Allahabad High Court
Smt. Sushila Devi vs State Of U.P. Thru Collector Sitapur And ... on 8 September, 2025
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW WRIT - C No. - 3000112 of 2002 ..Petitioners(s) Versus State Of U.P. Thru Collector Sitapur And 6 Ors. ..Respondents(s) Counsel for Petitioners(s) : Vimal Kishore Verma, A.K. Verma, Mohammad Aslam Khan, Sayeed Ahmad Jamal Counsel for Respondent(s) : C.S.C. A.F.R. Neutral Citation No. - 2025:AHC-LKO:60671 Court No. - 3 HONBLE IRSHAD ALI, J.
1. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Vimal Kishore Verma, Advocate and Sri Syed Ahmad Jamal, learned counsel for the petitioner and learned Standing Counsel for the State-respondent.
2. By means of the present writ petition, the petitioner has prayed for the following reliefs :-
"(i) issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 1.10.2002 and impugned judgment and order dated 29.4.2002, passed by opposite party No.2 in Appeal No.33/1999-2000 Under Section- 13 of the Ceiling Act, contained at Annexure No.14 and 10 to the writ petition and impugned order dated 24.2.2000, passed by opposite party No.3, Prescribed Authority, Sitapur in Case No.3/2/3 Under Section- 10 (2) of the Ceiling Act, contained at Annexure No.8 to the writ petition.
(ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties and directing them to not interfere in the peaceful possession of the petitioner over the disputed land and excluded the disputed land from the Ceiling Act, in the interest of justice.
(iii)...
(iv)..."
3. Brief facts of the case are that the disputed land was recorded in the name of Pirtha Singh, father in law of the petitioner, thereafter a notice under Section 10(2) of the Ceiling Imposition of Ceiling and Land Holdings Act was issued and served to Pirtha Singh, recorded tenure holder on 10.12.1975. Subsequently Pirtha Singh filed an objection on 24.12.1975 against the aforesaid notice under Section 10(2) of the Ceiling Act before the prescribed authority. He claimed much of the land was unirrigated, and Gata Nos. 139 and 211 were wrongly shown as irrigated. He also stated that some land had been transferred through registered sale deeds before the cut-off date 8.6.1973.
4. An Advocate Commissioner submitted his commission report stating that the land was unirrigated. The prescribed authority vide order dated 18.6.1976, declared 11.70 acres of irrigated land as surplus without considering the legal point that Ram Singh was alive on 8.6.1973, hence the family was entitled to an additional 2 hectares under Section 5(3)(a), it is the submission of learned counsel for the petitioner.
5. The petitioner has filed multiple appeals and applications, including Writ Petition No. 50(M/S) (Ceiling) of 2002 before this Court against the impugned orders dated 29.4.2002 and 24.2.2000, passed by opposite parties Nos.2 and 3 which was disposed of finally on 29.8.2002 with the direction to the Additional Commissioner, Lucknow Division, Lucknow to consider and dispose of the petitioner's restoration application as expeditiously as possible within 6 weeks from the date of production of the certified copy of the order. She seeks to set aside the impugned orders and have her case reconsidered.
6. The petitioner challenges orders dated 29.4.2002 and 24.2.2000, declaring her land as surplus. It is submitted that the authorities wrongly classified her land as irrigated, ignoring an earlier report dated 5.4.1976 that classified it as unirrigated. The Additional Commissioner's order dated 29.4.2002 was ex-parte, without giving the petitioner a hearing opportunity. The petitioner filed a writ petition No.50 (M/S) (Ceiling) of 2002, which was disposed of on 29.8.2002, directing the Additional Commissioner to consider her restoration application. The Additional Commissioner rejected the restoration application on 1.10.2002, which the petitioner claims was done illegally and arbitrarily. The petitioner seeks to set aside the impugned orders and requests the Court to direct the parties to maintain the status quo over the disputed land.
7. Submission of learned counsel for the petitioner is that the disputed land was the ancestral property and recorded in Jiman-1, as such, the petitioner was having 1/2 share in the disputed land, and the land declared as a surplus of her share is totally illegal. It is also stated that in the notice Gata No.139 and 211 wrongly mentioned as irrigated land and in fact, the aforesaid land was unirrigated.
8. Learned counsel for the petitioner submitted that after lapse of long period the situation of the spot has been changed and facility of irrigation is available to the 80% agricultural land at present time, hence on the basis of the aforesaid inspection report regarding irrigated and non-irrigated land no decision can be taken, hence the opposite party No.3 passed the impugned order on 24.2.2000 on the basis of the aforesaid inspection report dated 7.12.99 and treated the whole land of the petitioner irrigated according to the present position.
9. Learned counsel for the petitioner further submitted that based on the Advocate Commissioner's spot inspection and report dated 5.4.1976 (Annexure No. 2 to the writ petition), plots gata Nos. 139 and 211 were found to be unirrigated. The report further states that no tube well or Nahar exists near these plots and that irrigation was solely dependent on a Talab (pond), which qualifies the plots as unirrigated under Section 4(A) of the U.P. Imposition of Ceiling on Land Holdings Act. Despite this, the prescribed authority, in its judgment dated 18.6.1976, held that these plots were irrigated, citing the existence of a tube well in adjoining gata No. 212. However, no documentary evidence supports the claim that plots 139 and 211 are irrigated, and no tube well exists directly on them. The prescribed authority also ignored the Commissioner's report of 5.4.1976, leading to an erroneous and illegal finding that plot Nos.139 and 211 are irrigated.
10. It is also relevant to mention here that after remand, Additional Collector/prescribed authority, Sitapur himself made the spot inspection and submitted the report on 7.12.1999, in which it is specifically stated that area 0.332 Hectare of gata No. 292 is not the agricultural land due to jungle and brick kiln, but the prescribed authority has not excluded the aforesaid land from the ceiling in illegal and arbitrary manner.
11. It is also relevant to mention here that after remand of the case, opposite party No.3, prescribed authority (Ceiling)/ Adddtional Collector, Sitapur himself made the spot inspection and submitted the inspection report dated 7.12.1999 on the basis of the present position, by which illegally treated the whole land as irrigated. It is also relevant to mention here that according to Section- 4(A) of the U.P. Imposition of Ceiling and Land Holding Act, the determination regarding the irrigated and non irrigated land should be made from the date of issuance of the notice under Section 10(2) of the U.P. Imposition of Ceiling and Land Holding Act, and on the basis of the relevant Khasra 1378, 1379 and 1380 fasli, but not on the basis of the present position.
12. It is also stated that prescribed authority has passed the impugned order dated 24.2.2000 without considering the legal point that at the time of enforcement of the Ceiling Act dated 8.6.1973, the petitioner's husband Ram Singh was alive, as such, the petitioner namely Sushila Devi being his widow is entitled for the benefit of two Hectare additional irrigated land according to Section 5(3) (a) of the U.P. Imposition of Ceiling and Land Holding Act, which has been considered by the prescribed Authority at the time of passing the earlier judgment and order dated 28.2.1979 and given the benefit of two Hectare additional irrigated land to the petitioner, but after remand in the subsequent order dated 24.2.2000, the prescribed authority has not considered the aforesaid legal point and not given the benefit of two hectare additional irrigated land to the petitioner illegally and no finding given regarding the additional issue.
13. He further submitted that the appellate court without complying the requirement of provisions of (1) of Section 38 CPC has decided the appeal, which is not justifiable in law. He submitted that no finding has been returned on the order of prescribed authority and without considering the relevant facts and circumstances of the case, the appellate court has proceeded to decide the appeal ex-parte.
14. He further submitted that the application for restoration of the order was submitted before the appellate court and when no order was passed, Writ Petition No.50/2002; Smt. Sushila Devi Vs. State of U.P. and others was filed before this Court, wherein direction was issued by disposing of the writ petition to the Additional Commissioner, Lucknow Division, Lucknow to consider and dispose of the application of the petitioner as expeditiously as possible preferably within six months from the date of production of certified copy of the order and till disposal of the application the order dated 07.06.2002 shall continue.Thereafter, on the application for restoration an order was passed by the appellate court on 01.10.2002, whereby the application was rejected on the ground that there is no merit in the application.
15. His next submission is that the application was not considered properly and without assigning reasons the application was rejected. In support of his submission, learned counsel for the petitioner has relied upon the following judgments, which are as under :-
(i) Vithaldas Jagannath Khatri (Dead) through Shakuntala alias Sushmi & others Vs. State of Maharashtra Revenue and Forest Department & others [2020 (16) Supreme Court Cases 1]. Paragraph-18 onwards are being quoted below :-
"18. It will thus be seen that underSection 11of the 1961 Act, where any land held by a family is partitioned after the cut-off date of 26.09.1970, the partition so made shall be deemed, unless the contrary is proved, to have been made in anticipation of, or in order to avoid or defeat, the Amending Act 1972 and shall accordingly be ignored. There is nodoubt that on the facts of this case that the partition deed, as well as its registration, is prior to the cut-off date.
19. On 19.11.1976, 60 acres and 27 gunthas of land of Vithaldas was declared surplus. An appeal preferred against this order was dismissed by the Maharashtra Revenue Tribunal on 16.02.1977. On 02.03.1982, a learned Single Judge of the Nagpur Bench of the Bombay High Court remitted the matter to the Surplus Land Determination Tribunal for fresh enquiry. On remand, a fresh order was passed by the Sub-Divisional Officer on 07.05.1984, where land admeasuring 59 acres 35 gunthas was deemed to be surplus. An appeal was filed against the aforesaid order by Vithaldas, his wife, his son and the third daughter Bela Devi under Section 33 of the 1961 Act. The two other minor daughters did not file any appeal, as they were satisfied with the view adopted by the Sub-Divisional Officer, by which no part of the property that devolved on them by means of the partition deed was declared surplus. The State filed cross-objections in the appeal filed by Vithaldas, challenging the exclusion of the land, inter alia, of the two elder daughters. However, the State did not take care to implead them. The appeal filed by Vithaldas et. al. was dismissed by the Appellate Authority, who allowed the cross objections of the State by its order dated 03.12.1984. The appellate authority found that the partition deed dated 31.01.1970, though before the cut-off date, was against the principles of Hindu Law, to the extent that it gave a share to minor daughters in ancestral land. On this basis, the partition deed was declared to be of no effect in law.
20. The aforesaid appellate order was challenged by Vithaldas and his wife in writ proceedings before the Bombay High Court. The learned Single Judge dismissed the writ petition in September, 1987. An intra- court appeal was preferred which was then dismissed by the impugned order dated 27.11.2007. A Special Leave Petition was filed by Vithaldas through his legal representatives who are the two elder daughters, as his legal heirs, as by now Vithaldas had expired. During the course of the initial hearing, this Court, by its order dated 23.11.2016, passed an order stating that it wished to see revenue entries in terms of Section 148 and 149 of the Maharashtra Land Revenue Code, 1966, post- execution of the partition deed. An additional affidavit was filed by the son of the late Vithaldas, stating that records from 1970-75 are in a mutilated condition, but that from the records made available, the two elder daughters were shown as occupants from 1972 to 1976 for survey nos. 12 and 14, through their guardian, i.e. their grandfather.
21. When the matter was argued before a Division Bench of this Court, Justice Sanjay Kishan Kaul, after stating these facts, held that a limited fiction has been created by Section 11of the 1961 Act, as a result of which, if a partition deed is prior to the cut-off date, it cannot be ignored under Section 11. The learned Judge also held that the States cross- objections being allowed in the absence of the two elder daughters was fatal, as they were both necessary parties to the proceedings. The learned Judge then went into the unmarried daughters claims in HUF property and held:
35. The legal view, thus, is very clear:
35.1.. A provision for marriage of unmarried daughters can be made out of ancestral property.
35.2. Such provision can be made before, at the time, or even after the marriage.
35.3. The provision is being made out of pious obligation, though the right of women got diluted over a period of time. However, with the amendment to the Hindy Succession Act, in 2005, a specific right is now conferred on women to get a share on partition of ancestral property, including the right to claim partition. As mentioned above this change was brought about in Maharashtra in 1994, itself.
22. The learned Judge went on to further observe that a provision for an unmarried daughter in a partition deed may partake the nature of a gift, and then concluded:
41. In the end, it may be noted that the only aspect on which the debate occurred was the share of the two elder daughters, and the right to retain the land as their separate land, without it being adjusted with the lands of late Vithaldas. The findings above, thus, lead to the conclusion that the view taken by the SDO vide order dated 7.5.1984, regarding the land of the two elder daughters, is the correct view, and the subsequent view by the appellate authority faulted on more than one reason, as mentioned aforesaid. The further imprimatur of that view by the learned Single Judge and the Division Bench of the High Court, thus, also cannot be sustained.
42. The impugned orders of the appellate authority, the learned single Judge and the Division Bench are, thus, liable to be set aside and the view taken by the SDO, restored, qua the lands located in Survey Nos. 12 & 14 of Babhulgaon, giving rights to the two elder daughters, who are the appellants in the present proceedings.
23. K.M. Joseph, J. differed with Justice Kaul. According to the learned Judge, the questions that would arise for consideration by the Court are as follows:
102. The following questions would arise for consideration by the Court:-
102.1. (i)Whether the authorities under the Act have the power to find that the partition entered into before26.9.1970, was sham or collusive and thereby ignore the same?
102.2. (ii) Notwithstanding the registered partition dated 31.01.1970, whether the property allotted to the elder daughters of Shri Vithaldas is liable to be included in the account of the family unit?
102.3. (iii)What is the effect of the cross-objections of the State being allowed in the absence of elder daughters, in the appeal before the Tribunal?
24. After setting out the provisions of the Act, the learned Judge concluded as follows:
119. Thus, it can be concluded as follows:
119.1. A transfer or a partition entered into before 26.09.1970, if it is not genuine and is collusive or is a sham transaction, can, in a given case, on materials being present, be found to be so by the Authority under the Act;
119.2What is contemplated under Sections 10and 11 of the Act read with Section 8, undoubtedly, is a transfer as defined in Section 8, being a genuine transaction. A fraudulent transaction or a sham transaction if entered into before 26.09.1970, would incur the wrath of Section (3), and a farce of a partition likewise, bringing about a mock division of property among the sharers, would also incur wrath of Section (3) of the Act. No doubt, even if the transaction is a sham transaction, be it a transfer or a partition, needless to say, it would incur the wrath of Sections 10 and 11and it would not be necessary to justify the invalidity with any materials if entered into or effected after 26.09.1970.
119.3. It does not mean that a transaction which is entered into, particularly after the Act came into force, be it a transfer or a partition, and if there are materials and circumstances brought out, which persuades Authorities to hold that it is collusive or a sham transaction and the property did not change the hands, the property would not be liable to be treated as held by the previous owner as on the commencement day and included in the account despite the purported transfer or partition.
25. Having concluded thus, the learned Judge then went on to declare that the partition deed, being unnatural, was sham; that coparcenary property alone is partible, and stated that the question as to whether or not a gift could have been validly made by Vithaldas to his elder daughters cannot be gone into, as no such case had been set up. Finally, the learned Judge held that it was of no moment that cross- objections of the state were allowed without making the two elder daughters parties to the appeal before the appellate tribunal, and then concluded that the appeal should stand dismissed.
26. Shri Krishnan Venugopal, learned Senior Advocate appearing on behalf of the Appellants largely relied upon the judgment delivered by Justice Sanjay Kishan Kaul and in particular, strongly relied upon Gurdit Singh v. State of Punjab 1974 (2) SCC 260 and Uttar Chand v. State of Maharashtra (1980) 2 SCC 292.On the other hand, Shri Rahul Chitnis, appearing for the State, largely read from Justice Josephs judgment and supported it.
27. On a conspectus of the provisions of the 1961 Act that have been set out hereinabove, what becomes clear is that transfers or partitions of land made in anticipation of or in order to avoid or defeat the 1972 Amending Act were to be ignored in calculating ceiling limits. This was so laid down by the Amending Act, 1975, which made 26.09.1970 the cut-off date after which such transfers became suspect. What is important to note is that the 1961 Act does not in any manner declare such transfers to be void. However, if the contrary is proved on the facts of a given case, i.e. that a bonafide transfer or partition was in fact effected after the cut-off date, the person affected would be out of the clutches of Section 10 and/or Section 11 of the 1961 Act. In fact, what is important is the expression shall accordingly be ignored, which occurs in Section 11.
28. The scheme of the 1961 Act is that a person or a family unit has to submit returns by certain dates and extended dates that are mentioned in Sections 12 and 12-A of the 1961 Act. Section 13 is important in that where a person or member of a family unit either fails without reasonable cause to furnish a return, or furnishes a false return, he becomes liable to a penalty, which may extend to INR 100 or 500, as the case may be. A false return may be ignored by the Collector, requiring the person or family unit to submit a true and correct return complete in all particulars under Section 13(2), together with the penalty of INR 500. If thereafter, any such person or family unit fails to comply with the order within the time so granted, then, as a penalty for failure to furnish such return or a true and correct return complete in all particulars, the right, title and interest in the land held by him or the family unit as the case may be, in excess of the ceiling area, shall, subject to the provisions of Chapter 4, be forfeited to the State Government and vest in that Government. This Section gives a limited jurisdiction to the Collector to determine whether a true and correct return complete in all particulars has been given. Thus, a Collector would be well within his jurisdiction to state that a registered partition deed entered into after 26.09.1970 has been suppressed in the return furnished, as a result of which a penalty of INR 500 may be imposed, or excess land forfeited under Section 13(3). This jurisdiction is limited only to the factum of a partition deed having been suppressed from the return, and does not extend to conduct an enquiry as to whether a partition deed prior to 26.09.1970 is or is not a sham document. Also, the discretion vested in the Collector under Section 30 is at a stage anterior to the holding of an enquiry under Section 14, and the resultant declaration under Section 21.
29. By Section 14 of the 1961 Act, the Collector is then to hold an enquiry either suo motu or otherwise, whether or not a return has been filed, in respect of every person or a family unit holding land in excess of the ceiling area. In so doing, Section 18 states that the Collector must consider several matters including, under sub-clause (b), whether any land transferred between 26.09.1970 and the commencement date (which we have seen is 02.10.1975), or any land partitioned after the cut-off date should either be considered or ignored in calculating the ceiling area as provided in Sections 10 and 11 of the 1961 Act. If Section 18(a) to (k) are seen, the evidence adduced at the hearing to be given to the holder and other persons interested in the land, only goes to calculating the total area of the land, including land held by the holder between 26.09.1970 and 02.10.1975 and lands that have been acquired after 02.10.1975. All the details mentioned in Section 18 only speak of ignoring certain transfers or partitions between the cut-off date and the commencement date, and otherwise would only go to the calculation of lands held by persons, and then applying the drill of the ceiling provisions of the 1961 Act. To state that Section 18(l) is a catch- all provision by which the Collector can determine whether a particular transfer or partition is a sham transaction, even if entered into before the cut-off date, is to go beyond the jurisdiction conferred on the Collector by the 1961 Act. In point of fact, even the language of Section 18(l) makes it clear that any other matter is circumscribed by the following words: for the purpose of calculating the ceiling area, and delimiting any surplus land.
30. This becomes even clearer when the other provisions of the 1961 Act are looked at. Under Section 21, the Collector has to make a declaration as to entitlement of a person or family unit to hold within the ceiling area and area of land which is in excess of the ceiling area. Further, what is of importance is that Section 44B excludes pleaders from appearing on behalf of any party in any of the proceedings under the 1961 Act. This is for the reason that the Collector has to determine on the facts of each case, based on returns filed if any, as to what areas are to be excluded, and what areas of land are to be included so far as determination of ceiling of a person or family unit is concerned. If it were to be held that the Collector could go into a trial as to whether a particular partition deed is or is not sham, even though it is before the cut-off date, would have two effects that are not warranted in law - first, it would extend the legal fiction that is limited to transfers and partitions made after the cut-off date; and second, if a period even before the cut-off date can be considered, it would render the cut-off date otiose, as then in all cases the Collector could go into whether a particular transfer or partition has been entered into to avoid the effect of the 1972 Amendment Act, which is an enquiry restricted only to transfers and partitions which take place on or after 26.09.1970 upto the commencement date. Also, if the Collector were to substitute himself as a Civil Court deciding a Civil Suit, it would be absolutely essential for a person or family unit to engage a pleader of his choice to argue all the ramifications that his case may have, both in fact and in law. In fact, a Civil Court alone would have the jurisdiction to decide a question as to whether a partition deed entered into before the cut-off date is or is not sham, which would involve a declaration that the partition be declared void. The 1961 Act therefore bars the jurisdiction of the Civil Court only insofar as transfers and partitions are entered into on or after 26.09.1970 and before the commencement date, and not to transfers and partitions that take place before the cut-off date.
31. As a matter of fact, if the appeal provision, i.e. Section 33 of 1961 Act is to be seen, it is clear that appeals are provided to the Maharashtra Revenue Tribunal against a declaration or part thereof made under Section 21 of the 1961 Act. The persons who would be aggrieved by such declarations can only be the person or family unit whose ceiling area is determined or the landlord to whom possession of land is to be restored or the right, title and interest of the person or family unit whose land is to be forfeited to the State Government. If at all a cross-objection can be taken by a respondent under Section 33(1A), it can only be a person or family unit or landlord spoken of in Section 21(1) of the 1961 Act. The State Government may perhaps file a cross-objection where it contends that land has wrongly not been forfeited to it. But such is not the case on the facts of this appeal. Thus, the State taking a cross objection on the facts of this case would itself be outside Section 33(1A). If at all the State can be said to be aggrieved by a declaration made under Section 21, a suo moto power of revision is given to the State Government under Section 45, which on the facts of a particular case may well be exercised.
32. This apart, once it is clear that the elder daughters are affected by virtue of the partition deed being held to be non est in law by the appellate tribunal, they ought to have been made parties to the appeal so that they could have made arguments in favour of the legal validity of the partition deed. This opportunity being denied to them, as has been rightly held by Justice Kaul, is also fatal to the appellate authoritys order, which has therefore wrongly been upheld by the learned Single Judge and Division Bench of the Bombay High Court.
33. At this stage, it is important to consider some of the judgments of this Court under the 1961 Act.In Raghunath Laxman Wani and Ors. Vs. State of Maharashtra (1971) 3 SCC 391, a Special Leave Petition was entertained directly against the judgment and order passed by the Maharashtra Revenue Tribunal dated 02.09.1966, in proceedings held by the Deputy Collector under Section 14 of the 1961 Act in respect of lands held by the appellants therein. The Deputy Collector and the Tribunal concurrently found on fact that the appellants case of severance of status and partition of the family lands - partially in 1956, and then in 1960, was not acceptable. In the absence of any document regarding alleged severance of the family and partition, other factors when toted up rendered the appellants case of partition, first in 1956 and then in 1960, doubtful. Given these circumstances, this Court held that it would be more than reluctant to interfere and upset such a finding (see paragraph 14). The Court then examined the scheme of the 1961 Act in paragraphs 15 to 17, and held that the ceiling area is to be ascertained with reference to the state of affairs existing only on the appointed date. In this view, the Revenue Tribunal was held to be correct in not taking into consideration three children born in the family after the appointed date while determining the ceiling area to which the appellants family was entitled. This case turned largely on its facts, and was in any case decided before the introduction of Section 44-B to the 1961 Act in 1976 - which forbade pleaders from arguing cases before the authorities under the 1961 Act.
34. In Jugal Kishore v. State of Maharashtra(1989) Supp. (1) SCC 589, the question before this Court was whether in view of Section 100(2) of the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, 1958 (hereinafter referred to as the Bombay Tenancy Act), the Tenancy Tehsildar had exclusive jurisdiction to decide the issue of tenancy. In holding that the authorities under the 1961 Act would have to determine the land holdings of the petitioner therein, this Court held:
8. It is, therefore, submitted on behalf of the petitioner that determination of the question of tenancy by the Ceiling Authorities, was without jurisdiction. The High Court held that in the facts of this case it was not. The Ceiling Authority had to determine the land holdings of the petitioner. Incidentally, where a transfer is made by the landholder creating a tenancy, there whether the transfer was made bona fide or made in anticipation to defeat the provisions of the Ceiling Act, is a question which falls for determination squarely by the Ceiling Authorities, to give effect to or implement the Ceiling Act. In that adjudication it was an issue to decide whether tenancy right was acquired by the tenant of the petitioner. But here before the Ceiling Authorities the adjudication was whether the transfer to the tenant, assuming that such transfer was there, was bona fide or made in anticipation to defeat the provisions of the Ceiling Act. This latter question can only be gone into in appropriate proceedings by the Ceiling Authorities. Unless the Acts, with the intention of implementing various socio-economic plans, are read in such complementary manner, the operation of the different Acts in the same field would create contradiction and would become impossible. It is, therefore, necessary to take a constructive attitude in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the court.
9. In our opinion, having regard to the Preamble to the Act of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, which was enacted for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) ofArticle 39of our Constitution; and in particular, but without prejudice to the generality of the foregoing declaration, to ensure that the ownership and control of the agricultural resources of the community are so distributed as best to subserve the common good and having regard to the purpose of theBombay Act, it was open to the Ceiling Authorities to determine whether there was, in fact, a genuine tenancy.
35. In Jugal Kishore case, case, no question similar to the question that is before us in the present matter arose on the facts. It was assumed that adjudication before the ceiling authority would include an adjudication as to whether a person was made a tenant to defeat the provisions of the 1961 Act. Based on that assumption, the question posed and answered by the Court was that it would be the ceiling authorities - and not the Bombay Tenancy Act authorities - who would be competent to answer such question. This judgment also does not, in any manner, decide the questions that have been posed before this Court, with particular reference to the language of Section 11 of the 1961 Act and partitions which took place prior to a cut-off date where even a limited deeming fiction did not become applicable.
36. In State of Maharashtra and Anr. v. Rattanlal (1993) 3 SCC 326, this Court was concerned with the operation and reach of Section 45 of the 1961 Act, which dealt with the revisional power of the State Government.On the facts of Rattanlal (supra), the Additional Commissioner had issued a show cause notice to the respondents therein, inter alia, for the reason that the respondent did not disclose the lands or his half share in a particular declaration, having suppressed the same. On hearing the respondent, and for reasons recorded in his order dated 09.06.1980, he remitted the case to the primary Tribunal to redetermine surplus land. The High Court held that once an appeal was preferred by the declarant under the 1961 Act, and an order made thereon, the Commissioner or State Government is devoid of jurisdiction to determine the ceiling area. The Supreme Court set aside the judgment of the High Court, and held that it was perfectly within the jurisdiction of the Additional Commissioner under Section 45 of the 1961 Act, suo moto, to call for the records of a case and thereafter to decide it and pass such order thereon as it deems fit under Section 45(2) of the 1961 Act. This case again is far removed from the facts of the present case, concerning itself with the suo moto powers exercisable under Section 45 of the 1961 Act.
37. In Bhupendra Singh v. State of Maharashtra(1996) 1 SCC 277, this Court, while dealing with proceedings under the 1961 Act, held:
13. Section 18 of the Ceiling Act requires the ceiling authority to consider certain matters enumerated therein before issuing a declaration under Section 21 declaring the land which the person or the family unit is entitled to hold and the surplus lands. Clause
(d) of Section 18 requires the Collector to consider, inter alia, whether any transfer is made by the holder in contravention of Section 8, and if so, whether the land so transferred should be considered or ignored in calculating the ceiling area under Section 10(1). Clause (g) requires the authority to consider what is the total area of land held at the time of the enquiry and what is the area of land which the holder is entitled to hold. Clause (j) requires the authority to consider whether the proposed retention of land by the holder is in conformity with the provisions of Section 16. Clause (k) requires the authority to consider which particular land out of the total lands held by the holder should be delimited as surplus land. Clause (l) requires the authority to consider any other matter necessary to be considered for the purpose of calculating the ceiling area and delimiting any surplus land. If some diminution in the area held by the person or family unit has occurred between the relevant date and the date of the enquiry, the above clauses require that these be taken note of in accordance with law before any declaration is made under Section 21. These are important matters to be kept in mind especially when in the instant case the diminution has taken place by thrust of another statute, i.e., theRestoration Act. Since the said land is neither encumbered land nor land transferred in contravention of Section 8, it is not liable to be included in the ceiling holding of the appellant. (emphasis supplied)
38. This judgment is important in that it delineates the scope of Section 18(l) of the 1961 Act, and confines it to calculating ceiling area and de- limiting surplus land, albeit by the application of another statute, namely, theMaharashtra Restoration of Lands to Scheduled Tribes Act, 1974.
39. Shri Krishnan Venugopal strongly relied on the observations inGurdit Singh(supra). This case dealt with Section 32-DD which was introduced into The Pepsu Tenancy and Agricultural Lands Act, 1955 with retrospective effect from 1956. This Section states as follows:
3.The Actwas amended by Act 16 of 1962 and Section 32-DD was introduced into the Act with retrospective effect from October 30, 1956. That section reads:
32-DD. Future tenancies in surplus area and certain judgments etc. to be ignored. Notwithstanding anything contained in this Act, for the purposes of determining the surplus area of any person
(a) a tenancy created after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, in any area of land which could have been declared as the surplus area of such person; and
(b) any judgment, decree or order of a court or other authority, obtained after the commencement of that Act and having the effect of diminishing the area of such person which could have been declared as his surplus area shall be ignored.
40. This Court repelled an argument enlarging the scope of Section 32-DD, which was based on the object sought to be achieved by the Section in the following terms:
12. We are aware that the object of this provision in an Act like the one under consideration is to prevent circumvention of its provisions by dubious and indirect methods. But that is no reason why we should put a construction upon the section which its language can hardly bear. It would have been open to the respondents to allege and prove that the judgment was obtained collusively. But that could have been done only after notice to Appellants 2 and 3 and after giving them an opportunity of being heard. Therefore, to say, as the High Court has said, that no prejudice was caused to Appellants 2 and 3 for want of an opportunity to them of being heard, is neither here nor there. We think the High Court went wrong in assuming that the Collector was right when he ignored the judgment by his order dated May 20, 1963 on the ground that it had the effect of diminishing the area of the first appellant which could have been declared as his surplus.
41. Likewise, as has been held by us hereinabove, it is not possible to state that wherever the expressions transfer and partition occur in Sections 8, 10 and 11 of the 1961 Act, they must be understood as meaning transfers and partitions which are genuine. If the word genuine is added, it would amount to straining the language of these provisions and giving these provisions a construction which they cannot possibly bear a construction that would go against the object of giving the Collector a limited jurisdiction to decide whether lands fall within the ceiling area, and in so doing, whether transfers and partitions between the cut-off date and commencement date should be ignored. It may be added that the language of Section 11 also leads to the conclusion that even in case of a partition that is made after the cut-off date and before the commencement date, the power of the Collector is not to declare such partition sham, and therefore void, which is for a Civil Court to do, but is only to ignore such partition for the purpose of calculating ceiling area.
42. Shri Krishnan Venugopal then relied upon Uttar Chand (supra). This case also dealt with 1961 Act, the cut-off date in that case being 04.08.1959. As both the transfers in the aforesaid case were prior to 04.08.1959, this Court held that the High Court was not justified in holding that the said transfers were either collusive or fraudulent. This Court held:
5. These sections are of no assistance to the respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of another member of the family which cannot be clubbed together with land of the concerned owner or family. The argument advanced by the respondent appears to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances the most important fact to be determined was whether or not any transfer that had been made by the person concerned was prior to or after August 4, 1959. If the transfer was prior to August 4, 1959 then the provisions of the Act would not apply at all. In the instant case, both the transfers being three years prior to the date mentioned above, the Act would not apply to them and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his mother should be included in the total area of the land owned by the appellant.
43. What is of importance in this case is that in a similar fact situation, if a transfer took place before the cut-off date mentioned by the 1961 Act, the 1961 Act would not apply so as to include lands subsumed in the said transfers, in calculating the ceiling area.
44. Regard being had to our finding that the Collectors jurisdiction under the 1961 Act does not go to the extent of declaring a registered partition deed that is made before the cut-off date as being sham, it is unnecessary for us to go into any of the other findings of both the learned judges of this Court in relation to Hindu Law.
45. We are, therefore, of the view that the appeal deserves to be allowed, and the impugned judgment of the Bombay High Court dated 27.11.2007 set aside for the reasons given by us. The judgment of the Sub-Divisional Officer dated 07.05.1984 stands restored, as a result."
(ii) Damodar Singh and others Vs. State of U.P. and others [2001(Suppl.) R.D. 396]. Paragraph-9 is being quoted below :-
"9. The appellate authority, in view of the provisions of Order 41 Rule 31 CPC being the last authority on facts, was legally required to state the points for determination in the appeal, decision thereon and the reasons for the decision, even in the event where it affirms the decision of the Prescribe Authority a mere general experience of concurrence with the Prescribed Authority is not sufficient.
10. After noticing the decisions of the Apex Court in Girijanandini v. Bijendra Narain Chaudhary and Ramesh Chandra v. Chunnilal, this Court in Surja Singh and another v. Sohan Lal and others, was pleased to rule as under:
"There is considerable force in this submission. The Code of Civil Procedure lays down insufficient detail, the requirements, which are fulfilled by the trial court in the matter of judgment pronounced by them. Order XX CPC lays down rules in regard to judgment and decree, provides in Rule 4 (2) that the judgment of the court other than a Court Small Causes shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.
..............................................................................
The judgment of the Supreme Court upon which reliance has been placed by Rajeshwar Pd. cannot be held to lay down that it is open to the Appellate Authority to affirm the finding recorded by the trial court on a question of fact by a mere observation that the trial Court had arrived at that finding "for good reasons" as has been done in the instant case by the lower appellate court."
11. In view of the aforesaid decision and the provisions of Order 41 Rule 31 CPC read with sub - section (1) of section 10 of the Act, the Appellate Authority to required to apply its mind to the facts of the case, state the questions involved in the case and decide the same giving its own reason for the decision. In the present case, the appellate authority failed to discharge its duty and has dismissed the judgment and order dated 30.9.96 by recording its general expression of inference with the Prescribed Authority written and quoting any reason at would amount from the judgment of the appellate authority, relevant portion of which is reproduced below-
..........................................................................
12. Thus the judgment and order passed by the appellate authority does not fulfills the requirements of provisions of sub section (1) of Section 38 of the Act read with order 41 Rule 31 CPC and same, therefore, liable to be set aside."
(iii) Janki Prasad Vs. Sanjay Kumar [AIR 2022 (NOC) 254 (ALL.)]. Relevant paragraph-17 onwards are being quoted as under :-
"17. It is also relevant to note that the judgment inSmt. Binda Bau and Ors(supra) relies on the Full Bench judgment of this Court inM.S. Khalsa vs. Chiranji Lal(AIR 1976 All 290).The Full Bench inM.S. Khalsa(supra) held that an application for adjournment was within the purview of the Explanation to the Allahabad amendment inOrder XVII Rule 2 CPC.Order XVII Rule 2 CPC along with Allahabad amendment is reproduced below:
"Order XVII Rule 2. Procedure if parties fail to appear on day fixed--Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. [Explanation.--Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.] High Court Amendments ALLAHABAD.--Add the following:
"Where the evidence, or a substantial portion of the evidence, of any party has already been recorded, and such party fails to appear on such day, the Court may in its discretion proceed with the case as if such party were present, and may dispose of it on the merits. Explanation.--No party shall be deemed to have failed to appear if he is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application."(28-5-1943)
18. Order XVII prescribes the procedure to be followed by the Court in trial of Suits. The procedure to be followed by appeal Court while hearing an appeal is prescribed inOrder XLI CPC. The Explanation to Order XVII Rule 2 (Allahabad amendment) only clarifies or explains the phrase ''the parties or any of them fail to appear' in Order XVII Rule 2. Explanation added to a particular provision in an enactment cannot be treated as an illustration to define a similar situation or concept in a different provision in the same enactment. The role of an Explanation is to explain the meaning and effect of the main provision to which, it is an explanation and to clear up any doubt or ambiguity in it'. [Dattatraya Govind Mahajan and Ors. vs. State of Maharashtra and Ors (1997) 2 SCC 548;Government of Andhra Pradesh vs. Cooperative Bank(2007) 9 SCC 55]. The Explanation to Order XVII Rule 2 (Allahabad amendment) cannot be read in Order XLI Rule 17 (1)CPCto interpret the phrase ''the appellant does not appear when the appeal is called on for hearing'. The phrase has to be interpreted independently of the Explanation toOrder XVII Rule 2 CPC.
19. Evidently, the judgments inMohammad Khalil(supra) andSmt. Binda Bau & Ors(supra) are not applicable in the present case and do not help the respondents.
20. The substantial question of law framed by this Court is decided in favour of the appellant and it is held that the Explanation toOrder XLI Rule 17 CPCalso applies in cases where the counsel for the appellant, though physically present in the Court when the appeal is called on for hearing, refuses to argue the appeal or for any other reason is not able to address the Court and in such situations the appellate Court has no jurisdiction to decide the appeal on merits. For the aforesaid reason, the lower appellate Court had exceeded its jurisdiction in deciding the appeal on merits vide its judgment dated 23.9.2015 and the appeal is to be allowed.
21. The question that remains to be decided is regarding the order to be passed by this Court. By virtue ofSection 107CPC the appellate Courts have the same power as are conferred on Courts of Original jurisdiction in respect of Suits instituted therein.Order XLI Rule 33 CPCprovides that the appellate Court shall have the power to pass any order which ought to have been passed and to pass such further other orders as the case may require. A similar situation arose before the Division Bench of this Court inNasir Khan versus Itwari & Ors.; AIR 1924 All 144 and the Division Bench while allowing the Second Appeal passed order which the first appellate Court should have passed. The Division Bench dismissed the appeal of the Court below for default and permitted the appellant to file an application for restoration of appeal which was to be decided by the lower appellate Court on merits.
22. Following the Division Bench judgment of this Court inNasir Khan(supra), the present Second Appeal is allowed, the judgment and decree of the lower appellate Court is set aside and the Regular Civil Appeal No. 5000248 of 2013 (Janki Prasad vs. Sanjay Kumar and others) filed by the appellant is dismissed in default. The appellant shall have the liberty to file an application for restoration of the said appeal before the lower appellate Court which, if filed, shall be decided by the lower appellate Court in accordance with law.
23. With the aforesaid observations, the Second Appeal is allowed."
(iv) Benny D'Souza Vs. Melwin D'Souza [AIRONLINE 2023 SC 1320]. The order is being quoted as under :-
"1. Leave granted.
The appellants herein are the plaintiffs who were the appellant in RSA No.196/2022. The only grievance of the appellants herein is with regard to the dismissal of the said appeal vide order dated 26.09.2023 on merits although the appellants were not represented inasmuch as there was no counsel who appeared for the appellants and the junior counsel for the appellants submitted that the senior counsel engaged in the matter, was not available as his cousin had passed away. Therefore, on account of a bereavement in the family of the arguing counsel there was no representation on behalf of the appellants before the High Court.
2. Learned senior counsel appearing for the appellants submitted that the High Court could have dismissed the appeal for non-prosecution in terms of the order XLI Rule 17 CPC and particularly the Explanation thereto instead of dismissing the appeal on merits by stating that no substantial question of law was made out.
3. Therefore, the learned senior counsel submitted that the impugned judgment may be set aside and the matter may be remanded to the High Court for consideration on the merits of the appeal.
4. Per contra, learned counsel appearing for the respondent supported the impugned judgment and contended that the appellants consistently failed to appear before the High Court and therefore, the High Court had no option but to pass the impugned judgment and that there is no merit in the appeal.
5. Having heard learned senior counsel for the appellants and learned counsel for the respondents, at the outset, we extract Order XLI Rule 17 of the CPC which reads as under:
"17. Dismissal of appeal for appellant's default :-
(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
Explanation. - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits."
6. The Explanation categorically states that if the appellant does not appear when the appeal is called for hearing it can only be dismissed for non-prosecution and not on merits.
7. However, the impugned judgment is a dismissal of the appeal on merits which is contrary to the aforesaid provisions and particularly the Explanation thereto. On that short ground alone the appeal is allowed the impugned order is set aside.
The RSA No.196/2022 is restored on the file of the High Court.
The parties are at liberty to advance arguments on the merits of the case.
All contentions are left open.
The appeal is allowed and disposed of in the aforesaid terms.
No costs.
Pending application(s), if any, shall stand disposed of."
16. On the other hand, learned Additional CSC vehemently opposed the arguments advanced by learned Senior Counsel for the petitioner and submitted that the impugned orders do not suffer from any infirmity or illegality and are just and valid.
17. Learned counsel for the respondent submitted that the objections raised by the father-in-law of the petitioner Shri Pirtha Singh through which a grievance was also raised in respect of half share belonging to the petitioner has been rejected by the order contained in Annexure-1 to the writ petition in view of the fact that over the entire holding of Shri Pritha Singh the petitioner or her husband were never recorded on any portion of the land, and they were never in possession, the objections if any are misconceived.
18. Learned counsel for the respondent further submitted that in his objection Shri Pritha Singh has also taken a ground that the share of the petitioner has not being excluded in addition to the grounds raised as alleged in para under reply.
19. Learned counsel for the respondent further stated that no doubt a report was submitted by the Advocate Commissioner but in khasra extract of 1378 fasli to 1380 fasli the source of irrigation in respect of the plots in question was shown to be tube well.
20. Learned counsel for the respondent submitted that the prescribed authority rejected the objections filed by Shri Pritha Singh after considering the entire arguments, objections and the evidence on record.
21. Learned counsel for the respondent further submitted that the prescribed authority has recorded the categorical finding of fact after considering the evidence on record that the entire land is irrigated and after relying and considering the Khatauni 1358 fasli it was held that the petitioner cannot have any right.
22. Learned counsel for the respondent submitted that in view of the interim order the possession of the land over the land declared as surplus has not been taken but in view of the facts stated in earlier paras of the counter affidavit the ad interim order stay deserves to be vacated.
23. After having heard the rival submission of learned counsel for the parties, I perused the material on record as well as the law report relied upon by the parties.
24. For deciding the issued involved in the matter, Order 41 Rule 31 CPC is quoted below:
"Order 41, Rule 31, Contents, date and signature of judgment - The judgment of the appellate court shall be in writing and shall state -
a) the points of determination
b) the decision thereon,
c) the reasons for the decisions, and
d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
25. On bare perusal of the provisions referred herein above, last authority on facts, was legally required to state the points for determination in the appeal, decision thereon and the reasons for the decision, even in the event where it affirms the decision of the Prescribe Authority a mere general experience of concurrence with the Prescribed Authority is not sufficient. Therefore, the order passed by the appellate authority which is impugned in the writ petition is not sustainable in the eyes of law and is liable to be set aside by this Court.
26. The disputed land was recorded in the name of Pirtha Singh, father in law of the petitioner, thereafter a notice under Section 10(2) of the Ceiling Imposition of Ceiling and Land Holdings Act was issued and served to Pirtha Singh, recorded tenure holder on 10.12.1975. Subsequently Pirtha Singh filed an objection on 24.12.1975 against the aforesaid notice under Section 10(2) of the Ceiling Act before the prescribed authority. He claimed much of the land was unirrigated, and Gata Nos. 139 and 211 were wrongly shown as irrigated. Some land had been transferred through registered sale deeds before the cut-off date 8.6.1973. The Advocate Commissioner submitted his commission report stating that the land was unirrigated. The prescribed authority vide order dated 18.6.1976, declared 11.70 acres of irrigated land as surplus without considering the legal point that Ram Singh was alive on 8.6.1973, hence the family was entitled to an additional 2 hectares under Section 5(3)(a). Due to non-consideration of aforesaid aspect of the matter, the order impugned suffers from apparent illegality and is liable to be set aside.
27. The petitioner filed multiple appeals and applications, including Writ Petition No. 50(M/S) (Ceiling) of 2002 before this Court against the impugned orders dated 29.4.2002 and 24.2.2000, passed by opposite parties Nos.2 and 3 which was disposed of finally on 29.8.2002 with the direction to the Additional Commissioner, Lucknow Division, Lucknow to consider and dispose of the petitioner's restoration application as expeditiously as possible within 6 weeks from the date of production of the certified copy of the order. She seeks to set aside the impugned orders and have her case reconsidered. The petitioner challenges orders dated 29.4.2002 and 24.2.2000, declaring her land as surplus.
28. The authorities wrongly classified her land as irrigated, ignoring an earlier report dated 5.4.1976 that classified it as unirrigated. The order of the Additional Commissioner dated 29.4.2002 was ex-parte, without giving the petitioner a hearing opportunity. The petitioner filed a writ petition No.50 (M/S) (Ceiling) of 2002, which was disposed of on 29.8.2002, directing the Additional Commissioner to consider her restoration application. The Additional Commissioner rejected the restoration application on 1.10.2002, which the petitioner claims, was done illegally and arbitrarily. The petitioner seeks to set aside the impugned orders and requests the Court to direct the parties to maintain the status quo over the disputed land.
