# Prabhawati v. Addl. Commisioner Lucknow Division & Ors

- **Citation:** (2022) 3 ILRA 724
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-24
- **Case number:** Writ C No. 3000172 of 1995
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhawati-v-addl-commisioner-lucknow-division-ors-48232
- **Pages:** 7

## Headnote

A. Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960: Section 5(6)(b),
37, 38 - Certain portion of petitioner's holdings
have been held to be surplus in view of the
provisions of U.P. Imposition of Ceiling on Land
Holdings Act, 1960. The authorities have drawn
an adverse inference against the petitioner on
the twin grounds that neither the plaintiff
presented herself nor was the sale deed on the
3 All. Prabhawati Vs. Addl. Commisioner Lucknow Division & Ors.
725
basis of which she was claiming proved in
evidence. (Para 2, 15)

B.
Evidence Law
-
Indian
Evidence
Act,1872 - Section 68 - A registered
document not being a Will does not
require to be proved by an attesting
witness unless its execution by the
executor is specifically denied. (Para 17)

In the present case, although no attesting
witness was produced by petitioner for purposes
of
proving
registered
sale
deed
dated
02.04.1971 but in terms of the proviso to
Section 68 of Evidence Act, there was no
such requirement since execution of the
registered instrument was not specifically
denied by the executor. As such, no
adverse inference could have been drawn
by authorities w.r.t. non-presence of
petitioner since the registered sale-deed
itself was not required to be proved. (Para
18)

There is no law requiring the plaintiff to come in
the witness box and therefore, it was not at all
necessary for plaintiff to enter into the witness
box and there could not have been adverse
inference on that account. (Para 18)

There is no cogent evidence recorded by the
authorities
concerned
to
disbelieve
possession of petitioner over the property in
question in pursuance to execution of
registered instrument of transfer. The mere
fact that petitioner's name was not
mutated in the revenue record cannot
be held to be a conclusive evidence for
disbelieving registered instrument of
transfer particularly when it is settled
law that revenue entries do not pertain
to proof of title and are merely a
document to indicate possession of the
property and that too only for the
purposes of payment of revenue to
State. (Para 22)

Writ petition allowed. (E-4)

Precedent followed:

## Text

724 INDIAN LAW REPORTS ALLAHABAD SERIES
1988 and of the appellate authority dated
July 28, 1988 contained in Annexures 1
and 2, respectively to the writ petition are
liable to be set aside.

18. Accordingly, in view of what
has been stated above, the impugned orders
dated February 29, 1988 passed by the
prescribed authority and dated July 28,
1988 passed by the appellate authority are
quashed. The entire matter is remanded
back to the prescribed authority for taking
afresh
decision,
after
examining
the
relevant khasras (referred to above). Such
determination has to be made as quickly as
possible, preferably within a period of two
months from the date of production of a
certified copy of this order. Petitioner is
also entitled to produce any evidence, and,
or, fact available with him, in support of
his case, at the resume hearing of the
matter after remand of the case. Petitioner
is further detected to take note of the next
date of hearing so that there may not be
any communication gap. Pending fresh
decision before the prescribed authority,
regarding possession of land, as on today,
parties are directed to maintain status
quo."

17. From perusal of the orders passed
by the prescribed authority and the
appellate authority, it is apparent that
neither the prescribed authority nor the
appellate authority has considered the
khasras of relevant years i.e. 1378 to 1380
Fasli, which is required to be considered
under the provisions of the Act, 1960 and
as has been held by this Court in the case of
Ram Autar Singh (supra).

18. In view thereof, the present writ
petition is allowed and the impugned orders
dated 31.8.1995 and 30.9.1997 passed by
opposite party nos.2 and 3 are hereby
quashed. The matter is remanded back to
the prescribed authority to take a fresh
decision regarding nature of the land after
considering the khasras of 1378 to 1380
Fasli. The prescribed authority should
proceed with the matter and determine the
said question regarding nature of the land,
preferably, within a period of four months.
Petitioners are directed to fully cooperate in
the proceedings.

19. Let a copy of this order be
submitted by the learned counsel for the
petitioners before the prescribed authority
within a period of fifteen days from today
for compliance.
----------
(2022)03ILR A724
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ C No. 3000172 of 1995

Prabhawati ...Petitioner
Versus
Addl. Commisioner Lucknow Division
& Ors. ...Respondents

Counsel for the Petitioner:
Sri V,K, Pandey

Counsel for the Respondents:
C.S.C.

