Mahendra Singh and Ors. vs Addl. Commissioner Jhansi Mandal Jhansi & Ors.

Shitla Pd. Srivastava, J.—This petition under Article 226 of the Constitution of India has been filed by the petitioner challenging the judgment and order dated 3181998, passed by the respondent No. 1 in Ceiling Appeal under Section 13 of U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as Act only).

The brief facts for the purpose of present writ petition as mentioned is apparent from record are that the Smt. Siya Rani, widow of Mangal Singh was the original tenureholder. She was served with a notice under Section 10(2) of the Act. The filed objection against the notice. The Prescribed Authority declared 32.20 acres of land in irrigated terms surplus land by his order dated 20th June, 1976. Aggrieved by the aforesaid order appeal No. 626 of 1976 was filed by Smt. Siya Rani and others. This appeal was allowed in part by the appellate Court on 14th January, 1978. The appellate Court held that plot Nos. 524 and 534 are not irrigated but they are unirrigated. The appeal was dismissed. The judgment of the Prescribed Authority was modified. Writ petition No. 1091 of 1973 was filed by the tenure holder, Smt. Siya Rani, which was allowed on 14th November, 1978. The High Court set aside the judgment of the appellate Court and directing the ceiling authorities to redetermine the surplus area and remanded the case to the ceiling authorities. A special leave petition was filed against the order of the High Court in the Supreme Court. The Supreme Court dismissed the special leave petition, meaning thereby that the order of the remand passed by the High Court with a direction to the appellate Court to decide the controversy in the light of the law laid down in Jasvant Singh v. State of U.P., 1978, AWC page 579, the appellate Court heard the matter again and remanded the case to the Prescribed Authority, vide order dated 31st August, 1988. This order has been challenged by the petitioner in this writ petition.

Heard Sri Murlidhar, Senior Advocate of the petitioner and Sri Sanjay Goswami, learned Standing Counsel. Shri Murlidhar learned Counsel for the petitioner has urged that full facts have not been given in the judgment of the Deputy Director of Consolidation. The correct facts are that originally Sri Mangal Singh was the tenure holder, who has executed a giftdeed on 8th April, 1969 and transferred plot No. 841 measuring 19.14 acres to his minor son Virendra Singh and by another gift deed of the same date the transferred an area of 19.73 acres of plot No. 807 and plot No. 842 in favour of other minor son Mahendra Singh. The two sons named above on the date of gift deed were 4 years two months and 10 months of age respectively. It is stated that the name of minor sons were mutated in the revenue papers and the remaining area held by Mangal Singh approximately 52.77 acres remained recorded in the name of Mangal Singh, who died on 19th December, 1971. He had executed unregistered will on 24th January, 1971 in favour of his wife and also got two registered adoption deeds executed on 22nd October, 1971, asserting that his two minor sons had been given in adoption to Meather and Ghasite. It is submitted that Smt. Siya Rani was the stepmother, that the name of Smt. Siya Rani was mutated after the death of Mangal Singh on the basis of the will including the area covered by two gift deeds executed in favour of the minor sons. That when the matter was remanded by the High Court to the appellate Court, the minors became the majors. The village came under Consolidation of Holding Scheme in 1975 and the petitioners attained the age of majority in 198586. They filed objection before the Consolidation Officer for mutation of their names in place of Mangal Singh on 25th August, 1986, the Consolidation Officer allowed the objection directed that the name of Smt. Siya Rani be removed from the holding of Mangal Singh and the petitioners'' name was ordered to be recorded. An appeal was filed before the Settlement Officer Consolidation by Smt. Siya Rani against this judgment of the Consolidation Officer.

That in appeal which was pending before the appellate authority after the order of remand by the High Court application under Order XXXII, Rule 12, CPC was filed by the petitioner on 9th October, 1987. The appellate authority rejected the application under Order XXXII, Rule 12, CPC on the ground that the scope of the appeal was very limited as per directions issued by the High Court for remanding the case. It further held that the application does not bear the signatures of the petitioners or their Advocate and the guardian had been contesting the ceiling appeal before they had attained the age of majority.

