Ajai Pratap Singh And Others vs Additional Commissioner Faizabad And ... on 14 May, 2026

[Cites 38, Cited by 0]

Allahabad High Court

Ajai Pratap Singh And Others vs Additional Commissioner Faizabad And ... on 14 May, 2026

Bench: Irshad Ali





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 



 

 

 
A.F.R.
 
Reserved on : 30.3.2026
 
Delivered on :14.5.2026
 
Neutral Citation No. - 2026:AHC-LKO:34573
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
LUCKNOW
 
WRIT - C No. - 3000221 of 2003
 

 
Ajai Pratap Singh and others
 

 

 
..Petitioner(s)
 

 

 

 

 
Versus
 

 

 

 

 
Additional Commissioner Faizabad and others
 

 

 
..Respondent(s)
 

 

 
Counsel for Petitioner(s)
 
:
 
R.s.pandey, Mahendra Kumar Sharma
 
Counsel for Respondent(s)
 
:
 
C.S.C., Brijesh Kumar Kuldeep, Dinesh Kumar Arya, Shiv Ram Tewari
 

 

 
Court No. - 4 
 

 
               HON'BLE IRSHAD ALI, J.

1. Heard Dr. R.S. Pande, learned Senior Advocate assisted by Sri Mahendra Kumar Sharma, learned counsel for the petitioners and learned Standing Counsel for the State-respondent.

2. By means of the present writ petition, the petitioners have prayed for the following reliefs :-

"A. Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 26.4.1982 passed by opposite party No.2 contained in Annexure No.2 and order dated 5.3.1998 passed by opposite party No.2 contained in Annexure No.1 to the writ petition.

B. Issue a writ order or direction in the nature of Mandamus commanding the opposite parties to decide the objection filed by the petitioners on the basis of will executed in their favour by the recorded tenure holder Fateh Bahadur Singh.

C. ...

D. ..."

3. The present writ petition has been filed challenging the order dated 26.04.1982 passed by the Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings Act as well as the appellate order dated 05.03.1998 whereby the appeal preferred by the petitioners has been dismissed and the order of the Prescribed Authority has been affirmed.

4. The dispute relates to land situated in village Chakwa Gholia, Pargana Bhinga and village Bechuwa, Pargana Tulsipur, which admittedly belonged to one Fateh Bahadur Singh son of Naresh Singh, who was the recorded tenure holder. It is the specific case of the petitioners that during his lifetime, the said tenure holder executed a registered Will dated 25.11.1971 in favour of Ajay Pratap Singh, Vishnu Pratap Singh, Bhanu Pratap Singh and Vijay Pratap Singh, all sons of Raj Narayan Singh.

5. It has further been stated that Vijay Pratap Singh subsequently died issueless and the present petitioners, being his brothers, succeeded to his interest. The petitioners have asserted that the Will executed by the original tenure holder governed the devolution of rights in the land and conferred upon them a substantive claim, which was liable to be considered by the authorities in ceiling proceedings.

6. The record further indicates that Fateh Bahadur Singh died on 22.05.1973 and thereafter the name of Raj Narain Singh was mutated in the revenue records on the basis of a Lekhpal report and incorporated in the relevant Khatauni. Subsequently, the Prescribed Authority by order dated 30.09.1975 declared 26.949 hectares of land as surplus.

7. It is not in dispute that at the time when the ceiling proceedings were initiated and decided, the petitioners were minors. According to the petitioners, for this reason no objection could be filed on their behalf at the relevant time and their independent rights arising out of the Will remained unrepresented and unadjudicated.

8. It has been brought on record that the order dated 30.09.1975 was challenged by Raj Narain Singh in appeal, which was dismissed, and thereafter a writ petition was filed in the year 1980 wherein an interim order was granted. It is the case of the petitioners that after attaining majority, they acquired knowledge of the declaration of surplus land and immediately thereafter filed objections on 01.11.1980 under Section 11(2) of the Act, though due to inadvertence the provision was mentioned as Section 13-A.

9. The Prescribed Authority, however, rejected the objections of the petitioners by order dated 26.04.1982 primarily on the ground of delay and on the basis of incorrect mention of the provision, without entering into the merits of the claim set up by the petitioners on the basis of the Will. The appeal preferred by the petitioners was also dismissed on 05.03.1998 without rectifying the errors committed by the Prescribed Authority.

10. The respondents have filed a counter affidavit opposing the writ petition wherein it has been stated that the alleged Will is merely a photostat copy and does not appear to be registered. It has further been stated that the petitioners were minors and the proceedings were conducted against their father, who was their natural guardian, and therefore no illegality was committed. The respondents have also contended that there is no evidence to show that the Will was filed before the Prescribed Authority and that the impugned orders are justified and legal.

11. The respondents have further raised an objection regarding delay and laches, contending that the writ petition has been filed after an inordinate delay and that the land declared surplus has already been allotted to eligible persons after taking possession in the year 2003, and therefore no interference is warranted.

12. The petitioners have filed a rejoinder affidavit denying the assertions made in the counter affidavit and reiterating that the Will dated 25.11.1971 is a registered document which has not been properly considered by the authorities. It has been asserted that the petitioners were minors at the relevant time and therefore could not effectively participate in the proceedings and that their objections, filed after attaining majority, ought to have been considered on merits.

13. Submission of learned counsel for the petitioners is that the impugned order dated 26.04.1982 passed by the Prescribed Authority, as well as the appellate order dated 05.03.1998, are wholly unsustainable in law and on facts, inasmuch as the same have been passed without proper appreciation of the material on record and in violation of settled legal principles.

14. It is contended that the land in dispute originally belonged to Fateh Bahadur Singh, the recorded tenure holder, who, during his lifetime, executed a registered Will dated 25.11.1971, thereby determining the succession of his holdings. The said Will, being a valid and operative testamentary instrument, governed the devolution of rights after his death on 22.05.1973. The authorities under the Ceiling Act were, therefore, legally bound to take into consideration the effect of the said Will while determining the surplus land.

15. It is further submitted that the Will conferred independent and substantive rights upon the beneficiaries, including the petitioners, and such rights could not have been ignored merely on the basis of subsequent mutation entries. It is well settled that mutation proceedings are fiscal in nature and do not confer title; hence, the entry of Raj Narain Singh in the revenue records could not override the testamentary disposition made by the original tenure holder.

16. It is further urged that Vijay Pratap Singh, one of the beneficiaries under the Will, died issueless and his share devolved upon the present petitioners, being his real brothers. Consequently, the petitioners acquired a lawful interest in the property, which entitled them to participate in the ceiling proceedings and to have their holdings independently assessed.

17. The petitioners contend that when the ceiling proceedings were started and decided by the order dated 30.09.1975, they were minors and could not protect their rights or file objections. Since the case went on without proper representation of their interests, the proceedings are invalid, especially because their rights were based on a registered Will.

18. It is submitted that upon attaining majority and acquiring knowledge of the proceedings, the petitioners promptly filed objections on 01.11.1980. The mere incorrect mention of the provision as Section 13-A instead of Section 11(2) of the Act is a curable defect and could not have been made a ground to reject the objections, especially when the substance of the claim was clearly articulated.

19. Learned counsel for the petitioners further submit that the Prescribed Authority committed a manifest error in rejecting the objections solely on the ground of delay, without considering that the petitioners were minors during the relevant period and that limitation would not run against them. The approach adopted by the authority is contrary to the settled principle that procedural technicalities should not defeat substantive rights.

20. It is also contended that the Prescribed Authority failed to adjudicate upon the genuineness and legal effect of the Will. The rejection of the claim without examining the core issue amounts to non-application of mind and renders the order arbitrary.

21. Further submission is that the appellate authority, while dismissing the appeal on 05.03.1998, merely affirmed the findings of the Prescribed Authority without independently evaluating the contentions raised by the petitioners. The appellate order is vitiated as it merely affirms the earlier decision in a mechanical manner, without proper application of mind or any reasoned analysis.

22. The petitioners further submit that the objection raised by the respondents regarding delay and laches in filing the writ petition is misconceived. The petitioners were pursuing their remedies before the statutory forums, and the cause of action continued as their rights were never adjudicated on merits.

23. It is lastly submitted that the alleged allotment of surplus land to third parties cannot override the lawful claim of the petitioners, especially when the declaration of surplus land itself is under challenge. Any action taken on the basis of an illegal order cannot be sustained in law or used to continue an injustice.

24. In support of the submissions advanced, learned counsel for the petitioners placed reliance upon the following judgments :-

(i) Dirvijai Singh Vs. State of U.P. [1984 LCD 324].

(ii) Shafir Vs. D.J. Gonda [1985 LCD 290].

(iii) Abdul Hafiz Khan Vs. D.J. Bahraich [1986 LCD 477].

(iv) Hari Ram Vs. Special Judge ADJ Faizabad [1989 LCD 85].

(v) Mehfizul Rahman Vs. State of U.P. and others [1984 LCD 370].

(vi) Ram Bhajan Vs. C.R.O. [2001 LCD 901].

(vii) State of U.P. Vs. Kailash Nath [2023 LCD 1170].

(viii) Anand Kishor Devacharya Vs. State of U.P. and others [2024 (165) RD 582].

(ix) Mohammad Raza Vs. State of U.P. and others [2024 (165) RD 783].

(x) Rajendra Prasad Singh Vs. State of U.P. and others [2024 LCD 2281].

25. In view of the aforesaid submissions and the judgments relied upon, it is prayed that the impugned orders be set aside.

26. On the other hand, learned Standing Counsel submits that the writ petition is devoid of merit and is liable to be dismissed both on the ground of delay and on merits.

27. It is contended that the ceiling proceedings were conducted strictly in accordance with law and culminated in the order dated 30.09.1975 declaring 26.949 hectares of land as surplus. The said order attained finality after dismissal of the appeal preferred by Raj Narain Singh and subsequent proceedings, and therefore cannot be reopened at this belated stage.

28. The respondents submit that the petitioners claim is based on an alleged Will dated 25.11.1971, which has not been proved in accordance with law. It is specifically stated that the document relied upon is merely a photostat copy and there is no reliable evidence to establish that the Will was duly executed or registered.

29. It is further contended that the petitioners have failed to demonstrate that the alleged Will was ever produced before the Prescribed Authority during the original proceedings. In the absence of such material on record, the authority cannot be faulted for not considering the same.

30. Learned Standing Counsel further submits that the mutation of the name of Raj Narain Singh in the revenue records after the death of Fateh Bahadur Singh was carried out in accordance with the procedure prescribed under law and reflected the actual possession and control over the land. The ceiling proceedings were, therefore, rightly conducted against the recorded tenure holder.

31. It is further submitted that the petitioners were minors at the relevant time and were represented by their father, who was their natural guardian. The proceedings having been conducted against the guardian cannot be said to be vitiated, as there was adequate representation of the family interest.

32. The respondents contend that the objections filed by the petitioners on 01.11.1980 were highly belated and were rightly rejected by the Prescribed Authority. The incorrect mention of the statutory provision further reflects lack of diligence and seriousness on the part of the petitioners.

33. It is also submitted that the Prescribed Authority was justified in rejecting the objections without entering into the merits, as the proceedings had already attained finality and reopening the same after several years would defeat the object of the Ceiling Act.

34. The appellate authority, after due consideration, affirmed the order of the Prescribed Authority, and no illegality or perversity can be attributed to the concurrent findings recorded by the authorities below.

35. After having heard the rival contentions of learned counsel for the parties, I perused the material on record as well as the law report cited.

36. Relevant paragraphs of the judgments relied upon by petitioners' counsel are being quoted hereunder :-

Dirvijai Singh (Supra) "I have heard the learned counsel for the parties. Under the Act the third party has a right to file the objection u/s 11 (2) of the Act. The petitioner being a third party could file the objection. Only the question of delay was required to be considered. The objection could not be rejected merely because the matter was contested by the recorded tenure-holder upto High Court. That will not put to an end to the right of a third party. The view taken by the prescribed authority and the District Judge is manifestly erroneous and cannot be sustained."

Shafir (Supra) "8. Learned counsel for the petitioners has urged that the Prescribed Authority has rejected the objection filed by the petitioner under Section 10(2) of the Act merely on the ground that in the ceiling proceedings the Prescribed Authority cannot determine the claim of the petitioners who have claimed sirdari rights over certain plots of the disputed holding on the ground of adverse possession for more than the prescribed period of limitation. It was urged that the Prescribed Authority has wrongly refused to consider the claim of the petitioners on merits which should have been considered and decided on merits according to law in view of the decision of the Full Bench of this Court in the Case Upper Ganges Sugar Mills Ltd., reported in 1967 ALJ 556 and also in Dilbagh Singh's case reported in 1978 ALJ 717. I find much substance in the contention of the learned counsel for the petitioners.

9. In Dilbagh Singh's case (Dilbagh Singh v. State of U.P.,) it was held by the Division Bench that Section 11(2) permits a tenure-holder to file objections. Such tenure-holders may be those who have been served with a notice and a statement under Section 10(2). It also includes tenure-holders who have not been given or served with any such notice or statement. The construction put by the Full Bench also embraces persons who claim to be tenure-holders and who having come to know of the declaration of their land as surplus land of some other person wish to challenge that declaration or notification thereof in the gazette under Section 14. They are all entitled to file an objection under Section 11(2) and get an adjudication thereon as required by Section 12.

10. In this view of the matter I find that the objection which the petitioners had filed required to be decided on merits under Section 12. The petitioners have claimed that they are tenure-holders of certain plots of the disputed holding recorded in the name of opposite party No. 4. They thus claimed that opposite party No. 4 is not tenure-holder of those plots and the petitioners have acquired rights by adverse possession having remained in adverse possession for more than the prescribed period. Thus those plots could not be shown in the notice issued to the opposite party No. 4 under Section 10(2) of the Act nor the same could be treated to be holding of the opposite party No. 4 and declared surplus land in his hands because in the event petitioners succeed in establishing their Sirdari rights and title by adverse possession over the land in dispute it could not be treated to be part of the holding of opposite party No. 4. The Prescribed Authority, therefore, was required to determine this question on merits as to whether the plots, which were claimed by the petitioners as their Sirdari land could be factually and legally sustained or not. The Prescribed Authority should, therefore, consider the claim of the petitioners after giving them full opportunity to lead evidence in support of their claim. The opposite party No. 4 will also be given opportunity to contest the claim of the petitioners. Even in the case which has been remanded by the learned District Judge for considering the claim of opposite party No. 4 for being decided by now on merits, the Prescribed Authority will consider the objections filed by the Petitioners on merits in respect of the plots in which they have claimed rights by adverse possession. The objection would be treated to be maintainable as one under Section 11(2) of the Act as held by this Court in the aforesaid decisions and will be decided on merits even if the land in which petitioners have claimed title by adverse possession has been notified under Section 14(1) of the Act because the deletion of Section 14(2) will not bar maintainability of such objection, as held in Ram Kumar Singh v. State of U.P., [ Writ Petition No. 981 of 1976.] decided on 10-10-1984."