A. Civil Law - U.P. Imposition of Ceiling on
Land Holdings Act, 1960: Section 5(6)(b),
37, 38 - Certain portion of petitioner's holdings
have been held to be surplus in view of the
provisions of U.P. Imposition of Ceiling on Land
Holdings Act, 1960. The authorities have drawn
an adverse inference against the petitioner on
the twin grounds that neither the plaintiff
presented herself nor was the sale deed on the
3 All. Prabhawati Vs. Addl. Commisioner Lucknow Division & Ors.
725
basis of which she was claiming proved in
evidence. (Para 2, 15)

B.
Evidence Law
-
Indian
Evidence
Act,1872 - Section 68 - A registered
document not being a Will does not
require to be proved by an attesting
witness unless its execution by the
executor is specifically denied. (Para 17)

In the present case, although no attesting
witness was produced by petitioner for purposes
of
proving
registered
sale
deed
dated
02.04.1971 but in terms of the proviso to
Section 68 of Evidence Act, there was no
such requirement since execution of the
registered instrument was not specifically
denied by the executor. As such, no
adverse inference could have been drawn
by authorities w.r.t. non-presence of
petitioner since the registered sale-deed
itself was not required to be proved. (Para
18)

There is no law requiring the plaintiff to come in
the witness box and therefore, it was not at all
necessary for plaintiff to enter into the witness
box and there could not have been adverse
inference on that account. (Para 18)

There is no cogent evidence recorded by the
authorities
concerned
to
disbelieve
possession of petitioner over the property in
question in pursuance to execution of
registered instrument of transfer. The mere
fact that petitioner's name was not
mutated in the revenue record cannot
be held to be a conclusive evidence for
disbelieving registered instrument of
transfer particularly when it is settled
law that revenue entries do not pertain
to proof of title and are merely a
document to indicate possession of the
property and that too only for the
purposes of payment of revenue to
State. (Para 22)

Writ petition allowed. (E-4)

Precedent followed:

1. Jaswant Singh Vs St. of U.P. & ors., 1981
ALL.L.J. 431 (Para 12)
2. U.O.I. & anr. Vs Sri Sudershan Lal Talwar,
(2002) 20 LCD 891 (Para 18)

3. Yadunath Vs State, 1979 AWC 187 (Para 21)

4. Gouni Satya Reddi Vs Govt. of A.P. & ors.,
(2004) 7 SCC 398 (Para 18)

Present petition challenges order dated
09.12.1991, passed by the Prescribed
Authority
Ceiling
and
order
dated
31.10.1995, passed by the Appellate
Court.

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. V.K.Pandey, learned
counsel for petitioner and learned State
Counsel appearing on behalf of opposite
parties.

2. Petition has been filed assailing the
order dated 09.12.1991 passed by the
Prescribed Authority Ceiling as well as
Appellate Court Order dated 31.10.1995,
whereby certain portion of petitioner's
holdings have been held to be surplus in
view of provisions of U.P. Imposition of
Ceiling on Land Holdings Act, 1960.

3. Learned counsel for petitioner
submits that petitioner had purchased the
property in question recorded as Gata
No.277/39, measuring area 4.51, total area
12.50 of village Gajraura, Pargana Palia,
Tahsil Nighasan, District Kheri by means
of registered sale-deed dated 02.04.1971
and has been continuously in possession of
the aforesaid land till passing of the
impugned orders. It is submitted that
although the said sale-deed is subsequent to
the cut off date of 24.01.1971 as amended
to 08.06.1973 by means of amending Act,
1972 but the authorities below have failed
to consider the specific provisions of
Section 5(6)(b) of the Act, 1960 and have
reached incorrect conclusion regarding the
726 INDIAN LAW REPORTS ALLAHABAD SERIES
sale-deed having been executed in good
faith and for adequate consideration under
an irrevocable deed for consideration which
was not Benami transaction. It is submitted
that the authorities have misdirected
themselves by disbelieving the registered
sale-deed only on the basis that petitioner's
name was not mutated in the revenue
records in pursuance to the sale-deed.
Learned counsel has further submitted that
during proceedings petitioner had produced
witnesses not only to prove the sale-deed
but also to prove her possession over the
property in question but the same was
wrongly disbelieved merely on the ground
that petitioner did not produce herself in the
proceedings to prove either the sale-deed or
her possession over the property.

