# Shiv Charan Singh v. Additional Commissioner (Judicial), Meerut and others

- **Citation:** (2012) 2 ILRA 861
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-07-10
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-charan-singh-v-additional-commissioner-judicial-meerut-and-others-42185
- **Pages:** 6

## Headnote

Act,
1960-Section
10
(c)-Notice
declaring surplus land-by clubbing share
of brothers-by misinterpreting the bar of
Section 49 of the Consolidation Actadmittedly both claimants born prior to
abolition of Zamindari-are not entitled to
be jointly recorded over Khudkasht landheld-having
independent
rights
to
continue as tenure holders-their title can
not extinguished-authorities committed
great illegality by applying bar of Section
49 of U.P. Consolidation Act.

Held: Para 26

The parties may not have been at
variance during consolidation operations
and
not
having
got
their
shares
separated or mutated in records does not
take away their right to assert the same
so
long
as
their
title
has
not
extinguished. As explained above their
title survived and did not evaporate
merely because the entries were not
corrected which aspect is also covered
by the bench decision in the case of Ram
Chander (supra) referred to hereinabove.
The sons in their own independent right
continued as tenure holders and the
assertion of such rights by them is not
barred by applying Section 49 of the U.P.
Consolidation of Holdings Act, 1953 as
explained in the bench decision of Shri
Ram (supra). As a matter of fact the
reasoning
of
the
authorities
is
misconceived while applying Section 49
of the 1953 Act inasmuch as the
proceedings under the Ceiling Act are
not to determine such title that is
governed by a separate procedure under
the U.P. Z.A. & L.R. Act, 1950 or the U.P.
C.H. Act, 1953.
Case law discussed:
2011 (112) RD page 734 (Paragraph 7,
Paragraphs 48 to 49); 1969 AWR Pg. 686

## Text

2 All] Shiv Charan Singh V. Additional Commissioner (Judicial), Meerut and others
861
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2012

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 12531 0f 1995

Shiv Charan Singh

 ...Petitioner
Versus
Additional
Commissioner
(Judicial)
Meerut Division, Meerut and others

 ...Respondents

Counsel for the Petitioner:
Sri G.N. Verma
Sri M.C. Singh

Counsel for the Respondents:
C.S.C.

Imposition of Ceiling and Land Holding
Act,
1960-Section
10
(c)-Notice
declaring surplus land-by clubbing share
of brothers-by misinterpreting the bar of
Section 49 of the Consolidation Actadmittedly both claimants born prior to
abolition of Zamindari-are not entitled to
be jointly recorded over Khudkasht landheld-having
independent
rights
to
continue as tenure holders-their title can
not extinguished-authorities committed
great illegality by applying bar of Section
49 of U.P. Consolidation Act.

Held: Para 26

The parties may not have been at
variance during consolidation operations
and
not
having
got
their
shares
separated or mutated in records does not
take away their right to assert the same
so
long
as
their
title
has
not
extinguished. As explained above their
title survived and did not evaporate
merely because the entries were not
corrected which aspect is also covered
by the bench decision in the case of Ram
Chander (supra) referred to hereinabove.
The sons in their own independent right
continued as tenure holders and the
assertion of such rights by them is not
barred by applying Section 49 of the U.P.
Consolidation of Holdings Act, 1953 as
explained in the bench decision of Shri
Ram (supra). As a matter of fact the
reasoning
of
the
authorities
is
misconceived while applying Section 49
of the 1953 Act inasmuch as the
proceedings under the Ceiling Act are
not to determine such title that is
governed by a separate procedure under
the U.P. Z.A. & L.R. Act, 1950 or the U.P.
C.H. Act, 1953.
Case law discussed:
2011 (112) RD page 734 (Paragraph 7,
Paragraphs 48 to 49); 1969 AWR Pg. 686

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri M.C. Singh, learned
counsel for the petitioner and the learned
Standing Counsel for the State.

2. This petition questions the
legality and validity of the orders passed
by
the
Prescribed
Authority
and
affirmance thereof in appeal by the
respondent no. 1 in proceedings under the
U.P. Imposition of Ceiling on Land
Holdings Act, 1960. An area of 7 bighas,
10 biswas and 11 biswansis has been
declared surplus in the hands of the
petitioner-tenure holder treating it to be in
excess of the maximum limit permissible
under the 1960 Act.

3. The petitioner Shiv Charan Singh
died during the pendency of the writ
petition and is now substituted by his
heirs.

4. The background of the case is that
the holding in question is ancestral and
was also recorded as Sir Khudkasht. Sir
Khudkasht is land brought under the
personal cultivation of the ex-zamindar
862 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
and continued as such on the date when
Zamindari
was
abolished
on
the
promulgation of the U.P. Zamindari
Abolition & Land Reforms Act, 1950.
The fact that it was Sir Khudkasht land is
undisputed.

5. Baljeet Singh was the zamindar
and also the tenure holder of the said land
that was cultivated as Sir Khudkasht and
he was succeeded to the said holding by
his two sons, namely, Shiv Charan Singh
(deceased petitioner), and his brother
Khushal Singh. The two brothers stood
recorded as tenure holders in their
independent rights. Khushal Singh was
issue-less and he died leaving behind his
widow Smt. Ishwari Devi who succeeded
to his half share of the holdings and her
name was accordingly recorded in the
revenue records.

6. There is no dispute that Shiv
Charan Singh and Khushal Singh in their
independent capacity or even Ishwari
Devi had no land surplus as defined under
the Ceiling Act.

7. The dispute appears to have
commenced after the death of Ishwari
Devi who is said to have executed an
unregistered will on 5th August, 1986 and
by virtue of the terms of the will the land
covered thereunder was succeeded to by
the beneficiaries therein, which also
included the sons of the deceased
petitioner Shiv Charan Singh.

8. Upon the death of Smt. Ishwari
Devi, the beneficiaries under the will
applied for mutation and having not
succeeded before the Mutating Authority,
filed an appeal before the Appellate
Authority under the U.P. Land Revenue
Act, 1901. In appeal the Sub Divisional
Magistrate vide order dated 30.11.1987
allowed the claim of the beneficiaries
under the will and their names were
directed to be mutated in place of Smt.
Ishwari Devi.

9. The Ceiling Authorities, however,
after the death of Smt. Ishwari Devi
presumed that her holding reverted back
to Shiv Charan Singh who under the
normal rule of succession and inheritance
under Section 171 readwith Section 172
of the 1950 Act became the tenure holder,
and accordingly clubbed the land of Smt.
Ishwari Devi with that of Shiv Charan
Singh to calculate the ceiling area and
issued notices to Shiv Charan Singh under
Section 10(2) of the 1960 Act.

10. Shiv Charan Singh filed
objections that the land which was sought
to be clubbed with his holding and that
was recorded in the name of Smt. Ishwari
Devi, is an erroneous approach as he has
not succeeded to the same, and the
holding has devolved on the beneficiaries
under the will in whose favour the order
of mutation has already been passed.

11. Separate objections were filed
by the beneficiaries under the will and
also by the sons of Shiv Charan Singh on
a separate ground, namely, that the sons
of Shiv Charan Singh were born prior to
the abolition of zamindari under the 1950
Act,
and
therefore,
they
had
an
independent share in their own right in the
holding that had passed on from Baljeet
Singh as per the then existing personal
law of succession. They contended that
prior to the abolition of zamindari,
succession was governed according to the
coparcenary rights of the members of the
Joint Hindu Family and that the sons of
Shiv Charan Singh who were born on
2 All] Shiv Charan Singh V. Additional Commissioner (Judicial), Meerut and others
863
12th July, 1931 and 26th August, 1942
respectively were entitled to separate
shares and were already holding the same
by virtue of such succession. It was also
contended in the objection that such a
right stood transformed into independent
bhumidhari rights of the sons of Shiv
Charan Singh as per the provisions of
Section 18 of the U.P. Z.A. & L.R. Act,
1950. It was therefore contended that on
this
count
as
well
the
Prescribed
Authority and the Appellate Authority
have failed to exclude the said shares
from the holding of Shiv Charan Singh
and Ishwari Devi.

12. There were other issues also
raised but primarily the Prescribed
Authority and the Appellate Authority
after rejecting the said submissions raised
on behalf of the petitioner and the other
objectors declared the land to be surplus
in the hands of Shiv Charan Singh.

13. Aggrieved, an appeal was
preferred, which has also been dismissed
reiterating the findings of the Prescribed
Authority vide judgment dated 12.1.1995,
hence, this petition.

14. The Court granted an interim
order on 15.5.1995 whereafter the State
filed a counter affidavit to which a
rejoinder has also been filed. The State
was also called upon to file a reply to the
supplementary affidavit filed on behalf of
the petitioners to which a supplementary
counter affidavit is said to have been filed
by the State. I have heard learned counsel
for the parties and have perused the
records.

15. Sri M.C. Singh learned counsel
for the petitioner submits that the will
executed by Smt. Ishwari Devi was
proved to the hilt and the conclusion
drawn by the Prescribed Authority that no
evidence was adduced in terms of the
Evidence Act proving the same is
perverse as it ignores the statement of the
attesting witness including that of one
Mool Chand. He further submits that the
will was never challenged by any person
and
merely
because
the
will
is
unregistered,
the
same
cannot
be
discarded. He submits that Section 169 of
the U.P. Z.A. & L.R. Act, 1950 empowers
a tenure holder to bequeath his or her
holding through a will and the registration
thereof was not compulsory prior to 2004.
In the circumstances, in the absence of
any
material
to
the
contrary
the
conclusion drawn by the Prescribed
Authority that the will had been set up to
avoid ceiling proceedings is erroneous.

16. He further submits that the
finding that no attempt was made to get
the mutation carried out before the
Tehsildar who is the authority under
Section 34 of the U.P. Land Revenue Act,
1901 is also an erroneous finding ignoring
the order already passed by the Sub
Divisional Magistrate on 30.11.1987. He
submits that merely because the order of
mutation was not incorporated in the
revenue record, the same cannot be a
circumstance to disbelieve the will. He
further contends that the order of the Sub
Divisional Magistrate dated 30.11.1987
copy whereof has been filed as an
annexure to the petition fortifies the stand
of the petitioner even though in a
summary proceeding, that the will had
been proved.

17. On the issue of the sons of Shiv
Charan Singh having succeeded to the
holding by virtue of Section 18 of the
U.P. Z.A. & L.R. Act, 1950, Sri Singh
864 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
submits that the fact of Shiv Charan
Singh' sons having been born prior to the
abolition of zamindari has not been
disputed at any stage of the proceeding by
the State. Once this fact is admitted then
they did succeed to the holding which was
Sir Khudkasht as on the date of the
vesting of zamindari.

18. The finding of the Prescribed
Authority that they did not get their
names mutated independently would not
be detrimental and cannot be an adverse
circumstance
to
deny
them
their
independent title over the land to the
extent of their share. He further contends
that
even
if
subsequent
settlement
proceedings have been carried out under
the U.P. Consolidation of Holdings Act,
1953, and the co-tenants have failed to get
their names recorded, then such an
omission cannot take away their rights
which they are asserting before the State.
The submission therefore in short is that
their independent right in the holding also
did exist and there was no bar operating
against them as concluded by the
Prescribed Authority in terms of Section
49 of the U.P. Consolidation Holdings
Act, 1953 in the ceiling proceedings. The
Appellate Authority according to him also
misdirected itself by recording that the bar
of Section 49 of the U.P. Consolidation of
Holdings Act will be attracted as the sons
had failed to get their names recorded for
a long time.

19. He has further invited the
attention of the Court to the documents,
namely, the statement of the beneficiary
under the will and the attesting witness
which was recorded before the Prescribed
Authority in Case No. 208 of 1988, State
Vs. Shiv Charan Singh under the Ceiling
Act. He submits that the said statement
clearly proves the execution of the will
and its attestation, as such the will had
been proved through cogent evidence in
terms of Section 68 of the Indian
Evidence Act. He submits that the fact
that the said statements were recorded
before the Prescribed Authority has not
been controverted before this Court and in
view of this the findings recorded by the
authorities below that there was no
evidence to prove the will led by the
petitioner is perverse. Accordingly, he
contends
that the
impugned
orders
deserve to be quashed. The rejoinder to
the counter affidavit has already been
filed and is on record.

20. Coming to the question of the
execution of the will by Ishwari Devi, it is
undisputed that the will was unregistered.
According to the provisions of Section
169 of the U.P. Z.A. & L.R. Act, 1950 no
registration was required for a will
bequeathing tenancy rights till the year
2004 when an amendment was brought
about making such a will to be
compulsorily registrable. The will is
admittedly of the year 1986 and therefore
merely because it was unregistered will
not take away the effect of the instrument
unless it is established that the same was
not proved. The contention of the State
therefore that the will was unregistered
and the finding of the authority discarding
it on this ground cannot be sustained.

21. So far as proving the will is
concerned, according to the records
available before this Court and which
remains virtually uncontroverted indicates
that the beneficiary under the will
Rajendra Singh gave
his statement
indicating
the
circumstance
of
the
execution of the will and one of the
attesting witnesses Mool Chand son of
2 All] Shiv Charan Singh V. Additional Commissioner (Judicial), Meerut and others
865
Chandrasen had deposed before the
Prescribed Authority that the will had
been executed and that the thumb
impressions had been affixed by the
testator in the presence of 4 to 5 persons.
The statement also indicates the contents
of the will having been read to the testator
whereafter she put her thumb impression.
The
Prescribed
Authority
and
the
Appellate
Authority
have
totally
overlooked the said statement of the
attesting
witness
and
one
of
the
beneficiaries and as such they have
arrived at a totally perverse finding that
the will was not proved. In the opinion of
the Court the will had been proved in
terms of Section 68 of the Act before the
Prescribed Authority by leading evidence
in support of the said will.

22. Not only this even assuming that
the mutation order was a summary nature
of order yet the same dated 30.11.1987
also records the will having been proved
on the basis whereof the mutation order
was directed. In the circumstances the
conclusion drawn by the authorities about
the will is perverse and is unsustainable.
The will in the opinion of the Court was
genuinely proved not only before the Sub
Divisional Magistrate who is the mutating
authority but also before the Prescribed
Authority
by
leading
evidence
and
producing the attesting witness. The
statement of the Lekhpal on behalf of the
State was no proof of the non-execution of
the will, once the attesting witness had
been produced and he had made a
statement about the execution of the
document.
The
Prescribed
Authority,
therefore, committed a manifest error by
disbelieving the will against the weight of
evidence on record and contrary to the law
referred
to
hereinabove.
In
the
circumstances, the land of Smt. Ishwari
Devi devolved under the will on the
beneficiaries and the same could not have
been included in the holding of Shiv
Charan Singh. The notice, therefore, issued
to Shiv Charan Singh proceeded on an
erroneous premise and therefore the orders
impugned deserve to be set aside.

23. The issue relating to succession
by the sons of Shiv Charan Singh and their
share in the land also has to be accepted.
The bar of Section 49 is not attracted at all,
inasmuch as, these are proceedings under
the Ceiling Act and not under the
Consolidation of Holdings Act, 1953.
Nonetheless, even otherwise the claimants
are not precluded from setting up such a
claim on the inference of the bar as
contained in Section 49 of the U.P.
Consolidation of Holdings Act, 1953 in
view of the Division Bench judgment in
the case of Shri Ram & others Vs.
Deputy
Director
of
Consolidation,
Allahabad Camp, Fatehpur & others,
2011 (112) RD Pg. 734 (Paragraph 7,
Paragraphs 48 to 59).

24. The findings of the authorities
below are erroneous as they have been
unable to appreciate the nature of the
tenancy, the status of the claimant tenure
holder even though unrecorded, and the
right of inheritance having accrued prior to
the abolition of Zamindari and its
consequences under the U.P. Z.A. & L.R.
Act, 1950. This therefore requires a
reiteration of the settled law.

25. It is undisputed in the present
case that the sons/grandsons (being sons of
a predeceased son who were born prior to
abolition of Zamindari) of the petitioner
have claimed rights as independent tenure
holders in the holding on the ground that
their share, which is acquired by them
866 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
under law, cannot be included in the
holding their father. The claim is supported
in law by the pronouncement of a division
bench of this Court in the case of Ram
Chander & another Vs. Commissioner
& Director of Consolidation, Meerut
and others, 1969 AWR Pg. 686. The
reason is that the fact of the sons being
born prior to abolition of Zamindari and
their date of birth remains undisputed. The
division bench further rules that an
omission to record the names of the sons
alongwith their father does not deprive
them of their title over the land which
exists by operation of Section 18 of the
U.P. Z.A. & L.R. Act, 1950. It is also
undisputed that the land is ancestral Sir
Khudkasht acquired by a common ancestor
from whom inheritance is claimed.

26. The parties may not have been at
variance during consolidation operations
and not having got their shares separated or
mutated in records does not take away
their right to assert the same so long as
their title has not extinguished. As
explained above their title survived and did
not evaporate merely because the entries
were not corrected which aspect is also
covered by the bench decision in the case
of Ram Chander (supra) referred to
hereinabove. The sons in their own
independent right continued as tenure
holders and the assertion of such rights by
them is not barred by applying Section 49
of the U.P. Consolidation of Holdings Act,
1953 as explained in the bench decision of
Shri Ram (supra). As a matter of fact the
reasoning
of
the
authorities
is
misconceived while applying Section 49 of
the 1953 Act inasmuch as the proceedings
under the Ceiling Act are not to determine
such title that is governed by a separate
procedure under the U.P. Z.A. & L.R. Act,
1950 or the U.P. C.H. Act, 1953.

27. For the foregoing reasons and in
view of the discussion made hereinabove,
the orders impugned dated 31.8.1994 and
12.1.1995 are quashed.

28. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDER
DATED: ALLAHABAD 05.07.2012

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition no. 14850 of 2007

Raj Bahadur Upadhyay
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.D. Shukla
Sri Amit Singh
Sri B.M. Chaturvedi

Counsel for the Respondents:
C.S.C.
Sri Siddharth Singh
Sri Santosh Kumar Srivastava

U.P.
Secondary
Education
Services
Board, Act 1982-Section 18-short term
vacancy of L.T. Grade teacher-after
requisition and advertisement in two
national
newspapers-disapproved
by
DIOS-on
ground
vacancy
advertised
without reference of Board-held-in view
of D.B. Case of Daya Shanker Shukla
short
term
vacancy
needs
urgent
consideration-if not filled up in time
teaching
intensity
suffers-as
such
admitted legal position-order passed by
DIOS can not survive-quashed.

Held: Para 12

In view of the aforesaid legal position
and the facts admitted in the impugned
order itself, the impugned order dated