Allahabad High Court
Prabhawati vs Addl.Commissioner Lucknow Division ... on 24 February, 2022
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 22 Case :- WRIT - C No. - 3000172 of 1995 Petitioner :- Prabhawati Respondent :- Addl.Commissioner Lucknow Division Lucknow And Other Counsel for Petitioner :- V.K.Pandey Counsel for Respondent :- C.S.C. Hon'ble Manish Mathur,J.
Heard Mr. V.K.Pandey, learned counsel for petitioner and learned State Counsel appearing on behalf of opposite parties.
Petition has been filed assailing the order dated 09.12.1991 passed by the Prescribed Authority Ceiling as well as Appellate Court Order dated 31.10.1995, whereby certain portion of petitioner's holdings have been held to be surplus in view of provisions of U.P. Imposition of Ceiling on Land Holdings Act, 1960.
Learned counsel for petitioner submits that petitioner had purchased the property in question recorded as Gata No.277/39, measuring area 4.51, total area 12.50 of village Gajraura, Pargana Palia, Tahsil Nighasan, District Kheri by means of registered sale-deed dated 02.04.1971 and has been continuously in possession of the aforesaid land till passing of the impugned orders. It is submitted that although the said sale-deed is subsequent to the cut off date of 24.01.1971 as amended to 08.06.1973 by means of amending Act, 1972 but the authorities below have failed to consider the specific provisions of Section 5(6)(b) of the Act, 1960 and have reached incorrect conclusion regarding the sale-deed having been executed in good faith and for adequate consideration under an irrevocable deed for consideration which was not Benami transaction. It is submitted that the authorities have misdirected themselves by disbelieving the registered sale-deed only on the basis that petitioner's name was not mutated in the revenue records in pursuance to the sale-deed. Learned counsel has further submitted that during proceedings petitioner had produced witnesses not only to prove the sale-deed but also to prove her possession over the property in question but the same was wrongly disbelieved merely on the ground that petitioner did not produce herself in the proceedings to prove either the sale-deed or her possession over the property.
Learned counsel has placed reliance on certain judgments of this Court in order to buttress his submissions.
Learned State Counsel appearing on behalf of opposite parties, on the basis of counter affidavit filed, submits that subjective satisfaction has been recorded by the authorities below for disbelieving the sale-deed on which petitioner has placed reliance. It is submitted that the authorities have correctly recorded the finding that petitioner is not in possession over the property in question particularly in view of the subsequent power of attorney executed by petitioner in favour of one Chandrika Prasad. It is submitted that the order clearly records the fact that the witnesses produced on behalf of petitioner were also unaware with regard to the place of residence of petitioner's husband. It is further submitted that in terms of Section 5(6)(b) of the Act, it is the satisfaction of Prescribed Authority to believe or disbelieve the sale-deed executed after the cut off date and such a discretion of the authority does not warrant any interference in writ petition.
Considering the submissions advanced by learned counsel for parties and upon perusal of material on record, it is apparent and admitted that the sale-deed said to have been executed in favour of petitioner is subsequent to the cut off date indicated in the Act as 24.01.1971. The Prescribed Authority as well as the Appellate Authority have placed considerable emphasis on the fact that that petitioner did not appear before the authorities either in order to prove the sale-deed or even her possession over the property in question. The witnesses produced on behalf of petitioner have also been disbelieved primarily on the ground that they were not witnesses to the sale-deed and even otherwise were unaware of the place of residence of petitioner's husband. As such it has been held that the sale-deed which forms the basis of petitioner's claim was not a bonafide document executed in good faith.
With regard to aforesaid factors regarding deed of transfer executed after the cut off date of 24.01.1971, the provisions of Section 5(6)(b) are relevant. The said provision specifically provides as follows:
"(6) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth 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)...............................................
(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 I ............................. Explanation II.- The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit."
Upon perusal of the said provision, it is apparent that for a transfer deed to be ignored for the purposes of the determination of the surplus area after the cut off date of 24.01.1971, the satisfaction of prescribed authority is compulsorily required that the said deed of transfer was not in good faith or for an adequate consideration under irrevocable instrument and was not benami transaction or for immediate or deferred benefit to the tenure holder or her members of family.
As such, it is imperative as per statutory provision that the prescribed authority is required to consider all the conditions indicated in the said provision of the Act and not only a part.
In the present case, the sale-deed which forms the basis of petitioner's claim has been held not to come within the provisions of Section 5(6)(b), primarily on the ground that petitioner failed to produce herself before the concerned authority in order to prove the sale-deed and her possession over the said property. The Prescribed Authority has specifically disbelieved bonafide of petitioner on the ground that she is a resident of Jaipur and therefore, it was not possible for her to cultivate lands situated in District Kheri in the State of Uttar Pradesh. Much emphasis has also been laid upon the power of attorney dated 24.01.1971 executed by the petitioner in favour of one Chandrika Prasad Mishra to conclude that petitioner was not in possession of the property in question. As such, the prescribed authority has disbelieved the execution of sale-deed. The Appellate Authority has also rejected the appeal primarily on the said basis.
Upon applicability of provisions of Section 5 (6)(b) of the Act, it was imperative for the authority concerned to have recorded a satisfaction that the deed of transfer was not executed in good faith or for adequate consideration under an irrevocable instrument not being benami transaction or for immediate or deferred benefit of tenure holder or her members of family. Upon perusal of both the impugned orders, no such subjective satisfaction has been indicated. The deed admittedly is irrevocable in nature. There is no avernment in either of the impugned orders that it is benami transaction or for immediate or deferred benefit of tenure holder or her members of family. Even the fact that the sale-deed has not been executed for adequate consideration skips a mention. The only reason for disbelieving the registered instrument of transfer is based mainly on conjectures and surmises that petitioner is belonging to City of Jaipur in Rajasthan would not be able to cultivate property situated in District Kheri, Uttar Pradesh. Disbelieving the registered instrument of transfer on such a ground is not contemplated under the provision of Act. The authorities concerned have also not indicated any reason for disbelieving the power of attorney dated 28.01.1987 which was subsequently registered in 1990. There is no other finding recorded by the authority concerned for disbelieving the registered instrument of transfer in terms of Section 5(6)(b) of the Act.
