two major sons Indra Bhan Singh and Banke Lal.
Prescribed authority had held that the sale deed dated 20.12.1970 executed by tenure holder in favour of his minor grandsons was Benami and tenure holder continued to hold the said land, in the real sense. Appellate court held that the sale deed was executed prior to 24.1.1971, hence, it was quite valid.
The prescribed authority had held that the land of the tenure holder was irrigated. Prescribed authority held that the tenure holder in his oral statement admitted that subsidiary minor branch of canal was passing through from the place near his agricultural land. Before prescribed authority no Khasra was filed. Appellate court in this regard held that Khasra of 1375 and 1376 Fasli had been filed before the appellate court which showed that the land was not irrigated. However, the nature of the entry in the said Khasras has not been mentioned in its judgment by the appellate court. In the order of the appellate court it is mentioned that aquestionnaire had been filed to show that Khasra for the year 1378 to 1380 fasli had not been prepared. Questionnaires are replied by the clerks, hence, they are not of much value.
In respect of two sons of tenure holder and their ages appellate court stated that School certificates had been filed. The said certificates had also not been filed before the prescribed authority. There is no mention in the order of the appellate court that any permission through application was sought and granted for adducing additional evidence in the appeal. Moreover, prescribed authority had placed reliance upon statement of tenure holder and his son Indra Bhan Singh to disbelieve the version of the tenure holder that apart from Indra Bhan Singh he had other son also. Certificates which were filed appear to be of some primary school. The Supreme Court in Ravinder Singh Gorkhi v. State of U. P. AIR 2006 SC 2157 has held that such types of certificates issued by primary school teachers or head masters are not admissible unless issued by the head master during whose period the student studied in the school in question. Apart from High School certificate not much reliance can be placed upon other school certificates like the ones issued by primary school in respect of age.
As far as sale deed of 21.12.1970 in respect of 30 bigha and odd land of the tenure holder is concerned it could not be ignored under section 5(6) of the Ceiling Act. However, if the said sale deed was benami then the land sold was bound to be treated to belong to tenure holder by virtue of explanation I to section 5(1) of the Ceiling Act which is quoted below.
" In determining the ceiling area applicable to tenure holder all land held by him in his own right whether in his own name or ostensibly in the name of another persons shall be taken into account."
Appellate court did not consider the aspect of benami transaction.
Accordingly, I find that the judgement of the appellate court on all the three points is erroneous in law and liable to be set-aside.
Writ petition is therefore allowed. Impugned order is set-aside. Matter is remanded to the the appellate court to decide the appeal afresh in the light of observations made above. Any of the parties may file additional evidence before the appellate court after obtaining its permission for adducing additional evidence. The additional evidence earlier adduced by the tenure holder before the appellate court shall not be taken into consideration, however, same evidence may again be sought to be filed alongwith application for permission of the same. It is specifically directed that Khasras of relevant years must be filed before the appellate court by the parties.
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