# Suresh Chandra Tewari v. State of U.P. & Ors

- **Citation:** (2022) 2 ILRA 493
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-21
- **Case number:** Writ-C No. 3000001 of 1995
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-chandra-tewari-v-state-of-u-p-ors-48130
- **Pages:** 13

## Headnote

Criminal Law - Constitution of India,
1950 - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section - 9, 10
(1) (2), 11 & 13 - U.P. Imposition of
Ceiling on Land Holdings Rules, 1961 -
Rule 8 - Declaration of surplus land - Rules
mandates issuance of notice to be served
upon every such tenure holders to show
cause - but notice was issued only to the
petitioner's father instead of issuing notices to
each of tenure holders of his family whose
names were mutated by the prescribed
authority prior to the cut-off date in the
revenue record on the basis of a family
settlement - order passed in proceedings
against their father would not be operate as
'constructive
res
judicata'
against
the
petitioners' - order passed by the Additional
Commissioner (Judicial), whereby learned
Additional Commissioner has allowed appeal
filed by State against order passed by
prescribed
authority
liable
to
be
quashed.(Para 24, 29, 31, 32)

Writ petition allowed. (E-11)
List of Cases cited:

## Text

_Characters 0–39,694 of 45,389. This is a partial read: ask again with offset=39694 for what follows._

2 All. Suresh Chandra Tewari Vs. State of U.P. & Ors.
493
month and, till the appeal is decided by the
Tribunal, the interim order passed by this
Court on 19.05.2015 shall remain in
operation.
----------
(2022)02ILR A493
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ-C No. 3000001 of 1995

Suresh Chandra Tewari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
D. C. Mukherji, Mohammad Aslam Khan

Counsel for the Respondents:
A.B. Misra, C.S.C.

Criminal Law - Constitution of India,
1950 - U.P. Imposition of Ceiling on
Land Holdings Act, 1960 - Section - 9, 10
(1) (2), 11 & 13 - U.P. Imposition of
Ceiling on Land Holdings Rules, 1961 -
Rule 8 - Declaration of surplus land - Rules
mandates issuance of notice to be served
upon every such tenure holders to show
cause - but notice was issued only to the
petitioner's father instead of issuing notices to
each of tenure holders of his family whose
names were mutated by the prescribed
authority prior to the cut-off date in the
revenue record on the basis of a family
settlement - order passed in proceedings
against their father would not be operate as
'constructive
res
judicata'
against
the
petitioners' - order passed by the Additional
Commissioner (Judicial), whereby learned
Additional Commissioner has allowed appeal
filed by State against order passed by
prescribed
authority
liable
to
be
quashed.(Para 24, 29, 31, 32)

Writ petition allowed. (E-11)
List of Cases cited:

1. Kale & ors. Vs DDC & ors. (1976 Vol. 3 SCC
119)

2. Dilbagh Singh Vs The St. of UP & anr. (1978
All.L.J. 717)

3. Shantanu Kumar Vs St. of UP & ors. (1979
All. L.J. 1174 FB)

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present writ petition has been
filed, seeking quashing of the order dated
18.10.1994
passed
by
Additional
Commissioner
(Judicial),
Lucknow
Division,
Lucknow
whereby
learned
Additional Commissioner has allowed the
appeal filed by the State against the order
dated 23.09.1985 passed by the prescribed
authority under the provisions of U.P.
Imposition of Ceiling on Land Holdings
Act, 1960 (hereinafter referred to as 'the
Act, 1960').

2. Notice under Section 10(2) of the
Act, 1960 was issued on 16.03.1974 against
the father of the petitioners, Hari Shankar
Tiwari since dead who was impleaded as
respondent No.3 in this writ petition by the
Prescribed
Authority.
Father
of
the
petitioners filed his objection to the said
notice on 20.04.1974. In the said objection,
Late Hari Shankar, father of the petitioners
said that a family settlement was arrived at
between the parties in the year 1967 and,
according to the said family settlement,
shares of all the family members were
determined. This settlement was reduced in
writing in the year 1969 and in the year
1970, petitioner No.1, one of the sons of
Late Hari Shankar, instituted a suit in the
Court of Munsif in respect of non
agricultural properties which were also
494 INDIAN LAW REPORTS ALLAHABAD SERIES
included in the said memorandum of family
settlement. Said suit was decreed on
02.11.1970
on
the
basis
of
family
settlement
and
memorandum
dated
09.11.1969. On 29.01.1971, a suit for
permanent injunction for restraining Late
Hari
Shankar
Tiwari,
father
of
the
petitioners was instituted by petitioner No.1
in respect of agricultural land and on the
basis of said family settlement, suit was
decreed on 09.08.1971. It was said that
land of Village Bojhwar in Gata Nos.125,
127, 157, 166, 270, 278, 159, 168 and land
of Village Bahshar of Gata No.492, land of
Village Alhar in Gata No.1168 and land of
Village Roshanpur in Gata Nos.436, half of
484, 355, 356, 357, 358 and half of 361
was his land. It was further said that land of
village Birauri in Gata No.1353 was also
his land.

