High Court · 2025

aforesaid decree dated 21.12.1970 was never challenged by any party and therefore attained finality. It is further submitted that the mere fact that mutation over the property in question was effected in the year 1981 was irrelevant.

4. Learned counsel for petitioner has adverted to Explanation-II to Section 5 of the Act to submit that in terms thereof, it was incumbent upon authorities to have recorded specific finding that earlier tenure holder continued to be in its actual cultivatory possession and such a finding having not been recorded, vitiates the order.

5. Learned State Counsel appearing on behalf of opposite party no.1 has refuted submissions advanced by learned counsel for petitioner and has also placed reliance on Explanation-II to Section 5 of the Act of 1960 to submit that as per the said explanation, a presumption that the transferer of land continued in actual cultivatory possession has been indicated with burden being cast upon the transferee to prove otherwise. It is therefore submitted that since in the present case, mutation was effected only in the year 1985, the aforesaid presumption would come into play and burden was therefore upon petitioner to have proved otherwise, which having not been done, orders impugned do not require any interference.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is also evident that while issuing notices vide order dated 09.01.2003, directions were passed by this Court for maintaining status quo with regard to land in dispute.

7. It also appears from the record that in his objections under Section 10 (2) of the Act, apparently the petitioner did not take the plea of having entered into tenure-ship of the property in question in terms of the decree dated 21.12.1970 and it was only at the appellate stage that such a plea has been taken but was addressed by the authority concerned.

8. It also appears that a suit for declaration under Section 229 (b) of the U.P. Zamindari Abolition and Land Reforms Act was filed by petitioner against one Awadhesh Pratap Singh and his sons, which ended in a compromise decree being passed on

21.12.1970, which is prior to the cut-off date of 24.01.1970.

9. It appears that subsequently in proceedings under Section 10 of the Act, the property in question bearing new Plot No. 864 having an area 6-8-3 situated at Village Bhirawpur Tikara, Pargana Paschim Rath Tehsil Bikapur District Faizabad was declared surplus by the prescribed authority on 30.06.1995 pertaining to the original tenure holders, against which petitioner filed objections under Section 10 (2) of the Act primarily on the ground of compromise decree dated

21.11.1970 passed in regular Suit No. 195 of 1970. It also appears that subsequently during consolidation operations, petitioner's name was mutated over the property in question by means of order dated 12.12.1985 and was also one of the basis taken in the objections under Section 10 (2) of the Act.

10. In view of submissions advanced by learned counsel for parties, it is the interpretation of Explanation-II to Section 5 of the Act which would be required in order to ascertain the validity of impugned orders.

11. A perusal of the Explanation-II to Section 5 of the Act of 1970 indicates that if on or before January 24, 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, it shall be presumed, unless a contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land ostensibly in the name of second mentioned person.

12. The aforesaid explanation clearly enunciates a proposition pertaining to actual cultivatory possession over property even in case it was held by another person before January 24, 1971.

13. In view thereof, in the considered opinion of this Court, it was incumbent upon authorities concerned to have recorded a specific finding regarding actual cultivatory possession over the property in question. This is more so in view of the fact that admittedly a decree has been passed by a competent authority on 21.12.1970 in proceedings pertaining to declaration, although on the basis of a compromise.

14. There is no finding recorded in the impugned orders that aforesaid decree dated 21.12.1970 was without jurisdiction or were even otherwise incompetent or void.

15. Although Explanation-II to Section 5 of the Act indicates a presumption to be recorded against person who is alleging transfer, nonetheless a mandatory requirement has been cast upon the authorities to record a specific finding regarding actual cultivatory possession over the property in dispute.

16. A perusal of the impugned order, however, indicates that there is no finding recorded by authorities pertaining to actual cultivatory possession over the land in dispute. The decree dated 21.12.1970 has been disbelieved only on the ground that mutation over the property was effected in the year 1985 and therefore a presumption of ostensible possession has been drawn.

17. It is settled law that mutation over the property does not confer any title upon any property and is only for purposes of payment of land revenue with such title being conferred only in declaratory proceedings as in the present case which were done by means of decree dated 21.12.1970. Therefore, the presumption drawn by appellate authority merely on the basis of subsequent mutation in favour of petitioner, is clearly erroneous.

18. In view of specific provisions of Explanation-II to Section 5 of the Act, it is, therefore, incumbent upon the authorities to give a clear finding with regard to actual cultivatory possession over the property in question as on the date of issuance of notice under Section 10 of the Act.

19. Considering aforesaid facts and discussion, the impugned orders dated 19.07.2002 and 28.10.2002 are hereby quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding the authorities to pass orders afresh on the objections filed by petitioner under Section 10 (2) of the Act particularly with regard to actual cultivatory possession over the land in dispute as indicated hereinabove.

20. Resultantly, the petition succeeds and is allowed. Parties to bear their own cost. Order Date :- 29.1.2025 Satish SATISH KUMAR BHARATI SATISH KUMAR BHARATI High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

aforesaid decree dated 21.12.1970 was never challenged by any party and therefore attained finality. It is further submitted that the mere fact that mutation over the property in question was effected in the year 1981 was irrelevant.

4. Learned counsel for petitioner has adverted to Explanation-II to Section 5 of the Act to submit that in terms thereof, it was incumbent upon authorities to have recorded specific finding that earlier tenure holder continued to be in its actual cultivatory possession and such a finding having not been recorded, vitiates the order.

5. Learned State Counsel appearing on behalf of opposite party no.1 has refuted submissions advanced by learned counsel for petitioner and has also placed reliance on Explanation-II to Section 5 of the Act of 1960 to submit that as per the said explanation, a presumption that the transferer of land continued in actual cultivatory possession has been indicated with burden being cast upon the transferee to prove otherwise. It is therefore submitted that since in the present case, mutation was effected only in the year 1985, the aforesaid presumption would come into play and burden was therefore upon petitioner to have proved otherwise, which having not been done, orders impugned do not require any interference.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is also evident that while issuing notices vide order dated 09.01.2003, directions were passed by this Court for maintaining status quo with regard to land in dispute.

7. It also appears from the record that in his objections under Section 10 (2) of the Act, apparently the petitioner did not take the plea of having entered into tenure-ship of the property in question in terms of the decree dated 21.12.1970 and it was only at the appellate stage that such a plea has been taken but was addressed by the authority concerned.

8. It also appears that a suit for declaration under Section 229 (b) of the U.P. Zamindari Abolition and Land Reforms Act was filed by petitioner against one Awadhesh Pratap Singh and his sons, which ended in a compromise decree being passed on

21.12.1970, which is prior to the cut-off date of 24.01.1970.

9. It appears that subsequently in proceedings under Section 10 of the Act, the property in question bearing new Plot No. 864 having an area 6-8-3 situated at Village Bhirawpur Tikara, Pargana Paschim Rath Tehsil Bikapur District Faizabad was declared surplus by the prescribed authority on 30.06.1995 pertaining to the original tenure holders, against which petitioner filed objections under Section 10 (2) of the Act primarily on the ground of compromise decree dated

21.11.1970 passed in regular Suit No. 195 of 1970. It also appears that subsequently during consolidation operations, petitioner's name was mutated over the property in question by means of order dated 12.12.1985 and was also one of the basis taken in the objections under Section 10 (2) of the Act.

10. In view of submissions advanced by learned counsel for parties, it is the interpretation of Explanation-II to Section 5 of the Act which would be required in order to ascertain the validity of impugned orders.

11. A perusal of the Explanation-II to Section 5 of the Act of 1970 indicates that if on or before January 24, 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, it shall be presumed, unless a contrary is proved to the satisfaction of the prescribed authority, that the first mentioned person continues to hold the land ostensibly in the name of second mentioned person.

12. The aforesaid explanation clearly enunciates a proposition pertaining to actual cultivatory possession over property even in case it was held by another person before January 24, 1971.

13. In view thereof, in the considered opinion of this Court, it was incumbent upon authorities concerned to have recorded a specific finding regarding actual cultivatory possession over the property in question. This is more so in view of the fact that admittedly a decree has been passed by a competent authority on 21.12.1970 in proceedings pertaining to declaration, although on the basis of a compromise.

14. There is no finding recorded in the impugned orders that aforesaid decree dated 21.12.1970 was without jurisdiction or were even otherwise incompetent or void.

15. Although Explanation-II to Section 5 of the Act indicates a presumption to be recorded against person who is alleging transfer, nonetheless a mandatory requirement has been cast upon the authorities to record a specific finding regarding actual cultivatory possession over the property in dispute.

16. A perusal of the impugned order, however, indicates that there is no finding recorded by authorities pertaining to actual cultivatory possession over the land in dispute. The decree dated 21.12.1970 has been disbelieved only on the ground that mutation over the property was effected in the year 1985 and therefore a presumption of ostensible possession has been drawn.

17. It is settled law that mutation over the property does not confer any title upon any property and is only for purposes of payment of land revenue with such title being conferred only in declaratory proceedings as in the present case which were done by means of decree dated 21.12.1970. Therefore, the presumption drawn by appellate authority merely on the basis of subsequent mutation in favour of petitioner, is clearly erroneous.

18. In view of specific provisions of Explanation-II to Section 5 of the Act, it is, therefore, incumbent upon the authorities to give a clear finding with regard to actual cultivatory possession over the property in question as on the date of issuance of notice under Section 10 of the Act.

19. Considering aforesaid facts and discussion, the impugned orders dated 19.07.2002 and 28.10.2002 are hereby quashed by issuance of a writ in the nature of certiorari. A further writ in the nature of mandamus is issued commanding the authorities to pass orders afresh on the objections filed by petitioner under Section 10 (2) of the Act particularly with regard to actual cultivatory possession over the land in dispute as indicated hereinabove.

20. Resultantly, the petition succeeds and is allowed. Parties to bear their own cost. Order Date :- 29.1.2025 Satish SATISH KUMAR BHARATI SATISH KUMAR BHARATI High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench