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Chandra Bhushan Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 411 of 1977
Judge
Reported inAIR1978All552
ActsUttar Pradesh Imposition of Ceiling on Land Holdings Act, 1961 - Sections 4, 5(3) and 5(6); Transfer of Property Act, 1882 - Sections 5
AppellantChandra Bhushan
RespondentState of U.P. and ors.
Appellant AdvocateH.O.K. Srivastava, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
.....as well as the ruling reported in 1971 r. --it would, therefore, appear that actually the plaintiff is to continue in the control of the holdings and to enjoy the income although in the garb of a servarkar. 11 of the writ petition it was clearly stipulated in the wakf deed that 3/4th of the income was to be invested towards management of the wakf and arti, bhog, prasad etc. thus it is wrong to say that the petitioner was to enjoy the income of the property given in wakf in the garb of a sarvarakar......an error apparent on the face of the record in adding the land given to thakurji by way of wakf deed dated 19-10-70 to the holding of the petitioner, hence the determination of surplus area of the petitioner stands vitiated in law. secondly, he has contended that the land subject matter of the aforesaid wakf would belong to thakurji and thakurji is entitled to have 7.30 hectares of irrigated land. thus the ceiling authorities have committed an error apparent on the face of the record in not excluding the aforesaid area from the holding of the petitioner in view of section 5 (3) (e) read with section 5 (5) (b) of u. p. imposition of ceiling on land holdings act. thirdly he has contended that the ceiling authorities have committed an error apparent on the face of the record in.....
Judgment:
ORDER

K.P. Singh, J.

1. This writ petition is directed against the judgment of the District Judge, Fatehpur dated 16-10-76 in Revenue Appeal No. 5 of 1976 Chandra Bhushan Prasad v. State of U. P.

2. Learned counsel for the petitioner has contended before me the following points :

3. According to the learned counsel for the petitioner the ceiling authorities have committed an error apparent on the face of the record in adding the land given to Thakurji by way of wakf deed dated 19-10-70 to the holding of the petitioner, hence the determination of surplus area of the petitioner stands vitiated in law. Secondly, he has contended that the land subject matter of the aforesaid wakf would belong to Thakurji and Thakurji is entitled to have 7.30 hectares of irrigated land. Thus the ceiling authorities have committed an error apparent on the face of the record in not excluding the aforesaid area from the holding of the petitioner in view of Section 5 (3) (e) read with Section 5 (5) (b) of U. P. Imposition of Ceiling on Land Holdings Act. Thirdly he has contended that the ceiling authorities have committed an error apparent on the face of the record in applying the provisions of Section 6 (f) of U. P. Imposition of Ceiling on Land Holdings Act to the facts of the present case. He has stressed that the petitioner had never claimed any benefit under Section 6 of the aforesaid Ceiling Act. He has further contended that the ceiling authorities have committed an error in reading the wakf deed and holding that the petitioner was beneficiary wholly or partly under the document. Fourthly he has contended that the wakf deed was a genuine document and it was neither sham, fictitious or no document in the eye of law, hence its effect could not be ignored by the ceiling authorities. Lastly he has contended that the ceiling authorities have not examined the claim of thepetitioner with regard to the unirrigated land and they have placed onus on wrong shoulder, hence their judgments stand vitiated in law.

4. Learned counsel for the state has tried to justify the findings recorded by the ceiling authorities. According to him the provisions of Section 6 of the aforesaid Ceiling Act were attracted and since the wakf deed was executed after the first day of May, 1959 hence it was rightly ignored by the ceiling authorities and the area given in wakf was rightly clubbed together with the land of the petitioner tenure-holder. He has further submitted that in the present case 'endowment' is not a 'transfer', hence the provisions of Section 5 of the U. P. Imposition of Ceiling on Land Holdings Act were not at all attracted. According to him the 'endowment' is not a 'transfer' to a living person. Hence the right of the tenure-holder did not extinguish in the area given in endowment and he was rightly held the tenure-holder of the area, subject-matter of wakf deed. Lastly he has submitted that the Prescribed Authority rightly placed burden upon the petitioner to prove that his land was unirrigated, hence there is no error apparent on the face of the record in the judgment of the Prescribed Authority which stands confirmed by the appellate authority.

5. Perusal of the impugned judgments indicates that the Prescribed Authority has committed an error apparent on the face of the record in deciding issue No. 7. The appellate authority has not dealt with the aforesaid point and a grievance has been made in para. 26 of the writ petition that the Prescribed Authority did not consider the relevant Khasra nor the village map before declaring the land of the petitioner as surplus area. In AIR 1978 All 9, Ghasi Ram v. State of U. P. which stands confirmed by a Division Bench of this Court in writ petition No. 8178 of 1975 Jaswant Singh v. State of U. P. it has been emphasised that the irrigated land under the aforesaid ceiling Act means the area of the each plot which had grown two crops in the relevant years i.e. from 1378 F. to 1380 F. could only be termed as 'irrigated land.' I do not find that the ceiling authorities have examined the claim of the petitioner with regard to the unirrigated land from the correct angle and on this ground alone the judgments of the ceiling authorities are liable to be quashed.

