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PETITIONER: DARSHAN PRASHAD AND ANR.

       Vs.

RESPONDENT: CIVIL JUDGE II, GORAKHPUR AND ORS.

DATE OF JUDGMENT13/03/1992

BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) RAMASWAMY, K.

CITATION:  1992 AIR  967            1992 SCR  (2) 265  1992 SCC  Supl.  (2)  87 JT 1992 (2)   213  1992 SCALE  (1)660

ACT:      U.P.  Imposition  of  Ceiling  on  Land  Holdings  Act, 1960/U.P. Act No. 20 of 1976:      Ss.  3(7), 5(3), 10(2), 38-A, 38-B-Agricultural  lands- Ceiling-Determination  of-Land  held  by  wife  as  separate tenure-holder, living separately without obtaining a  decree for judicial separation-Whether can be included in the  land of  husband while determining ceiling  area:  Family-Whether includes  wife living separately without obtaining  judicial separation.      Issuance   of   fresh  notice   under   s.10(2)   after enforcement  of U.P. Act No. 20 of 1976-Validity  of-Whether decision in earlier proceedings operates as res judicate.      Words and Phrases:      ’Family’, ’judicial separation’, ’judicially  separated wife’-Meaning of.

HEADNOTE:      A  notice  under  s.10(2) of  the  U.P.  Imposition  of Ceiling  on Land Holdings Act, 1960, as amended by the  U.P. Act  No.  20 of 1976, was issued to the appellant;  and  his objections   thereto  were  dismissed  by   the   Prescribed Authority.   Thereupon  two appeals were  filed  before  the appellate authority-one by the appellant and another by  his wife  claiming herself to be the judicially separated  wife. It  was  stated  that  she was  living  separately  and  the appellant gave her certain lands for maintenance in  respect of which she obtained a decree of injunction restraining the appellant-husband from interfering with her possession;  and her  ownership  with  respect  thereto  was  recognised   in consolidation  proceeding as well as in the earlier  ceiling proceedings.      Both  the  appeals  were  dismissed  by  the  appellate authority  and  the writ petitions thereupon  filed  by  the appellants were also dismissed by the High Court.                                                        266      In  appeal  to  this  Court it  was  contended  by  the appellants  that (1) the lands of the wife, who  was  living separately,  could  not  be clubbed with the  lands  of  the husband even though a judicial separation may not have taken place;  and (2) the notice issued under s.10(2) was  illegal

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and without jurisdiction inasmuch as ceiling area in respect of  the  appellants had been determined before  coming  into force  of Amendment Act No. 20 of 1976 and the order  passed in  the  earlier ceiling proceedings would  operate  as  res judicata.      Dismissing the appeals, this Court,      HELD  :  1. In view of the provision of s.5(3)  of  the U.P. Imposition of Ceiling on Land Holdings Act, 1960, while determining ceiling area of the land belonging to a  person, the  land even if owned or possessed by his wife in her  own right  as  a  separate tenure-holder is not  allowed  to  be excluded  and would have to be included in the land  of  the husband  treating the wife as a member of his  family.   The only  exception  has been made in the case of  a  judicially separated  wife.   The  term  ’judicially  separated’   wife occurring in s.3(7) of the Ceiling Act, 1960 cannot be given a  meaning to include a wife merely living  separately  from her  husband but having not obtained a decree  for  judicial separation, which was necessary under the provisions of  the Hindu  Marriage  Act, 1955.  After obtaining such  a  decree alone  it  could  be  recognised  as  judicial   separation. [.pp.270E-G; 271B]      2.1 The provisions of s.38-A of the U.P. Imposition  of Ceiling  on Land Holdings Act, 1960 and s.30(3) of U.P.  Act No.20  of 1976 authorise the Prescribed Authority  to  issue fresh  notice  under s.10(2), within a period of  two  years from  the  date  of  any order  passed  in  earlier  ceiling proceedings  requiring  the tenure holder  to  furnish  such particulars  by an affidavit in respect of the land held  by him  and  members  of his family as may  be  prescribed  and considered  necessary for enforcement of the  provisions  of the  Ceiling Act. Section 38-B of Ceiling Act, 1960  clearly provides  that  any  finding or decision  given  before  the commencement  of these provisions will not operate as a  bar for  the retrial of such proceeding or issue  in  accordance with the provisions of the Act as amended from time to time. [pp.268F-G; 269B]      2.2  The  High Court was right in holding  that  if  an earlier  judgment is said to operate as res-judicata in  the subsequent   proceedings,  then  all  the  necessary   facts including pleadings of the earlier litigation, must be                                                        267 placed  in the subsequent proceeding; and that  the  earlier notice under Section 10(2) issued to the tenure-holder along with the statement prepared in Form No.3 were neither placed before the Ceiling authorities in subsequent proceedings nor such  material  was produced even before the High  Court  in order to enable it to decide whether the second notice could be said to be illegal. [pp. 268-G-H; p.269A]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.  2838- 39 of 1980.      From the Judgment dated 11.5.1979 of the Allahabad High Court in Writ Petition Nos. 2764 & 2856 of 1977.      B.R.L.  Iyengar,  B. Barua and R.D.  Upadhyay  for  the Appellants.      Anil   Kumar   Gupta  and  A.K.  Srivastava   for   the respondents.      The Judgment of the Court was delivered by      KASLIWAL  ,  J. These two appeal by  grant  of  Special Leave  are  directed against the judgment of  the  Allahabad High Court dated 11.5.1979.  A notice under Section 10(2) of

