PETITIONER: MOHD. SAYEED Vs. RESPONDENT: STATE OF U. P. AND OTHERS DATE OF JUDGMENT12/10/1993 BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) ANAND, A.S. (J) CITATION: 1994 SCC Supl. (2) 561 ACT: HEADNOTE: JUDGMENT:
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
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be decided by the ceiling authorities. The appeal
consequently fails and is dismissed. But there shall be no
order as to costs.