# Surya Lal & Ors v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 833
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-10
- **Case number:** Writ C No. 3000181 of 1997
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surya-lal-ors-v-state-of-u-p-ors-53245
- **Pages:** 11

## Headnote

A. Ceiling Law - UP Imposition of Ceiling on
Land Holdings Act, 1960 - Sections 5(6), 10
(1) & 10(2) - Surplus land - Notice for
declaration issued - Sale-deed regarding
share of land, in question was executed
prior to 24.01.1971 - Effect - How far
Prescribed Authority has jurisdiction to
decide the validity of Sale-deed - Held, the
Prescribed Authority had no jurisdiction to
put the validity of sale deed to test since its
jurisdiction arose only when the deed of
transfer had been effected on or after the
appointed day - Sub-section 6 of Section 5
did not confer jurisdiction on the authorities
to determine the validity of the sale and
therefore the findings recorded by such an
authority on the contents of the sale deed or
the adequacy or otherwise of the sale
consideration could also not be gone into -
Ramadhar Singh's case relied upon. (Para
36)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

3 All. Surya Lal & Ors. Vs. State of U.P. & Ors.
833
53. In view of discussions made
herein above, this Court comes to the
conclusion that cancellation of allotment in
favour of petitioner vide resolution dated
26th October, 2008 by the society and its
being upheld by means of award dated 23d
July, 2010 passed in case No. 128-E of
2008 and by the Cooperative Tribunal vide
judgment and order dated 7th May, 2015
passed in appeal No. 161 of 2015, being
against provisions of law are hereby
quashed by issuance of writ in the nature of
Certiorari. A further writ in the nature of
Mandamus is issued commanding the
opposite parties not to interfere in peaceful
possession of petitioner over plot No. 45
situate in Scheme No.2, Daheli, Sujanpur,
Kanpur.

54.

Resultantly
the
petition
succeeds and is allowed. Parties to bear
their own cost.
----------
(2025) 3 ILRA 833
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2025

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 3000181 of 1997

Surya Lal & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Balram Yadav, Mohammad Aslam Khan, Mohd
Aslam Khan, Mohd. Sartaj Ahmad, Mohd. Aslam
Khan

Counsel for the Respondents:
C.S.C.

A. Ceiling Law - UP Imposition of Ceiling on
Land Holdings Act, 1960 - Sections 5(6), 10
(1) & 10(2) - Surplus land - Notice for
declaration issued - Sale-deed regarding
share of land, in question was executed
prior to 24.01.1971 - Effect - How far
Prescribed Authority has jurisdiction to
decide the validity of Sale-deed - Held, the
Prescribed Authority had no jurisdiction to
put the validity of sale deed to test since its
jurisdiction arose only when the deed of
transfer had been effected on or after the
appointed day - Sub-section 6 of Section 5
did not confer jurisdiction on the authorities
to determine the validity of the sale and
therefore the findings recorded by such an
authority on the contents of the sale deed or
the adequacy or otherwise of the sale
consideration could also not be gone into -
Ramadhar Singh's case relied upon. (Para
36)

Writ petition allowed. (E-1)

List of Cases cited:

1. Raja Mahipal Singh (Deceased) through LRs
Vs St. of U.P. & ors.; 2007 SCC Online All 2334 :
(2007) 102 RD 792

2. Writ C No. 55503 of 2002; Vyas Prasad Vs
Addl. Commissioner, Gorakhpur & ors.decided
on 20.07.2017

3. Civil Appeal Nos. 5798-5799 of 2008; Bachhaj
Nahar Vs Nilima Mandal & ors. decided on
23.09.2008 (S.C.)

4. St. of U.P. Vs Amar Singh etc.' AIR 1997
Supreme Court 1534

5. Ramadhar Singh Vs Prescribed Authority &
ors.; 1994 Supp (3) SCC 702

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Mohd. Arif Khan, learned
Senior Counsel assisted by Sri Mohd.
Aslam Khan, learned counsel for the
petitioners and Sri S.P. Maurya, learned
Additional CSC for respondent - State.

2. By means of present writ
petition, the petitioners are challenging the
834 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned order dated 12.08.1997 passed
by Additional Commissioner, Judiciary,
Faizabad Division, Faizabad in Appeal
No.47
(Ceiling)
as
well
as
against
impugned order dated 31.12.1993 passed
by the prescribed authority (Ceiling),
Bahraich, in case No.812 under sub Section
2 of Section 10 of U.P. Imposition of
Ceiling on Land Holdings Act.