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the  U.P. Imposition of Ceiling on Land Holdings  Act,  1960 (hereinafter  referred  to as the ’Ceiling  Act,  1960’)  as amended  by Act No. 20 of 1976 was issued to  the  appellant Darshan  Prashad.  The appellant filed objections,  but  the same  were  dismissed by the prescribed authority  by  order dated  28.5.1976.  Thereafter two appeals were filed one  by Darshan  Prashad  and  the  other  by  Smt.  Saraswati  Devi claiming  to  be the judicially separated  wife  of  Darshan Prashad.  Both appeals were dismissed by the Civil Judge No. II,  Gorakhpur  Darshan  Prashad then  filed  Writ  Petition No.2764  of 1977 and Smt. Saraswati Devi Writ  petition  No. 2856 of 1977 challenging the order of the Civil Judge.   The High Court dismissed both the Writ Petitions by order  dated 11.5.1979. Being aggrieved by the findings of the prescribed authority and the High Court, the appellants have now  filed the present appeals.      The first contention raised by Learned Counsel for  the appellants  was  that notice issued under Section  10(2)  wa illegal and without jurisdiction.  It was contended that  in the  earlier  ceiling  proceedings 0.87 acres  of  land  was declared  surplus under the provisions of the  Ceiling  Act, 1960 before coming into force of the Amendment Act, No.20 of 1976 and the order passed in the earlier ceiling proceedings would operate as res                                                        268 judicata.  It was submitted that there was no change in the law to justify issuing of fresh notice      We  do  not  find any force in  this  contention.   The Amendment Act No. 20 of 1976 inserted two Sections 38-A  and 38-B  in the Principal Act of 1960.  Sections 38-A and  38-B are reproduced as under :-          "38-A.  Power to call for particulars of land  from          tenure-holders.  (1) Where the prescribed authority          or  the appellate court considers it necessary  for          the  enforcement of the provisions of this Act,  it          may,  at  any stage of the proceedings  under  this          Act,  require  any tenure-holder  to  furnish  such          particulars  by  affidavit in respect of  the  land          held  by  him and members of his family as  may  be          prescribed.          (2) The particulars of land filed under sub-section          (1) may be taken into consideration in  determining          the surplus land of such tenure-holder.          38-B  Bar  against  res judicata -  No  finding  or          decision  given  before the  commencement  of  this          section   in  any  proceeding  or  on   any   issue          (including  any order, decree or judgment)  by  any          court,  tribunal  or authority in  respect  of  any          mater  governed by this Act, shall bar the  retrial          such  proceeding  or  issue  under  this  Act,   in          accordance  with  the  provisions of  this  Act  as          amended from time to time."      The  above provisions clearly show that the  prescribed authority  was given power to required any tenure-holder  to furnish  such  particulars, by affidavit in respect  of  the land  held  by  him and  members of his  family  as  may  be prescribed  which  may  be  considered  necessary  for   the enforcement  of  the provisions of the Ceiling Act.   It  is clearly provided under Section 38-B inserted by the Amending Act  as mentioned above that any finding or  decision  given before the commencement of this Section will not operate  as a  bar  for  the  retrial of  such  proceeding or  issue  in accordance  with the provisions of the Act as  amended  from time to time.  The appellants had raised a similar objection before  the  High Court, but the same was  rejected  on  the