29. The disputed land was the ancestral property and recorded in Jiman-1, as such, the petitioner was having 1/2 share in the disputed land and the land declared as a surplus of her share is totally illegal. It is also pointed out that in the notice, Gata Nos.139 and 211 were wrongly mentioned as irrigated land and in fact, the aforesaid land was unirrigated. After lapse of long period, the situation of the spot has been changed and facility of irrigation is available to the 80% agricultural land at present time, hence on the basis of the aforesaid inspection report regarding irrigated and non-irrigated land no decision can be taken. The respondent No.3 passed the impugned order on 24.2.2000 on the basis of the aforesaid inspection report dated 7.12.1999 and treated the whole land of the petitioner to be irrigated land, the report could not be taken into account of the later stage.
30. Based on the Advocate Commissioner's spot inspection and report dated 5.4.1976, plots gata Nos. 139 and 211 were found to be unirrigated. The report further states that no tube well or Nahar exists near these plots and that irrigation was solely dependent on a pond, which qualifies the plots as unirrigated under Section 4(A) of the U.P. Imposition of Ceiling on Land Holdings Act. Despite this, the prescribed authority, in its judgment dated 18.6.1976, held that these plots were irrigated, citing the existence of a tube well in adjoining gata No. 212, however, no documentary evidence supports the claim that plots 139 and 211 are irrigated, and no tube well exists directly on them. The prescribed authority also ignored the Commissioner's report of 5.4.1976, leading to an erroneous and illegal finding that plot Nos.139 and 211 are irrigated.
31. After remand, the Additional Collector/prescribed authority, Sitapur himself made the spot inspection and submitted the report on 7.12.1999, in which it is specifically stated that area 0.332 Hectare of gata No. 292 is not the agricultural land due to jungle and brick kiln, but the prescribed authority has not excluded the aforesaid land from the ceiling in illegal and arbitrary manner.
32. In view of Section- 4(A) of the U.P. Imposition of Ceiling and Land Holding Act, the determination regarding the irrigated and non irrigated land should be made from the date of issuance of the notice under Section 10(2) of the U.P. Imposition of Ceiling and Land Holding Act, and on the basis of the relevant Khasra 1378, 1379 and 1380 fasli, but not on the basis of the present position. Due to non-consideration of this aspect of the matter, the impugned order suffers from apparent illegality and is liable to be quashed.
33. The prescribed authority has passed the impugned order dated 24.2.2000 without considering the legal point that at the time of enforcement of the Ceiling Act dated 8.6.1973, the petitioner's husband Ram Singh was alive, as such, the petitioner namely Sushila Devi being his widow is entitled for the benefit of two Hectare additional irrigated land according to Section 5(3) (a) of the U.P. Imposition of Ceiling and Land Holding Act, which has been considered by the prescribed Authority at the time of passing the earlier judgment and order dated 28.2.1979 and given the benefit of two Hectare additional irrigated land to the petitioner, but after remand in the subsequent order dated 24.2.2000, the prescribed authority has not considered the aforesaid legal point and has not given the benefit of two hectare additional irrigated land to the petitioner illegally and no finding given regarding the issue.
33. Submission of respondent's counsel that the objections raised by the father-in-law of the petitioner Shri Pirtha Singh through which a grievance was also raised in respect of half share belonging to the petitioner has been rejected by the order contained in Annexure-1 to the writ petition in view of the fact that over the entire holding of Shri Pritha Singh the petitioner or her husband were never recorded on any portion of the land, the claim setup by the petitioner that the disputed land was ancestral property and recorded in Jiman-1, as such the petitioner was having half share in the disputed land and the land declared as surplus of the share, is totally illegal, therefore, the argument advanced by the learned counsel for the respondent is misconceived and is not tenable in the eyes of law. The land in the share of Pirtha Singh was liable to be excluded in addition to the grounds raised hereinabove.
34. Learned counsel for the respondent has admitted that report was submitted by the Advocate Commissioner that the land is unirrigated in regard to the plot in question and was not irrigated by the tubewell. The source of irrigation was pond, therefore, the objection raised by the respondent is wholly misconceived and incorrect.
35. On perusal of the judgment in the case of Damodar Singh and others (Supra), on perusal of aforesaid paragraphs, there is considerable force in the submission. The Code of Civil Procedure lays down insufficient detail, the requirements, which are fulfilled by the trial court in the matter of judgment pronounced by them. Order XX CPC lays down rules in regard to judgment and decree, provides in Rule 4 (2) that the judgment of the court other than a Court Small Causes shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. The judgment cannot be held to lay down that it is open to the Appellate Authority to affirm the finding recorded by the trial court on a question of fact by a mere observation that the trial Court had arrived at that finding "for good reasons" as has been done in the instant case by the lower appellate court."
36. In view of the aforesaid decision and the provisions of Order 41 Rule 31 CPC read with sub - section (1) of section 10 of the Act, the Appellate Authority to required to apply its mind to the facts of the case, state the questions involved in the case and decide the same giving its own reason for the decision. In the present case, the appellate authority failed to discharge its duty and has dismissed the judgment and order dated 29.04.2002 and 01.10.2002 by recording its general expression of inference with the Prescribed Authority written and quoting any reason at would amount from the judgment of the appellate authority.
37. Thus the judgment and order passed by the appellate authority does not fulfills the requirements of provisions of sub section (1) of Section 38 of the Act read with order 41 Rule 31 CPC and same, therefore, liable to be set aside.
38. The other points raised by learned Senior Counsel is that the appellate authority while rejecting the restoration application has not considered the grounds taken in the application and without taking into consideration the facts found that no ground has been made out to interfere in the judgment and order dated 29.04.2002, therefore, the order passed on the application on 01.10.2002 is per se illegal and is liable to be set aside by this Court. The prescribed authority while remanding the matter has not taken into consideration the question involved while remanding the matter and in a very cursory manner has passed the order. Both the courts below have committed manifest error of law in passing the impugned orders.
39. In view of the foregoing discussion, the impugned orders dated 1.10.2002, 29.4.2002 and 24.2.2000 are hereby quashed. The writ petition succeeds and is allowed.
40. The prescribed authority is directed to decide the objection filed by the petitioner in accordance with law and in the mean time, the prescribed authority shall not lease out the surplus land to any person.
41. No order as to costs.
(Irshad Ali,J.) September 8, 2025 Adarsh K Singh