Abdul Hafiz Khan (Supra) "7. So far as the question regarding maintainability of objection under Section 11(2) of the Act after the surplus land had been notified under Section 14(1) of the Act, is concerned, I find that it stands concluded by a Full Bench Decisions of this Court in Baldeo Singh v. State of U.P., [1980 L.L.J. 31.] . According to the majority view expressed in the said decision an objection can be entertained under Section 11(2) of the Act even after the surplus land had been notified under Section 14(1) of the Act. The deletion of Sub-section (3) of Section 14 of the Act will not affect the tenability of that objection. In this view I do not find any merit in the contention of the learned Standing Counsel that the petitioners had no right to file objection under Section 11(2) of the Act. Even if the name of the objectors is not recorded over the land in dispute as tenure-holder they could file an objection under Section 11(2) of the Act as held by the Full Bench of this Court in Upper Ganges Sugar Mills Ltd. v. Civil Judge, Bijnor [1969 A.L.J. 556.]

8. In the present case the petitioner had filed an objection on 28th October, 1978 (Annexure-4) asserting that they are the tenure-holders of the land which they had received in the aforesaid decree for partition and that the opposite party No. 4 Nazim Ali Khan is not the tenure-holder of the land situate in village Kanjarwa and his surplus land be determined excluding the land of village Kanjarwa, which belongs to the petitioner. This objection was filed under Section 13-A of the Act though in fact it purported to be an objection under Section 11(2) of the Act and deserved to be treated as such for deciding it on merits. It is well settled that wrong mentioning of the section or nor mentioning a correct section in the objection filed would not by itself disentitle an objector to appropriate relief which the Prescribed Authority could grant to the objector in accordance with the law. In Ram Kumar Singh v. State of U.P. [1985 L.L.J. 81.] . I had an occasion to consider similar question, whether an objection filed under sub-section (3) of Section 14 could or could not be treated to be one under Section 11(2) of the Act. It was held in Ram Kumar Singh's case (supra) that even without formal application for amendment the Prescribed Authority (Ceiling) should have proceeded to decided the objection treating it to be one under Section 11(2) of the Act because wrong mentioning of section or not mentioning of correct section in the objection not by itself disentitle the objector to the appropriate relief which the Prescribed Authority could grant in accordance with the law.

9. In Abdul Rahman v. The Prescribed Authority [1979 A.C.J. 10.] a similar question arose for consideration before the Division Bench and it was held.

Although the application made by the petitioners purported to be under Section 13-A of the Act it was substantially an objection under Section 11(2), of the Act.

The Prescribed Authority in the aforesaid case was, therefore, directed to consider the claim of the petitioners treating the application as an objection under Section 11(2) of the Act."

Hari Ram (Supra) "6. The next question then to be considered is as to whether the objections filed by the petitioners could be entertained, in view of the orders passed in the earlier proceedings which were taken against Chandra Bhan Singh and others. In this connection, learned counsel for the petitioners has placed reliance upon two decisions of this Court, one is in Digvijai Singh v. State of U.P. ( [1984 Lucknow Civil Divisions, Vol. II, p. 324.] ) in which it has been held that such objections are to be entertained despite the fact that earlier matter may have been fought out between the state and another person. Another case reported in the same Volume is Rasid Khan v. State of V.P. ( [1984 Luck. Civil Decisions, Vol. II, p. 215.] ), where it has been held that such objections should be treated as objections under Sec. 11(2) of the U.P. Imposition of Ceiling on Land Holdings Act.

7. In view of the discussion held above, it is clear that the petitioners had to be heard and their objections had to be treated as objections under Section 11(2) of the U.P. Imposition of Ceiling on Land Holdings Act, specifically when the land was recorded in the revenue records in their names in pursuance of an order of mutation passed in their favour. It will not affect their case if earlier any order was passed in proceedings between Chandra Bhan Singh and others and the State. As a matter of fact, under the first proviso to Rule 8 of the U.P. Imposition of Ceiling on Land Holdings Rules, a notice should have been issued to the petitioners as well. The opposite parties have dismissed the objections and the appeal preferred by the petitioners erroneously. The matter had to be considered on merits on the objections filed by the petitioners."

Mehfizul Rahman (Supra) "2. Notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act was issued to opposite party No. 4 father of of the petitioner, who filed an objection against the same but as area of 9.753 a.?res of land was declared as surplus land. The appeal filed by the opposite party No. 4 was also dismissed and ihe writ petition against the same was also dismissed on August 7, 1978. On September 26, 1978, the petitioner alongwith brother and sister, filed ???-jection under Section 11(2) of the U.P. Imposition of Ceiling on Land Holdings Act on the ground that they were tenure-holder of few plots vide registered sale-deed dated September 8, 1967 executed by their father and they were in its possession. Certified copy oi the registered sale deed was filed. But ???t was found that the name of the transferee was not mutated in the records. The Prescribed Authority dismissed the objections filed ??? the petitioner on the ground that objections were not maintainable as they were not recorded tenure holder, consequ-entiy no notice under the Rules was required. Against the order passed by the Prescribed Authority a number of appeals were filed. The petitioner also tiled an appeal. The appeal filed by the petitioner was also dismissed on the ground that it was highly belated and the explanation for delay was not acceptable. The appellate authority found that in the case before the prescribed authority, against father, Pairvi was done by the petitioner and on July 8, 1972 and December 28, 1976 he signed the order-sheet, although on behalf of the petitioner it was denied that the same bears his signatures. The Additional District Judge rejected this plea on the ground that the same was not acceptable and believable as Fazal Ali could not have forged the signatures of his son. Even if it could be said that the son appeared for and on behalf of the father and signed the order-sheet that could not be taken to mean that, in fact, the interest of the son was involved in it and the sun was going to lose the land over which he was claiming rights on the basis of the sale-deed. Father was contesting the case and prayer was for execution of the (sic.) on the ground that he had already transferred the same for consideration in the year 1967. Even if the son had some vague knowledge, that could not be taken to mean that he had knowledge of the proceedings and that there was no sufficient cause for not tiling be objections under Section 11(???) of the UP. Imposition of Ceiling on Land Holdings Act, during the pendency of these proceedings. The ground on winch the objections have been dismissed by the appellate authority are obviously not very relevant and the order in this behalf is manifestly erroneous as ramc is not in conformity with the provisions of Section 11(2) of the U.P. Imposition of Ceiling on Land Holdings Act. Consequently the writ petition deserves to be allowed."

Ram Bhajan (Supra) "It is well settled that the matter of declaration of the land as surplus is between the State and the tenure holder and nobody comes in between and thus once the State has chosen not to take up the matter to the higher forum, challenging the judgment of the Prescribed Authority by which notice for declaration of the land as surplus itself was withdrawn, no argument can be advanced by the petitioner raising any finger on this aspect that the tenure holder might have surplus land if the matter is examined in further details in the light of the facts as are being pleaded by him."

State of U.P. Vs. Kailash Nath (Supra) "20. At the outset, it may be noticed that Sections 37 and 38 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 clearly makes provisions of the CPC applicable by reference. The aforesaid sections read as under:

37. Powers of officers and authorities in hearing and disposal of objections and procedure to be followed - Any officer or authority holding an enquiry or hearing an objection under this Act, shall, insofar as it may be applicable, have all the powers and privileges of a Civil Court, and follow the procedure laid down in the Civil Procedure Code, 1908, for the trial and disposal of suits relating to immovable property.