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ground that if an earlier judgment is said to operate as res judicata  in  the  subsequent  proceedings,  then  all   the necessary   facts   including  pleadings  of   the   earlier litigation must be placed in the subsequent                                                   269 proceedings.   The High Court further observed that  in  the instant  case, the earlier notice under Section 10(2)  which was  issued  to the tenure-holder along with  the  statement prepared  in Form No. 3 were not placed before  the  Ceiling authorities in subsequent proceedings.  It was further  held that  even in the Writ Petition no such material was  placed in  order to enable the Court to decide whether  the  second notice  could be said to be illegal.  Section 30(3)  of  the U.P. Act No. 20 of 1976 clearly provided that the prescribed authority  was  authorised to issue fresh  notice  within  a period  of  two years from the date of any order  passed  in earlier  ceiling proceedings.  We are in agreement with  the view  taken  by  the High Court.  Learned  counsel  for  the appellants  was  unable  to  show  that  in  the  facts  and circumstances  of the case, the notice issued under  Section 10(2)  of the present proceedings was in any manner  illegal or without jurisdiction.      It was next contended on behalf of the Learned  Counsel for  the  Appellants that Smt Saraswati Devi  had  left  the company  of  the appellant Darshan Prashad and  had  started living  with  her parents even before the  year  1955.   The appellant (Darshan Prashad) had given her agricultural lands for  her  maintenance and thereafter  married  with  another woman.  It was submitted that Smt. Saraswati Devi had  filed a  suit on 22nd February, 1956 for permanent  injunction  to restrain the appellant Darshan Prashad from interfering with her  possession  over  the lands given to  her  in  lieu  of maintenance.  In that suit arbitrators were appointed by the Court and an award was given in favour of Smt Saraswati Devi on  5.12.1956.  The said award was made a rule of the  Court and  a  decree  was passed on 21.1.1957 in  favour  of  Smt. Saraswati  Devi  restraining the appellant by  a  decree  of permanent injunction from interfering with the possession of Smt.  Saraswati  Devi  over the lands  situated  in  village Karmahava  Khurd, Tappa Lehara, Pargana  Haveli,  Gorakhpur. It  was submitted that even in the proceedings  taken  under the provisions of Ceiling Act, 1960. Smt. Saraswati Devi was recognised  as owner of land by virtue of the  decree  dated 21.1.1957, and also in consolidation proceedings which  took place  after the coming into force of the Ceiling  Act,1960. Learned Counsel for the appellants also contended that  Smt. Saraswati  Devi was also entitled to separate residence  and maintenance  from  her husband under the provisions  of  the Hindu  Married  Woman’s  Right  to  Separate  Residence  and Maintenance  Act,  1946.  It was thus  contended  that  even though a judicial separation of Smt. Saraswati Devi may  not have  taken place, Smt. Saraswati Devi for all  intents  and purposes was judicially separated wife                                                        270 and  the agricultural lands in her ownership and  possession long before the coming into force of the Ceiling Act,  1960, connot  be clubbed in the land of the appellant husband  for determining the ceiling area.      We  do  not find any force in the above  contention  in view  of  the  clear provisions of the  ceiling  Act,  1960. Section 3(7) defines ’family’ as under:-          "’family’  in  relation to a  tenure-holder,  means          himself or herself and his wife or her husband,  as          the case may be (other than a judicially  separated          wife  or husband), minor sons and  minor  daughters

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        (other than married daughters)"      It is clear from the above definition that the wife  is included  in  the  family  of  her  husband  other  than   a judicially separated wife.      If  is important to note that the Hindu  Marriage  Act, 1955  had come into force on 18th May, 1955.  Section 10  of this  Act  provided  for  the  judicial  separation.   Under Section  10  of  the Hindu Marriage Act either  party  to  a marriage was entitled to present a petition to the  District Court praying for a decree for judicial separation on any of the  grounds specified in sub-section (1) of Section 13  and in the case of wife also on any of the grounds specified  in sub-section (2) thereof, as grounds of which a petition  for divorce might have been presented.  Thus, in order to get  a judicial  separation,  it was necessary to obtain  a  decree under  the  above  provision  and then  alone  it  could  be recognised as a judicial separation.  The Ceiling Act,  1960 was enacted and brought into operation long after the  Hindu Marriage Act, and as such the legislature was fully aware of the  meaning  of judicial separated wife  or  husband  while using this term in the definition of ’family’ under  Section 3  (7) the Ceiling  Act, 1960.  It is further  important  to note  that sub-section (3) of Section 5 of the Ceiling  Act, 1960,  prescribes, while determining the ceiling  area,  the land of ’adult son/sons’ who were themselves  tenure-holders being  excluded, but no such land is allowed to be  excluded in the case of the wife, even though she might be a separate tenure-holder.  Thus, it is abundantly clear from a  perusal of  the  above provisions that in the  case  of  determining ceiling  area  of the land belonging to a person,  the  land even  if  owned or possessed by his wife in  her  own  right would  have  to  be  included in the  land  of  the  husband treating  the  wife  as a member of his  family.   The  only exception  has  been  made  in  the  case  of  a  judicially separated wife.  It was contended by the Learned Counsel for the appellants that a wider meaning should be given to the                                                        271 term  ’judicially separated’ wife to include a wife who  may be living separately from her husband and agricultural  land owned  or  possessed  in lieu of her  right  of  maintenance should  be excluded from the ceiling limit of  her  husband. It is difficult for us to accept this contention in view  of the  clear provisions of the Ceiling Act, 1960  which  apart from  being a beneficial act for the landless has  used  the term ’judicially separated’ wife after the coming into force of  the  Hindu Marriage Act, 1955.  This cannot be  given  a meaning to include a wife merely living separately from  the husband,  but  having  not obtained a  decree  for  judicial separation  under the provisions of the Hindu Marriage  Act, 1955.      In  view  of these circumstances, we find no  force  in these appeals and the same are dismissed with no order as to costs. R.P.                                    Appeals dismissed.                                                        272