# Singh v. State of U.P. & Ors.) and 4102

- **Citation:** (2012) 2 ILRA 743
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-18
- **Case number:** Civil Misc. Writ Petition No. 11842 of 1982
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-state-of-u-p-ors-and-4102-42270
- **Pages:** 4

## Headnote

Act,
1960-Section
10
(2)-Exemption
from surplus land-claimed on basis of
gift
deed-executed
on
19.01.70categorical finding of fact regarding
continuation of possession of donor-both
sons as minor-gift deed found to be
sham
transaction-ignoring
such
gift
deed-held justified.

Held: Para 13

In
the
present
case
the
Appellate
Authority has discussed this aspect and
has recorded a finding that cultivation
and possession of land continued with
the tenure holder and the gift deed was
never acted upon. There is nothing on
record in the present writ petition as also
the pleadings to show that the aforesaid
findings are perverse or contrary to
record.
Case law discussed:
1994 Supp (3) SCC 702; 1979 AWC 187

## Text

2 All] Vijai Vir Singh and others V. State of U.P. and others
743
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 11842 of 1982

Vijai Vir Singh & Ors.

 ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Girdhar Nath
Sri K.R. Singh
Sri RPS Chauhan
Sri V.D. Chauhan
Sri Krishna Raj Singh
Sri Avadhesh Kumar

Counsel for the Respondents:
S.C.
Sri K.C. Dwivedi

Imposition of Ceiling on land Holding
Act,
1960-Section
10
(2)-Exemption
from surplus land-claimed on basis of
gift
deed-executed
on
19.01.70categorical finding of fact regarding
continuation of possession of donor-both
sons as minor-gift deed found to be
sham
transaction-ignoring
such
gift
deed-held justified.

Held: Para 13

In
the
present
case
the
Appellate
Authority has discussed this aspect and
has recorded a finding that cultivation
and possession of land continued with
the tenure holder and the gift deed was
never acted upon. There is nothing on
record in the present writ petition as also
the pleadings to show that the aforesaid
findings are perverse or contrary to
record.
Case law discussed:
1994 Supp (3) SCC 702; 1979 AWC 187

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

1. Heard Sri Ravi Kant, Sr.
Advocate
assisted
by
Sri
Vikram
D.Chauhan for the petitioners and learned
Standing Counsel for the respondents.

2. The writ petition is directed
against the order dated 03.8.1982 passed
by IV Addl. District Judge, Moradabad
deciding Civil Appeals No.351 of 1976
and 350 of 1976 by a common judgment
pursuant to the direction of this Court
vide judgment dated 23.4.1980 in Writ
Petitions No.4901 of 1978 and 4902 of
1978.

3. The ceiling proceedings were
initiated
under
Section
10(2)
of
Imposition of Ceiling on Land Holdings
Act, 1960 (hereinafter referred to as "Act
1960") against Sri Man Vir Singh, father
of the petitioners. Besides Sri Man Vir
Singh, petitioner's father, objections were
also filed by petitioners stating that there
are five children therefore every member
is entitled for exemption of two hectares
of land and that for certain land sale deeds
were executed prior to 24.1.1971 hence
that could not have been included with the
holding of noticee so as to determine
surplus land and that there is a valid gift
of certain land before 24.1.1971 hence it
is also liable to be excluded.

4. Prescribed Authority passed final
order on 28.7.1976 determining 10.71
acres of irrigated land as surplus rejecting
all their objections.