38. Powers of the appellate Court and the procedure to be followed by it- (1) In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a Civil Court and follow the procedure for the hearing and disposal of appeals laid down in the Civil Procedure Code, 1908.

(2) Where, under the provisions of this Act, an appeal has to be heard by the [Commissioner], he may either hear the appeal himself or transfer it for hearing to any[Additional Commissioner] subordinate to him."

21. In view of the aforesaid, it will be relevant to notice that the Appellate Authority was obliged to have considered the appeal in the manner as provided under the Code of Civil Procedure. It will be appropriate to notice Order 41 Rule 31 CPC which reads as under:

31. Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state-

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; 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.

22. In this context, since the Appellate Authority is exercising powers of the First Appellate Court it was incumbent upon the said court to have considered the various contentions, the evidence on record and then gone on to record its conclusion. In this regard the decision of the Apex Court in the case of Sudarsan Puhan v. Jayanta Ku. Mohanty, (2018) 10 SCC 552 will be gainful to notice and the relevant portion reads as under:

23. This Court also in various cases reiterated the aforesaid principle and laid down the powers of the Appellate Court under Section 96 of the Code while deciding the first appeal.

24. We consider it apposite to refer to some of the decisions.

25. In Santosh Hazari v. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held (at pages 188189) as under:

15The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate courtwhile reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it

26. The above view was followed by a three Judge Bench decision of this Court in Madhukar v. Sangram, (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.

27. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court (at p. 244) stated as under : (SCC para 3)

3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title.

28. Again in Jagannath v. Arulappa, (2005) 12 SCC 303, while considering the scope of Section 96 of the Code, this Court (at pp. 30304) observed as follows : (SCC para 2)

2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion.

29. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this court reiterated the aforementioned principle with these words:

3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)

5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.

30. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India v. Emmsons International Ltd., (2011) 12 SCC 174 and Uttar Pradesh State Road Transport Corporation v. Mamta (2016) 4 SCC 172.

23. From the above, it would be clear, as to how the First Appellate Court must exercise its jurisdiction. However, unfortunately from the perusal of the impugned judgment passed by the Appellate Court dated 27.11.1979 this Court finds that the same is wanting in many material aspects of meeting with the reasons of the trial court, assigning its own reasons and reversing the findings.

25. Now considering the submissions raised by the respective parties on merits of the controversy, this Court finds that the findings recorded by the First Appellate Court that a Will of Smt. Kunta not being a transfer is not covered under Section 5(6) of the Ceiling Act and the said view is defended by the counsel for the respondent by relying upon a decision of a Co-ordinate Bench of this Court in Mulk Nath Singh (supra) wherein the Co-ordinate Bench has relied upon the decision of the Apex Court in the case of Rathinam @ Kuppamuthu v. L. S. Mariappan [(2007) 6 SCC 724], while coming to its conclusion holding that a Will is not a transfer.

26. In this regard, Section 5(6) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 and the explanation appended thereto will be relevant to be noticed and which reads as under:

[5. Imposition of Ceiling.-(1) [On and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972], no tenure-holder shall be entitled to hold in the aggregate through-out Uttar Pradesh, any land in excess of the ceiling area applicable to him.

[Explanation I.-In determining the ceiling area applicable to a tenure-holder, all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account.] Explanation II.-[If on or before January 24, 1971, any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date] either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree, it shall be presumed, unless the contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person.] (2) Nothing in sub-section (1), shall apply to land held by the following classes of persons namely-

(a) the Central Government, the State Government or any Local Authority or a Government Company or a Corporation;

(b) a University;

(c) [an intermediate or degree college imparting education in agriculture or a post-graduate college;];

(d) a banking company or a co-operative bank or a co-operative land development bank;

(e) the Bhoodan Yagna Committee constituted under the U.P. Bhoodan Yagna Act, 1952.

(3) [Subject to the provisions of sub-sections (4), (5), (6) and (7)] the ceiling area for purposes of sub-section (1) shall be-

(a) in the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of his adult sons, who are either not themselves tenure-holders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land;

(b) in the case of a tenure-holder having family of more than five members, 7.30 hectares of irrigated land (including land held by other members of his family), besides, each of the members exceeding five and for each of his adult sons who are not themselves tenure-holders or who hold less than two hectares of irrigated land, two additional hectares of irrigated land or such additional land which together with the land held by such adult son aggregates to two hectares, subject to a maximum of six hectares of such additional land;

Explanation.-The expression adult son in clauses (a) and (b) includes an adult son who is dead and has left surviving behind him minor sons or minor daughters (other than married daughters) who are not themselves tenure-holders or who hold land less than two hectares of irrigated land;

(d) [x x x]

(e) in the case of any other tenure-holder, 7.30 hectares of irrigated land;

Explanation.-Any transfer or partition of land which is liable to be ignored under sub-sections (6) and (7) shall be ignored also-

(f) for purposes of determining whether an adult son of a tenure-holder is himself a tenure-holder within the meaning of [clause (a) or clause (b)];

(g) for purposes of service of notice under Section 9.

(4) Where any holding is held by a firm or co-operative society or association of persons (whether incorporated or not, but not including a public company), its members (whether called partners, share-holders or by any other name) shall, for purposes of this Act, be deemed to hold that holding in proportion to their respective shares in that firm, co-operative society or other society or association of persons:

[Provided that where a person immediately before his admission to the firm, co-operative society, or other society or association of persons, held no land or an area of land less than the area proportionate to his aforesaid share then he shall be deemed to hold no share, or as the case may be, only the lesser area in that holding, and the entire or the remaining area of the holding, as the case may be, shall be deemed to be held by the remaining members in proportion to their respective shares in the firm, co-operative society or other society or association of persons.] (5) In respect of any holding held by any private trust,-

(a) where the shares of its beneficiaries in the income from such trust are known or determinable, the beneficiaries shall, for purposes of this Act, be deemed to have the shares in that holding in the same proportions as their respective shares in the income from such trust,

(b) in any other case, it shall be governed by [clause (e)] of subsection (3).

(6) In determining the ceiling area applicable to a tenure-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 I.-For the purposes of this sub-section, the expression transfer of 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 proceeding 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.

27. From the above, it would indicate that it uses the terminology to include not mere simplicitor transfer but other deed or instrument or in any other manner. Considering this aspect the Apex Court in (1996) 27 ALR 445 State of U.P. v. Bankey Singh has held as under:

.. The only question in this case is : whether the respondents would get benefit of 1/4th share in the surplus land declared by the competent authority? On September 8, 1982, Krishan Pal Singh filed objection, who claimed land of Khat Nos. 340, 341 and Khata No. 33 of village Nawada and Khata No. 77 of Village Jamla Jot on the basis of a Will executed by Smt. Gajraji. On that basis, the said land is required to be excluded from the surplus land. The primary authority had rejected the claim by proceedings dated July 30, 1983 and on appeal the District Judge allowed the appeal by order dated November 9, 1983 and excluded 1/4th of the land held by Gajraji on the basis of the Will dated September 2, 1978. When it was questioned, the High Court dismissed Writ Petition No. 1731/84. Hence, this appeal by special leave.

Section 5 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act No. 1 of 1961) (for short, the Act) in Chapter II imposes ceiling on land holdings. Certain exemption mentioned in the Article gets excluded from surplus land. Section 5 postulates that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be entitled to hold in the aggregate throughout Uttar Pradesh, any land in excess of ceiling area applicable to him.