3. Brief fact of the case is that a
notice dated 10.11.1989 was issued in the
name of the petitioners and their fathers
requiring them to show cause why the land
should not be declared surplus under sub
section 1 of Section 10 of U.P. Imposition
of Ceiling on Land Holdings Act. Earlier to
the
said
notice
issued
against
the
petitioners, a notice dated 18.05.1989 was
also issued in the name of deceased
Prabhoo after his death, who was the father
of petitioner No.4 to 7 and grand father of
petitioner Nos.1 to 3.

4. The petitioners objected to the
said notice through their objections dated
11.01.1990 stating therein that the notice
was illegal, arbitrary as the petitioners and
their fore-fathers were not having land
beyond the limitations prescribed under
Imposition of Ceiling on Land Holdings
Act because father of petitioner No.4 to 7
and grand - father of petitioner Nos.1 to 3
had already died much earlier. Not only
this, but the land in dispute was already
transferred to the petitioner Nos.4 to 7 and
petitioner Nos.1 to 3 through registered sale
deed dated 02.02.1970 and also on the
ground that petitioner Nos.4 to 7 and father
of petitioner Nos.1 to 3 were major on the
date the ceiling Act was imposed in the
year 1972 amongst other grounds.

5.

Thereafter,
oral
and
documentary evidences were produced
through the witnesses to establish the case
that the petitioner Nos.4 to 7 and father of
petitioner Nos.1 to 3 were major at the time
of imposition of ceiling on land holdings
act and it was also proved that the sale deed
was executed before 24.01.1971 and all the
transferees were separately in possession of
their land as well as two bighas land was
grove land and about one acre land was
Usar land.

6. Thereafter, the objection was
decided
by
the
prescribed
authority
(Ceiling), Bahraich vide order dated
31.12.1993 and rejected the objections
without application of mind judicially in as
much as failed to appreciate the evidence
already on records.

7. Feeling aggrieved with the said
arbitrary and illegal order, the petitioner
filed
appeal
No.47
before
the
Commissioner,
Faizabad
Division,
Faizabad on the ground that the order
passed by the prescribed authority was
grossly erroneous in law as no specific and
relevant issues were framed and also on the
ground that the prescribed authority failed
to appreciate the sale deed in the name of
the petitioners, executed in the year 1970. It
was also alleged in the appeal that the
assessment was erroneously done without
considering the position of land in as much
as was irrigated and un-irrigated.

8. The Additional Commissioner,
Judicial
decided
the
appeal
of
the
petitioners vide order dated 12.08.1997 and
rejected the same again without considering
and examining the evidences on record
only on the basis of extraneous and
irrelevant facts.

9. The Court below failed to give
any finding on the point of pleading that
3 All. Surya Lal & Ors. Vs. State of U.P. & Ors.
835
the petitioner Nos.4 to 7 and father of
petitioner Nos.1 to 3 were major at the time
of Imposition of Ceiling on Land Holdings
Act in the year 1972 and so no benefit of
additional 2 hectares of land to which all
the major adult sons of deceased Prabhoo
was given while determining ceiling area.

10. The Court below also failed to
consider evidenciary value of the sale deed
executed before 24.01.1971, whereas the
provisions of Imposition of Ceiling on
Land Holdings Act clearly lays down that
the sale deed executed before the said date
would be taken into consideration while
determining the ceiling area.

11. The impugned orders passed
by the courts below do not contain any
finding on the point of irrigated and unirrigated land as well as grove land,
whereas on the said point, the petitioners
had categorically pleaded and had tried to
prove through the evidences and hence the
orders passed by the Courts below are
erroneous in the eye of law.

12. The petitioner had submitted
documentary evidence i.e. true and certified
copy of the family register showing the
family
members
of
the
petitioners
separately on the basis of basic year 1978
relevant in the determination of family
members as petitioner's families were
living separately before the year 1978 and
were
having
cultivating
transferred
holdings separately but the courts below
failed to examine the evidenciary value of
the said document and decided the
objection without taking into account the
facts.

13. The registered sale deeds were
executed on required stamp papers on the
basis of valuation of the land transferred to
petitioner Nos.4 to 7 and grand father of
petitioner Nos.1 to 3 by the deceased
Prabhoo, who was sole tenure holder of the
holdings in question.