3. In CLH Form 3 annexed with the
notice issued to respondent No.3 under
Section 10(2) of the Act, 1960 should not
have included the land of the petitioner as
mentioned above. Prescribed authority on
21.12.1974 adjudicated the notice dated
20.04.1974
and
vide
order
dated
21.12.1974 declared 37 Bigha 5 Biswa 17.8
Biswansi land of respondent No.3, father of
the petitioners as surplus under the
provisions of Act, 1960.

4. Against the said order dated
21.12.1974, respondent No.3 preferred an
appeal before the District Judge Hardoi.
IIIrd Additional District Judge, Hardoi vide
order dated 24.09.1975 partly allowed the
said appeal and as a result of which the
surplus area was reduced to 33 Bigha 8
Biswa 14.8 Biswansi in form of irrigated
land as surplus.

5. Against the said judgment and
order dated 24.09.1975 passed by the
appellate authority, father of the petitioners
filed Writ Petition No.2336(SS) of 1975,
which was dismissed vide order dated
07.08.1978. This court held that parties to
the deed of settlement had only declared
their respective shares in the properties,
which were subject matter of the deed. No
partition was effected by metes and bounds
and the parties were not put in possession
of their respective shares in the properties.
It was further held that the suit for partition
was filed after the crucial date 24.01.1971.
The suit was decided on the basis of a
compromise and decree was passed for
partition after due date. This Court was of
the view that the said decree was liable to
be ignored and the family settlement
purported to have been made between the
father of the petitioners and his sons was of
no avail to him. This Court did not find any
error of law in the orders passed by the
prescribed authority and appellate authority
and thus, the writ petition was dismissed.

6. Against the said judgment and
order passed by this Court, father of the
petitioners i.e. respondent No.3 preferred
an S.L.P. before the Supreme Court, which
was subsequently withdrawn. Father of the
petitioners gave his option on 23.07.1981,
which was accepted by the prescribed
authority to declare surplus area of 33
Biswa 8 Bigha and 14.8 Biswansi as
surplus area out of Plot No.1353 as surplus
area.

7. In the meantime, the petitioners,
who are sons of Late Hari Shankar Tiwari,
moved an application on 23.04.1981
purporting to be an application under
Section 11 of the Act, 1960 stating therein
that they were joint tenure-holders of the
land and they were not given any notice by
the prescribed authority. It was said that the
order passed by the prescribed authority on
2 All. Suresh Chandra Tewari Vs. State of U.P. & Ors.
495
21.09.1974 should be cancelled/recalled.
However, the objection filed by the
petitioners was rejected by the prescribed
authority vide order dated 14.09.1981.

8. The petitioners aggrieved by the
said order of the prescribed authority filed
an appeal in the court of IVth Additional
District Judge, Hardoi. IVth Additional
District Judge/Appellate authority vide
order dated 16.11.1981 accepted the appeal
and set aside the order dated 14.09.1981.
The matter was remanded back to the
prescribed authority to decide the objection
afresh after giving opportunity of hearing
to the petitioners.

9. On remand, the prescribed
authority issued notice under Section
10(2) of the Act, 1960 and thereafter
passed
the
order
dated
23.09.1985
holding that prior to cut off date, entire
land shown in the notice belonged to
Joint Hindu Family which was partitioned
through
private
family
arrangement
arrived at in the year 1967, which was
reduced in writing in the memo in the
year 1969. Through the said family
settlement the entire Joint Hindu Family,
agricultural and non agricultural land and
property was divided by metes and
bounds and since then each of the
members of the erstwhile joint family had
got separated from each other and each
one had entered into actual exclusive
possession over the property allotted to
each of them.

10. Against the above mentioned
judgment and order of the prescribed
authority, the State filed an appeal under
Section 13 of the Act, 1960 before the
District Judge, Hardoi which on account
of the amendment made in the Act was
transferred to the Court of Additional
Commissioner
(Judicial),
Lucknow
Division, Lucknow for hearing and
decision.

11.