4. Learned counsel has placed
reliance on certain judgments of this Court
in order to buttress his submissions.

5. Learned State Counsel appearing
on behalf of opposite parties, on the basis
of counter affidavit filed, submits that
subjective satisfaction has been recorded by
the authorities below for disbelieving the
sale-deed on which petitioner has placed
reliance. It is submitted that the authorities
have correctly recorded the finding that
petitioner is not in possession over the
property in question particularly in view of
the subsequent power of attorney executed
by petitioner in favour of one Chandrika
Prasad. It is submitted that the order clearly
records the fact that the witnesses produced
on behalf of petitioner were also unaware
with regard to the place of residence of
petitioner's husband. It is further submitted
that in terms of Section 5(6)(b) of the Act,
it is the satisfaction of Prescribed Authority
to believe or disbelieve the sale-deed
executed after the cut off date and such a
discretion of the authority does not warrant
any interference in writ petition.

6. Considering the submissions
advanced by learned counsel for parties and
upon perusal of material on record, it is
apparent and admitted that the sale-deed
said to have been executed in favour of
petitioner is subsequent to the cut off date
indicated in the Act as 24.01.1971. The
Prescribed Authority as well as the
Appellate
Authority
have
placed
considerable emphasis on the fact that that
petitioner did not appear before the
authorities either in order to prove the saledeed or even her possession over the
property
in
question.
The
witnesses
produced on behalf of petitioner have also
been disbelieved primarily on the ground
that they were not witnesses to the saledeed and even otherwise were unaware of
the place of residence of petitioner's
husband. As such it has been held that the
sale-deed which forms the basis of
petitioner's claim was not a bonafide
document executed in good faith.

7. With regard to aforesaid factors
regarding deed of transfer executed after
the cut off date of 24.01.1971, the
provisions of Section 5(6)(b) are relevant.
The said provision specifically provides as
follows:

"(6) In determining the ceiling
area applicable to a tenure-holder, any
transfer of land made after the twentyfourth 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)...............................................
3 All. Prabhawati Vs. Addl. Commisioner Lucknow Division & Ors.
727

(b) a transfer proved to the
satisfaction of the prescribed authority to
be in good faith and for adequate
consideration and under an irrevocable
instrument not being a benami transaction
or for immediate or deferred benefit of the
tenure-holder or other members of his
family.

Explanation I .............................
Explanation II.- The burden of proving that
a case falls within clause (b) of the proviso
shall rest with the party claiming its
benefit."

8. Upon perusal of the said provision,
it is apparent that for a transfer deed to be
ignored
for
the
purposes
of
the
determination of the surplus area after the
cut off date of 24.01.1971, the satisfaction
of prescribed authority is compulsorily
required that the said deed of transfer was
not in good faith or for an adequate
consideration under irrevocable instrument
and was not benami transaction or for
immediate or deferred benefit to the tenure
holder or her members of family.

9. As such, it is imperative as per
statutory provision that the prescribed
authority is required to consider all the
conditions indicated in the said provision of
the Act and not only a part.

10. In the present case, the sale-deed
which forms the basis of petitioner's claim
has been held not to come within the
provisions of Section 5(6)(b), primarily on
the ground that petitioner failed to produce
herself before the concerned authority in
order to prove the sale-deed and her
possession over the said property. The
Prescribed
Authority
has
specifically
disbelieved bonafide of petitioner on the
ground that she is a resident of Jaipur and
therefore, it was not possible for her to
cultivate lands situated in District Kheri in
the State of Uttar Pradesh. Much emphasis
has also been laid upon the power of
attorney dated 24.01.1971 executed by the
petitioner in favour of one Chandrika
Prasad Mishra to conclude that petitioner
was not in possession of the property in
question. As such, the prescribed authority
has disbelieved the execution of sale-deed.
The Appellate Authority has also rejected
the appeal primarily on the said basis.