5. Two appeals were preferred by
the petitioners and petitioner's father
which
were
decided
by
Appellate
Authority vide judgment dated 31.3.1978
and both the appeals were dismissed. The
744 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
petitioners brought the case to this Court
in Writ Petition No.4901 of 1978 (Manvir
Singh Vs. State of U.P. & Ors.) and 4102
of 1978 (Vijayveer Singh & Ors. Vs.
State of U.P. & Ors.). Both the writ
petitions were decided vide judgment
dated 23.4.1980 and on two aspect the
matter
was
remanded
to
Appellate
Authority. The Court said as under:

"The learned counsel for parties next
contended that the appellate court was
wrong in thinking that Explanation II to
Section 5(1) was applicable to the gift
deed dated 19th January, 1970. The
learned counsel has drawn my attention
to the mutation order dated 18.5.1970, a
true copy whereof is Annexure 3 to the
Rejoinder Affidavit in Civil Misc. Writ
Petition No.4901 of 1978 and the said
order clearly shows that the mutation was
done prior to 24th January 1971;
therefore, it is obvious that Explanation II
could not apply to the said document the
appellate court was wrong in thinking
that the said Explanation was attracted to
the said document.

However, so far as the sale deed is
concerned, the appellate court was right
in holding that Explanation II of Section
5(1) was attracted to the facts of the case.
In such findings, no interference can be
made in this petition. The learned counsel
next contended that so far as the sale deed
dated 2nd July 1969 was concerned
whereby some land was purchased by
Vijayvir Singh. The adult son of the
tenure-holder from one Shiv Ram, no
discussion was made in the lower
appellate court's judgment. This document
was executed prior to 24th Jan. 1971 and
even mutation is stated to have taken
place before the said date.

Accordingly,
I
allow
both
the
petitioners and quash the judgment of the
appellate court dated 31.3.1978. So far as
the aforesaid two deeds are concerned,
namely the sale deed dated 2nd July, 1969
whereby Vijay Bir Singh purchased some
land from Sri Ram and the gift deed dated
19th January, 1970 whereby the Tenureholder gifted some land in favour of his
three sons, the appellate court shall
reconsider the controversy about the
lands covered by the said two deeds in the
light of the law laid down by the Division
Bench in Yadunath Singh's case (1979
A.W.C.187 Yadunath Singh Vs. State of
U.P. others) and thereafter it shall be
decided whether the lands covered by the
said two deeds should or should not be
included in the holding of Manvir Singh,
the tenure-holder. The ceiling area and
surplus
lands
shall
be
determined
thereafter. It is made clear that no other
controversy shall be allowed to be raised
before the appellate court hereafter. In
the circumstances, there will be no order
as to costs."

6. On remand, Appellate Authority
passed the impugned order dated 3.8.1982
again dismissing appeals. Both the issues
on which the matter was remanded have
been decided against petitioners.

7. The first issue relates to the effect
of sale deed dated 2.7.1969 whereby
petitioner No.1 Vijay Singh purchased
some land from Sri Ram and the second
issue relates to the effect of gift deed
dated 19.1.1970 whereby tenure holder
Manvir Singh said to have gifted onethird share of 66 acres of land to his three
sons i.e. the petitioners in the present writ
petition including Sri Vijay Vir Singh, the
eldest son claimed to be major at that
time.
2 All] Vijai Vir Singh and others V. State of U.P. and others
745

8. Sri Ravi Kant, learned Senior
Advocate
appearing
for
petitioners
contended that once it is admitted that
sale deed was executed before 24.1.1971,
question whether sale deed was executed
for valid consideration and bona fide,
cannot be looked into by the ceiling
authorities. They are bound to exclude the
land transferred by such a sale deed
executed before 24.1.1971. He drew
support placing reliance on Apex Court's
decision
in
Ramadhar
Singh
Vs.
Prescribed Authority & Ors., 1994
Supp (3) SCC 702.

9. So far as exposition of law with
reference to effect of Section 5(6) of Act
1960 is concerned, I do not admit any
doubt on the proposition aforesaid,
advanced by the learned Senior counsel.
The law laid down by Apex Court in
Ramadhar (supra) is also very clear. Once
it is not in dispute that a sale deed was
executed before 24.1.1971, i.e. prior to
the appointed day, enquiry regarding
genuity, bona fide consideration etc. in
execution of sale deed, under sub section
(6) of Section 5 is impermissible. The
Apex Court said :

"The existence of the sale deed being
not disputed and it having taken place, as
said before, on February 24, 1969, prior
to the appointed day that is January 24,
1971, the inquiry regarding the validity of
the sale deed under sub section (6) of
Section
5
was
totally
misplaced.
Thereunder, as it appears to us, the
appropriate authority had no jurisdiction
to be put the validity of the sale deed to
test since his jurisdiction arose only when
the deed of transfer had been effected on
or after the appointed day."