Learned
Additional
Commissioner
(Judicial)
vide
his
impugned order dated 18.10.1994 had
allowed the said appeal and set aside the
order passed by the prescribed authority
and ordered for declaration of surplus
area 33 Bigha 8 Biswa 14.8 Biswansi in
terms of irrigated land as was originally
declared in adjudication proceedings
pursuance to the notice dated 16.03.1974
issued to the late father of the petitioners.

12. Learned Additional Commissioner
allowed the appeal on the ground that since
respondent
No.3
i.e.
father
of
the
petitioners had claimed benefit of the said
family settlement as being claimed by the
petitioners, which was not accepted in the
writ petition by this Court and, therefore,
issuing fresh notice to the petitioners
separately under Section 10(2) of the Act,
1960 by the prescribed authority was illegal
and the prescribed authority had no
jurisdiction to give different finding what
was given by this Court in respect of the
family settlement.

13. Mr. Mohd. Arif Khan, learned
Senior Advocate, assisted by Mr. Mohd.
Aslam Khan, representing the petitioners,
has submitted that the learned Additional
Commissioner did not consider the merits
of the case, as was set up by the petitioners,
nor did consider the provisions of Section11 of the Act, 1960; the learned Additional
Commissioner had also not taken into
consideration the judgment and order dated
16.11.1981 passed by the IV Additional
Judge, Hardoi, which had attained finality
between the parties inasmuch as the State
Authorities did not challenge the said
496 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and order of the learned IV
Additional Judge. Hardoi; every tenureholder is entitled to get a separate notice
under Section 10(2) of the Act, 1960 and,
the Prescribed Authority is duty-bound to
issue such notice to each and every tenureholder and, afford them proper and
reasonable opportunity of producing their
evidence
before
passing
any
order,
declaring any land as surplus in accordance
with the provisions of Rule-10 of U.P.
Imposition of Ceiling on Land Holdings
Rules, 1961 (for short "the Rules, 1961");
the
learned
Additional
Commissioner
(Judicial) had ignored the most important
fact that on the application, moved by the
petitioners under Section 11(2) of the Act,
1960, the Prescribed Authority had passed
order
dated
14.09.1981,
rejected
the
petitioners' application and, it was only in
appeal that the claim of the petitioners was
accepted by the IV Additional Judge and,
vide order dated 16.11.1981 and the appeal
was allowed and, the matter was remanded
back with a direction to the Prescribed
Authority for issuing separate notice to the
petitioners, who were recorded as cotenure-holders.

14. On behalf of the petitioners, the
learned Senior Advocate has
further
submitted that it was in compliance of the
said order passed in appeal that the
Prescribed Authority issued separate notice
under Section 10(2) of the Act, 1960 to the
petitioners; once the Appellate Authority
had directed the Prescribed Authority to
issue notice and decide the case in
accordance with law, the observation of the
learned Additional Commissioner (Judicial)
that since the proceedings in respect of the
notice issued to father of the petitioners had
attained finality upto the High Court, it was
not open to the Prescribed Authority to give
his finding regarding family settlement is
wholly unjust and improper; the original
memorandum of family settlement dated
09.11.1969, certified copies of plaint of
Regular Suit Nos. 70 of 1970 and 33 of
1971 were filed by the petitioners before
the Munsif, Hardoi and, the certified copy
of the judgment and decrees dated
02.11.1970 and 09.08.1971 respectively in
the said suits were brought on record by the
petitioners;
besides
above,
Khataunis,
showing names of the petitioners, being
recorded over the land, which was allotted
to them in different lots in the family
settlement/arrangement were also brought
on record; the copy of the Registered
Tabdilate, effecting the mutation in the
names of the petitioners, on the basis of the
said family settlement, was also filed.

15. On behalf of the petitioners,
learned Senior Advocate has also submitted
that Khataunis of 1386 to 1391 Fasali filed
before the Prescribed Authority would
show that the petitioners' names were
recorded in the revenue record; names of
the petitioners had already been recorded
prior to issuance of notice under Section
10(2) of the Act, 1960 to their late father,
Hari Shanker Tiwari; besides, bringing on
record the aforesaid documentary evidence,
the petitioners also produced oral evidence
by examining Ram Krishna, Dirgaj Prasad,
the then Lekhpal of Village Birauri, Zahir
Ali, the scribe of the memorandum of
family settlement, Wasit Husain, Sahdeo
Prasad, Lekhpal and petitioner no. 1,
Suresh Chandra Tiwari; all the witnesses
had proved the fact that family settlement
took place in the family of the petitioners;
recording of the memorandum of family
settlement and, delivery of possession to
each of the petitioners over the lots allotted
to them, affecting partition by metes and
bounds; the State Authorities did not
produce any documentary evidence, but
2 All. Suresh Chandra Tewari Vs. State of U.P. & Ors.
497
only Lekhpal, Pratap Narain was examined
and, his statement was recorded on the part
of the State Authorities; Lekhpal, Pratap
Narain, in his cross-examination, had
admitted
the
actual
and
exclusive
possession of each of the petitioners over
the respective lots allotted to them.