14. It is also stated that valuation
was made properly on the rates fixed for
the area and no dispute was raised at any
stage by the registering authorities or any
authority and as such the said sale deed
executed in favour of the petitioners were
relevant to take into consideration while
determining the ceiling area but the
prescribed authority failed to consider the
said sale deeds executed on 02.02.1970 and
on 03.02.1970, as such the impugned
orders are not sustainable in the eyes of
law.

15. The tenure holder, namely,
Prabhoo had already died on 15.08.1988
before the issue of notice and the land was
mutated in the name of petitioners even on
the basis of sale deed and were living
separately during the life of deceased
Prabhoo.
The
matter
was
beyond
jurisdiction of ceiling Act and no notice can
be issued in the eyes of law.

16. A notice dated 18.05.1989 was
issued in the name of deceased Prabhoo
after his death, who was father of petitioner
Nos.4 to 7 and grand father of petitioner
Nos.1 to 3. The petitioners objected to the
said notice through their objections dated
11.01.1990 stating that the notice was
illegal, arbitrary as the petitioners and their
fore-fathers were not having land beyond
the limitation prescribed under Imposition
of Ceiling on Land Holdings Act because
father of petitioner Nos.4 to 7 and grand
father of petitioner Nos.1 to 3 had already
died much earlier. Not only this, but the
land in dispute was already transferred to
the petitioner Nos.4 to 7 and 1 to 3 through
836 INDIAN LAW REPORTS ALLAHABAD SERIES
registered sale deed dated 02.02.1970 and
on the ground that petitioner Nos.4 to 7 and
father of petitioner Nos.1 to 3 were major
on the date of ceiling Act was imposed in
the year 1972.

17. The objection was decided by
the prescribed authority (Ceiling), Bahraich
vide order dated 31.12.1993 and was
rejected. The petitioner, feeling aggrieved
with the said order, filed Appeal No.47
before
the
Commissioner,
Faizabad
Division, Faizabad on the ground that the
order passed by the prescribed authority
was grossly erroneous in law as no specific
and relevant issues were framed and also
on the ground that that the prescribed
authority failed to appreciate the sale deed
in the name of the petitioners executed in
the year 1970.

18. The Additional Commissioner,
Judicial
decided
the
appeal
of
the
petitioners vide order dated 12.08.1997 and
rejected the appeal again only on the basis
of extraneous and irrelevant facts. Hence,
the present writ petition has been filed
before this Court.

19. Submission of learned Senior
Counsel for the petitioner is that the
impugned order
was
passed
without
applying the judicial mind while examining
the evidence on record. He submitted that
the courts below failed to give any finding
on the point of pleading that the petitioner
Nos.4 to 7 and father of petitioner Nos.1 to
3 were major at the time of Imposition of
Ceiling of Land Holdings Act in the year
1972.

20. He next submitted that the courts
below have also failed to consider the
evidence of sale deed executed before
24.01.1971 in accordance with provisions of
sub section 6 of Section 5 of the Act. He
submitted that courts below passed the
impugned orders without mentioning about
pleadings
and
reasons
raised
by
the
petitioners.

21. He further submitted that the
respondents failed to decide the dispute in
accordance with law. He submitted that the
tenure holder, namely, Prabhoo had died on
15.08.1988 before the issuance of notice and
the land was mutated in the name of
petitioners even on the basis of sale deed and
were living separately during life of deceased
Prabhoo. He submitted that the matter was
beyond jurisdiction of Ceiling Act and no
notice can be issued in the eyes of law, as
such, the proceeding was illegal, arbitrary,
and prejudicial to the the petitioners.

22. He next submitted that the
impugned orders do not contain any evidence
on the point of irrigated and un-irrigated land
as well as grabbed land area. He submitted
that certified copy of the family register
showing the family members of the
petitioners separately on the basis of basic
year 1978 relevant in determination of family
members. He submitted that the registered
sale deeds were executed on required stamp
papers on the basis of valuation of land
transferred to the petitioner Nos.4 to 7 and
grand father of petitioners Nos.1 to 3 by the
deceased Prabhoo, who was the sole tenure
holder of the holdings in question. The
valuation was made properly on the rates
fixed for the area and no dispute was raised at
any stage by the registering authorities and as
such, the whole proceeding was illegal,
arbitrary and prejudicial to the petitioners. In
support of his submissions, he placed reliance
upon following judgments:

a) Raja Mahipal Singh
(Deceased) Through LRs Vs.
3 All. Surya Lal & Ors. Vs. State of U.P. & Ors.
837
State of U.P. and others; 2007
SCC Online All 2334 : (2007) 102
RD 792.
b) Vyas Prasad Vs. Addl.
Commissioner,
Gorakhpur
&
others; Writ-C No.55503 of 2002
decided on 20.07.2017.

23. On the other hand, learned
Additional CSC for the respondents - State
submitted that the Courts below have given
concurrent finding against the petitioners
and held that the sale deed in question was
a fake transaction between the father and
son and therefore, the vendees are only
ostensible owners. The contention of the
petitioners that the notice has been issued
in the name of dead person is not correct
because under Rule 19 of the rules framed
under U.P. Imposition of Ceiling Act
provides that if the tenure holder was alive
on 08.06.1973 then the notices shall always
be issued in the name of deceased tenure
holders and service shall be effected on the
heirs of the deceased tenure holders.

24. He further submitted that the
alleged sale deed was fake transaction
made to avoid and forfeit the purpose of
provisions of Ceiling Act. Moreover, the
alleged sale deeds are not genuine because
the sale deed is between the father and son
and it cannot reasonably be presumed that
no consideration passed between the vender
and vendees, therefore, there is no illegality
in the orders impugned and the writ petition
is not maintainable and deserves to be
dismissed. In support of his submissions,
he
placed
reliance
upon
following
judgments:

a) Bachhaj Nahar Vs.
Nilima Mandal & ors. ; Civil
Appeal Nos.5798-5799 of 2008
(arising
out
of
SLP
(C)
Nos.23766-67 of 2005) D/- 23-92008.
b) State of U.P. Appellant
Vs. Amar Singh etc., respondents
; AIR 1997 Supreme Court 1534.

25.

I
have
considered
the
submissions advanced by learned counsel
for the parties and perused the material on
record as well as the judgments relied upon
by learned counsel for the parties.

26. To resolve the controversy
involved in the matter, the judgments relied
upon by learned counsel for the parties are
being quoted herein below:

i) Judgments relied upon by
learned counsel for the petitioner:

a) Raja Mahipal Singh
(Deceased)
Through
LRs
(Supra):

5) From the above it is
quite clear that the appellate Court
judged the four gift deeds and one
sale deed in favour of Dhani Ram
on the touch stone of section
5(6)(b). In this regard appellate
Court was not correct. Section
5(6)(b) deals with the transfer
deeds made after 24.1.1971. Of
Course in certain circumstances
even the deeds prior to 24.1.1971
may be ignored after holding them
to be sham, fictitious or collusive
transactions.
However,
some
distinction has to be drawn in
between
the
deeds
prior
to
24.1.1971 and after the said date.
The
same
criteria
which
is
applicable to post 24.1.1971 deed
can not be applied to pre 24.1.1971
deed.
838 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Learned Counsel for the
petitioner has cited a division
bench authority of this Court in
Yadunath v. State. In para 18 of the
said judgment it has been held that
transfer deeds executed before
24.1.1971 may also be looked into
by the prescribed authority to
ascertain
as
to
whether
the
transaction was sham, fictitious
and collusive or not.

b) Vyas Prasad Vs. Addl.
Commissioner,
Gorakhpur
&
others (Supra):