10. However, this is not the real
issue in the case in hand for the reason
that the tenure holder of the entire land
admittedly was Sri Manvir Singh. His
tenure holding was not found ancestral so
as to result in share of his sons since their
birth. It was the absolute tenure holding of
Sri Manvir Singh. It is in this context
while
determining
surplus
land,
Prescribed Authority could have given the
maximum benefit of Section 5(3)(b) to
tenure holder having family of more than
five members by permitting 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, by giving 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. The
Prescribed Authority since treated Sri
Vijay Vir Singh, the petitioner no.1, a
landless adult son and therefore allotted
two hectares of additional land under
Section 5 (3)(b) of the Act 1960. But if
the land acquired by Sri Vijay Vir Singh
vide sale deed dated 02.07.1969 is to be
given due credit whereby he got, 1.38
acres of land that would mean that instead
of 2 hectares of additional land, he could
have been allowed only 0.68 acres of land
more so as not to permit more than 2 hec.
of surplus land for him as per the ceiling
prescribed in Section 5(3)(b) of the Act
1960. This aspect has been considered by
learned Appellate Authority in para 3 of
the judgment, impugned in this writ
petition. Sri Ravi Kant, learned counsel
for the petitioner could not show any
patent
illegality
therein
warranting
interference. In fact Section 5(6) of Act,
1960 has no application in the case in
hand but here even if the land transferred
746 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
to Sri Vijay Vir Singh vide sale deed
dated 2.7.1969 is taken care of, actual
determination of land in any manner
would make no difference.

11. Now coming to the second
aspect about gift deed said to have been
executed on 19.1.1970, this Court finds
that
Appellate
Authority
has
also
considered this issue very rightly and
aptly. It has found that on the date of
execution of said gift deed, two sons were
minor being six and two years of age.
Regarding one son claim to be major, the
Court found that no evidence whatsoever
was adduced to support it. This finding
has not been challenged and even before
this Court no material has been placed to
show any infirmity therein. The Court
below has found that throughout, the land
said to have been gifted, remained in
possession of Sri Man Vir Singh, who
himself was cultivating the field since his
children were either minor or otherwise
not performing any cultivation. The gift
deed was nothing but has been found to
be a sham transaction.

12. This Court in Yadunath Vs.
State, 1979 AWC 187 has held, if
Prescribed Authority finds that gift in
question is really a sham transaction, and,
that, actual title in the gift property did
not pass to the donee i.e. the tenure-holder
continued
to
remained
in
physical
possession of the gifted property, it would
be justified in ignoring such a gift deed
but not otherwise.

13. In the present case the Appellate
Authority has discussed this aspect and
has recorded a finding that cultivation and
possession of land continued with the
tenure holder and the gift deed was never
acted upon. There is nothing on record in
the present writ petition as also the
pleadings to show that the aforesaid
findings are perverse or contrary to
record.

14. In the circumstances, I do not
find any error apparent on the fact of
record in the impugned orders warranting
interference.

15. The writ petition is devoid of
merit. Dismissed.

16. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 16843 of 2011

Satya Prakash Singh and another

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

Counsel for the Petitioner:
Sri S.K. Chaturvedi

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-charge
of Additional Stamp duty and fines of
equal amount with 12-1/2 % interest-on
ground during course of inspection-ADM
found ground floor used by Doctor as
clinic-if the son of erstwhile landlord
running clinic-can not effect the user of
building-moreover part of building used
by lawyer, Doctor and C.A. Is a vocation
or occupation requiring special advance
of
education
knowledge
and
skill
predominately of an intellectual rather
physical or manual-J.D.A. declares that
area as residential-considering law of