# State of U.P v. Kailash Nath & Ors

- **Citation:** (2023) 4 ILRA 660
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** Writ-C No. 3001168 of 1980
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-kailash-nath-ors-50000
- **Pages:** 16

## Headnote

Civil Law-U.P. Imposition of Ceiling on
Land Holdings Act, 1960-Sections 37, 38 -
Code of Civil Procedure, 1908-Section 96,
Order-41
Rule
31-Writ
petition
challenging the order passed in Ceiling
Appeal
whereby
the
order
declaring
surplus land of tenure holder was set
aside -Appellate Authority to considered
the appeal in the manner as provided
under Order 41 Rule 31 of the CPCFindings recorded by the first Appellate
authority in respect of Will, sale deed and
adoption deed not supported by clear and
cogent evidence-Findings recorded by the
Prescribed Authority not considered by
the
Appellate
Court
in
its
correct
perspective 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.
Result-Matter
remitted to Appellate Authority.

Writ Petition allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,735 of 55,356. This is a partial read: ask again with offset=39735 for what follows._

660 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 14.10.2009 passed by respondent
no.3
and
17.4.2007
passed
by
the
respondent no.2 are hereby quashed.
----------
(2023) 4 ILRA 660
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ-C No. 3001168 of 1980

State of U.P. ...Petitioner
Versus
Kailash Nath & Ors. ...Respondents

Counsel for the Petitioner:
C.S.C.

Counsel for the Respondents:
B.R. Tripathi, Rajeiu Kumar Tripathi

Civil Law-U.P. Imposition of Ceiling on
Land Holdings Act, 1960-Sections 37, 38 -
Code of Civil Procedure, 1908-Section 96,
Order-41
Rule
31-Writ
petition
challenging the order passed in Ceiling
Appeal
whereby
the
order
declaring
surplus land of tenure holder was set
aside -Appellate Authority to considered
the appeal in the manner as provided
under Order 41 Rule 31 of the CPCFindings recorded by the first Appellate
authority in respect of Will, sale deed and
adoption deed not supported by clear and
cogent evidence-Findings recorded by the
Prescribed Authority not considered by
the
Appellate
Court
in
its
correct
perspective 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.
Result-Matter
remitted to Appellate Authority.

Writ Petition allowed. (E-15)

List of Cases cited:

1. Sudarsan Puhan Vs Jayanta Ku. Mohanty &
ors. reported in (2018) 10 SCC page 552

2. St. of U.P. Vs Bankey Singh & ors. 1996 (27)
ALR page 445

3. St. of U.P. Vs Amar Singh & ors. (1997) 1
SCC page 734

4. Nawal Singh Vs St. of U.P. & ors. (1995)
supplement I SCC page 204

5. Brijendra Singh Vs St. of U.P. & others 1981
(1) SCC page 597

6. Mulk Nath Singh Vs St. of U.P. & ors. passed
in Writ-C No.3000002 of 1996 decided on
13.10.2022

7. Rathinam @ Kuppamuthu & ors. Vs L. S.
Mariappan & ors. [(2007) 6 SCC 724]

(Delivered by Hon'ble Jaspreet Singh, J.)

C. M. Applications No.5 and 6 of 2022

1. The instant two applications have
been moved by the petitioner to bring on
record the heirs of deceased respondent
no.2 Dinanath who is reported to have died
on 20.10.2017. The record indicates that
the notices were issued to the proposed
legal heirs of the deceased. In furtherance
whereof Shri Rajeiur Kumar Tripathi,
learned counsel has filed his Vakalatnama.

2. Considering the aforesaid facts and
the ground shown in the application which
is
found
sufficient,
accordingly,
the
applications
are
allowed.
Learned
Additional Chief Standing Counsel shall
carry out the necessary amendment during
the course of the day.

3. Heard Shri G. K. Pathak, learned
Additional Chief Standing Counsel for the
State-petitioner and Shri Rejeiu Kumar
4 All. State of U.P. Vs. Kailash Nath & Ors.
661
Tripathi, learned counsel appearing for
private respondents on merits.

4. By means of the instant petition
preferred
under Article
226
of
the
Constitution of India, the State challenges
the judgment and order dated 27.11.1979
passed by the District Judge in Ceiling
Appeal No.148 of 1979 whereby the appeal
of the private respondents was allowed and
the order dated 26.03.1979 passed by the
Prescribed Authority Qaisarganj District
Bahraich declaring 71.373 acres of land
belonging to the tenure holder Dinanath as
surplus was set aside.

5. It will be relevant to mention that
the appeal before the Appellate Court was
filed by Kailashnath and Moolchand who
are the sons of Dinanath and have been
impleaded as private respondents no.1 and
2. During pendency of the proceedings,
Kailashnath and Moolchand both have died
and their legal heirs are on record
represented by Shri Rajeiu Kumar Tripathi.

6. Briefly the facts giving rise to the
instant
petition
are
that
upon
the
commencement of U.P. Imposition of
Ceiling on Land Holdings Act, 1960 initial
notice under Section 10(2) of the said Act
was issued to Dinanath son of Ram Bihari.
The Prescribed Authority under the Ceiling
Act by means of an ex parte order dated
20.06.1974 confirmed the ceiling notice
issued to Dinanath. An application was
moved by Dinanath for recall of the ex
parte order. During aforesaid pendency, it
was also noticed that another tenure holder
namely
Yashodra
had
expired
on
24.06.1973 and her land also was clubbed
with that of Dinanath. Accordingly, revised
notice was sent to Dinanath indicating that
the land of Yashodra was also be clubbed
with that of Dinanath.

7. Dinanath filed his objection
wherein he challenged that the land
belonging to Yashodra had been incorrectly
clubbed with his holding on the ground that
Yashodra had already an adopted son Ramji
alias Lallu and he being her legal heir
would inherit the share of Yashodra and the
same could not be clubbed in the hands of
Dinanath.

8. The objections were filed by Ramji
alias Lallu through his natural father
claiming rights over the land and also to the
effect that the holding ought not to be
included with that of Dinanath.

9. Before the said proceedings could be
finalized, another tenure holder namely Smt.
Kunta wife of Pratap Narain died. Another
notice was issued to Dinanath for including
her land of 15.279 acres with the holding of
Dinanath. Separate objections were filed by
Kailashnath son of Dinanath claiming that
Smt. Kunta had executed her Will in favour
of Kailashnath and Moolchand and as such
they are in cultivatory possession, hence the
said land could not be included or clubbed
with that of Dinanath.

10. Another issue that cropped up was
that some land was sold by Dinanath to one
Sundar Lal and this land was also included
in the holdings of Dinanath.

11.

The
Prescribed
Authority,
considering
the
objections
and
after
permitting the parties to lead evidence, by
means of order dated 26.03.1979 negatived
the contentions of the tenure holder and
confirmed the notice under Section 10(2) of
the Ceiling Act and declared 71.373 acres
of irrigated land as surplus.

12. An appeal came to be filed by
Kailashnath and Moolchand and the said
662 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal has been allowed by means of
judgment dated 27.11.1979 by the District
Judge Bahraich in Ceiling Appeal No.148
of 1979 and the notice under Section 10(2)
of the Ceiling Act was cancelled and this
judgment
dated
27.11.1979
is
under
challenge in this petition.

13 The Additional Chief Standing
Counsel while assailing the impugned
appellate order has raised the following
contentions:-

(I) It is urged that once the Prescribed
Authority after considering the relevant and
detailed evidence recorded findings to the
effect that the alleged Will by which the
land of Kunta was included in the hands of
Dinanath being a transaction hit by Section
5(6) of the Ceiling Act it has been reversed
on an incorrect notion of law and moreover
without even considering any evidence in
respect thereto and in a cursory manner.

(II) It is also urged that the findings
returned by the Prescribed Authority which
categorically held that the alleged adoption
said to have been made by Yashodra of
Ramji alias Lallu was also not a bonafide
transaction and by taking notice of the
evidence including that of the witnesses, it
was held that the said adoption deed was
not for a bonafide reason and even
evidence on this issue has not been
discussed but ignored by the Appellate
Court and the findings have been reversed
on mere surmises and conjunctures.

(III) It is also urged that the
transaction regarding the sale deed said to
have been executed by Dinanath in favour
of Sundar Lal was also held to be not
bonafide for the reason that the said tenure
holder in whose favour the said sale deed
was executed did no come forward to raise
any objection. The proceedings went on for
the number of years but even till date,
Sunder Lal or his successor have not come
forward which all clearly indicates that the
said sale transaction was bad in the eyes of
law nor there was any material to
substantiate the same and in absence of any
cogent material and evidence led by the
tenure holder to indicate that the aforesaid
three transactions were bonafide. The
findings of the Prescribed Authority could
not have been reversed and that too in a
cursory manner without considering the
evidence
led
before
the
Prescribed
Authority nor any reason have been given
why the findings of the Prescribed
Authority were bad.

(IV) The next submission of the
learned Additional Standing Counsel for
the State is that Section 5 of Ceiling Act
clearly lays down the manner in which the
authorities have to consider how the land is
to be declared as surplus. What transactions
have to be excluded and the procedural
aspect is contained in Sections 37 and 38
which confers power on the Prescribed
Authority to take evidence and the
Appellate Authority is also to decide the
appeal in accordance with the provisions
contained in the Code of Civil Procedure.
This necessarily implied that the evidence
which was valid and admissible in law is to
be considered and the Appellate Authority
while dealing with an appeal is required to
adhere to the broad mandate of Order 41 Rule
31 CPC that is to say that the reasons must be
given and while reversing the findings
recorded by the Prescribed Authority, it was
incumbent upon the Appellate Court to have
met with the reasons recorded by the
Prescribed Authority and only after noticing
the error could it record its own findings
based on admissible and cogent evidence
with reasons.

14. It is urged that from the perusal of
the impugned judgment, it would indicate
4 All. State of U.P. Vs. Kailash Nath & Ors.
663
that the Appellate Court has merely
recorded its conclusion but it is absolutely
silent on the evidence available before the
Prescribed
Authority
and
how
the
conclusion of the Prescribed Authority
based on such evidence was erroneous. The
Appellate Court did not deal with the
evidence or reason given by the Prescribed
Authority in appeal and the Appellate Court
has merely recorded its own finding
conclusions without reversing the findings
of the Prescribed Authority which has
rendered the judgment passed by the
Appellate Court bad in the eyes of law and
deserves to be set aside.

15. Shri Rajeiu Kumar Tripathi,
learned counsel for the private respondent
submits that in so far as the land of
Yashodra which has been included with the
holding of Dinanath is concerned, the same
was erroneous for the reason that Yashodra
had adopted Ramji alias Lallu and the
adoption deed was placed on record. In
light of the adoption deed, the land would
vest with her son and could not be clubbed
in the hands of Dinanath and therefore the
findings
recorded
by
the
Appellate
Authority to the aforesaid extent, cannot be
doubted or be termed to be erroneous.

16. It is also urged that as far as the
Will
of
Smt.
Kunta
in
favour
of
Kailashnath and Moolchand is concerned,
the same is not hit by the transaction as
mentioned in Section 5(6) of the Ceiling
Act which has been recorded by the
Appellate Court, hence the said finding also
does not suffer from any error.

17. It is urged that it is only a transfer
which is susceptible to be seen in terms of
Section 5(6) of the Ceiling Act but as the
Will is a testamentary document which
disposes the property in accordance with
the wish of the testator, it is not included in
the said section, hence the findings of the
Appellate Authority cannot be faulted on
that count. In support of his contention on
this point he relies upon a discussion of this
Court in Mulk Nath Singh Vs. State of U.P.
and others passed in Writ-C No.3000002 of
1996 decided on 13.10.2022.

18. It is further urged that in so far as
the issue regarding sale deed executed by
Dinanath in favour of Sundar Lal is
concerned,
the
same
was
prior
to
24.01.1971 i.e. the cut off date hence the
same was protected and the said land could
not be clubbed in the hands of Dinanath
even though the tenure holder namely
Sundar Lal did not appear before the
Prescribed Authority to file any objections
nor he preferred an appeal. For the
aforesaid reasons, it is urged that the
impugned order passed by the Appellate
Authority is based on the sound reasoning
and is not liable to be interfered with,
consequently the writ petition be dismissed.

19. The Court has considered the rival
submissions and also perused the material
on record.

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
664 INDIAN LAW REPORTS ALLAHABAD SERIES
in the Code of Civil Procedure, 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
Code of Civil Procedure, 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 Vs.
Jayanta
Ku.
Mohanty
and
others
reported in (2018) 10 SCC page 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
vs.
Purushottam Tiwari (Deceased) by L.Rs.
(2001) 3 SCC 179, this Court held (at
pages 188189) as under:

"15...The
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 court......while
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
&
Ors.
v.
Sangram
&
Ors.,(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
4 All. State of U.P. Vs. Kailash Nath & Ors.
665
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 &
Anr., (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 & Anr. vs.
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."
666 INDIAN LAW REPORTS ALLAHABAD SERIES

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

24. Even the counsel for the private
respondent could not dispute the fact that
neither the evidence led before the
Prescribed Authority was noticed nor the
findings
recorded
by
the
Prescribed
Authority have been touched or noticed and
reversed. Thus to the aforesaid extent, the
submission of the counsel for the petitioner
has force and this Court finds itself in
agreement with it.

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
and others Vs. L. S. Mariappan and others
[(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;
4 All. State of U.P. Vs. Kailash Nath & Ors.
667
(c) [an intermediate or degree college
imparting education in agriculture or a
post-graduate college;];

(d) a banking company or a cooperative 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 subsections (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;

(c) [x x x]

(d) [x x x]

(e) in the case of any other tenureholder, 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, shareholders 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
668 INDIAN LAW REPORTS ALLAHABAD SERIES
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 subsection shall apply to-

(a) a transfer in favour of any person
(including Government) referred to in subsection (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 cotenure-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 page 445 State of U.P. Vs.
Bankey Singh and others 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
4 All. State of U.P. Vs. Kailash Nath & Ors.
669
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
670 INDIAN LAW REPORTS ALLAHABAD SERIES
the Appellate Court on the aforesaid point
are not supported by any clear and cogent
evidence, hence are unsustainable.

30. Now coming to the third issue
regarding clubbing the land of Yashodra in
the hands of Dinanath, ignoring the
adoption deed, even the said findings
recorded by the Appellate Court do not
inspire
confidence
as
the
Prescribed
Authority while holding the adoption to be
not proved had painstakingly considered
the evidence of the witnesses as well as
noticed the fact that Ramji alias Lallu was
the son of Kailashnath who just few month
prior to the death of Yashodra had been
given in adoption to her. Dinanath
otherwise, being the natural grand father of
Ramji, the said adoption was created only
to divert the property so that it may escape
the clutches of the Ceiling Act.

31. The Prescribed Authority also
noticed that the husband of Yashodra has
expired long ago and in case if he had
expressed his desire to adopt the son, then
Yashodra ought to have adopted the child
much before and not at the late stage when
the Ceiling Act had already come into the
picture and therefore the transaction was
not valid.

32. 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 page 734 State of U.P. Vs. Amar
Singh and others, 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 daughtersin-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 daughtersin-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
4 All. State of U.P. Vs. Kailash Nath & Ors.
671
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)
supplement I SCC page 204 Nawal Singh
Vs. State of U.P. and others and the
relevant portion reads as under:-

2. For a transfer effected after 24-11971 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.