15. In the said judgment,
the Hon'ble Supreme Court held
that under the provisions of the Act
itself, the validity of the sale deed
executed prior to 24th January
1971, the appointed day, could not
be gone into by the Prescribed
Authority. Sub-Section 6 of Section
5 of the said Act says that in
determining ceiling area applicable
to a tenure-holder, any transfer of
land made after 24th day of
January 1971, which, but for the
transfer would have been declared
as surplus land under the Act shall
be ignored and not taken into
account. The proviso (b) thereto,
interalia, provides that a transfer
proved to the satisfaction of the
Prescribed Authority to be in good
faith
and
for
adequate
consideration and an irrevocable
instrument, not being a benami
transaction or for immediate or
deferred benefit of the tenureholder or other members of his
family, is outside the scope of the
aforesaid sub-Section. Thereafter
Explanation (ii) provides that the
burden of proving that a case was
within clause (b) of the proviso
shall rest with the party claiming
its benefit.
16. The Supreme Court
held in Ramadhar Singh (supra)
that the existence of the sale deed
being a registered sale deed was
not questioned and the fact that it
was executed prior to January 24,
1971 was also not in dispute
therefore any inquiry regarding the
validity of such a sale deed under
sub-Section (6) of Section 5 was
totally misplaced. The Prescribed
Authority had no jurisdiction to put
the validity of sale deed to test
since its jurisdiction arose only
when the deed of transfer had been
effected on or after the appointed
day. Sub-section 6 of Section 5 did
not confer jurisdiction on the
authorities to determine the validity
of the sale and therefore the
findings recorded by such an
authority on the contents of the sale
deed or the adequacy or otherwise
of the sale consideration could also
not be gone into. 17. With regard to
the argument made on behalf of the
petitioner that the registered sale
deed made in favour of alleged
Moti Ram Naik being of a date
prior to the appointed day and thus
could not be looked into at all on
the basis reliance placed on the
judgment rendered in the case of
Ramadhar Singh Vs. Prescribed
Authority & others 1994 Supp (3)
SCC 702, the said argument is
wholly misconceived and hence
liable to be rejected.
18. The judgment in the
case of Ramadhar Singh (supra)
was held to be per incurium and in
3 All. Surya Lal & Ors. Vs. State of U.P. & Ors.
839
Sant Singh Vs. ADJ. Jhansi 1996
(3) SCC 400. The Hon'ble Supreme
Court in Sant Singh (supra) has
held that in view of the specific
language used in Section 5 (6) of
the
Rural
Ceiling
Act.
The
Prescribed
Authority
in
determining the ceiling applicable
to a tenure-holder shall ignore any
transfer of land made after the
24.1.1971, which, but for the
transfer would have been declared
as surplus land under the Act.
However, the proviso further says
thus "provided that nothing in the
sub-section shall apply to ---------
(a) a transfer in favour of any
person (including the Government)
referred to in sub-section 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
the family, is outside the scope of
the
aforesaid
sub-section.
Thereafter, Explanation II provides
that the burden of proving that a
case falls within clause (b) of the
proviso shall rest with the party
claiming its benefit.
ii) Judgments relied upon
by
learned
counsel
for
the
respondent:
a)
Bachhaj
Nahar
Vs.
Nilima Mandal & ors. (Supra):
9. The object and purpose
of pleadings and issues is to ensure
that the litigants come to trial with
all issues clearly defined and to
prevent cases being expanded or
grounds being shifted during trial.
Its object is also to ensure that each
side is fully alive to the questions
that are likely to be raised or
considered so that they may have
an opportunity of placing the
relevant evidence appropriate to
the issues before the court for its
consideration.
This
Court
has
repeatedly held that the pleadings
are meant to give to each side
intimation of the case of other so
that it may be met, to enable courts
to determine what is really at issue
between the parties, and to prevent
any deviation from the course
which
litigation
on
particular
causes must take.
b) State of U.P. Appellant
Vs. Amar Singh etc. (Supra):
5. Thus, on and from the
date the Amendment Act came into
force, namely, January 21, 1971,
the tenure-holder shall not hold
thoughout
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 held by 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 daughters-in-law. Normally,
one would expect that if there is
any compelling legal necessity to
840 INDIAN LAW REPORTS ALLAHABAD SERIES
alienate the land, one would sell
the land to third parties and that
too, as prudent vender 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 daughters-inlaw. 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 Stamp Act and
registered under 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 categorical
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 owing 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.

27. A notice dated 18.05.1989 was
issued in the name of deceased Prabhoo
after his death, who was the father of
petitioner No.4 to 7 and grand father of
petitioner Nos.1 to 3. The petitioners
objected to the said notice through their
objections dated 11.01.1990 stating therein
that the notice was illegal, arbitrary as the
petitioners and their fore-fathers were not
having
land
beyond
the
limitations
prescribed under Imposition of Ceiling on
3 All. Surya Lal & Ors. Vs. State of U.P. & Ors.
841
Land Holdings Act because father of
petitioner No.4 to 7 and grand - father of
petitioner Nos.1 to 3 had already died much
earlier. Not only this, but the land in
dispute was already transferred to the
petitioner Nos.4 to 7 and petitioner Nos.1
to 3 through registered sale deed dated
02.02.1970 much prior to the amendment
incorporated
vide
amendment
dated
24.01.1971,
therefore,
the
sale
deed
executed in favour of petitioner Nos.4 to 7
and grand father of petitioner Nos.1 to 3 are
genuine documents and do not suffer from
any infirmity or illegality. The judgment
relied upon by learned counsel for the
petitioner in the case of Raja Mahipal
Singh (Deceased) Through LRs (Supra)
is fully applicable to the present facts and
circumstances of the case.