This Court in the case of Jaswant Singh versus State of U.P. and others reported in 1981 ALL. L.J. 431 has held as follows:
"3. In this case the appellate authority found that transfer was by irrevocable instrument to an outsider for considera tion. He did not find it to be benami or for immediate or deferred benefit of the tenure-holder or other members of his family. He has not referred to any evi dence or circumstance except the omis sion to mention the necessity in the sale deed itself. It has been repeatedly held by this court that such omission by itself does not establish lack of good faith, The appellate authority was conscious of this fact but it held that, recital in the sale compelling necessities under which the land was sold shows the bona fides of the vendor, True, but it is not conclusive. In- absence of any other evidence or circum- stance this by itself could not result in a finding that sale deed was executed without good faith."
It is well nigh-settled that a finding based on no evidence is not a finding of fact and can be set aside in exercise of writ jurisdiction. Apart from it good faith in the proviso is a legal con clusion to be drawn from the evidence and finding on it. An inference in law if erroneous cannot be considered to be a finding of fact."
The aforesaid pronouncement by this Court is clearly applicable in the present case since reasoning resorted to by the authorities does not conclusively prove that the transfer by registered instrument was not in good faith or for adequate consideration.
An adverse presumption has been recorded in the impugned orders regarding non-presence of petitioner to prove either the registered sale-deed or her possession over the property in question. In this regard, it is necessary to clear that as per Sections 37 3and 38 of the Act of 1960, the Prescribed Authority holding an inquiry or hearing on objections shall have all the powers and privileges of the civil court and is required to follow procedure laid down in the Code of Civil Procedure for trial and disposal of suits relating to immovable property. The same power has been conferred upon the appellate court as well. As such it is clear that the Prescribed Authority and the Appellate Court have the power to call for evidence pertaining to dispute of immovable property. Resultantly, the evidence act would clearly be applicable in such proceedings.
In the present case, the authorities have drawn an adverse inference against petitioner on the twin grounds that neither the plaintiff presented herself nor was the sale deed on the basis of which she was claiming, proved in evidence.
Since provisions of Evidence Act would be applicable while disposing of objections filed under the Act, necessarily Section 68 of Evidence Act would also be applicable. While the said provision pertains to proof of execution of document required by law to be attested by at least one attesting witness for the purpose of proving its execution but proviso to Section 68 of Evidence Act clearly stipulates as follows:
"68. Proof of execution of document required by law to be attested.?If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
In view of the proviso to Section 68 of Evidence Act, it is clear that a registered document not being a Will does not require to be proved by an attesting witness unless its execution by the executor is specifically denied.
In the present case, although no attesting witness was produced by petitioner for purposes of proving registered sale deed dated 2.4.1971 but in terms of proviso to Section 68 of Evidence Act, there was no such requirement since execution of the registered instrument was not specifically denied by the executor. As such, no adverse inference could have been drawn by authorities with regard to non-presence of petitioner since the registered sale-deed itself was not required to be proved. This Court in the case of Union of India and another versus Sri Sudershan Lal Talwar reported in (2002) 20 LCD 891 has clearly held that there is no law requiring the plaintiff to come in the witness box and therefore, it was not at all necessary for plaintiff to enter into the witness box and there could not have been adverse inference on that account. Decision of Hon'ble Supreme Court in the Case of Gouni Satya Reddi versus Govt. of A.P. and others reported (2004) 7 Supreme Court Cases 398 is also to the same effect.
Considering the aforesaid, it is held that the authorities clearly fell in error in recording adverse inference due to non-presence of petitioner.
The finding by the authority is not based on any cogent evidence as such would not amount to reasonable finding of fact.
A Division Bench of this Court in the case of Yadunath versus State reported in 1979 AWC 187 has held as under:-
"In case there is no evidence either to show that the possession in pursuance of the gift deed was actually not transferred to the donees or that there are no such circumstances to show that the gift deed in question was a sham transaction in the sense that the real title to the property never passed to the donees and continued to be retained by the donor, the Ceiling Authorities would not be justified in ignoring the same or to treat the land covered by the deed as still continuing to belong to Brij Bhushan Rathi"
The aforesaid pronouncement of this Court is also clearly applicable in the present case since there is no cogent evidence recorded by the authorities concerned to disbelieve possession of petitioner over the property in question in pursuance to execution of registered instrument of transfer. The mere fact that petitioner's name was not mutated in the revenue record cannot be held to be a conclusive evidence for disbelieving registered instrument of transfer particularly when it is settled law that revenue entries do not pertain to proof of title and are merely a document to indicate possession of the property and that too only for the purposes of payment of revenue to State.
Upon consideration of aforesaid facts, the impugned orders dated 09.12.1991 as well as 31.10.1995 passed by the Prescribed Authority Ceiling and the Appellate Court, respectively being clearly against statutory provisions of the Act, 1970 and dictum of this court are unsustainable and are therefore, quashed by issuing the writ in the nature of certiorari.
Consequently, the writ petition succeeds and is allowed. Parties to bear their own cost.
Order Date :- 24.2.2022 KR (Manish Mathur,J.)