The learned Counsel for the petitioner has urged that the property transferred to the minor sons of gift deed should not have been clubbed with the holding of Smt. Siya Rani and secondly that the petitioners being the stepsons were not the members of the family of Smt. Siya Rani, who was their stepmother, therefore, also the land of the petitioners could not have been clubbed with the holding of Smt. Siya Rani, inherited from her husband on the basis of the will. That the appellate Court has illegally rejected the application as the minor has a right to elect when he becomes major to discharge his guardian and contest himself. His further contention is that when in the consolidation proceedings an order was passed mutating the name of the petitioners as tenure holders in place of Mangal Singh then that land should not have been taken into consideration, while determining the ceiling area of Smt. Siya Rani and further that as the petitioners were not the real sons of Smt. Siya Rani, rather they were stepsons, therefore, their land should not have been clubbed with Smt. Siya Rani. His contention is that the judgment of the consolidation authorities will operate as resjudicata against Smt. Siya Ram.

Learned Counsel for the petitioners has placed reliance on the decision Akshaybar & Ors. v. Board of Revenue 1987 RD 366, on the point that the minor defendant may elect to contest the case after becoming major. He has also placed reliance on a case Riazuddin v. Dy. Director of Consolidation, 1986, ALJ 685, wherein it has been held that it is the discretion of the minor to appear before the Court after becoming major to at one the proceedings or to repudiate the same on the point of stepson. Learned Counsel for the petitioners has placed reliance on the case, Smt. Gurbir Kaur v. State of UP, 1980, A. W.C. 372, wherein it has been held that under Section 5(3) of the Act the word son as occurring in section 3(7) would not include a stepson. Learned Counsel for the petitioner has further urged that the judgment of the Consolidation Officer dated 25th August, 1986 will be binding on Smt. Siya Rani as .this judgment supersedes the j udgment treating Smt. Siya Rani as tenureholder. He placed reliance on Section 38B of the Act and urged that when the application under Order XXXII, Rule 12, CPC was filed by the petitioners it was prayed therein that the order of the appellate Court be set aside and the petitioners may be given chance to adduce evidence and opportunity of hearing, then the earlier decision that Smt. Siya Rani was treated to be the tenure holder, will not bar as resjudicata against the petitioner.

Mr. Sanjay Goswami, learned Counsel for the State has urged that Section 38B of the Act was introduced to achieve the object of various amendment introduced in the Principal Act and to give effect to them. His contention is that if by amendment made in the Principal Act certain findings or decisions had become contrary to law. Those findings or decisions could be reopened and the principle of res judicata would not bar the retrial of the same issue in accordance with the Principle Act as amended. His contention is that the decision taken by the Consolidation Officer holding the petitioners to be the tenureholders of land acquired through gift deed was to be ignored as this judgment was after the relevant date i.e. 861973. His further submission was that as the High Court has considered the point in controversy and remanded the case only on the point of irrigated or nonirrigated land, the appellate Court was only called upon to decide the appeal keeping in view the case of Jaswant Singh (supra). Therefore, the application filed by the petitioner under Order XXXII, Rule 12, CPC was rightly rejected. His further contention was that admittedly the petitioners were sons of Mangal Singh and Smt. Siya.Rani was also claiming through the will executed by Mangal Singh and the petitioners were also claiming through the gift deed executed by Mangal Singh, therefore, they maybe the stepsons of Smt. Siya Rani, but they were the sons of Mangal Singh, therefore, while considering the gift and will of Mangal Singh it will not have any effect if they were not the real sons of Smt. Siya Rani. His further contention is that the application under Order XXXII, Rule 12, CPC was rightly rejected as there was no signature of the learned Counsel for the petitioner or the petitioners themselves.

After hearing the learned Counsel for the parties and going through the judgments of the appellate authority, as well as of the High Court passed in the writ petition and other documents on record, I am of the view that the judgment of the appellate Court cannot stand in the eyes of law.'' The reasons are as under:

It is true that the High Court remanded the case to the appellate Court to decide the controversy keeping in view the judgment of Jasvant Singh (supra) and the appellate Court was to decide the controversy in accordance with the directions and observations made by the High Court, but when the petitioners were the parties before the appellate Court they had every right to defend themselves in accordance with law. Section 38 of the Act deals with the powers of the appellate Court and the procedure to be followed by it. The relevant Section is quoted herein below.

Powers of the appellate Court and the procedure to be followed by it. (1) In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a Civil Court and follow the procedure for the hearing and disposal of appeals laid down in the Code of Civil Procedure 1908.

(2) Where under the provisions of this Act, in appeal has to be heard by the District Judges, he may either hear the appeals himself or transfer it for hearing to (any Additional District Judge, Civil Judge or Additional Civil Judge) subordinate to him.

Section 57 of the Act deals with the power of Officers and authorities hearing and disposal of the objections and procedures to be followed. The relevant Section is quoted herein below:

37, Powers of officers and authorities in hearing and disposal of objections and the procedure to be followed. Any officer or authority holding an enquiry or hearing an objection under this Act, shall, in so far as it may be applicable, have all the powers and privileges of a Civil Court, and follow the procedure laid down in the Code of Civil Procedure, 1908, for the trial and disposal of suits relating to immovable property."

From perusal of the aforesaid two provisions it is clear that the CPC is made applicable to the proceedings under the Act, while disposing of the objections and as the appeal is the continuation of the original proceedings, the provisions of the CPC shall also be applicable in appeals. Order XXXII of the Civil Procedure Code deals with the provisions meant for suit by or against minors and persons of unsound mind. Order XXXII, Rule 1 is clear on the point that every suit by minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor and Order XXXII, Rule 3 lays down that if a minor is a defendant in any suit, the Court shall appoint a proper person to be a guardian in the suit. Rule 12 of the Order XXXII gives right to a minor after attaining the majority to elect whether he will proceed with the suit or not and when he elects to proceed with the suit he will apply for an order discharging the honest friend and for leave to proceed in his own name, therefore, it is clear that the minor could apply before the Court for discharge of his guardian. The High Court if remanded the case for a fresh decision, the minor''s right to apply under Order XXXII, Rule 12 of the CPC was not taken away. As the procedure prescribed under the CPC was to be followed by the Appellate Authority, the application under Order XXXII, Rule. 12 of the CPC could not have been rejected on the ground mat the High Court has confined the controversy, so far as the regards to determine the ceiling area keeping in view the case of Jasvant Singh is concerned, if during the pendency of the appeal somebody dies, than the substitution application filed by the appellant before any authority to the appeal cannot be rejected on the ground that the High Court has remanded the case only for limitation purpose, I am of the view that the High Court direction cannot be ignored by the appellate Court, nevertheless the procedure laid down in the CPC for enquiry and disposal of the objection or appeal cannot be ignored as it will prejudice to the interest of the minor, who are party to the appeal.

On the second point i.e. with regard to the relevancy of the judgment of the Consolidation Authorities and applicability of Section 38B of the Act, it is sufficient to say that the appellate Court has not considered this point in accordance with law. The third point with regard to the clubbing of the land of a stepson and the right of the petitioners as members of the family of Mangal Singh has also been properly considered by the appellate Court and the finding with regard to ingredients of Section 4A of the Act as well as interpretation of revenue entries by the appellate Court, I am of the view that as the minor''s right to elect has not been considered by the appellate Court, it is a fit case in which the matter should be sent back to the appellate Court to decide it in accordance with the judgment delivered by this Court on 14th November, 1978 in Writ Petition No. 1091 of 1978, but after following the proper procedure as laid down in the CPC specially under Order XXXII, Rule 12, CPC. The findings with regard to the adoption of the petitioners are the findings of fact, which cannot be looked into under Article 226 of the Constitution of India, therefore, that finding is not touched, but on the other aspect of the case, the finding of the appellate Court dated 31st August, 1988 is set aside.

The writ petition is allowed in part. The matter is being sent back to the appellate Court to decide the appeal keeping in view the observations made in the body of this j udgment and direction issued by this Court on 14th November, 1978.

The parties shall bear their own costs.