Sub-section (6) postulates determination of the ceiling area applicable to a tenure-holder. It provides that any transfer of land made after the 24th 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. Explanation-1 provides that for the purpose of this sub-section the expression transfer of land made after the twenty-fourth day of January, 1971 includes, among other things, an 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, shall be construed to be a transfer for the purpose of sub-section (6).

Admittedly, the Will was executed on February 10, 1978 long after the specified date. By the Will a devise was made by Gajraji, owner of the land bequeathing her 1/4th share in favour of her brother's grand-son, Krishan Pratap Singh. Therefore, it must be construed to be a devise in any other manner within the meaning of Explanation 1(b) of sub-section (6) of the Act. It shall be ignored for the purpose of determination of the surplus land. The High Court and the appellate authority, therefore, were not right in directing to exclude the said land. The appeal is accordingly allowed. No costs.

28. In light of the aforesaid clear authority of the Apex Court which is in context with the provisions of the Ceiling Act, this Court finds that the decision cited by the counsel for the respondent and placing reliance on the Co-ordinate Bench decision of Mulk Nath Singh (supra) would be per incuriam for the reason it does not take note of the decision of the Apex Court in Bankey Singh (supra). Moreover, the decision of the Apex Court which has been relied upon in the case of Mulk Nath Singh (supra) namely that of S. Rathinam @ Kuppamuthu (supra) is not in context with the ceiling proceedings rather the said decision was in context with the general law where Will was held to be not a case of transfer. However, in the instant case since the proceedings arise out of a Special Act where special provisions have been incorporated and the same has been interpreted by the Apex Court in the case of Bankey Singh (supra), accordingly in the humble opinion of this court, the decision of Bankey Singh (supra) would be a binding authority and for the aforesaid reason, the Court is not inclined to accept the contention of the counsel for the respondent and follow the decision of Mulk Nath Singh (supra).

29. It will also be relevant to notice that the finding which has been reversed by the Appellate Court in respect of the sale deed said to have been executed by Dinanath in favour of Sundar Lal, the same is not adequately considered nor supported with reasons. Whether the said sale deed was executed prior to 24.01.1971 or thereafter could only be proved once the said sale deed was on record. In absence of the said sale deed merely relying upon certain entries in the revenue records which do not establish title and are only for fiscal purposes could not give rise to a categorical finding and conclusion that since the name of Sundar Lal was recorded in the revenue records prior to the said date of 24.01.1971 without clear dates being available as to when it was entered in the revenue records and what was the basis and the reason for incorporating such entries. The findings of the Appellate Court on the aforesaid point are not supported by any clear and cogent evidence, hence are unsustainable.

31. How a ceiling area is to be considered while adjudging a transaction and whether it would be hit by Section 5 (6) of the Ceiling Act and the manner in which the Prescribed Authority is to hold an inquiry in this regard has been considered by the Apex Court in (1997) 1 SCC 734 State of U.P. v. Amar Singh, the relevant portion thereof reads as under:

5. Thus, on and from the date the Amendment Act came into force, namely, 21-1-1971, the tenure-holder shall not hold, throughout the State of Uttar Pradesh, any land in the aggregate in excess of ceiling area applicable to him. Explanation I adumbrates that in determining ceiling area applicable to a tenure-holder, all lands held by him in his own right, whether in his own name or ostensibly in the name of any other person, shall be taken into account. In other words, as on the date the Amendment Act came into force, the land must be held by the tenure-holder in his own right and the lands ostensibly in the name of any other person shall be taken into account. In this case, admittedly, the alienations came to be made by Kishun Singh in favour of his sons and daughters-in-law. Normally, one would expect that if there is any compelling legal necessity to alienate the land, one would sell the land to third parties and that too, as prudent vendor for valuable consideration not to the sons and daughters-in-law. The object appears to be, as rightly pointed out by the District Judge, that the alienations were made by registered instruments in favour of his sons and daughters-in-law only to see that the provisions of the Act are defeated and the lands do not pass into the hands of strangers. It is true that the evidence was adduced by the respondents as regards proof of mutation. Mutation was effected on the basis that sale deeds came to be executed in favour of sons and daughters-in-law. Therefore, the mutation officer was not concerned at that stage to find out whether the sales were benami or ostensibly intended to defeat the provisions of the Act. It is settled law that mutation entries are only for the purpose of enabling the State to collect the land revenue from the person in possession but it does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alienee as per the Stamp Act and registered under the Registration Act. The alienees being sons and daughters-in-law, the tenure-holder remained to be the owner and holder of the land. The sons and daughters-in-law are only ostensible owners under Explanation I to Section 5(1) of the Act. It is true that Lekh Pal has not categorically stated whether the respondents remained in possession in their own right after the alienation. It is not in dispute that the father and sons remained to be members of the joint family and were cultivating the land. Under these circumstances, one would normally expect that Lekh Pal may not be in a position to categorically assert whether respondents remained in possession in their own right as owners or were cultivating land on their own or on behalf of the coparceners. Under these circumstances, the findings of the High Court are illegal. The case falls under Explanation I of Section 5(1) and the burden is always only on the respondents to establish that they were not ostensibly owning the land but remained in their own right as owners. Accordingly, we hold that Kishun Singh was the holder of the land. He was a tenure-holder as on the date and, therefore, ceiling area has to be computed treating him to be the owner of the land; besides himself, he had eight sons who are entitled to the respective additional ceiling area given to them under the Act. The authorities are, therefore, directed to compute the ceiling area accordingly and take possession of the surplus land.

33. The Apex Court has also considered the aforesaid aspect in 1995 Supp (1) SCC 204 Nawal Singh v. State of U.P. and the relevant portion reads as under:

2. For a transfer effected after 24-1-1971 to be valid it must be proved to have been made in good faith, for adequate consideration, under an irrevocable instrument, not being a benami transaction, or for immediate or deferred benefit of the tenureholder or other members of his family. Findings have been recorded at one stage or the other that the sale effected by the appellant was for adequate consideration and under an irrevocable instrument, not being a benami transaction or for immediate or deferred benefit of the tenureholder or other members of his family. These findings have been recorded in the backdrop that the appellant had his holdings in two villages i.e. Sihi and Asawar and that he was residing in Sihi, and had to manage his land at Asawar at a distance of about two and a half miles. Additionally he was an old man of about 65 years of age at the relevant time, had no son to look after him and his only daughter who was married was living elsewhere. In this situation, the appellant thought proper, as is his case, to sell the land at village Asawar for a sum of Rs. 60,000 and he asserts that out of it he transferred a sum of Rs. 35,000 to his daughter by way of gift and paid gift tax thereon. These assertions of the appellant have not been countered at any stage. His complete version has been doubted only on the premise that the sale was effected after the crucial date i.e. 24-1-1971 which was reflective of absence of good faith.

3. We do not at all appreciate the approach of the courts below. If this approach is accepted that no transfer effected after 24-1-1971 can escape, sub-section (6) of Section 5 would be rendered meaningless and a dead letter in the statute. The facts as stated above have been asserted by the appellant clearly and openly. There is nothing on these facts to attract a finding that all what he did was in bad faith. We are satisfied that he has more than ordinarily proved that the transaction of sale was effected in good faith and the approach of the courts below was not in accordance with the spirit of the statute. We thus set aside the impugned orders of the High Court as also that of the courts below and hold that the transaction in question was entered in good faith and the land covered by it is not to be reckoned towards computing his holding for ceiling purposes. The appeal is accordingly allowed. No costs.

34. The Apex Court again in the case of Brijendra Singh v. State of U.P. (1981) 1 SCC 597 has considered the issue and the relevant portion reads as under:

14 .. It will be seen that when sub-section (6) of Section 5 provides that in determining the ceiling area and surplus area, any transfer of land which but for the transfer would have been declared surplus land under the Act, shall be ignored, it proceeds on the presumption that the tenure holders being aware of the resolution or manifesto adopted by the ruling All India Congress Party on January 24, 1971, and of the consensus at the Chief Ministers Conference held in July 1972, to take measures to lower the ceiling on agricultural holdings, might make attempts to defraud, defeat and evade the ceiling law, then in offing, by making fictitious transfers of land in favour of other persons. The presumption which underlies the main provision in Section 5(6) can be displaced, as the legislature has itself indicated, on proof of the conditions set out in proviso (b). Although the strength of the aforesaid presumption and the nature and quantum required to satisfy the conditions of proviso (b) may vary according to the circumstances of the particular case, yet it can be said as a general proposition that in the case of transfers made prior to the decision of the Chief Ministers Conference in July 1972 to lower the ceiling, the burden under Explanation II on the tenure holder to establish the facts bringing his case within clause (b) of the proviso, would be lighter than the one in the case of a transfer made after the aforesaid decision in July 1972.

15. In order to bring his case within the purview of proviso (b), the tenure holder has to show

(i) that the transfer has been made in good faith;

(ii) that it is a transfer for adequate consideration;

(iii) that it has been made under an irrevocable instrument; and

(iv) that it is not a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family.

16. There is no dispute in regard to the connotation, construction and existence of ingredients (ii), (iii) and (iv) in the instant case. Controversy, however centres round the true meaning and scope of the expression good faith within the contemplation of clause (b) of the proviso. In the instant case, the Appellate Authority appears to have taken the view a view which has been upheld by the High Court that a transfer cannot be said to have been made in good faith merely because it has been honestly or genuinely made and satisfies the aforesaid Conditions (ii), (iii) and (iv), unless it is proved further that it was made for a valid pressing necessity.

18. The expression good faith has not been defined in the Ceiling Act. The expression has several shades of meaning. In the popular sense, the phrase in good faith simply means honestly, without fraud, collusion, or deceit; really, actually, without pretence and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme, (see Words and Phrases, Permanent Edn., Vol. 18-A, p. 91). Although the meaning of good faith may vary in the context of different statutes, subjects and situations, honest intent free from taint of fraud or fraudulent design, is a constant element of its connotation. Even so, the quality and quantity of the honesty requisite for constituting good faith is conditioned by the context and object of the statute in which this term is employed. It is a cardinal canon of construction that an expression which has no uniform, precisely fixed meaning, takes its colour, light and content from the context.

19. The meaning and scope of the expression good faith is therefore, to be considered in the light of the scheme and purpose of Section 5, in general, and the context of proviso (b) to sub-section (6), in particular. We have already noticed that the primary object of the Ceiling Act, as adumbrated in the pivotal provision in Section 5(1) is to prohibit and disentitle a tenure holder from holding land in the aggregate in the State of Uttar Pradesh, in excess of the ceiling area, in his own right, whether in his own name, or ostensibly in the name of any other person. The ceiling area and surplus land of a tenure holder under the Ceiling Act, as already mentioned, are to be determined as on June 8, 1973 when the U.P. (Amendment) Act 18 of 1973 came into force. A transfer, therefore, made after January 24, 1971 which is designed to serve as a cloak for retention of a right or interest of the transferor in the ostensibly transferred land in excess of the ceiling area, even on or after June 8, 1973, will be patently not in good faith. But the proviso (b) to sub-section (6) of Section 5 extends the negative aspect of the concept good faith a little further by indicating, that even if the transfer is not an ostensible transfer and the transferor divests himself of all interest and rights in present in the transferred land, but reserves some benefit in futuro for himself or other members of his family, then also, the transfer will be not in good faith. A transfer solely for the purpose of converting surplus land into cash without any kind of need (not to be confused with legal necessity) may also lack good faith.

20. Broadly speaking, the benefit of clause (b) of the proviso to subsection (b) is available to a transfer made in good faith, that is, to a bona fide transfer whereby the tenure holder genuinely and irrevocably transfers all right, title and interest in the land in favour of the transferee, in the ordinary course of management of his affairs and which is not a collusive arrangement, or device or subterfuge to enable the tenure holder to continue to hold the surplus land or any reserved interest in presenti or in future, therein, (or merely to convert it into cash), and thus circumvent the ban under Section 5(1) of the Ceiling Act. In order to be entitled to the benefit of proviso (a), a transfer made in good faith, must satisfy the further conditions, (ii) to (iv), enumerated in the proviso (b). The positive conditions laid down in proviso (b) are : that the transfer should be for adequate consideration; that it should have been made under an irrevocable instrument. The negative conditions set out in clause (b) of the proviso are : that it must not be a benami transaction; that it must not be for immediate or deferred benefit of the transferring tenure holder or other members of his family. These tests or Conditions (ii), (iii) and (iv) provided in proviso (b) may not by themselves be conclusive to hold that the transfer was in good faith. For instance, another important test for judging the genuineness or otherwise of a sale would be whether or not cultivatory possession and enjoyment of the land has passed under the sale to the vendee. Even so, once it is established by the transferring tenure holder that the transfer in question effected in the course of ordinary management of his affairs, was made for adequate consideration and he has genuinely, absolutely and irrevocably divested himself of all right, title and interest (including cultivatory possession) in the land in favour of the transferee, the onus under Explanation II, in the absence of any circumstances suggestive of collusion, or an intention or design to defraud or circumvent the Ceiling Act, on the tenure holder to show that the transfer was effected in good faith, will stand discharged, and it will not be necessary for the tenure holder to prove further that the transfer was made for an impelling need or to raise money for meeting a pressing legal necessity. Although proof of the fact that a transfer was made for a valid pressing necessity may highlight or strengthen the inference in favour of the genuineness of the transfer, it is not an indispensable constituent of good faith; nor is the proof of legal necessity requisite, as a matter of law, to enable a tenure holder to avail of the benefit of clause (b) of the proviso. It may be remembered that at the time when such a transfer was made, there was no legal restriction on his power to alienate the whole or any part of his holding. In other words, at the time when such a transfer was made it was not unlawful, even if it were made without any pressing necessity. It became unlawful by the subsequent enactment of a legal fiction introduced in Section 5(6) of the Ceiling Act (U.P. Act 18 of 1973) with retrospective effect from January 24, 1971. Even so, under this statutory fiction, a transfer of land made after January 24, 1971 does not become wholly void for all purposes; it can be ignored and would not be taken into account in determining the ceiling area of the transferring tenure holder for purposes of the Ceiling Act, and that too, if the following two conditions are satisfied

(a) that the land but for the transfer would have been declared surplus land under the U.P. Act 18 of 1973; and

(b) that the transfer is not of a kind covered by proviso (6) to Section 5(6) of the Act.

35. This being the position, once a transfer is shown to be bona fide and further satisfies all the other positive and negative conditions laid down in the proviso (b) to Section 5(6), there is no justification in law to stretch the legal fiction further and to spell out from the expression good faith an additional requirement of proving pressing necessity for the transfer before the tenure holder is entitled to the benefit of the aforesaid proviso (b).

36. In light of what is culled out from the decisions of the Apex Court noticed above, this Court observes that the Appellate Authority must consider the evidence in a manner aforesaid to find out whether the transactions are bonafide.

37. Now noticing the aforesaid dictum in Amar Singh (supra), Nawal Singh (supra) and Brijendra Singh (supra) and applying the said principles to the instant case, this Court finds that the Appellate Court has not adhered to the principles of law settled and also the manner in which the objections of the tenure holder and the evidence thereon is to be considered. Moreover, categorical findings which have been recorded by the Prescribed Authority have not been considered by the Appellate Court in its correct prespective nor any reason has been incorporated why the conclusion of the Prescribed Authority were erroneous nor the findings of the Prescribed Authority have been reversed."

Anand Kishor Devacharya (Supra) "13. The Appellate court held that the old Ceiling Act came into force with effect from 03.01.1961 with reference year 1958. As proceedings against Maharaja Pateshwari Prasad Singh and his heir Maharajaa Dharmendra Pratap Singh had been instituted under the old Ceiling Act, they will be governed by the old Ceiling Act.

14. The order dated 27.01.1968 for recording the name of the appellant's husband, had been passed by the Consolidation Officer on the basis of a compromise and this order had been passed 10 years after the reference date. Therefore, the order dated 27.01.1968 passed by the Consolidation Officer is liable to be neglected and no relief can be granted to the appellant on the basis of the aforesaid order.

19. In view of the provisions contained in Section 19(1) of the Amendment Act, 1972, all the proceedings initiated under the unamended Act stood abated on 08.06.1973. The Prescribed Authority could have initiated fresh proceedings by issuing a notice under Section 9(2) of the Act.

20. Therefore, the proceedings instituted on the basis of notice issued to Maharaja Dharmendra Pratap Singh, stood abated in view of the provisions contained in Section 19 of the amendment Act. Fresh proceedings could only be initiated by issuing a fresh notice under Section 9(2) of the Ceiling Act, which was not done in the present case.

21. The order passed by the Appellate Authority stating that the proceedings against Maharaja Pateshwari Prasad Singh and his heir Maharaja Dharmendra Pratap Singh had been issued under the old Ceiling Act (which is a misnomer, as there was no old Ceiling Act and it was merely the unamended Ceiling Act, as it was originally enacted) and that the same proceedings shall be deemed to be continuing, has been passed in ignorance of the provisions of Section 19 of the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 (U.P. Act 18 of 1973) and the same is unsustainable in law.

22. Accordingly, the writ petition is allowed. The order dated 15.04.2015 passed by Additional Commissioner (Judicial), Devi Patan Division, Gonda dismissing Appeal No. 5/43 under Section 13 of the Ceiling Act is quashed. The matter is remanded to Additional Commissioner (Judicial), Devi Patan Division, Gonda for being decided afresh in accordance with the law, keeping in view the observations made in this judgment."

Mohammad Raza (Supra) "11. Perusal of the record demonstrates that the petitioner is claiming right on the basis of sale deed executed in his favour on 8.10.1971 in respect to the khasara no. 53 area 2-17-15 from its recorded tenure holder Beni Madhav and the name of the petitioner was ordered to be recorded in case no. 329 passed by the Sub-Divisional Office, Dumeriyaganj. Entry has been made in the remark column of the khatauni of 1378-1380 fasli. Petitioner is claiming that after enforcement of Act No. 18 of 1973 w.e.f. 8.6.1973, the sale deed executed on 8.10.1971 in favour of the petitioner is well protected. The record also demonstrates that the objection under Section 11(2) of the Ceiling Act filed by the petitioner has been dismissed by the prescribed authority and the appeal has also been dismissed holding that transaction of the petitioner is benami and no reliance can be placed upon the same as the same has been executed after 24.1.1971. The reasoning given under the impugned order cannot be sustained as the sale deed has been executed before 8.6.1973, as such, the same is well protected.

12. In the instant matter petitioner is claiming right on the basis of sale deed executed on 8.10.1971 by recorded owner, which is well before the relevant dated 8.6.1973 and notice was issued to respondent nos. 16 to 18 on 14.3.1974 for show cause in C.L.H. Form- 3A, 3B & 3C, as such, the sale deed executed on 8.10.1971 cannot be ignored by ceiling authorities coupled with the fact that name of the petitioner came in remark coloumn of Khatauni of 1378 fasli to 1380 fasli (1970-71 to 1972-73).

16. So far as the execution of the lease in favour of respondent nos. 5 to 15 is concerned, the same is always subject to the right & title of the State. Since, the Court is holding that the khasara no. 53, which was purchased by the petitioner by way of sale deed executed on 8.10.1971 cannot be declared surplus without notice and opportunity of hearing to the petitioner, as such, respondent nos. 5 to 15 cannot claim any right on the basis of lease deed. No useful purpose will be served by remanding the matter again before the prescribed authority or the appellate authority as earlier also the matter has been remanded by this Court to decide the appeal afresh. The litigation cannot be kept pending in Court for unlimited period rather to finalize the same on the basis of evidence on record as well as considering the ratio of law laid down by this Court as quoted above.

17. Considering the entire facts and circumstances of the case, the impugned order dated 6.3.1982 passed by respondent no. 3 as well as order dated 19.1.2012 passed by respondent no. 2 are liable to be set aside and the same are hereby set aside. The impugned order dated 11.12.1974 so far as it relates to Khasara No. 53 is also set aside and Khasara No. 53 is excluded from ceiling proceeding.

18. The writ petition stands allowed."

Rajendra Prasad Singh (Supra) "15. The prescribed authority, without framing the issues, as directed by the appellate court under Section 5(6) Explanation, proceeded to decide without framing the issues. For ready reference Section 5(6) Explanation proviso to U.P. Imposition of Ceiling on Land Holding Act, 1960 is being quoted under :-

"5(6) In determining the ceiling area applicable to a tenure-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."

16. A bare perusal of the aforesaid provision clearly demonstrates that before proceeding to decide the claim, issue has to be framed in regard to the possession over the land. On bare perusal of the impugned order passed by the prescribed authority, it is crystal clear that no issues whatsoever were framed nor the petitioners were issued notice to submit their objection in regard to their claim. The appellate authority also proceeded to affirm the order of the prescribed authority without application of mind.

17. In view of the reasons assigned above, the impugned orders dated 31.12.1991 and 14.3.1995, passed by the Chief Revenue Officer, Gonda and Additional Commissioner Faizabad Division, Faizabad (Ayodhya) respectively are hereby quashed. The writ petition succeeds and is allowed."

37. Upon consideration of the rival submissions advanced by learned counsel for the parties and upon perusal of the material brought on record, this Court finds that the principal grievance raised by the petitioners is that their independent claim arising out of the registered Will dated 25.11.1971 executed by the original tenure holder Fateh Bahadur Singh was never adjudicated upon by the authorities under the U.P. Imposition of Ceiling on Land Holdings Act and that their objections were rejected on technical grounds without examining the substance of their claim.

38. The record demonstrates that Fateh Bahadur Singh admittedly died on 22.05.1973 and prior thereto is stated to have executed a registered Will in favour of Ajay Pratap Singh, Vishnu Pratap Singh, Bhanu Pratap Singh and Vijay Pratap Singh. The petitioners claim rights through Vijay Pratap Singh and assert independent rights over the holding on the basis of the said Will. It further emerges from the record that when the original ceiling proceedings culminated in the order dated 30.09.1975 declaring surplus land, the petitioners were admittedly minors. Their case is that after attaining majority and acquiring knowledge of the proceedings, they promptly approached the authority by filing objections on 01.11.1980.

39. The Prescribed Authority rejected the objections principally on the ground that the application mentioned Section 13-A instead of Section 11(2) of the Act and also on the ground of delay. The appellate authority thereafter mechanically affirmed the order without undertaking any independent consideration of the issues raised. The approach adopted by both the authorities, in the considered opinion of this Court, cannot be sustained in law.

