Sher Bahadur Singh v. Addl. Commissioner Admn. Faizabad and others on 28 Oct 2025 — Writ Petition No. 770 of 1975

Judgment

2. Supplementary affidavit filed today in Court, is taken on record. Heard Sri U.S. Sahai, learned counsel for the petitioner and Sri S.P. Maurya, learned Standing Counsel for the State-respondent.

3. The present writ petition has been filed by the petitioner challenging the orders dated 10.03.1998 passed by the Additional Commissioner, Faizabad Division and 24.09.1993 passed by the prescribed authority (Ceiling), Colonelganj, Gonda/Additional Collector, Gonda, whereby the objections of the petitioner were dismissed.

4. The facts in brief, giving rise to the present petition, are that a notice under Section 10(2) read with Sections 3-Ka, 3-Kha and 3-Ga of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 was issued on 22.10.1974 to the father of the petitioner, Sarvadin Singh, in respect of 23.090 acres of irrigated land alleged to be surplus.

5. The father of the petitioner filed an objection dated 04.01.1975, contending inter alia that: 2 WRIC No. - 3000129 of 1998 (i) Except Plot No. 216, the entire land of Village Bhabhuwa was grove land; (ii) Plots Nos. 1144, 1154, 1155, 1156, 1157 and 1158 of Alipur Gokula were grove lands and in possession of Rajendra Singh as bhumidhar; (iii) Plot Nos.1105, 1108, 1109, 1110, 1122, 1124 and 1123 of Alipur Gokula are grove and was grove on 24.1.1971 also; (iv) Plot No. 1122 (0.70 acre) had been found reduced to 0.64 acre in consolidation proceedings; (v) Land recorded as graveyard had been illegally included in the holding of Sarvadin Singh and should be released under Section 6; (vi) Consequently, no surplus land remained with Sarvadin Singh.

6. The State filed its counter to the objection, and six specific issues were framed by the prescribed authority to determine, inter alia: (i) Whether the grove land of Village Bhabhuwa had been wrongly shown as unirrigated ?; (ii) Whether plot Nos. 238/0-42 and 236/1-19 of village Dudee were brick-kiln and now vacant ?; (iii) Whether correct area of plot No.1122/0.70 is 0.64 acres ?; (iv) Whether in paragraph 2 of objection, land shown belong to Rajendra Singh ?; (v) Whether land shown in paragraph 5 of objection i.e. plot Nos.1105, 1108, 1109, 1110, 1122, 1124 and 1123 are grove ?; (vi) Whether abadi and graveyard land had been incorrectly included over which no cultivation is done ?

7. On the application of the tenure-holder, an Advocate Commissioner was appointed on 10.02.1974 to inspect the disputed lands. The Commissioner submitted his report, and statements of Sarvadin Singh and witnesses including Kanhaiya Lal, Halka Lekhpal, and Rajendra Prasad were recorded in support thereof. 3 WRIC No. - 3000129 of 1998

8. Subsequently, on 10.03.1975, the father of the petitioner filed Writ Petition No.770 of 1975, challenging the proceedings under Section 10(2). The said proceedings were stayed; however, upon the coming into force of Amendment Act No. 2 of 1975 (w.e.f. 08.06.1973) and Amendment Act No.20 of 1976 (w.e.f. 17.01.1975), all such writ petitions were dismissed. During this interregnum, Sarvadin Singh is stated to have expired between 1976–1985.

9. Thereafter, on 25.06.1985, a fresh notice under Section 10(2) was issued to the petitioner upon the report of the Tehsildar regarding the death of Sarvadin Singh. On 02.05.1986, the petitioner and other holders of the disputed land filed objections before the prescribed authority.

10. The petitioner's objection was based primarily on a Will dated

11.09.1979, executed by Sarvadin Singh in favour of his daughters Smt. Kusum Singh, Smt. Pushpa Singh and Smt. Kumud Singh, claiming that these legatees were in possession of their respective portions. He further stated that certain properties mentioned in the objection (notably those in Para 5) were owned and possessed by Gajendra Singh, son of Prithvi Pal Singh, by virtue of family settlement.

11. Separate objections were also filed by Kusum Singh, Pushpa Singh, and Kumud Singh asserting their independent possession under the said Will; by Gajendra Singh regarding land of Alipur Gokula; and by Baldeo Singh regarding another plot (19/5-34) on the basis of a Will dated 21.04.1986 executed by Ishwar Dei.

12. Another objection was filed by Shailendra Singh and Mahendra Singh, grandsons of Sarvadin Singh, who claimed that the family land had been orally partitioned on 15.06.1958 into four equal shares among Sarvadin Singh, Sher Bahadur Singh, Shailendra Singh, and Mahendra Singh.

13. The prescribed authority, by order dated 24.09.1993, dismissed all the objections of the petitioner and others, observing that the objections were not sustainable and holding that the Advocate Commissioner's report and supporting evidence could not be relied upon. It is the specific 4 WRIC No. - 3000129 of 1998 grievance of the petitioner that this order was passed without considering the evidence on record and without assigning cogent reasons for discarding the Commissioner's findings.

14. Against the said order, the petitioner preferred an appeal before the Additional Commissioner, Faizabad Division, which came to be dismissed by order dated 10.03.1998.

15. The petitioner contends that both the authorities below have failed to apply their judicial mind to the material on record, have not considered the statutory provisions governing the treatment of grove, abadi, and shamshaan lands under the Ceiling Act, and have arbitrarily determined the surplus area.

16. Submission of learned counsel for the petitioner is that Section 4- A was not complied with while passing the order by the prescribed authority. The appellate court has also not considered the grounds taken in the memo of appeal and has proceeded to pass the impugned order. Next submission is that it is well settled that onus lies on the State to establish that the land which is mentioned in the notice is irrigated land when a challenge is made by the tenure-holder while filing objection. State Government is a party to every prodeedings under Section 10 (2) of the 'Act'. In such a case, there is an adversary proceedings before the Prescribed Authority between the tenure-holder and the Government, therefore, the khasra of 1378-1380 is to be seen by the prescribed authority as well as he has to make spot inspection. Due to non-perusal of aforesaid khasras and not appointing the Inspecting Officer or to make himself the inspection, the order renders per-se illegal.

17. Learned counsel for the petitioner placed reliance upon the judgment in the case of (i) Mithlesh Kumari Vs. State of U.P. and others [2024 (165) RD 117] and further in the case of (ii) Rakesh Kumar and others Vs. State of U.P. and others (Writ-C No.47592 of 2008) [2018 Supp. ADJ 512].

18. The petitioner, therefore, assails the impugned orders dated

24.09.1993 and 10.03.1998 as being vitiated by non-consideration of 5 WRIC No. - 3000129 of 1998 evidence, violation of principles of natural justice. He prays for quashing of the said orders.

19. On the other hand, learned Standing Counsel submits that onus lies on the tenure holder to establish that the land is irrigated or unirrigated by producing the khasra of 1378-1380. He submits that due to non making of spot inspection, the order does not vitiate in law. Next submission if that the order passed by the prescribed authority and the appellate court do not suffer from any infirmity or illegality and are just and valid orders. He next submits that the ground of non compliance of Section 4-A has not been taken before the appellate court as well as before this Court in the present writ petition.

20. The controversy in question is clearly required to be adjudicated in terms of Section 4-A of the Act which is as follows:- "4A. Determination of irrigated land. - The prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1379 Fasli and 1380 Fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary and thereupon if the prescribed authority is of opinion :- firstly, (a) that, irrigation facility was available for any land in respect of any crop in any one of the aforesaid years; by- (i) any canal included in Schedule NO. 1 of irrigation rates notified in Notification No. 1579-W/ XXIII-62-W-1946, dated March 31, 1953, as amended from time to time; or (ii) any lift irrigation canal; or (iii) any State tube-well or a private irrigation work; and (b) that at least two crops were grown in such land in any one of the aforesaid years; or secondly, that irrigation facility became available to any land by a State Irrigation Work coming into operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or 6 WRIC No. - 3000129 of 1998 thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal or a State tube-well or a private irrigation work; and (b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purposes of this Act. Explanation I. - For the purposes of this section the expression' effective command area' means an area, the farthest field whereof in any direction was irrigated- (a) in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli; or (b) in any agricultural year referred to in the clause 'secondly'. Explanation II. - The ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation III. - Where sugarcane crop was grown on any land in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli, it shall be deemed that two crops were grown on it any of these years, and that the land is capable of growing two crops in an agricultural year."

21. It is thus evident that for the purposes of determination of irrigated land, it is incumbent upon the Prescribed Authority to take note of the khasra pertaining to Fasli years 1378, 1379 and 1380. It is open to the authority to conduct local inspection and also to take into account any other relevant revenue documents.

22. In the appellate order dated 10.03.1998, it has been specifically recorded that as per report of Lekhpal, khasras pertaining to the fasli years 1378 to 1380 were unavailable. The fact has been reiterated in subsequent portion of the order as well. It does not appear from a perusal of either of the impugned orders that any local inspection was conducted or that any other revenue documents were taken into account by the authorities concerned for determination of irrigated areas. It has also not been taken into account that brick kiln placed was also not observed as usar because of the fact that there was no facility available for irrigation and was kept open and was not used for the agricultural purposes. 7 WRIC No. - 3000129 of 1998

23. Relevant paragraphs-9, 10 and 15 of the judgment relied upon by the petitioner's counsel in the case of Mithlesh Kumari (Supra) are being quoted below :- "9. The controversy in question is clearly required to be adjudicated in terms of Section 4A of the Act which is as follows:- "4A. Determination of irrigated land. - The prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1379 Fasli and 1380 Fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary and thereupon if the prescribed authority is of opinion :- firstly, (a) that, irrigation facility was available for any land in respect of any crop in any one of the aforesaid years; by- (i) any canal included in Schedule NO. 1 of irrigation rates notified in Notification No. 1579-W/ XXIII-62-W-1946, dated March 31, 1953, as amended from time to time; or (ii) any lift irrigation canal; or (iii) any State tube-well or a private irrigation work; (b) that at least two crops were grown in such land in any one of the aforesaid years; or secondly, that irrigation facility became available to any land by a State Irrigation Work coming into operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or 8 WRIC No. - 3000129 of 1998 thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal or a State tube-well or a private irrigation work; and (b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purposes of this Act. Explanation I. - For the purposes of this section the expression' effective command area' means an area, the farthest field whereof in any direction was irrigated- (a) in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli; or (b) in any agricultural year referred to in the clause 'secondly'. Explanation II. - The ownership and location of a private irrigation work shall not be relevant for the purpose section. Explanation III. - Where sugarcane crop was grown on any land in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli, it shall be deemed that two crops were grown on it any of these years, and that the land is capable of growing two crops in an agricultural year."

10. It is thus evident that for the purposes of determination of irrigated land, it is incumbent upon the Prescribed Authority to take note of the khasra pertaining to Fasli years 1378, 1379 and

1380. It is open to the authority to conduct local inspection and also to take into account any other relevant revenue documents.

15. In the case of Ram Sagar (supra), a Co-ordinate Bench of this Court placing reliance on the Full Bench Decision of this Court in the case of Hareshwar Dayal Seth (supra) has held as follows:- 9 WRIC No. - 3000129 of 1998 "It is also equally well settled that the onus lies on the state to establish that the land which is mentioned in the notice is irrigated land when a challenge is made by the tenure-holder while filing objection. State Government is a party to every prodeedings under Section 10 (2) of the 'Act'. In such a case, there is an adversary proceedings before the Prescribed Authority between the tenure- holder and the Government. It has been held in Roshan Singh's case (supra) that in such a case what comes out is that the Government assumes the role of plaintiff and the tenure-holder that of the defendant. On the basis of the statement prepared under Section 10 and the objection filed by the tenureholder- petitioner thereto, the Prescribed Authority strikes the issue and decides the case. When it is disputed by a tenure-holder in the objection filed against a notice that any particular plot is unirrigated and that the same has been wrongly treated as irrigated land, the onus lies squarely on the State to establish that any land treated as irrigated land in the notice actually bears that character. It is not for the tenure-holder to establish in negative that the land is unirrigated and that it has been wrongly treated to be irrigated land in the notice. It is incumbent upon the Prescribed Authority to examine the relevant Khasras for the years 1378, 1379 and 1380 Fs. in order to ascertain the nature and character of the land in question." "

