JUDGMENT S. P. Srivastava, J.
1. Feeling aggrieved by the order passed by the appellate authority disposing of the four appeals filed by the petitioner under Section 33 of the U. P. Imposition of Celling on Land Holdings Act directed against the orders passed by the prescribed authority in Case No. 45 being orders dated 19.7.93. 17.2.95, 28.2.95, 24.3.95 and 31.3.95 as welt as the orders passed by the prescribed authority in Case No. 48/18 being orders dated 30.8.93. 7.3.95. 20.3.95 and 29.4.95, he has approached this Court seeking redress praying for the quashing of the aforesaid orders declaring an area of 69.99 acres of agricultural holdings of Bisheshwar Pratap Sahi to be surplus.
2. I have heard Sri R. N. Singh, learned senior advocate representing the petitioner and the learned standing counsel representing the respondents.
3. The parties have exchanged their affidavits and their learned counsel have requested that taking into consideration the facts and circumstances of this case, the writ petition may be disposed of at this stage.
4. The relevant facts as they emerge from the materials placed on record lie in a narrow compass. In the proceedings under Section 10 of the U. P, imposition of Ceiling on Land Holdings Act, notice was Issued to the recorded tenureholder Sri Bisheshwar Pratap Sahi in the year 1962. The prescribed authority had registered Case No. 45 on the aforesaid notice. Sri Bisheshwar Pratap Sahi died on 9.4.89. The petitioner is the son of the original tenureholder Sri Bisheshwar Pratap Sahi. Another case being Case No. 48/18 was also registered against Sri Bisheshwar Pratap Sahi on the basis of another notice served on 12.7.75.
5. The petitioner has asserted that Sri Bisheshwar Pratap Sahi had died on 9.4.89 and inspite of his death without bringing on record his heirs and legal representatives and without any notice to him the prescribed authority determined the extent of the surplus land treating Bisheshwar Pratap Sahi to be the exclusive tenureholder of the entire holdings in question without affording any opportunity to the petitioner of being heard. In the circumstances the petitioner had filed an application on 19.7.93 but no orders were passed on the said application. The Appeal No. 102 filed by the petitioner was directed against the order passed by the prescribed authority dated 19.7.93.
6. The grievance of the petitioner was that the various transfers of the land in dispute effected by Bisheshwar Pratap Sahi during the period elapsing between 1951 to 1961 were erroneously ignored. His further grievance was that the land in dispute constituted grove, Sir and Khudkasht prior to the date of vesting and the succession to the interest in such holdings was governed by the personal law. It was claimed that since the petitioner had been born prior to the date of vesting, he had half share therein and, therefore, he was a co-tenure-holder to the extent of half share to the holdings in question in his own independent right. The Appeal No. 103 filed by the petitioner was directed against the order of the prescribed authority dated 31.3.95 disposing of the Case No. 48. The petitioner's case, so far as this appeal was concerned, was also to the effect that he had not been served with, a notice and the holdings in dispute which belonged to him in his independent right were erroneously taken as belonging to Bisheshwar Pratap Sahi with the result that the determination of the extent of the surplus land treating the same to be the exclusive holding of Bisheshwar Pratap Sahi was rendered vitiated in law. The petitioner claimed that the land in dispute was ancestral Sir and Khudkasht and he had half share therein. The Appeal No. 34 and Appeal No. 136 filed by the petitioner were directed against the interlocutory orders passed by the prescribed authority. The appellate authority vide the impugned order dismissed the appeals directed against the interlocutory orders as not maintainable and the other appeals were dismissed upholding the order passed by the prescribed authority.
7. Learned counsel for the petitioner has strenuously urged that the entire agricultural holdings which were taken into account by the prescribed authority while proceeding to determine the extent of the surplus land held by Sri Bisheshwar Pratap Sahi, the record tenureholder formed the ancestral Sir and Khudkasht and grove wherein the petitioner had half share in an own independent right as the succession to such agricultural holdings was governed by the personal law, where under the petitioner became a co-sharer by birth in the family. The prescribed authority while considering this aspect of the matter had rejected the claim of the petitioner on the assumption that he had not been able to specify the exact area of the Sir and Khudkasht and had further not filed the relevant Khatauni which could indicate that the land in dispute constituted Sir and Khudkasht before the date of vesting. So far as the transactions of sale effected by Sri Bisheshwar Pratap Sahi during the period 1959 to 1961 were concerned, the prescribed authority, it is urged, had placed the burden on wrong shoulders insisting upon production of the sale deeds in the absence whereof he had declined to grant the relief.
8. The contention is that such transactions of sale were not only much in excess of the share of the vendor but further the area covered thereunder which could not be taken to be as exclusively belonging to the vendor and could not be taken into account while determining the extent of the surplus area of the recorded tenureholder.
9. Learned counsel for the petitioner has further urged that the petitioner has been seriously prejudiced as he has not been afforded any opportunity to submit his objections against the notice-under Section 10 which had been issued to Bisheshwar Pratap Sahi as no copy of it had been served on him and even after he was brought on record as the heir of the deceased tenureholder he was not given any opportunity to submit his claim in regard to the land in dispute and establish that he was a cotenureholder in respect of the holdings which were ancestral Sir, Khudkasht and grove prior to the date of vesting.
10. Learned standing counsel representing the respondents has, however, tried to support the impugned order passed by the appellate authority.
11. It may be noticed that Khagendra Pratap Sahi the father's brother of the petitioner had filed Civil Misc. Writ Petition No. 27132 of 1996, Khagendra Pratap Sahi v. Additional Commissioner, Gorakhpur Division and others, wherein the petitioner had also been impleaded as respondent No. 6. The aforesaid writ petition had been finally disposed of vide the judgment and order dated 22.8.96, a true copy of which has been filed as Annexure-16 to the writ petition. In the aforesaid judgment, it has been indicated that the notice meant for Bisheshwar Pratap Sahi issued in the proceedings under Section 10(1) of the U. P. Imposition of Ceiling on Land Holdings Act could not be served on him. In the aforesaid decision, this Court had directed the prescribed authority to supply to the petitioner in that case the copies of the notice regarding the statement prepared under Section 10 of the Act meant for them but could not be served, ensuring its service. The petitioner was also directed to submit his statement as contemplated under Section 9 of the U. P. Imposition of Ceiling on Land Holdings Act as well as the objections contemplated under Section 10 of the Act before the prescribed authority in respect of the holding in question of which he claimed to be the sole tenure-holder.
12. From the facts and circumstances brought on record, it appears that the petitioner was seriously prejudiced in his defence and had not been given reasonable opportunity to establish his case. This Court in its decision in the case of Chetanya Raj Singh v. IInd Additional Civil Judge, Aligarh and others, 1977 AWC 289, after taking into consideration the implications arising under the decision of the Apex Court in the case of Kailash Rai v. Jai Jai Ram, AIR 1973 SC 893, as well as the decision of the Apex Court in the case of Budhan Singh v. Nabi Bux, AIR 1970 SC 1880, had clarified that Section 18 of the U. P. Zamindari Abolition and Land Reforms Act envisaged that Sir and Khudkasht land either in possession of the tenureholder or held or deemed to be held by the Intermediary will become his bhumidhari. It was emphasised that In the circumstances, it was not necessary that the intermediary had to be in actual possession as Khudkasht holder. It was indicated that in an ancestral Sir and Khudkasht, a person could be entitled to an interest by virtue of his birth and the devolution in respect of Sir and Khudkasht land would be governed by Hindu Law. A Division Bench of this Court in its decision in the case of Ram Chander and others v. Commissioner and Director Consolidation, Meerut, 1970 RD 283, had clarified that in a case of Khudkasht land belonging to the Joint Hindu Family and co-parcenery, the same would be deemed to have been settled on the co-sharers and coparceners under Section 18 of the U, P. Zamindari Abolition and Land Reforms Act and the mere circumstance that the name of such a co-sharer or co-parcener was not recorded in the village records would not deprive him of the right he possessed in such land. It was noticed that the normal practice in a case of co-parcenery was to record the name of the father alone even though the property was jointly owned by him and his sons.
13. In the aforesaid view of the matter, it is apparent that the accrual of interest in the holdings falling in the category of Sir or Khudkasht or grove, etc., the succession in respect whereof was governed by the personal law as provided under the United Provinces Tenancy Act, 1939 had to be taken into account while determining the extent of the interest of a tenureholder in any holding after the enforcement of the U. P. Zamindari Abolition and Land Reforms Act as the provisions contained therein did not affect the rights of co-sharer in such holdings to which he was entitled in accordance with the personal law applicable before the enforcement of U. P. Zamindari Abolition and Land Reforms Act. This position in law had to be taken into account while determining the extent of interest of a bhumidhar record as such irrespective of the fact that the entry in his name ex-facie showed him to be the sole Bhumidhar as the omission to record the name of any other co-sharer who succeeded in establishing that he had also a right in the Sir. Khudkasht or grove, etc., which had accrued in his favour prior to the date of vesting in accordance with the principles of personal law applicable to him could not be taken to have been wiped out or extinguished merely because of the omission to record his name indicating him to be a co-sharer bhumidhar. This, however, has to be established by cogent evidence, as ordinarily a presumption of correctness attaches to an entry in the Khatauni which Is the record of right. This presumption is, however, rebuttable. From the facts and circumstances brought on record what I find that reasonable opportunity was not afforded to the petitioner to rebut the presumption.
14. So far as the sale deeds are concerned, the claim of the petitioner was that even these transactions which had been effected prior to the relevant date as contemplated under the U. P. Imposition of Celling on Land Holdings Act for the purpose of determining the extent of the surplus area were liable to be acceptable as genuine, unless the State succeeded by cogent evidence in proving and establishing that these transactions were in fact sham transactions and had never been acted upon. The burden in this connection had been wrongly placed seriously prejudicing the petitioner.
15. In the aforesaid view of the matter, sufficient ground has been made out for an interference by this Court.
16. This writ petition accordingly, succeeds in part.
17. The impugned order passed by the appellate authority, respondent No. 1 dated 7.11.96, the true copy of which has been filed as Annexure-15 to the writ petition is quashed to the extent it relates to the Appeals No. 103/48/70/P/95 and 102/53/323/70/D/95 with a direction to the respondent No. 1 to restore the aforesaid appeals to their original numbers and decide the same afresh taking into consideration the observations made herein above.
18. There shall, however, be no order as to costs.