11. Upon applicability of provisions
of Section 5 (6)(b) of the Act, it was
imperative for the authority concerned to
have recorded a satisfaction that the deed of
transfer was not executed in good faith or
for
adequate
consideration
under
an
irrevocable instrument not being benami
transaction or for immediate or deferred
benefit of tenure holder or her members of
family. Upon perusal of both the impugned
orders, no such subjective satisfaction has
been indicated. The deed admittedly is
irrevocable
in
nature.
There
is
no
avernment in either of the impugned orders
that it is benami transaction or for
immediate or deferred benefit of tenure
holder or her members of family. Even the
fact that the sale-deed has not been
executed for adequate consideration skips a
mention. The only reason for disbelieving
the registered instrument of transfer is
based mainly on conjectures and surmises
that petitioner is belonging to City of Jaipur
in Rajasthan would not be able to cultivate
property situated in District Kheri, Uttar
Pradesh.
Disbelieving
the
registered
instrument of transfer on such a ground is
not contemplated under the provision of
Act. The authorities concerned have also
not indicated any reason for disbelieving
the power of attorney dated 28.01.1987
which was subsequently registered in 1990.
728 INDIAN LAW REPORTS ALLAHABAD SERIES
There is no other finding recorded by the
authority concerned for disbelieving the
registered instrument of transfer in terms of
Section 5(6)(b) of the Act.

12. This Court in the case of Jaswant
Singh versus State of U.P. and others
reported in 1981 ALL. L.J. 431 has held as
follows:

"3. In this case the appellate
authority found that transfer was by
irrevocable instrument to an outsider for
considera tion. He did not find it to be
benami or for immediate or deferred
benefit of the tenure-holder or other
members of his family. He has not referred
to any evi dence or circumstance except the
omis sion to mention the necessity in the
sale deed itself. It has been repeatedly held
by this court that such omission by itself
does not establish lack of good faith, The
appellate authority was conscious of this
fact but it held that, recital in the sale
compelling necessities under which the
land was sold shows the bona fides of the
vendor, True, but it is not conclusive. In-
absence of any other evidence or circum-
stance this by itself could not result in a
finding that sale deed was executed without
good faith."

It is well nigh-settled that a
finding based on no evidence is not a
finding of fact and can be set aside in
exercise of writ jurisdiction. Apart from it
good faith in the proviso is a legal con
clusion to be drawn from the evidence and
finding on it. An inference in law if
erroneous cannot be considered to be a
finding of fact."

13. The aforesaid pronouncement by
this Court is clearly applicable in the
present case since reasoning resorted to by
the authorities does not conclusively prove
that the transfer by registered instrument
was not in good faith or for adequate
consideration.

14. An adverse presumption has been
recorded in the impugned orders regarding
non-presence of petitioner to prove either
the registered sale-deed or her possession
over the property in question. In this
regard, it is necessary to clear that as per
Sections 37 3and 38 of the Act of 1960, the
Prescribed Authority holding an inquiry or
hearing on objections shall have all the
powers and privileges of the civil court and
is required to follow procedure laid down
in the Code of Civil Procedure for trial and
disposal of suits relating to immovable
property. The same power has been
conferred upon the appellate court as well.
As such it is clear that the Prescribed
Authority and the Appellate Court have the
power to call for evidence pertaining to
dispute
of
immovable
property.
Resultantly, the evidence act would clearly
be applicable in such proceedings.

15. In the present case, the authorities
have drawn an adverse inference against
petitioner on the twin grounds that neither
the plaintiff presented herself nor was the
sale deed on the basis of which she was
claiming, proved in evidence.

16. Since provisions of Evidence Act
would be applicable while disposing of
objections filed under the Act, necessarily
Section 68 of Evidence Act would also be
applicable.
While
the
said
provision
pertains to proof of execution of document
required by law to be attested by at least
one attesting witness for the purpose of
proving its execution but proviso to Section
68 of Evidence Act clearly stipulates as
follows:
3 All. Prabhawati Vs. Addl. Commisioner Lucknow Division & Ors.
729

"68.
Proof
of
execution
of
document required by law to be attested.?If
a document is required by law to be
attested, it shall not be used as evidence
until one attesting witness at least has been
called for the purpose of proving its
execution, if there be an attesting witness
alive, and subject to the process of the
Court and capable of giving evidence:
1[Provided that it shall not be necessary to
call an attesting witness in proof of the
execution of any document, not being a
Will, which has been registered in
accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom
it purports to have been executed is
specifically denied.]"

17. In view of the proviso to Section
68 of Evidence Act, it is clear that a
registered document not being a Will does
not require to be proved by an attesting
witness unless its execution by the executor
is specifically denied.