24. Relevant paragraphs 39, 42 and 43 of the judgment in the case of Rakesh Kumar (Supra) are being quoted below :- "39. This Court finds that the onus was wrongly placed on the tenure holder. In Ram Sagar Vs. Civil Judge, Behraich & others 1985 ALJ 125, this Court held that under Section 4-A of the Act, it was mandatory for the Prescribed Authority to have examined the Khasras for the relevant years 1378 10 WRIC No. - 3000129 of 1998 fasli to 1380 fasli and should have also made a local inspection to see whether the land in question is irrigated or not.

42. A Division Bench of this Court in Jaswant Singh Vs. State of U.P. & others 1979 ALJ 25 was dealing with the question whether oral evidence could be relied upon by the Prescribed Authority in determining irrigated land under Section 4-A of the Act. The Full Bench quoted Section 4-A of the Act and came to the conclusion that there are no words in Section 4-A to justify anything other than that specified therein, to be made use of by the Prescribed Authority, for the formation of opinion on the points specified in sub sections firstly, secondly and thirdly, thereof. The legislature thought it fit to confine the scope of enquiry to the examination of documents and local inspection presumably because almost everything that is mentioned in various sub-sections of 4-A was capable of being ascertained on the basis thereof and, indeed, where any fact can be ascertained on the basis of documents, oral evidence can serve no useful purpose. All evidence can be gathered from the village record. The village map would show whether there was an effective Command Area of a Lift irrigation or of a Tube-well, and a local inspection would show whether the land irrigated is such that can produce two crops in a year. The Division Bench judgment rendered in Jaswant Singh was reconsidered by a Division Bench in Shiv Ram Singh Vs. State of U.P. 1979 ALJ 565 and it was observed that oral evidence can also be taken into account only to support the findings arrived at on the basis of examination of Khasra of the relevant year, the village map or after local inspection. The same conclusion was arrived at by another Division Bench of this Court in Kallu Vs. State of U.P. 1979 AWC 579. 11 WRIC No. - 3000129 of 1998

43. It has come out from a perusal of the order passed by the Prescribed Authority that no finding has been recorded on the basis of perusal of relevant Khasras and other relevant records including perusal of village map and local inspection that the land originally held by the earlier order passed by the Prescribed Authority dated 30.6.1975 to be unirrigated had become irrigated in the meantime, and the finding needed to be reopened in view of the amendments carried out by Amending Act No. 20 of 1976."

25. On the other hand, learned Standing Counsel submits that Sarvadeen Singh never filed any objection mentioning that the land is irrigated/ unirrigated land and the provision of Section 4-A of Ceiling Act has not been complied with regarding to irrigation facilities and two crops etc and as such the prescribed authority did not frame the issue regarding irrigated/ unirrigated land and as such, no evidence was led regarding that and the prescribed authority rejected the objection and the petitioner also did not take any grounds of not compliance of Section 4- A of Ceiling Act in the memo of appeal as well as present writ petition.

26. It is next submitted that the petitioner filed an application on

15.1.1975 to appoint the Advocate Commissioner to make survey and the application was allowed by prescribed authority on 28.1.1975 but he submitted the report on 10.2.1975 without making spot inspection and without preparing the site plan and the appellate court made a long discussion and disbelieved the report of the Advocate Commissioner, which was not submitted as per the direction of prescribed authority and Sarvadeen Singh could not prove that all the gatas of Bhabhua are grove land by filing khatauni of those gatas.

27. In support of his submission, he placed reliance upon the following judgments :- (i) Kishundeo Rout & others Vs. Govind Rao & others [2025 (43) LCD 1821]. Relevant paragraphs 24, 25 and 30 are being quoted below :- 12 WRIC No. - 3000129 of 1998 "24. It is important to remember that the basic rule of law of pleadings is, that a party can only succeed according to what he has alleged and proved, otherwise, on the principle of secundum 13 allegata et probata, a party is not allowed to succeed, where he has not set up the case which he wants to substantiate. In the words of Lord Westbury in Eshan Chunder Singh v. Shama Chunder reported in 11 M.I.A.: — “..........................the determination in a case should be founded upon the case either to be found in the pleadings as involved in or consistent with the case thereby made....................... It will introduce the greatest amount of uncertainty into judicial proceedings, if final determination of causes, is to be founded upon inferences, variance with the case that the plaintiff has pleaded.................. and is not taken to prove...................... they desire to have the rule observed that the state of fact and the equities and ground of relief originally alleged and pleaded by the plaintiff, shall not be departed from.” (emphasis supplied)

25. This rule that pleadings and proof must correspond, rests upon the principle that no party should be prejudiced by being taken by surprise by varying the case as originally Set up. In the words of Mahajan, J., in Trojan and Co., Ltd. v. RM. N. N. Nagappa Chettier reported in 1953 S.C.R. 789 (806). “It is well settled that decision of a case cannot be based on grounds outside the pleadings of the parties and it is a case pleaded that has to be found.” 26. The correct test as to when a plea of 13 WRIC No. - 3000129 of 1998 adverse possession, when not taken in the plaint, can be raised later on in appeal, was laid down by Calcutta High Court in Nepen Bala Debi v. Siti Kanta Banerji reported in 8 I.C. 41 in the following words: “Where no case of acquisition of title by adverse possession is made in the plaint, nor is the question raised directly or indirectly in any of the issues, the plaintiff ought not to be allowed to succeed upon such a case. On the other hand, as pointed out by this court in the case of Lilabati Misrain v. Bishun Chobey, when the question reduces itself to one of law, upon facts admitted or proved beyond controversy, it is not only competent to the Court, but expedient in the interest of justice to entertain the plea of adverse possession, if such a case arises on the facts stated in the plaint and the 14 defendant is not taken by surprise. The true test, therefore, to be applied to determine whether the plea of title by adverse possession should be allowed to be urged though not explicitly raised in the plaint, is, how far the defendant is likely to be prejudiced if the point is permitted to be taken.” (emphasis supplied) (ii) Bhoodev Singh & others Vs. U.P. Electricity Board & others [(2006) UPLBEC 950]. Relevant paragraph 52 is being quoted as under :- "There can be no dispute to the settled legal proposition that the Court or Tribunal is not permitted to decide a case going out of pleadings of the parties nor the evidence led on a non-existing plea is permitted to be taken into consideration. (Vide Sri Mahant Govind Rao v. Sita Ram Kesho and Ors. (1898) 25 IA 195 Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, Kishori Lal Vs. Mst. Chaltibai, Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, Dalim Kumar Sain and Others Vs. Smt. Nandarani Dassi and Another, Dattatraya Vs. Rangnath Gopalrao 14 WRIC No. - 3000129 of 1998 Kawathekar (Dead) by his legal representatives and Others, Bhoona Bi and Another Vs. Gujar Bi, Commissioner of Income Tax, Calcutta Vs. Park Hotel (P) Ltd., 15 Park Street, Calcutta- 16, Syed Dastagir Vs. T.R. Gopalakrishnasetty, Sankaran Pillai(dead) by Lrs. Vs. V.P. Venuguduswami and Others, J. Jermons Vs. Aliammal and Others, Life Insurance Corporation of India and Others Vs. Jyotish Chandra Biswas, Om Prakash Gupta Vs. Ranbir B. Goyal, Ashutosh Gupta Vs. State of Rajasthan and Others,"

28. After having heard the submissions advanced by learned counsel for the parties, I perused the material on record as well as the judgments relied upon by the parties.

29. On the application of the tenure-holder, an Advocate Commissioner was appointed on 10.02.1974 to inspect the disputed lands. The Commissioner submitted his report, and statements of Sarvadin Singh and witnesses including Kanhaiya Lal, Halka Lekhpal, and Rajendra Prasad were recorded in support thereof. On 10.03.1975, the father of the petitioner filed Writ Petition No.770 of 1975, challenging the proceedings under Section 10(2). The said proceedings were stayed; however, upon the coming into force of Amendment Act No. 2 of 1975 (w.e.f. 08.06.1973) and Amendment Act No.20 of 1976 (w.e.f. 17.01.1975), all such writ petitions were dismissed. During this interregnum, Sarvadin Singh is stated to have expired between 1976–

30. Thereafter, on 25.06.1985, a fresh notice under Section 10(2) was issued to the petitioner upon the report of the Tehsildar regarding the death of Sarvadin Singh. On 02.05.1986, the petitioner and other holders of the disputed land filed objections before the prescribed authority. The petitioner's objection was based primarily on a Will dated 11.09.1979, executed by Sarvadin Singh in favour of his daughters Smt. Kusum Singh, Smt. Pushpa Singh and Smt. Kumud Singh, claiming that these 15 WRIC No. - 3000129 of 1998 legatees were in possession of their respective portions. He further stated that certain properties mentioned in the objection were owned and possessed by Gajendra Singh, son of Prithvi Pal Singh, by virtue of family settlement. Separate objections were also filed by Kusum Singh, Pushpa Singh, and Kumud Singh asserting their independent possession under the said Will; by Gajendra Singh regarding land of Alipur Gokula; and by Baldeo Singh regarding another plot (19/5-34) on the basis of a Will dated 21.04.1986 executed by Ishwar Dei.

31. Another objection was filed by Shailendra Singh and Mahendra Singh, grandsons of Sarvadin Singh, who claimed that the family land had been orally partitioned on 15.06.1958 into four equal shares among Sarvadin Singh, Sher Bahadur Singh, Shailendra Singh, and Mahendra Singh.

32. The prescribed authority, by order dated 24.09.1993, dismissed all the objections of the petitioner and others, observing that the objections were not sustainable and holding that the Advocate Commissioner's report and supporting evidence could not be relied upon. It is the specific grievance of the petitioner that this order was passed without considering the evidence on record and without assigning cogent reasons for discarding the Commissioner's findings. Against the said order, the petitioner preferred an appeal before the Additional Commissioner, Faizabad Division, which came to be dismissed by order dated

10.03.1998. Both the authorities below have failed to apply their judicial mind to the material on record, have not considered the statutory provisions governing the treatment of grove, abadi, and shamshaan lands under the Ceiling Act, and have arbitrarily determined the surplus area.

33. Section 4-A was not complied with while passing the order by the prescribed authority. The appellate court has also not considered the grounds taken in the memo of appeal and has proceeded to pass the impugned order. It is well settled that onus lies on the State to establish that the land which is mentioned in the notice is irrigated land when a challenge is made by the tenure-holder while filing objection. State Government is a party to every prodeedings under Section 10 (2) of the 16 WRIC No. - 3000129 of 1998 'Act'. In such a case, there is an adversary proceedings before the Prescribed Authority between the tenure-holder and the Government, therefore, the khasra of 1378-1380 is to be seen by the prescribed authority as well as he has to make spot inspection. Due to non-perusal of aforesaid khasras and not appointing the Inspecting Officer or to make himself the inspection, the order renders per-se illegal.

34. The impugned orders dated 24.09.1993 and 10.03.1998, being vitiated by non-consideration of evidence, violation of principles of natural justice, therefore, the orders passed by both the authorities suffer from apparent illegality and are liable to be set aside.

35. The controversy in question is clearly required to be adjudicated in terms of Section 4-A of the Act which is as follows:- "4A. Determination of irrigated land. - The prescribed authority shall examine the relevant Khasras for the years 1378 Fasli, 1379 Fasli and 1380 Fasli, the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary and thereupon if the prescribed authority is of opinion :- firstly, (a) that, irrigation facility was available for any land in respect of any crop in any one of the aforesaid years; by- (i) any canal included in Schedule NO. 1 of irrigation rates notified in Notification No. 1579-W/ XXIII-62-W-1946, dated March 31, 1953, as amended from time to time; or (ii) any lift irrigation canal; or (iii) any State tube-well or a private irrigation work; and (b) that at least two crops were grown in such land in any one of the aforesaid years; or secondly, that irrigation facility became available to any land by a State Irrigation Work coming into operation subsequent to the enforcement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal or a State tube-well or a private irrigation work; and 17 WRIC No. - 3000129 of 1998 (b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purposes of this Act. Explanation I. - For the purposes of this section the expression' effective command area' means an area, the farthest field whereof in any direction was irrigated- (a) in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli; or (b) in any agricultural year referred to in the clause 'secondly'. Explanation II. - The ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation III. - Where sugarcane crop was grown on any land in any of the years 1378 Fasli, 1379 Fasli and 1380 Fasli, it shall be deemed that two crops were grown on it any of these years, and that the land is capable of growing two crops in an agricultural year."

36. It is thus evident that for the purposes of determination of irrigated land, it is incumbent upon the Prescribed Authority to take note of the khasra pertaining to Fasli years 1378, 1379 and 1380. It is open to the authority to conduct local inspection and also to take into account any other relevant revenue documents. In the appellate order dated

10.03.1998, it has been specifically recorded that as per report of Lekhpal, khasras pertaining to the fasli years 1378 to 1380 were unavailable. The fact has been reiterated in subsequent portion of the order as well. It does not appear from a perusal of either of the impugned orders that any local inspection was conducted or that any other revenue documents were taken into account by the authorities concerned for determination of irrigated areas. It has also not been taken into account that brick kiln placed was also not observed as usar because of the fact that there was no facility available for irrigation and was kept open and was not used for the agricultural purposes.

37. The Prescribed Authority strikes the issue and decides the case. When it is disputed by a tenure-holder in the objection filed against a notice that any particular plot is unirrigated and that the same has been wrongly treated as irrigated land, the onus lies squarely on the State to 18 WRIC No. - 3000129 of 1998 establish that any land treated as irrigated land in the notice actually bears that character. It is not for the tenure-holder to establish in negative that the land is unirrigated and that it has been wrongly treated to be irrigated land in the notice. It is incumbent upon the Prescribed Authority to examine the relevant Khasras for the years 1378, 1379 and 1380 faslis in order to ascertain the nature and character of the land in question.

38. It is evident from the Full Bench Decision in the case of Hareshwar Dayal Seth Vs. Second Additional District Judge [1982 ACJ 207] that the aforesaid judgment was referred for consideration by the Full Bench and the Full Bench in the case of Hareshwar Dayal Seth (supra) has specifically disapproved of judgment in the case of Shyamvir Singh (supra) in the following manner:- "23. Once an objection has been filed, the dispute has to be decided judicially. The statement prepared by the Prescribed Authority does not carry any presumption of validity, i. e., the accuracy or correctness of its entries. The only presumption that may be drawn is that the statement has been prepared in accordance with the prescribed mode and procedure, and there this presumption ends.

26. If the presumption under section 114 (e) Evidence Act was enough, there was no need for the legislature to have provided in section 11 (1) that the Prescribed Authority may determine the surplus land in accordance with the statement prepared under section 10 (1) in case it is not disputed. In my view, in proceedings under section 12, the status of the disputed entries of the statement prepared under section 10 (1) is like the pleadings in a civil cause, whatever is not disputed and does not form part of the issues, is treated as admitted. But on matters which are disputed, the entries in the statement have by themselves no evidentiary value.

27. The Khasra is prepared under section 28 of the U. P. Land Revenue Act provides that the entries in 19 WRIC No. - 3000129 of 1998 the Annual Registers shall be presumed to be true unless the contrary is proved. The Annual Registers are prepared under section 33 of the Land Revenue Act. They refer to the Khewat and Khatauni only. The khasra is not one of the Annual Registers. There is hence no presumption of the correctness of the entries mentioned in the khasra.

28. If section 114 (a) relates to the presumption of correctness of the contents or conclusion of the official act, then Section 44 of the Land Revenue Act was redundant because the khasra under section 28 of the Land Revenue Act is prepared by statutory Authority after going through a detailed procedure prescribed in the Land Records Manual. It is prepared as an official act of the statutory authority. But yet the Land Revenue Act does not give any presumption of correctness to its entries.

29. Under section 4-A, the Prescribed Authority is enjoined, inter alia, to look into the khasra for the relevant years and such other records as it may consider necessary. The khasra as well as other records which the Prescribed Authority may have taken into consideration while preparing the statement, will, when a judicial enquiry is being conducted under section 12, form part of the record of the case. Such khasra and other materials which have been examined by the Prescribed Authority ought to be present on the record. If they are not present on the record and even if the tenure holder does not produce them the objection cannot be thrown out merely on that ground. The Prescribed Authority should summon them. The issues are to be decided on the weight of evidence on record in accordance with law.

30. Our answer to the question referred to us is that in view of Illustration (e) to Section 114 of the Evidence Act the statement prepared under section 10 (1) of the Act may at the option of the deciding 20 WRIC No. - 3000129 of 1998 authority be presumed to have been prepared in accordance with the manner and procedure prescribed under Section 4-A of the Act, but there is no presumption as to the correctness or validity of the entries which are disputed or challenged. "

39. In view of the aforesaid, it is evident that the statement prepared under Section 10 (1) of the Act does not attach any validity of the entries which are disputed or challenged. It is also equally well settled that the onus lies on the state to establish that the land which is mentioned in the notice is irrigated land when a challenge is made by the tenure-holder while filing objection. State Government is a party to every prodeedings under Section 10 (2) of the 'Act'. In such a case, there is an adversary proceedings before the Prescribed Authority between the tenure-holder and the Government. In such a case what comes out is that the Government assumes the role of plaintiff and the tenure-holder that of the defendant. On the basis of the statement prepared under Section 10 and the objection filed by the tenureholder- petitioner thereto, the Prescribed Authority strikes the issue and decides the case. When it is disputed by a tenure-holder in the objection filed against a notice that any particular plot is unirrigated and that the same has been wrongly treated as irrigated land, the onus lies squarely on the State to establish that any land treated as irrigated land in the notice actually bears that character. It is not for the tenure-holder to establish in negative that the land is unirrigated and that it has been wrongly treated to be irrigated land in the notice.

40. The legislature thought it fit to confine the scope of enquiry to the examination of documents and local inspection presumably because almost everything that is mentioned in various sub-sections of 4-A was capable of being ascertained on the basis thereof and, indeed, where any fact can be ascertained on the basis of documents, oral evidence can serve no useful purpose. All evidence can be gathered from the village record. The village map would show whether there was an effective Command Area of a Lift irrigation or of a Tube-well, and a local 21 WRIC No. - 3000129 of 1998 inspection would show whether the land irrigated is such that can produce two crops in a year.

41. On perusal of the impugned orders it is evident that grove land were cut short but no finding has returned that the land cut short, is capable to produce two crops in a year or there is facility of irrigation available as required under Section 4-A. Due to non-consideration of the aforesaid aspect of the matter, the impugned orders suffer from apparent illegality and are liable to be set aside.

42. The land of shamshaan ghat and abadi land were not considered properly that whether that has been used for agricultural purposes or not, therefore, the impugned orders are per se illegal and are liable to be set aside. The judgments relied upon by learned counsel for the petitioner is fully applicable to the facts and circumstances of the present case and the judgments relied upon by learned Standing Counsel are distinguishable in nature and are not attracted to the present facts and circumstances of the case.

43. In view of the overall material on record and the judgments relied upon, I am of the considered opinion that the impugned orders are per se illegal and are liable to be set aside, therefore the impugned orders dated

10.03.1998 passed by the Additional Commissioner, Faizabad Division and 24.09.1993 passed by the prescribed authority (Ceiling), Colonelganj, Gonda/Additional Collector, Gonda are hereby quashed. The writ petition succeeds and is allowed.

44. No order as to costs. (Irshad Ali,J.) October 28, 2025 Gautam GAUTAM TECKCHANDANI High Court of Judicature at Allahabad, Lucknow Bench