16. On behalf of the petitioners,
learned Senior Advocate has also submitted
that the Prescribed Authority, on the basis
of the documentary and oral evidence,
found the family settlement genuine and,
on that basis, each of the petitioners had
entered in actual and exclusive possession
over the lots of land allotted to each of
them in the said family settlement; all these
took place before the cut-of-date and,
therefore, the Prescribed Authority could
not ignore the family settlement. Learned
Senior Advocate has further submitted that
earlier proceedings, against late father of
the petitioners, would not be binding on the
petitioners inasmuch as they were not party
in the said proceedings and, once the
application under Section-11 of the Act,
1960 filed by the petitioners was allowed
by the Appellate Authority. The Prescribed
Authority was not barred to decide the
objections of the petitioners in view of the
orders passed in proceedings against, Late
Hari Shanker Tiwari, late father of the
petitioners, in respect of petitioners' land.
The petitioners' objection was required to
be decided independently of the previous
proceedings. It has been submitted that the
impugned order, passed by the respondent
no. 1, learned Additional Commissioner, is
wholly illegal and is liable to be set-aside.

17. On the other hand, Mr. J.P.
Maurya, learned Additional Chief Standing
Counsel, representing respondents-State,
has submitted that the decree passed in the
partition suit by the Munsif Magistrate, on
the basis of alleged memorandum was after
the due date i.e. 24.04.1971 and, therefore,
the
Appellate
Authority
has
rightly
observed that such family settlement was
entered and obtained with the sole purpose
of saving the land of the joint family during
ceiling proceedings. It has been further
submitted that the entire land is a joint
Hindu family property. It has been further
submitted that the State was not the party in
the injunction suit filed by petitioner no.1
on 29.01.1971 against his father and,
therefore, the decree dated 09.08.1971 is
not binding on the State. It has been further
stated that sole purpose of alleged family
settlement and the decree was to save the
land from ceiling proceedings.

18.

Learned
Additional
Chief
Standing Counsel has further submitted that
once the family settlement was not believed
by this Court, while passing the judgment
and order dated 07.08.1978 in Writ Petition
No.2236 of 1975, the Prescribed Authority
could not have considered the said family
settlement as genuine and, binding on the
State Authorities. In respect of family
settlement, when the proceedings had got
completed upto High Court, in subsequent
proceedings filed by the sons of respondent
no. 3, Late Hari Shanker Tiwari, said
family settlement could not have been
believed and, the same was barred by
constructive res judicata. It has been further
submitted that that the IV Additional Judge,
Hardoi in judgment and order dated
16.11.1981
had
only
directed
the
Prescribed Authority to decide objections
of the petitioners in accordance with law,
however, no findings on merit were given
by the learned IV Additional Judge,
Hardoi. It was the duty of the Prescribed
Authority to consider the judgment and
order dated 07.08.1978 passed by this
Court In Writ Petition No. 2236 of 1975,
498 INDIAN LAW REPORTS ALLAHABAD SERIES
filed by father of the petitioners, in its
correct perspective and, it was not open to
the Prescribed Authority to hold that the
family settlement was genuine and bona
fide otherwise the petitioners' names could
not have been in the land holdings of their
father i.e. respondent no. 3 (now dead). The
findings
recorded
by
the
Prescribed
Authority are wholly erroneous, illegal and
against the judgment and order of this
Court dated 07.08.1978 passed in Writ
Petition No. 2236 of 1975.

19.

Learned
Additional
Chief
Standing Counsel has further submitted that
the Appellate Authority i.e. the Additional
Commissioner (Judicial) has passed the
impugned order, taking into consideration
the judgment and order passed by this
Court on 07.08.1978 and, there is no
illegality in the impugned order. It has been
further submitted that the petitioners' names
were not recorded in the revenue record on
24.01.1971, the due date and, therefore, the
notice was issued only to their father, in
whose name, the land was recorded and,
therefore, the writ petition is liable to be
dismissed.

20. The questions, which arise for
consideration in this writ petition, are as
under:-

I). whether, when the petitioners were
not given notice by the Prescribed
Authority and, notice was issued to their
father only, the judgment and orders
passed in proceedings against their father
would operate as constructive res judicata
against the petitioners?; and

ii). whether the petitioners were
entitled
to
receive
separate
notice
inasmuch as their names were recorded in
the revenue record against the land in
question in 1378 to 1380 Fasali (1971 to
1973), whereas the notice was issued to
their father only on 16.03.1974?

21. The Act, 1960 is a confiscatory
legislate and, therefore, its provisions are to
be strictly construed and, no liberal
interpretation should be given to the
provisions of the Act,1960 inasmuch as the
person would get divested of his land
holding to the extent of surplus land
declared under the provisions of the Act,
1960. Under Section 9 of the Act, 1960, the
Prescribed Authority was required to issue
general notice after enforcement of the Act
and call upon every tenure holder, holding
land in excess of the ceiling area applicable
to him on the date of enforcement of this
Act to submit within 30 days from the date
of publication of notice a statement in
respect of all his holding, giving particulars
thereof. Under Section 10 of the Act, 1960
in case where a tenure holder did not
submit a statement or submit an incomplete
or incorrect statement, required to be
submitted under Section 9 of the Act, 1960,
the Prescribed Authority would, after
making
inquiry, prepare
a
statement
containing particulars of the land and,
thereupon would issue notice to every such
tenure holder together with a copy of the
statement prepared that why the statement
be not taken as correct. Section-10 of the
Act, 1960 is produced hereunder:-

"10. Notice to tenure-holders failing
to submit a statement or submitting an
incomplete or incorrect statement. - (1) In
every case where a tenure-holder fails to
submit
a
statement
or
submits
an
incomplete or incorrect statement, required
to be submitted under Section 9, the
Prescribed Authority shall, after making
such enquiry as he may consider necessary
either by himself or by any person
subordinate to him, cause to be prepared a
2 All. Suresh Chandra Tewari Vs. State of U.P. & Ors.
499
statement containing such particulars as
may be prescribed. The statement shall in
particular indicate the, land, if any,
exempted [under Section 6] and the plot or
plots proposed to be declared as surplus
land.

(2) The Prescribed Authority shall
thereupon cause to be served upon every
such tenure-holder in such manner as may
be prescribed, a notice together with a
copy of the statement prepared under subsection (1) calling upon him to show cause
within a period specified in the notice, why
the statement be not taken as correct. The
period specified shall not be less than ten
days from the date of service of the notice."

22. Thus, under Section 10 of the Act,
1960 notice is to be given to every tenure
holder, who does not file the statement or
files incorrect statement regarding his land
holding, as prescribed under Section 9 of
the Act, 1960. Section 11 of the Act, 1960
provides
that
where
the
statement
submitted by a tenure holder, in pursuance
of the notice issued under Section 9, is
accepted by the Prescribed Authority or
where the statement prepared by the
Prescribed Authority under Section 10 of
the Act, 1960 is not disputed within the
specified period, the Prescribed Authority
would, accordingly, determine the surplus
land of the tenure holder. However, subsection (2) of Section 11 of the Act, 1960
provides that on application made within
30 days from the date of the order passed,
declaring surplus land of a tenure holder
under sub-section (1), the tenure holder
aggrieved by such order passed in his
absence and on sufficient cause being
shown for his absence would set-aside the
order and allow such tenure holder to file
objection against the statement prepared
under Section 10 and the Prescribed
Authority would proceed to decide the
same in accordance with the provisions of
Section 12 of the Act, 1960.

23. Section 12 of the Act, 1960
provides determination of the surplus land
by the Prescribed Authority where an
objection is filed under sub-section (2) of
Section 10 or under sub-section (2) of
Section 11 of the Act, 1960. The Prescribed
Authority would, after affording the parties
reasonable
opportunity
for
producing
evidence, decide the objections after
recording the reasons of determining the
surplus land. Thus, Sections 11 and 12 of
the Act, 1960 read as under:-

11. Determination of surplus land
where no objection is filed. - (1) Where the
statement submitted by a tenure-holder in
pursuance of the notice published under
Section 9, is accepted by the Prescribed
Authority or where the statement prepared
by the Prescribed Authority under Section
10 is not disputed within the specified
period, the Prescribed Authority shall
accordingly, determine the surplus land of
the tenure-holder.

(2) The Prescribed Authority shall, on
application made within thirty days from
the date of the order under sub-section (1)
by a tenure-holder aggrieved by such order
passed in his absence and on sufficient
cause being shown for his absence set aside
the order and allow such tenure-holder to
file
objection
against
the
statement
prepared under Section 10 and proceed to
decide the same in accordance with the
provisions of Section 12.

(3) Subject to the provisions of subsection (2) and Section 13, the order of the
Prescribed Authority shall be final and
conclusive and be not questioned in any
Court of law.

12. Determination of the surplus land
by the Prescribed Authority where an
500 INDIAN LAW REPORTS ALLAHABAD SERIES
objection is filed. - (1) Where an objection
has been filed under sub-section (2) of
Section 10 or under sub-section (2) of
Section 11, or because of any appellate
order under Section 13, the Prescribed
Authority shall, after affording the parties
reasonable opportunity of being heard and
of
producing
evidence,
decide
the
objections after recording his reasons, and
determine the surplus land.

(2) Subject to any appellate order
under Section 13, the order of the
Prescribed Authority under sub-section (1)
shall be final and conclusive and be not
questioned in any Court of law.

[12A. In determining the surplus land
under Section 11 or Section 12, the
Prescribed Authority shall, as far as
possible, accept the choice indicated by the
tenure-holder to the plot or plots which he
and other members of his family, if any,
would like to retain as part of the ceiling
area applicable to him or them under the
provisions of this Act, whether indicated by
him in his statement under Section 9 or in
any subsequent proceedings :

Provided that -

(a) the Prescribed Authority shall have
regard to the compactness of the land to be
included in the ceiling area applicable to
the tenure-holder;

(b) where the tenure-holder's wife
holds any land which is aggregated with
the land held by the tenure-holder for
purposes of determination of the ceiling
area, and his wife has not consented to the
choice indicated by the tenure-holder as to
the plot or plots to be retained as part of
the ceiling area applicable to them, then
the Prescribed Authority shall, as far as
possible, declare the surplus laird in such
manner that the area taken out of the land
held by the tenure-holder's wife bears to
the total surplus area the same proportion
as the area originally held by her bore to
the total land held by the family;

(c) where any person holds land in
excess of the ceiling area including any
land mortgaged to the State Government or
to a [bank as defined in clause (c) of
Section 2 of the Uttar Pradesh Agricultural
Credit Act, 1973] or to a co-operative land
development bank or other co-operative
society or to the Corporation or to a
Government Company, the surplus land to
be determined shall, as far as possible, be
land other than that so mortgaged;

(d) where any person holds land in
excess of the ceiling area including land
which is the subject of any transfer or
partition referred to in sub-section (6) or
sub-section (7) of Section 5, the surplus
land determined shall, as far as possible,
be land other than land which is the subject
of such transfer or partition, and if the
surplus land includes any land which is the
subject of such transfer a partition, the
transfer or partition shall, insofar as it
relates to the land included in the surplus
land, be deemed to be and always to have
been void, and -

(i) it shall be open to the transferee to
claim refund of the proportionate amount
of consideration, if any, advance by him to
the transferor, and such amount shall be
charge on the [amount] payable to the
transferor under Section 17 and also on
any land retained by the transferor within
the ceiling area, which shall be liable to be
sold
in
satisfaction
of
the
charge,
notwithstanding anything contained in,
Section
153
of
the
Uttar
Pradesh
Zamindari Abolition and Land Reforms
Act, 1950;

(ii) any party to the partition (other
than the tenure-holder in respect of whom
the surplus land has been determined)
whose land is included in surplus land of
2 All. Suresh Chandra Tewari Vs. State of U.P. & Ors.
501
the said tenure-holder shall be entitled to
have the partition re-opened.]

24. Thus from the reading of Sections
9 to 12 of the Act, 1960, it is evident that
every tenure holder is required to be issued
notice for determining surplus land. In case
the order is passed in his absence, declaring
tenure holder's land as surplus, he has an
opportunity to file objection under Section
11(2) of the Act, 1960. The Prescribed
Authority is required to adjudicate the
objections, giving full opportunity of
hearing
and
opportunity
of
leading
evidence by the tenure holder. There cannot
be any dispute that the petitioners' names
were recorded in the revenue record when
notice was issued to their father, therefore,
the petitioners were required to be issued
notice under Section 10(2) of the Act, 1960
separately than their father. The petitioners
were not party in the earlier proceedings
instituted against their father and, therefore,
the judgment and order passed against their
father would not be binding upon them and
would
not
operate
res
judicata
in
subsequent proceedings initiated by the
petitioners by filing objections under
Section 11(2) of the Act, 1960.

25. The Supreme Court had an
occasion to consider the nature, object,
effect and value of the family arrangement,
if there was no fraud in arriving at the
family settlement/arrangement. In (1976) 3
SCC 119 (Kale and others Vs. Deputy
Director of Consolidation and others), it
has been held that by virtue of a family
settlement/arrangement
members
of
a
family descending from a common ancestor
or a near relation seek to sink their
differences and disputes settle and resolve
their conflicting claims or disputed title
once for all in order to buy peace of mind
and, bring about complete harmony and
goodwill
in
the
family.
Family
settlement/arrangements are enforceable, if
honestly made. The object of the family
arrangement is to protect the family from
long-drawn litigation and, to avoid hatred
and bad blood between the various
members of the family. Courts lean in
favour
of
family
arrangements
and,
technical or trivial grounds are to be
overlooked. It has also been held that
memorandum prepared after the family
arrangement for the purpose of record of
for information of the Court for making
necessary mutation is not compulsorily
required to be registered. Paragraphs 10
and 20 of the said judgment, which are
relevant, read as under:-

"10. In other words to put the binding
effect and the essentials of a family
settlement in a concretised form, the matter
may be reduced into the form of the
following propositions:

"(1) The family settlement must be a
bona fide one so as to resolve family
disputes and rival claims by a fair and
equitable
division
or
allotment
of
properties between the various members of
the family;

(2) The said settlement must be
voluntary and should not be induced by
fraud, coercion or undue influence;

(3) The family arrangement may be
even oral in which case no registration is
necessary;

(4) It is well settled that registration
would be necessary only if the terms of the
family arrangement are reduced into
writing. Here also, a distinction should be
made between a document containing the
terms and recitals of a family arrangement
made under the document and a mere
memorandum prepared after the family
arrangement had already been made either
for the purpose of the record or for
502 INDIAN LAW REPORTS ALLAHABAD SERIES
information of the court for making
necessary mutation. In such a case the
memorandum itself does not create or
extinguish
any
rights
in
immovable
properties and therefore does not fall
within the mischief of Section 17(2) of the
Registration Act and is, therefore, not
compulsorily registrable;

(5) The members who may be parties to
the family arrangement must have some
antecedent title, claim or interest even a
possible claim in the property which is
acknowledged
by
the
parties
to
the
settlement. Even if one of the parties to the
settlement has no title but under the
arrangement the other party relinquishes all
its claims or titles in favour of such a person
and acknowledges him to be the sole owner,
then the antecedent title must be assumed and
the family arrangement will be upheld and
the courts will find no difficulty in giving
assent to the same;

(6) Even if bona fide disputes, present or
possible, which may not involve legal claims
are settled by a bona fide family arrangement
which is fair and equitable the family
arrangement is final and binding on the
parties to the settlement."

20. A Full Bench of the Allahabad High
Court in Ramgopal v. Tulshi Ram [AIR 1928
All 641, 649 : 26 ALJ 952] has also taken the
view that a family arrangement could be oral
and if it is followed by a petition in court
containing a reference to the arrangement
and if the purpose was merely to inform the
court
regarding
the
arrangement,
no
registration was necessary. In this connection
the Full Bench adumbrated the following
propositions in answering the reference:

"We would, therefore, return the
reference with a statement of the following
general propositions:

With reference to the first question:

(1) A family arrangement can be made
orally.

(2) If made orally, there being no
document, no question of registration arises.

With reference to the second question:

(3) If though it could have been made
orally, it was in fact reduced to the form of a
"document", registration (when the value is
Rs 100 and upwards) is necessary.

(4) Whether the terms have been
''reduced to the form of a document' is a
question of fact in each case to be determined
upon a consideration of the nature and
phraseology
of
the
writing
and
the
circumstances in which and the purpose with
which it was written.

(5) If the terms were not ''reduced to
the form of a document', registration was
not necessary (even though the value is Rs
100 or upwards); and while the writing
cannot be used as a piece of evidence for
what it may be worth, e.g. as corroborative
of other evidence or as an admission of the
transaction or as showing or explaining
conduct.

(6) If the terms were ''reduced to the
form of a document' and, though the value
was Rs 100 or upwards, it was not
registered, the absence of registration
makes the document inadmissible
in
evidence and is fatal to proof of the
arrangement embodied in the document."