40. The legal position with regard to the scope and maintainability of objections under Section 11(2) of the Act is no longer res integra. In Dirvijai Singh (Supra), this Court categorically held that a third party claiming independent rights in the land has a right to file objections under Section 11(2) and such objections cannot be rejected merely because earlier proceedings had been contested by the recorded tenure holder up to higher forums. The Court specifically observed that the right of a third party survives independently and requires adjudication on merits.

41. Similar principles were reiterated in the case of Shafir (Supra), wherein it was held that even persons claiming independent tenure-holder rights, though not originally impleaded in the proceedings, are entitled to maintain objections under Section 11(2). The Court further held that such objections are required to be decided on merits after affording adequate opportunity of evidence to the objector. The ratio of the aforesaid judgment clearly applies to the facts of the present case, as the petitioners had asserted an independent claim over the holding on the basis of a Will, and such claim could not have been rejected without proper adjudication.

42. Equally relevant is the judgment in Abdul Hafiz Khan (Supra), wherein this Court held that even if an objection is filed under a wrong provision, the authority is under an obligation to treat the same in accordance with its substance and not reject it on mere technical description of the statutory provision. The Court specifically held that wrong mentioning of a section or omission to mention the correct provision does not dis-entitle an objector from substantive relief. In the present case, the authorities have adopted an excessively technical approach in rejecting the petitioners objections merely because Section 13-A was mentioned instead of Section 11(2), despite the fact that the substance of the objection clearly disclosed an independent claim over the land in dispute.

43. The reasoning adopted by the Prescribed Authority thus stands directly contrary to the law laid down in Abdul Hafiz Khan (Supra). Procedural law is intended to advance justice and not to defeat substantive rights. Once the petitioners had disclosed the basis of their claim and sought adjudication of their independent rights, the authority ought to have treated the application as one under Section 11(2) and decided the same on merits.

44. The plea of delay raised against the petitioners also does not impress this Court. The petitioners were admittedly minors at the time when the original ceiling proceedings were initiated and finalized. The effect of minority and absence of effective representation could not have been ignored while considering the question of delay.

45. In Mehfizul Rahman (Supra), this Court clearly held that even if a son had some vague knowledge of proceedings against his father, the same could not be construed to mean that his independent rights stood represented or adjudicated. The Court further held that objections filed subsequently by persons claiming independent rights could not be rejected merely on technical grounds of delay. The observations made therein squarely support the petitioners case.

46. Likewise, in Hari Ram (Supra), this Court held that objections by persons claiming independent rights were required to be heard on merits notwithstanding earlier proceedings conducted against another person. The Court further observed that where the objectors names were reflected in revenue records or they otherwise asserted independent rights, notices ought to have been issued to them and their objections could not be dismissed summarily.

47. The respondents have attempted to justify the proceedings on the ground that the petitioners were represented by their father, who was their natural guardian. However, mere representation by a guardian in proceedings conducted against another tenure holder cannot automatically extinguish or adjudicate independent rights claimed by minors on the basis of a separate legal instrument. The authorities were under a duty to examine whether the rights asserted through the Will had any legal effect and whether such claim required independent adjudication.

48. The impugned orders further reveal complete non-consideration of the Will relied upon by the petitioners. The authorities have neither examined the genuineness of the Will nor recorded any finding regarding its legal effect. The claim has simply been rejected on technical grounds without any discussion of evidence. Such an approach clearly reflects non-application of mind.

49. At the same time, this Court cannot ignore the settled legal position relating to transfers and testamentary dispositions under the Ceiling Act. In State of U.P. Vs. Kailash Nath (Supra), this Court, after considering the judgments of the Honble Supreme Court in State of U.P. Vs. Bankey Singh, Amar Singh, Nawal Singh and Brijendra Singh, elaborately explained the scope of Section 5(6) of the Act and held that transactions made after 24.01.1971 are liable to scrutiny to determine whether they are bona fide or intended to defeat the provisions of the Ceiling Act.

50. The Court in Kailash Nath (Supra) further observed that even though a Will may not constitute a transfer under the general law, for purposes of ceiling proceedings it may still require examination within the framework of Section 5(6) and the explanations appended thereto. The Court further held that the authority must undertake a detailed inquiry regarding genuineness, bona fides, possession, consideration where applicable, and surrounding circumstances before recording any conclusion.

51. Thus, the petitioners cannot claim automatic exclusion of the land merely on the basis of the alleged Will. However, what is material is that the authorities were legally bound to examine the said claim on merits in accordance with the principles laid down in the aforesaid judgments. That exercise has admittedly not been undertaken in the present case.

52. This Court also finds substance in the submission advanced on behalf of the petitioners that the appellate authority failed to discharge its statutory obligation while deciding the appeal. The appellate order dated 05.03.1998 merely affirms the order of the Prescribed Authority without independent analysis of facts, evidence or legal issues.

53. In State of U.P. Vs. Kailash Nath (Supra), relying upon Order XLI Rule 31 CPC and various judgments of the Honble Supreme Court, this Court emphasized that the first appellate authority is required to independently consider the evidence, submissions and findings recorded by the original authority and thereafter assign its own reasons. The appellate order must reflect conscious application of mind and reasoned adjudication.

54. In the present case, the appellate authority has failed to consider the effect of minority of the petitioners, the maintainability of objections under Section 11(2), the effect of incorrect mention of statutory provision, the legal consequences flowing from the alleged Will, and the requirement of adjudicating independent rights claimed by third parties. The order is thus clearly vitiated for want of proper reasoning and independent consideration.

55. The objection raised by the respondents regarding allotment of surplus land to third parties also does not persuade this Court to non-suit the petitioners at this stage. In Mohammad Raza (Supra), this Court held that allotments made pursuant to ceiling proceedings remain subject to the validity of the original declaration of surplus land and cannot override lawful claims requiring adjudication. Therefore, subsequent allotments cannot be treated as a complete bar to judicial scrutiny where foundational illegality is demonstrated.

56. Similarly, in Rajendra Prasad Singh (Supra), this Court reiterated that failure to frame proper issues, failure to consider objections and absence of adequate adjudication vitiate ceiling proceedings. The Court held that mechanical affirmation by the appellate authority without proper application of mind cannot be sustained.

57. In the facts of the present case, this Court finds that the objections preferred by the petitioners disclosed a substantial and legally triable claim. The authorities below failed to adjudicate the same in accordance with law and rejected the objections on technical and procedural grounds. Such an approach has resulted in manifest failure of justice. The impugned orders therefore cannot be sustained. Consequently, the writ petition deserves to be allowed.

58. Accordingly, the impugned order dated 26.04.1982 passed by the Prescribed Authority as well as the appellate order dated 05.03.1998 are hereby quashed. The matter is remanded to the Prescribed Authority concerned to reconsider the objections of the petitioners afresh in accordance with law after affording adequate opportunity of hearing to all affected parties.

59. While undertaking the aforesaid exercise, the Prescribed Authority shall specifically examine the claim of the petitioners arising out of the alleged Will dated 25.11.1971, the effect of minority of the petitioners at the relevant time, the maintainability of objections under Section 11(2), and the applicability of Section 5(6) of the Act in light of the principles laid down in the judgments referred to hereinabove. The authority shall pass a reasoned and speaking order after considering the evidence and submissions of the parties independently.

60. The writ petition is accordingly allowed. No order as to costs (Irshad Ali,J.) May 14, 2026 Gautam

Unlock Advanced Research with PRISMAI

Allahabad High Court