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irshad Ali Khan (Dead) by Lrs. and ors. Vs. State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal Nos. 812-14 of 1981
Judge
Reported inAIR1981SC1706; (1981)2SCC721
Appellantirshad Ali Khan (Dead) by Lrs. and ors.
RespondentState of U.P. and ors.
Excerpt:
- indian evidence act, 1872 section 32 :[dr.arijit pasayat & asok kumar ganguly,jj] dying declaration held, though dying declaration is entitled to great weight, significantly accused has no power of cross-examination - court has to be, therefore, on guard that it was not the result of tutoring or prompting. section 32 : murder held, dying declaration can form sole basis of conviction. rule requiring corroboration is merely a rule of prudence. indian penal code, 1890 section 300:murder - conviction based on dying declaration sustainability - appellant-husband who was drunk allegedly poured kerosene on deceased and set her on fire - there was no accidental burn to fall of small lantern as alleged doctor categorically stated that patient who gave dying declaration was in a position to..........death which occurred long after the coming into force of the act. the district judge as also the prescribed authority have merely relied on the notice under section 10(2) issued by the prescribed authority where it was mentioned that mumtaz ali continued to be in possession. this fact was seriously controverted by the appellants before the prescribed authority as also before the district judge but there is no clear finding by any of these authorities regarding the question of possession. the definite case of the appellants was that mumtaz ali and irshad ali had separated each getting half of the total land. it was also alleged that the grand-sons of mumtaz ali, namely the four sons of irshad ali mukarram ali, zafar ali, kanwar ali and anwar ali had purchased the lands from mumtaz ali.....
Judgment:

S. Murtaza Fazal Ali, J.

1. After having heard learned Counsel for the parties we are a! the opinion that neither the District Judge nor the prescribed authority seems to have gone into the real question in the case as to whether Mumtaz Ali, who was the original owner of properties comprising 103 Bighas, 16 Biswas and 9 Biswansis, continued to be in cultivatory possession of the land until his death which occurred long after the coming into force of the Act. The District Judge as also the prescribed authority have merely relied on the notice under Section 10(2) issued by the prescribed authority where it was mentioned that Mumtaz Ali continued to be in possession. This fact was seriously controverted by the appellants before the prescribed authority as also before the District Judge but there is no clear finding by any of these authorities regarding the question of possession. The definite case of the appellants was that Mumtaz Ali and Irshad Ali had separated each getting half of the total land. It was also alleged that the grand-sons of Mumtaz Ali, namely the four sons of Irshad Ali Mukarram Ali, Zafar Ali, Kanwar Ali and Anwar Ali had purchased the lands from Mumtaz Ali as fax back as 1957. This also does not appear to have been noticed by the authorities concerned. However, the dominant question to be decided by the authorities would be whether Mumtaz Ali continued to be in cultivating possession of the lands in dispute held fey him to 1961.

2. Another argument addressed to us was regarding the grove. This, however, is concluded by findings of fact and does mot call for any interference by this Court.

3. In these circumstances, therefore, we allow this appeal and remit the case to the prescribed authority for considering the question as to whether or not Mumtaz Ali was in cultivating possession of the land in 1971 (sic) (1961) when the Ceiling Act came into force after examining the contentions raised by the appellants before him. The prescribed authority will also determine whether the other grand-sons of Mumtaz Ali were in separate cultivating possession of the lands claimed by them in 1971. The parties are directed to appear before the prescribed authority on the 25th March, 1981.


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