Rajendra Singh and Another vs Addl. Commissioner, Jhansi Division and Others

S.U. Khan, J.—This writ petition arises out of proceedings under U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Ceiling Act). Respondent No. 4 Rameshwar Singh was tenure holder of the agricultural land in dispute. Ceiling proceedings were initiated against him in the form of Case No. 260 which was decided on 2.3.1983 by prescribed authority Kalpi district Jalaun. Through the said order 7.88 acres of irrigated land of Respondent No. 4 was declared as surplus. Against the said order Appeal No. 99/101/10 of 1985-86 was filed by the Respondent No. 4, which was dismissed on 12.2.1988 by Respondent No. 1.

During pendency of appeal, Petitioners filed impleadment application stating therein that one of the plots, i.e., plot No. 510 area one bigha, 16 biswa was wrongly treated to be held by Respondent No. 4 and it was actually the Petitioners who were tenure holder of the said plot as they had matured their right through adverse possession against Respondent No. 4 and they had also filed declaration suit u/s 229B of U.P.Z.A.L.R. Act which was pending at that time before S.D.O. It was further stated that Petitioners were recorded in column No. 9 in the revenue records against the plot in dispute. Affidavit in support of impleadment application was filed on 8.11.1985. It may be mentioned that Respondent No. 4 had indicated his choice regarding surplus land to be taken by the State and plot No. 510 was included in the said choice.

The appellate court through its judgment dated 12.2.1988 (dismissing the appeal) also rejected the impleadment application of Petitioner hence this writ petition.

Appellate court held that it was proved on the basis of record that possession of surplus land as per choice of tenure holder Respondent No. 4 had been taken in 1983 hence claim of the Petitioner was not maintainable. Appellate court rightly held that if Petitioners had any claim then they should have raised the same in 1983 when possession of surplus land was being taken. In para 3 of the affidavit filed in support of impleadment application it was stated that Petitioners filed suit for declaration against Rameshwar Respondent No. 4 before S.D.O. which was decreed on 26.8.1985. Copy of the said order has been filed as Annexure-R.A. 1 to the rejoinder-affidavit.

From perusal of the said judgment, it is clear that the Respondent No. 4 who was-Defendant in the said suit filed written statement but thereafter absented himself hence case was decided ex parte.

Explanations 1 and 2 to Section 5 of the Ceiling Act are quoted below:

Explanation (i). In determining the ceiling area applicable to tenure holder of land held by him in his own right whether in his own name or ostensibly in the name of another person shall be taken into account.

Explanation (ii). If on or before 24.1.1971 any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in condition to or to the exclusion of former or on the basis of deed of transfer or licence or on the basis of a decree it shall be presumed unless the contrary is proved to the satisfaction of the prescribed authority that the first mentioned person continues to hold the land and that itself was held by him ostensibly in the name of the second mentioned person.

In view of the above Explanation (ii), inspite of decree of 1985 land will have to be treated to be of Respondent No. 4. In this regard reference may be made to Vinod Kumar Vs. The Commissioner and Others, and; Devkinandan Agarwal Vs. State of U.P. and Another, . Moreover, suit was decreed ex parte. It was filed and decreed after possession had been taken by the State.

In my opinion, therefore Petitioner cannot claim any right in the land in dispute and it was validly given in the choice by Respondent No. 4 to be taken as surplus land.

At the time of arguments no one appeared for Respondent No. 4 hence judgment was reserved after hearing learned Counsel for the Petitioner and arguments of the learned standing counsel for the State representing Respondents 1, 2 and 3. Few minutes thereafter learned Counsel for the Respondent No. 4 appeared and stated that Respondent No. 4 had died in May 2000 and no substitution application had been filed. However, as I am dismissing the writ petition on merit hence I need not take notice of that.

Accordingly there is no merit in the writ petition hence it is dismissed.