Mohd. Sayeed
Vs. State of U. P. & Ors [1993] INSC 425 (12
October 1993)
SAHAI,
R.M. (J) SAHAI, R.M. (J) ANAND, A.S. (J) CITATION: 1994 SCC Supl. (2) 561
ACT:
HEADNOTE:
ORDER
1. The
short question that arises for consideration in this appeal is if the High
Court committed any error of law in including the land in the holding of the
appellant in respect of which a Will had been executed by his father in 1956 in
favour of his grand-daughter-in-law.
2.
When notices under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings
Act (in brief 'the Act') as it stood before its amendment in 1973, were issued,
the tenure holder filed objections, one of them being that the land bequeathed
in favour of Smt Kalmunnisa, should not be included in his holding. It was
accepted by the appellate authority mainly 'because a will was not transfer. In
1973, however, the law was amended retrospectively and the ceiling area of a
tenure-holder was reduced. Section 38-B added by way of amendment further
empowered the prescribed authority to redetermine the ceiling area of
tenure-holders. In exercise of this power the prescribed authority issued fresh
notices and the appellant claimed that the land covered by the Will should be
excluded from his holding as it was bequeathed in favour of Kalmunnisa by his
father. This plea was not accepted by any of the authorities. The High Court
found that even though it was claimed that the Will was executed in 1956 but it
was not mutated in the revenue records till 1971. It further found that the
land continued to be in possession of the appellant. For this reliance was
placed on the oral evidence led on behalf of the State. Due to these facts the
High Court concurred with the finding of fact recorded by the prescribed
authority that the Will was only for the purpose of defeating the object of the
Act.
3. The
learned counsel for the appellant urged that since mutation was effected in
revenue records on January
4, 1971 whereas the
law was amended from January
24, 1971 the High
Court was not justified in recording the finding that the Will was executed in
order to defeat the object of the Act.
Learned
counsel urged that in any case since Will did not amount to transfer it was not
covered by sub-section (6) of Section 5 of the Act. We do not consider it
necessary to determine if a will executed by a tenure-holder is a transfer
within meaning of sub-section (6) of Section 5 of the Act as we are of opinion
that the finding recorded by the High Court that the Will relied on behalf of
the appellant was only to defeat the provisions of the Act, appears to be well
founded. The finding of the ceiling authorities affirmed of (sic) the High
Court that it was the appellant who was the real tenure-holder of the land in
dispute is based on appreciation of oral and documentary evidence and it has
not been shown that the finding suffers from any error of law. The submission,
therefore, advanced on behalf of the appellant cannot be accepted.
4. It
is also urged that the High Court committed an error of law in remanding the
case for determining if certain area of the land was un-irrigated as the
question whether it was in command area should have been decided by the High
Court itself. We do not find any merit in this submission as well, as the
question whether it was a single-crop land or a double-crop land and whether
irrigation facilities were available is a question of fact which could
effectively 563 be decided by the ceiling authorities. The appeal consequently
fails and is dismissed. But there shall be no order as to costs.
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