28. The objection was decided by
the prescribed authority (Ceiling) Bahraich
vide order dated 31.12.1993 and was
rejected. The petitioner feeling aggrieved
filed
appeal
No.47
before
the
Commissioner,
Faizabad
Division,
Faizabad on the ground that the order
passed by the prescribed authority was
grossly erroneous in law as no specific and
relevant issues were framed and also on the
ground that the prescribed authority failed
to appreciate the sale deed in the name of
the petitioners, executed in the year 1970
much prior to the amendment incorporated
under Ceiling Act, 1952, therefore, due to
non framing of issues on the evidence, the
impugned orders apparent illegality and are
liable to be set aside.

29. The Additional Commissioner,
Judicial
decided
the
appeal
of
the
petitioners vide order dated 12.08.1997 and
rejected the appeal again only on the basis
of extraneous and irrelevant facts. Hence,
the present writ petition has been filed
before this Court. The impugned orders
have been passed without applying the
judicial mind while examining the evidence
on record. The courts below failed to give
any finding on the point of pleading that
the petitioner Nos.4 to 7 and father of
petitioner Nos.1 to 3 were major at the time
of Imposition of Ceiling of Land Holdings
Act in the year 1972.

30. The courts below have also
failed to consider the evidence of sale deed
executed before 24.01.1971 in accordance
with provisions of sub section 6 of Section
5 of the Act. The courts below passed the
impugned orders without mentioning about
pleadings and reasons raised by the
petitioners.

31. The respondents failed to
decide the dispute in accordance with law.
The tenure holder, namely, Prabhoo had
died on 15.08.1988 before the issuance of
notice and the land was mutated in the
name of petitioners even on the basis of
sale deed and were living separately during
life of deceased Prabhoo. The matter was
beyond jurisdiction of Ceiling Act and no
notice can be issued in the eyes of law, as
such, the proceeding was illegal, arbitrary,
and prejudicial to the petitioners.

32. The impugned orders do not
contain any finding on the point of irrigated
and un-irrigated land as well as grove land.
Certified copy of the family register
showing the family members of the
petitioners separately on the basis of basic
year 1978 relevant in the determination of
family members. The registered sale deeds
were executed on required stamp papers on
the basis of valuation of the land
transferred to petitioner Nos.4 to 7 and
grand father of petitioner Nos.1 to 3 by the
deceased Prabhoo, who was sole tenure
842 INDIAN LAW REPORTS ALLAHABAD SERIES
holder of the holdings in question. The
valuation was made properly on the rates
fixed for the area and no dispute was raised
at any stage by the registering authorities,
as such the whole proceeding was illegal
and arbitrary and prejudicial to the
petitioners.

33. Learned ACSC has urged that
courts below have given concurrent finding
against the petitioners and held that the sale
deed in question was a fake transaction
between the father and son and therefore, the
vendees are only ostensible owners. Other
submission of learned ACSC is that under
Rule 19 of the rules framed under U.P.
Imposition of Ceiling Act provides that if the
tenure holder was alive on 08.06.1973, notices
shall always be issued in the name of deceased
tenure holders and service shall be effected on
the heirs of the deceased tenure holders. In this
regard, it is stated that it is quite clear that the
appellate court has not considered the sale
deed executed in favour of the petitioner Nos.4
to 7 and grand father of petitioner Nos.1 to 3.

34. It is quite clear that the
appellate Court judged the four gift deeds
and one sale deed in favour of Dhani Ram
on the touch stone of section 5(6)(b). In this
regard appellate Court was not correct.
Section 5(6)(b) deals with the transfer
deeds made after 24.1.1971. Of Course in
certain circumstances even the deeds prior
to 24.1.1971 may be ignored after holding
them to be sham, fictitious or collusive
transactions. However, some distinction has
to be drawn in between the deeds prior to
24.1.1971 and after the said date. The same
criteria which is applicable to post
24.1.1971 deed can not be applied to pre
24.1.1971 deed. Transfer deeds executed
before 24.1.1971 may also be looked into
by the prescribed authority to ascertain as
to whether the transaction was sham,
fictitious and collusive or not.