18. In the present case, although no
attesting
witness
was
produced
by
petitioner
for
purposes
of
proving
registered sale deed dated 2.4.1971 but in
terms of proviso to Section 68 of Evidence
Act, there was no such requirement since
execution of the registered instrument was
not specifically denied by the executor. As
such, no adverse inference could have been
drawn by authorities with regard to nonpresence of petitioner since the registered
sale-deed itself was not required to be
proved. This Court in the case of Union of
India and another versus Sri Sudershan
Lal Talwar reported in (2002) 20 LCD 891
has clearly held that there is no law
requiring the plaintiff to come in the
witness box and therefore, it was not at all
necessary for plaintiff to enter into the
witness box and there could not have been
adverse inference on that account. Decision
of Hon'ble Supreme Court in the Case of
Gouni Satya Reddi versus Govt. of A.P.
and others reported (2004) 7 Supreme
Court Cases 398 is also to the same effect.

19. Considering the aforesaid, it is
held that the authorities clearly fell in error
in recording adverse inference due to nonpresence of petitioner.

20. The finding by the authority is not
based on any cogent evidence as such
would not amount to reasonable finding of
fact.

21. A Division Bench of this Court in
the case of Yadunath versus State reported
in 1979 AWC 187 has held as under:-

"In case there is no evidence
either to show that the possession in
pursuance of the gift deed was actually not
transferred to the donees or that there are
no such circumstances to show that the gift
deed in question was a sham transaction in
the sense that the real title to the property
never passed to the donees and continued
to be retained by the donor, the Ceiling
Authorities would not be justified in
ignoring the same or to treat the land
covered by the deed as still continuing to
belong to Brij Bhushan Rathi"

22. The aforesaid pronouncement of
this Court is also clearly applicable in the
present case since there is no cogent
evidence recorded by the authorities
concerned to disbelieve possession of
petitioner over the property in question in
pursuance to execution of registered
instrument of transfer. The mere fact that
petitioner's name was not mutated in the
revenue record cannot be held to be a
730 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusive
evidence
for
disbelieving
registered
instrument
of
transfer
particularly when it is settled law that
revenue entries do not pertain to proof of
title and are merely a document to indicate
possession of the property and that too only
for the purposes of payment of revenue to
State.

23. Upon consideration of aforesaid
facts,
the
impugned
orders
dated
09.12.1991 as well as 31.10.1995 passed by
the Prescribed Authority Ceiling and the
Appellate Court, respectively being clearly
against statutory provisions of the Act,
1970 and dictum of this court are
unsustainable and are therefore, quashed by
issuing the writ in the nature of certiorari.

24. Consequently, the writ petition
succeeds and is allowed. Parties to bear
their own cost.
----------
(2022)03ILR A730
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PRAKASH PADIA, J.

Special Appeal No. 33 of 2022

Vinay Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vinod Kumar Singh, Sri Manoj Kumar
Singh, Sri Birendra Prasad Maurya

Counsel for the Respondents:
Sri Ankit Gaur, State Law Officer, Sri Anil
Kumar Singh

Civil Law - Constitution of India, 1950 -
Article 226 - Appointment - through
Competitive Examination - writ petition
for - evaluation of OMR Sheet on the
account of minor error - permission for
correction would lead to chaos - hence
petition dismissed - Special Appeal -
once the instructions were clear and
applied universally to all candidates -
evaluation of OMR sheet cannot be
permitted physically either - if an error
as per the instruction is fatal, a handsoff approached of the writ court is
justified - Appeal dismissed.(Para - 15,
31, 32)

Special Appeal dismissed. (E-11)

List of Cases cited: -

1. Karnataka Public Service Commission & ors.
Vs BM Vijaya Shankar & ors. (AIR 1992 SC
952),

2. St. of Tamil Nadu & ors. Vs G. Hemalathaa &
anr.(2019 SCC online SC 1113),

3. Jyoti Yadav & anr.Vs St. UP & ors. (WP No.
322/2021 order Dt. 08.04.2021),

4. Ram Manohar Yadav Vs St. of UP & others
(Special Appeal No. 834/2013 Judgment & order
Dt. 30.05.2013),

5. Arti Verma Vs St. of UP & ors. (Special Appeal
No. 123/2014 Decided on Dt. 05.02.2014),

6. Km. Richa Pandey Vs Examination Regulatory
Authority & anr.(Special Appeal No. 117/2014
Decided on Dt. 18.02.2014),

7. Jai Kiran Singh & ors. Vs St. of UP & ors.
(Special Appeal No. 90/2018 Decided on Dt.
25.04.2018),

8. Ramesh Chandra & ors. Vs St. of UP & ors.
decided on Dt. 09.06.2020),

9. Arvind Kumar Yadav Vs St. of UP & ors.
(Special Appeal No. 988/2020 decided on Dt.
24.11.2020).