26. Section 11(2) of the Act, 1960
permits tenure holders to file objections.
Such tenure holders may be those who have
been served with a notice and the statement
under Section 10(2) of the Act, 1960 and
include those who have not been given or
served with any such notice or statement.
Section 11(2) of the Act, 1960 embraces
persons who claim to be tenure holders and
who having come to know of the
declaration of their land as surplus land of
some other person, wish to challenge that
declaration or notification thereof in the
gezette under Section 14 of the Act, 1960.
2 All. Suresh Chandra Tewari Vs. State of U.P. & Ors.
503
Thus, tenure holders are entitled to file an
objection under Section 11(2) of the Act,
1960 and get an adjudication thereon, as
required by Section 12 of the Act, 1969.

27. This Court, in 1978 All. L.J. 717
(Dilbagh Singh Vs. The State of U.P. and
another), while dealing with the scheme of
the Act, 1960, as provided under Section 9,
10, 11, 12, 13 and 14 of the Act, 1960, in
paragraphs 23, 24 and 25, has held as
under:-

" 23. Sections 11(2) and 11(3) of the
Act provide--

"(2) The Prescribed Authority shall,
on application made within thirty days
from the date of the order under sub-sec.
(1) by a tenure-holder aggrieved by such
order passed in his absence and on
sufficient cause being shown for his
absence set aside the order and allow such
tenure-holder to file objection against the
statement prepared under S. 10 and
proceed to decide the same in accordance
with the provisions of S. 12.

(3) Subject to the provisions of subsec. (2) and S. 13, the order of the
Prescribed Authority shall be final and
conclusive and be not questioned in any
court of law." 24. Dealing with sub-sec. (2)
the Full Bench in para. 27 held that there
appears to be no valid reason why the
benefit of S. 11(2) may not be available to
every tenure-holder and why S. 11(2)
should be regarded as limited to those
tenure-holders only who have been served
with a notice under S. 10(2). It went on to
hold (at p. 566 of All LJ):--

"In my opinion, the words ''a tenureholder aggrieved by such order' embrace
even those tenure-holders who have not
been served with a notice under S. 10(2)
and their scope is in no manner curtailed
by the words ''passed in his absence and on
sufficient cause being shown for his
absence'. A tenure-holder who has not been
served with a notice and has also not been
made a party would be treated as having
been absent and the fact that he was not a
party would itself sufficiently account for
his absence. Section 11(2) should not, to
my mind, be interpreted as withholding its
benefit from a person who has committed
no default at all while extending it to a
person who has committed a default but
furnishes sufficient cause for it"

25. It is thus evident that S. 11(2)
permits tenure-holders to file objections.
Such tenure-holders may be those who
have been served with a notice and the
statement under S. 10(2). It also includes
tenure-holders who have not been given or
served with any such notice or statement.
The construction put by the Full Bench on
S. 11(2) embraces persons who claim to be
tenure-holders and who having come to
know of the declaration of their land as
surplus land of some other person, wish to
challenge that declaration or notification
thereof in the gazette under S. 14. They are
all entitled to file an objection under S.
11(2) and get an adjudication thereon as
required by S. 12.

28. The Full Bench of this Court, in
1979 All. L.J. 1174 (Shantanu Kumar Vs.
State of U.P. and others) has held that
where a notice of the proceedings for
declaration of surplus land of a tenure
holder was not served on transferee from
the tenure holder and the land transferred
was included in C.L.H. Form 3 and
transferee's name was recorded in the
revenue papers over the land transferred,
the proceedings were without jurisdiction.
In such a case, the transferee could have
filed objection under Section 11(2) of the
Act, 1960. It was held that mere a fact that
the transferee could not file objection under
504 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 11 of the Act, 1960 would not
validate dead proceedings against him.

29. Rule-8 of the Rules, 1961
provides that notice shall be served upon
every tenure holder to show-cause within a
period of 15 days from the date of service
of notice why the statement prepared by the
Prescribed Authority under sub-Section (1)
of Section 10 of the Act, 1960 be not taken
as correct . Proviso to said rule reads as
under:-

"Provided that where the statement in
CLH Form 3 also includes land ostensibly
held in the name of any other person, the
Prescribed Authority shall caused to be
served upon such other person a notice in
C.L.H. Form 4 together with a copy of the
statement in CLH Form 3 calling upon him
to show cause within a period of fifteen
days from the date of service of the notice
why the statement be not taken as
correct...........".

30. It was held that service of such notice
is preliminary to the acquisition of jurisdiction
to proceed in the matter and, decide whether
the land ostensibly held in the name of the
tenure holder could be declared as surplus land
in the hands of the other person. If no notice is
served, the proceedings against such tenure
holder would result in nullity against the such
tenure holder. Paragraphs 8 to 12 of Shantanu
Kumar Vs. State of U.P. and others (supra)
read as under:-

8.