35. In the present case, without
there being any material on record, the
prescribed authority as well as appellate
court have came to the conclusion that the
sale deed executed in favour of petitioner
Nos.4 to 7 and grand father of petitioner
Nos.1 to 3 are sham transaction without
any basis in law. Hon'ble Supreme Court in
the case of Vyas Prasad (Supra) held that
while considering the validity of sale deed
executed prior to 24.01.1971, the appointed
day, could not be gone into by the Prescribed
Authority. Sub-Section 6 of Section 5 of the
said Act says that in determining ceiling area
applicable to a tenure-holder, any transfer of
land made after 24th day of January 1971,
which, but for the transfer would have been
declared as surplus land under the Act shall be
ignored and not taken into account. The
proviso (b) thereto, interalia, provides that a
transfer proved to the satisfaction of the
Prescribed Authority to be in good faith and
for adequate consideration and an irrevocable
instrument, not being a benami transaction or
for immediate or deferred benefit of the
tenure-holder or other members of his family,
is outside the scope of the aforesaid subSection. Thereafter Explanation (ii) provides
that the burden of proving that a case was
within clause (b) of the proviso shall rest with
the party claiming its benefit.

36. In the case of Ram Adhar
(Supra), Hon'ble Supreme Court has held
that the existence of the sale deed being a
registered sale deed was not questioned and
the fact that it was executed prior to
January 24, 1971 was also not in dispute
therefore any inquiry regarding the validity
of such a sale deed under sub-Section (6) of
Section 5 was totally misplaced. The Prescribed
Authority had no jurisdiction to put the validity
3 All. Usha Devi @ Urmila Devi & Ors. Vs. Malti Devi & Ors.
843
of sale deed to test since its jurisdiction
arose only when the deed of transfer had been
effected on or after the appointed day. The sale
deed executed in favour of petitioner Nos.4 to 7
and grand father of petitioner Nos.1 to 3 have
never been challenged before any forum nor
cancelled at any point of time, therefore, the
finding recorded by both the courts below are
not tenable in law and is liable to be set aside.
Sub-section 6 of Section 5 did not confer
jurisdiction on the authorities to determine the
validity of the sale and therefore the findings
recorded by such an authority on the contents of
the sale deed or the adequacy or otherwise of
the sale consideration could also not be gone
into. With regard to the argument made on
behalf of the petitioner that the registered sale
deed made in favour of petitioner Nos.4 to 7
and grand fatehr of petitioner Nos.1 to 3 being
of a date prior to the appointed day and thus
could not be looked into at all on the basis
reliance placed on the judgment rendered in the
case of Ramadhar Singh Vs. Prescribed
Authority & others 1994 Supp (3) SCC 702.

37. The arguments advanced on behalf
of learned ACSC are totally misconceived and
the finding returned by both the courts below
are not tenable in law. The object and purpose
of pleadings and issues is to ensure that the
litigants come to trial with all issues clearly
defined and to prevent cases being expanded or
grounds being shifted during trial. Its object is
also to ensure that each side is fully alive to the
questions that are likely to be raised or
considered so that they may have an
opportunity of placing the relevant evidence
appropriate to the issues before the court for its
consideration. This Court has repeatedly held
that the pleadings are meant to give to each side
intimation of the case of other so that it may be
met, to enable courts to determine what is really
at issue between the parties, and to prevent any
deviation from the course which litigation on
particular causes must take.
38. In the present case, both the courts
below have failed to take into consideration the
evidence on record and the finding returned on
perverse grounds are not liable to be accepted.

39. In view of findings returned herein
above, the order dated 12.08.1997 passed by
Additional Commissioner, Judiciary, Faizabad
Division, Faizabad in Appeal No.47 (Ceiling)
as well as order dated 31.12.1993 passed by the
prescribed authority (Ceiling), Bahraich, in case
No.812 under sub Section 2 of Section 10 of
U.P. Imposition of Ceiling on Land Holdings
Act are wholly erroneous and are not
sustainable in the eyes of law and are hereby
quashed.

40. The writ petition succeeds and is
allowed.

41. The matter is remanded back to
the prescribed authority to lead evidence on the
subject matter involved in the present writ
petition and to record finding in regard to sale
deed that how it is a fake transaction, once it has
been executed by paying sufficient stamp duty
and on other points raised by the petitioners.

42. No order as to costs.
----------
(2025) 3 ILRA 843
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.03.2025

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ C No. 1005313 of 2013

Usha Devi @ Urmila Devi & Ors.
 ...Petitioners
Versus
Malti Devi & Ors. ...Respondents

Counsel for the Petitioners: