# Shishu Pal Singh and others v. Prescribed Authority/Upper Ziladhikari and others

- **Citation:** (2008) 3 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-03
- **Case number:** Civil Misc. Writ Petition No. 4283 of 1992
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shishu-pal-singh-and-others-v-prescribed-authority-upper-ziladhikari-and-others-41269
- **Pages:** 5

## Headnote

Holdings Act 1960, Section 10(2)-surplus
land-after death of father the petitioner
filed
objection
claiming
the
land
purchased by them from their individual
source of income-not to be clubbed with
the unit of their father-being minor
cannot filed objection-rejected by the
prescribed
authority
and
appellate
authority shifted the onus upon the
petitioner
to
prove
their
separate
ostensibility of holdings-ignoring their
uncontroverted
oral
evidence-heldillegal.

Held: Para 8

The petitioners gave their statements
that they are all residing separately.
Mere non production of ration-card
cannot justify an inference that the
statements
given
on
oath
by
the
petitioners
were
false
unless
some
evidence is produced by the State to
show the said averment to be incorrect.
From a bare reading of the appellate
order, it is evident that it has solely
proceeded on the assumption as if the
onus lie upon the petitioners to show
that the holding was separate, ostensibly
in their names and did not belong to
their father Het Ram Singh. The basic
approach of the appellate authority in
the present matter is clearly illegal and
contrary to law.
Case law discussed:
1979 AWC 23.

## Text

3 All] Shishu Pal Singh and others V. P.A./Upper Ziladhikari and others
917
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2008

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 4283 of 1992

Shishu Pal Singh and others...Petitioners
Versus
Prescribed Authority/Upper Ziladhikari
and others

...Respondents

Counsel for the Petitioner:
Sri. Y.S. Saxena
Sri Manoj Misra

Counsel for the Respondents:
S.C.

U.P. Imposition of Ceiling of Land
Holdings Act 1960, Section 10(2)-surplus
land-after death of father the petitioner
filed
objection
claiming
the
land
purchased by them from their individual
source of income-not to be clubbed with
the unit of their father-being minor
cannot filed objection-rejected by the
prescribed
authority
and
appellate
authority shifted the onus upon the
petitioner
to
prove
their
separate
ostensibility of holdings-ignoring their
uncontroverted
oral
evidence-heldillegal.

Held: Para 8

The petitioners gave their statements
that they are all residing separately.
Mere non production of ration-card
cannot justify an inference that the
statements
given
on
oath
by
the
petitioners
were
false
unless
some
evidence is produced by the State to
show the said averment to be incorrect.
From a bare reading of the appellate
order, it is evident that it has solely
proceeded on the assumption as if the
onus lie upon the petitioners to show
that the holding was separate, ostensibly
in their names and did not belong to
their father Het Ram Singh. The basic
approach of the appellate authority in
the present matter is clearly illegal and
contrary to law.
Case law discussed:
1979 AWC 23.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Manoj Misra, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. The writ petition is directed
against the order dated 30.3.1991 passed
by Prescribed Authority/Addl. District
Magistrate under Section 10 (2) of U.P.
Imposition of Ceiling of Land Holdings
Act 1960 (hereinafter referred to as the
'Act') and the or er dated 29.1.1992 passed
by
the
Commissioner,
Moradabad
Division, Moradabad, dismissing the
appeal of the petitioner.

3. A notice under section 10 (2) of
the Act was served upon petitioners father
Het Ram Singh on 12.3.1988 to show
cause as to why his holding of 17.40 acres
be not declared surplus. He filed objection
on 24.3.1988. During the continuance of
the said proceedings before the prescribed
authority, Sri Het Ram Singh died and the
petitioners were substituted as his legal
heirs. The petitioners filed sale-deeds
executed
separately
in
their
name
showing that they were all major having
their own income and have purchased the
land independently and. therefore, their
holdings cannot be included with the
holding of their father. The prescribed
authority
however,
rejected
their
objection and held that except of the saledeeds no evidence was produced to show
that the sons were separately residing
from the father and their holdings were
918 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
separate and moreover, one of his son,
namely, Shishu Pal Singh obtained loan
from the State Bank by mortgaging
father's property and this shows that the
land was jointly held by petitioners and
their father as one unit and consequently,
declared a total 17.40 acres of land as
surplus and directed for taking over
possession. The petitioners filed Ceiling
Appeal
No.
99
1991
before
the
Commissioner, which was rejected on
29.1.1992.

4. The learned counsel for the
petitioners are not included within the
term "family" defined under section 3(7)
of the Act and in order to include their
holding
by
placing
reliance
on
Explanation-1 of Section 5 of Act, heavy
onus lies upon the State to prove that the
holding was benami, i.e , " ostensibly in
the name of any other person, though it is
land held by him in his own rights". In the
case in hand, the respondents have
proceeded otherwise by observing that the
petitioner did not produce any evidence to
show that the land was not held by
petitioner's father in his own rights and
therefore, the basic approach of the
respondents is clearly erroneous, illegal
and contrary to law. He has also placed
reliance on a single judgment of this
Court in Writ Petition No. 2315 of 1997
Banshi Singh & others Vs. District
Judge, Moradabad & others decided on
3.1.1997. The learned standing counsel
opposed the submission and supported the
reasons assigned by the respondents.

5. It would be appropriate to
consider what the Act has prohibited and
in what manner. Section 5 of the Act
imposes ceiling on the land providing that
no tenure holder shall be entitled to hold
in the aggregate throughout U.P., any land
in excess of ceiling area applicable to
him. The term "tenure holder" has been
defined in Section 3 sub-section 17 of the
Act and reads as under:

"3 Definitions......................

(17) 'tenure holder' means a person who
is holder of a holding but except in
Chapter III does not include-
(a) a woman whose husband is a tenureholder.
(b) a minor child whose father or mother
is a tenure-holder.

The term 'holding' has been defined in
Section 3(9) and reads as under:

"3.(9) 'holding' means the land or land
held by a person as a bhumidhar, sirdar,
asami or Goan Sabha or an asami
mentioned in Section 11 of the Uttar
Pradesh Zamindari Abolition and Land
Reforms Act, 1950, other than a subtenant, or as a Government lessee, or as a
sub-lessee of a Government lessee, where
the period of the sub-lessee is coextensive with the period of the lease;"

6. The term 'family' in relation to
tenure holder has been defined in Section
3 sub-section-7 and reads as under:

"3.(7) 'family' in relation to a tenureholder, means himself or herself and his
wife or her husband, as the case may be
(other than a judicially separated wife or
husband),
minor
sons
and
minor
daughters
(other
than
married
daughters);"

It is evident from the record that Het Ram
had his own holdings. Besides, the six
petitioners, who are the sons of Late Het
Ram Singh, also have purchased certain
3 All] Shishu Pal Singh and others V. P.A./Upper Ziladhikari and others
919
holdings in their names through different
sale deeds which were exclusively in their
names,
However,
the
Lekhpal
and
Tehsildar included all the said holdings in
the name of Late Het Ram Singh showing
that in total, he had 25.81 acres of land
and therefore, 17.40 acres of land was
liable to be declared surplus. The case of
the petitioners was that their holding were
separate, they were residing separately
and therefore, their holdings, which they
have
purchased
through
their
own
separate sale deeds, cannot be included or
clubbed with the holding of Late Het Ram
Singh.
The
appellate
authority
has
rejected the appeal only on ground that
the petitions contention that they were
residing separately from their father
cannot be accepted since one of the
petitioners Shishu Pal Singh has obtained
a loan for purchasing a tractor after
getting his father's land mortgaged and the
onus to prove that they were residing
separately lies upon the petitioners, which
they did not discharge.

7. From the order of the appellate
authority, it appears that he proceeded on
the assumption that once notice under
Section 10(2) of the Act has been issued
based on the enquiry of the Lekhpal and
Tehsildar etc. alleging that the noticee
held certain holding in his own rights
though ostensibly in the name of other, it
is the liability of the noticee to prove
otherwise. This approach is absolutely
misconceived
and
contrary
to
law.
Explanation-1 Section 5 is in the nature of
exception
inasmuch
normally
every
tenure holder is entitled to hold a land to
the extent provided in the Act, but in a
case where the land actually belongs to
one but has been purchased in the name of
some other person, that is a kind of
benami transaction, in that case only to
prevent such cases so as not to frustrate
the very purpose of the Act, the
explanation-l has provided that such land
shall be included in the holding area of a
tenure holder, but to prove the existence
of such fact, the onus lies on the State
heavily and not otherwise. Explanation-1
read with Section 5 is very clear that
neither it purports to add nor to limit the
normal meaning of the expression 'tenureholder' as defined in Section-3 subsection-17 of the Act and, thus, clearly
shows that the land must be held by the
tenure holder in his own rights. In case,
the State claims that any land is held
ostensibly by the tenure holder, the onus
lies upon the State to establish the same.
A somewhat similar issue came up for
consideration before a Division Bench of
this Court in Mohammad Abbas Vs.
State of U.P. & others 1979 AWC 23.
There two major sons of the tenure holder
executed
sale
deeds
on
12.5.1971,
7.9.1971 and 8.3.1972 transferring the
entire land recorded in their names.
Thereafter, the tenure holder claimed two
additional hectares of land on the ground
that his two major sons did not hold any
land on the appointed date, i.e., 8.6.1973,
but the said claim was rejected by the
ceiling
authorities
holding
that
the
transfer of land by major sons after
24.1.1971 was liable to be ignored as they
could not establish that the sale deeds
were executed in good faith and for
adequate
consideration.
Referring
to
Section 5 sub-section 3 of the Act, the
Court held that the ceiling area to which a
tenure holder is entitled is fixed with
reference to the number of members in
the tenure-holder's family and land held
by other members of the tenure-holder's
family is to be aggregated with the land
held by the tenure holder. The word
"family" as defined in the Act in relation
920 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
to a tenure holder, means himself or
herself and his wife or her husband, as the
case may be (other than a judicially
separated wife or husband) minor sons
and minor daughters (other than married
daughters). It shows that the said
definition does not include the major sons
of the tenure holder. By virtue of Section
5(3), if the tenure holder is a male, land
recorded in the name of his wife, provided
she is not judicially separated wife, and
minor sons and minor daughters can be
clubbed in determining the ceiling area
which the tenure holder is entitled to
retain. This shows that the land held by
the major sons is not to be included in the
holding of the tenure holder. The only
possibility for including the said land,
therefore,
would
have
been
if
Explanation-1 of section 5(1) would have
been applicable, namely, if the land is
ostensibly held by the tenure holder in the
name of any other person, but for the said
purpose, heavy burden lie upon the State
to prove this fact. Considering this aspect
of
the
matter
with
reference
to
Explanation-1 to Section 5(1) of the Act,
another Division Bench of this Court in
Banshi Singh (supra) wherein this Court
held as under:

"Explanation 1 of Section 5(1)
clearly shows that when the state alleges
that the land is ostensibly being held by a
tenure-holder in the name of any other
person which should be treated as the
land belonging to the tenure-holder then
the burden lies upon the State to prove
this fact. Merely because in the notice the
State has clubbed the land belonging to
others under the pretext that it is being
held ostensibly in the name of sons or any
other person, the burden cannot be said to
have been discharged. Once a notice
under Section 10(2) is served upon the
tenure-holder he has to show cause and
while showing cause if the tenure-holder
establishes by prima facie evidence by
filing documents or by giving evidence
that the land was being held by other
persons in their own capacity, the burden
shifts upon the State to establish the fact
that the land is being held by the tenureholder ostensibly in the name of others. In
order to discharge this burden the State
has to establish by some cogent and
satisfactory evidence that the land is
being held by the tenure-holder. Merely
because the land has been clubbed in the
land of petitioner no. 1 in the notice
issued under Section 10(2) of U.P.
Imposition of Ceiling on Land Holdings
Act or merely because the Lekhpal gives a
statement that the petitioner is in
possession, is not sufficient to discharge
that burden and to establish that the land
was ostensibly being held by the tenureholder in the name of others. In the
present case petitioner no. 1 led evidence
by showing that the names of the sons
were entered in revenue records right
from 1264F and after the partition their
names were entered separately on the
basis of the partition decree. When the
State was alleging that the land was being
ostensibly held by petitioner no. 1, the
State had to discharge that burden by
giving cogent and satisfactory evidence.
In the present case no such evidence was
adduced and the mere statement of the
lekhpal was not sufficient to rebut the
evidence and to hold that the land was
being held ostensibly by petitioner no. 1
in the names of the sons. "

8. Moreover, the only reason for non
suiting the petitioners given by the
appellate authority that the land of Het
Ram Singh was given as security for
obtaining loan by one of the petitioners
3 All] Pawan Kumar Nayak V. State of U.P. and others
921
and thus shows that the entire holding
belong to Het Ram Singh, in my view, is
thoroughly misconceived. It is very
difficult to co-relate the said transaction to
the conclusion which has been drawn by
the learned appellate authority. A father
and son having separate holding, residing
separately but if help each other in their
period of difficulty or whenever necessity
arises,
would
not
mean
that
they
constitute one unit and entire thing belong
to the father or the son, as the case may
be. In Indian society and in common
practice, if the sons or daughters or even
brothers or other relatives needs help, the
first helping hand would be that of
normally the relatives or the friends and,
therefore, for purpose of land, if Het
Ram's land was mortgaged with respect to
the petitioner no. 1, that itself would not
justify the conclusion that the entire
holding belong to Het Ram in his own
right though ostensibly in the name of the
petitioners. The petitioners gave their
statements that they are all residing
separately. Mere non production of rationcard cannot justify an inference that the
statements
given
on
oath
by
the
petitioners
were
false
unless
some
evidence is produced by the State to show
the said averment to be incorrect. From a
bare reading of the appellate order, it is
evident that it has solely proceeded on the
assumption as if the onus lie upon the
petitioners to show that the holding was
separate, ostensibly in their names and did
not belong to their father Het Ram Singh.
The basic approach of the appellate
authority in the present matter is clearly
illegal and contrary to law.

9. In the result, the writ petition
succeeds and is allowed. The appellate
order
dated
29.1.1992
passed
by
Commissioner,
Moradabad
Division,
Moradabad (Annexure-3 to the writ
petition) is hereby quashed and the matter
is remitted back to the appellate authority
to consider and decide the matter afresh.
Since it is very old matter, it is directed
that the appellate authority shall decide
the appeal afresh in accordance with law
and in the light of the observations made
hereinabove
expeditiously
preferably
within a period of one year from the date
of production of certified copy of this
order. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2008

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 51845 of 2008

Pawan Kumar Nayak

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. P.N. Singh

Counsel for the Respondents:
Sri. H.R. Mishra
Sri. H.K. Shukla
S.C.

U.P.
Panchayat
Raj
(Removal
of
Pradhans, Up Pradhans and Members)
Enquiry Rule 1997-Rule 5-order ceasing
financial and administrative powers of
village Pradhan-without recording his
subjective satisfaction to hold enquiry on
material
disclosed
in
preliminary
enquiry-nor
the
order
disclosed
appointment
of
enquiry
officer-heldmandatory provision of Rule 5 totally
ignored-not sustainable.

Held: Para 6