6. According to the appellate authority it appears that the learned counsel for the appellant before it had relied upon the provisions of Section 5 Sub-clause (6) and the provisions of Section 6 Sub-section (f) of the Ceiling Act and the appellate authority has negatived the contentions raised on behalf of the appellant. However, before me the learned counsel for the petitioner has contended that under the provisions of Section 5 Sub-clause (3) (e) read with Section 5 Sub-clause (5) (b) of the ceiling Act the petitioner is entitled to the exclusion of the area subject-matter of wakf deed dated 19-10-70. As I have held above that the impugned judgments of the ceiling authorities suffer from mistakes apparent on the face of the record so far as the determination of petitioner's claim with regard to unirrigated land is concerned, it is desirable that the appellate authority may re-examine the claim of the petitioner with regard to the exclusion of the land subject-matter of wakf deed dated 19-10-70 in view of the provisions of Section 5 Sub-clause (3) (e) read with Section 5 Sub-clause (5) (b) of the Ceiling Act. However, I do not express final opinion about the applicability of the aforesaid provisions.

7. As regards the contentions raised on behalf of the State that Section 5 of the Ceiling Act contemplates 'transfer' between living persons only it is sufficient to say that the transfer by way of waqf has been recognised in this State and it has been held that the right of the transferor becomes extinguished and the right of the transferor tenure-holder vests in God. The attention of the appellate authority is directed to the observations made in 1969 All WR (HC) 905 : (1969 All LJ 1148 (FB)), as well as the ruling reported in 1971 R. D. 311 (All) Mohd. Abu Jafar Mohd. Ibrahim v. Israr Ahmad. According to the aforesaid rulings the tenancy right of the transferor vests in God when the property is given under a wakf deed to the Almighty. Thus I find that the transferor divests himself of his tenancy right and he does not hold the property endowed by him any longer. Even though the transfer of a property to deity is not between living persons yet it is a recognised mode of transfer by which the transferor divests himself of a property and the same vests in the Almighty. The appellate court has not recognised the endowment in the present case as a transfer and has thus arrived at an inference against the claim of the petitioner in the light ofNagpur ruling. It is desirable that the appellate authority may re-examine the claim of the petitioner in the light of the aforesaid rulings of this Court mentioned by me.

8. It is noteworthy that the petitioner did not claim exemption of the land given in the wakf, hence from his point of view no question of applicability of Section 6 Sub-clause (f) arises in the circumstances of the present case. He has also read the wakf deed before me and he has stressed that the appellate authority has committed an error apparent on the face of the record in treating the petitioner as beneficiary within the meaning of the aforesaid provisions of Section 6 (f) of the Ceiling Act. The appellate authority has observed as below:--

'It would, therefore, appear that actually the plaintiff is to continue in the control of the holdings and to enjoy the income although in the garb of a servarkar.'

9. According to the allegations in para. 11 of the writ petition it was clearly stipulated in the wakf deed that 3/4th of the income was to be invested towards management of the wakf and Arti, Bhog, Prasad etc. and also for celebrations of Janmashtmi, Ram Naumi, Basant, Shiv Ratri and for the salary of Pujari etc. and 1/4th of the income was to be deposited in the Savings Bank Account of Thakurji. Thus it is wrong to say that the petitioner was to enjoy the income of the property given in wakf in the garb of a sarvarakar. In my opinion the appellate court has erred in reading the contents of the wakf deed and has not referred to the clause in the deed wherein it has been said that 3/4th of the income would be spent towards management and 1/4th of the income would be deposited in the Savings Bank Account of Thakurji. Thus it is desirable that the appellate authority should be asked to reconsider the effect of the wakf deed on the right of the present petitioner.

10. The contention of the learned counsel for the State that the land given by the petitioner through wakf deed dated 19th Oct., 1970 shall not be exempted under Section 6 (f) of the aforesaid Ceiling Act appears to be correct, but I do not agree with him that any land given in endowment to a deity after 1st day of May, 1959 must be held as the land of the transferor on the relevant date i.e. 8-6-1973. As I have heldabove that 'endowment' is a recognised mode of transfer of interest by a tenure-holder to the deity, it is necessary that the claim of the petitioner with regard to the exclusion of the land given by him in wakf to the Thakurji should be examined in the light of the provisions of Section 5 of the U. P. Imposition of Ceiling on Land Holdings Act. I do not agree with the contention of the learned counsel for the State that the endowment being not a transfer as understood by the term 'transfer' under the provisions of T. P. Act, hence it has no effect on the claim of the petitioner.

11. For the reasons given above, the writ petition succeeds and the impugned judgment of the appellate authority is hereby quashed and the appellate authority is directed to reconsider the claim of the petitioner in the light of the observations made above. No order as to costs.


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