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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: THE DISTRICT JUDGE & ORS.

DATE OF JUDGMENT:       11/10/1996

BENCH: N.P. SINGH, S.B. MAJMUDAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar.J.      In this  appeal by  special leave  under Article 136 of the Constitution  of India  the  appellant  State  of  Uttar Pradesh has brought in challenge the judgment and order 23rd July 1980  of the  High Court  of  Judicature  at  Allahabad dismissing the  writ petition  filed by  the appellant-State against the  order of the Additional District Judge, Agra in proceeding under  the Uttar Pradesh Imposition of Ceiling of Land Holdings  Act, 1960  (hereinafter referred  to as  ‘the Act’).   The question posed for our consideration is a short one, namely,  whether a  tenure-holder who  has entered into agreement to  sell some  of his lands prior to the appointed day and  had parted  with possession  thereof is  liable  to include in  his holding  the said  lands when actual sale of these lands  had not  taken  place.    The  High  Court  had answered this question against the appellant-State.      It is  the submission  of the  learned counsel  for the appellant-State that  the said decision of the High Court of erroneous in  law.   We may  mention that  at  the  time  of issuance of  notice in  these  proceedings  it  was  clearly indicated to  the respondent  tenure-holder that  the notice was being issued in view of paragraph (9) of the judgment of this Court  in the  case of State of Andhra Pradesh v. Mohd. Ashrafuddin (AIR  1982 SC  913).   WE will refer to the said judgment a little later.      In  the  first  instance  we  may  glance  through  the introductory facts leading to these proceedings.  Respondent No.3 was issued a notice under Section 10 sub-section (2) of the Act  by the  competent authority   functioning under the Act for  submitting his  objections against  the  statements prepared under  the said Section by the authority indicating various lands  held by Respondent no.3 on the appointed day, which  were  liable  to  be  taken  into  consideration  for deciding whether  the said respondent was holding any excess land  above   the  permissible   ceiling  area  which  would naturally vest  in the  State.  Respondent No.3 while filing his objections  submitted that  he had transferred 33 Bighaa 17 Biswas  land to  one Shri Ram Het and Shri Kali Charan on 30th March 1970.  He also transferred 30 Bighaa land to Shri

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Brij Kishore  on 8th  March 1970.  According to him the said lands were,  therefore, not  liable to  be included  in  his holding as  a tenure-holder  for  the  purpose  of  deciding whether   his holding  exceeded the  ceiling  limit  as  per Section 5(1) of the Act.  The Prescribed Authority held that the aforesaid  lands covered by the Agreements to Sell which were not followed up by Sale Deeds remained in the ownership and holding  of the respondent tenure-holder and were liable to  be   included  for   the  purpose   of  calculating  the permissible land within the ceiling area as per Section 5(1) of the Act.      Respondent No.3  carried the  matter in  appeal.    The Additional District Judge, Agra who heard the appeal came to the conclusion  that the  aforesaid lands which were covered by Agreements  to Sell  could not  be  included  within  the permissible ceiling limit of lands held by the tenure-holder as the  transferees were  protected by  Section 53-A  of the Transfer of  Property Act.   Theses  lands, therefore, could not be  said to  be possessed and held by Respondent no.3 on the appointed  day and  were liable  to be excluded from the calculation of ceiling area of the land holding available to Respondent No.3.  The appeal  was accordingly  allowed.  The order of  the learned  Prescribed Authority  determining  31 Bighaa 10  Biswas 15  Biswansis land  was  modified  to  the extent that  there were  only 2  Bighaa 4 Biswas 7 Biswansis lands in  terms of irrigated area available with the tenure- holder as  surplus.   The appellant-State carried the matter in writ  petition before  the High  Court being aggrieved by the aforesaid  decision of the Appellate Authority .  In the said writ petition a learned  Single Judge of the High Court took the  view that  the  aforesaid  lands  covered  by  the Agreements to  Sell could not be said to be comprised of the holding of  Respondent No.3  on the  appointed  day  as  the transferees were  protected by  Section 53-A of the Transfer of Property  Act.   Accordingly the  learned Single Judge of the High  Court agreed  with the  reasoning of the Appellate Authority and dismissed the writ petition.  It is this order of the High Court that is on the anvil of scrutiny before us in the present proceedings.      Learned counsel for the appellant submitted that on the true construction  of the  relevant provisions of the Act it must be  held that  the lands  covered by the agreements did not cease  to belong to Respondent No.3 on the appointed day and were liable to be included in computation of permissible ceiling   area available  to Respondent  No.3 under the Act. That mere  Agreements to  Sell created  no interest  in  the proposed transferees  and that  it was not necessary for the applicability of  Section 5(1)  of the  Act to show that the tenure-holder was  actually in  physical possession  of  the lands owned  by him.   That  even lands  in his constructive possession through  licensees or tenants or even prospective transferees under  Agreements to  Sell in their favour would all be  liable to  be included  within the  holding  of  the tenure-holder.   In  this  connection  strong  reliance  was placed on  the observations  of a three member Bench of this Court in  the decision  of State of Andhra Pradesh v. Mohd.. Ashrafuddin (supra)  as found  in paragraph  (9) of the said Report.      Learned counsel for Respondent NO.3, on the other hand, submitted that  the aforesaid  decision of  this  Court  was rendered in  the  light  of  a  different  statutory  scheme contained in  the Andhra  Pradesh land  Reforms (Ceiling  on Agricultural Holdings)  Act. 1973 which defined ‘holding’ in a manner  which was entirely at variance with the definition of the  word ‘holding’  as found  in the  present  Act  and,

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therefore, the said decision had no application to the facts of the  case.   He submitted  that once  Respondent No.3 had parted with  possession of  the lands  concerned  under  the agreements in favour of the transferees he could not be said to have  held the  said lands on the appointed day which was subsequent to  there agreements  and these lands, therefore, were rightly excluded from the computation of his holding by the Appellate Authority as well as by the High Court and the appeal was required to be dismissed.      Having given  our anxious  consideration to  the  rival contentions we  find that  the High  Court with  respect had patently erred  in taking  the view  that because of Section 53-A  of   the  Transfer   of  Property   Act  the  proposed transferees of  the land  had acquired  an interest  in  the lands which  would result  in exclusion  of these lands from the  computation   of  the   holding  of  the  tenure-holder transferor on  the appointed  day.   It is  obvious that  an Agreement to  Sell creates  no interest  in land.    As  per Section 54  of the Transfer of Property Act, the property in the land  gets conveyed only by registered Sale Deed.  It is not in  dispute that  the lands  sought to  be covered  were having value of more than Rs.100/-.  Therefore, unless there was a  registered document of sale in favour of the proposed transferee agreement  holders, the  title of the lands would not get  divested from  the vendor  and would  remain in his ownership.   There is  no dispute  on this aspect.  However, strong reliance was placed by learned counsel for Respondent No.3 on  Section 53-A  of the  Transfer of Property Act.  We fail to  appreciate how  that Section can at all be relevant against the  third party  like the  appellant-State.    That Section provides  for a shield of protection to the proposed transferee to  remain in  possession  against  the  original owner who   has agreed to sell these lands to the transferee if the  proposed transferee  satisfies other  conditions  of Section 53-A.  That protection is available as a shield only against the  transferor,  the  proposed  vendor,  and  would disentitle  him   from  disturbing  the  possession  of  the proposes transferees  who are  put in possession pursuant to such an  agreement. But  that has  nothing to  do  with  the ownership of  the proposed transferor who remains full owner of the  said lands  till they  are legally  conveyed by Sale Deed to  the proposed  transferees.  Such a right to protect possession against  the proposed vendor cannot be pressed in service against  a third party like the appellant-State when it seeks  to enforce  the provisions  of the Act against the tenure-holder, proposed  transferor of these lands.  Section 5 sub-section  (1) of  the Act provides that on and from the commencement of  the Uttar  Pradesh Imposition of Ceiling on Land Holdings  (Amendment) Act, 1972, no tenure-holder shall be entitled  to  hold  in  the  aggregate  throughout  Uttar Pradesh, any  land in  excess of the ceiling area applicable to him.  The definition of the term ‘tenure-holder’ as found in Section  3 sub-section  (17) lays  down that  a ‘’tenure- holder’ means  a person  who is  the holder  of  a  holding. ‘Holding’ is  defined by  Section 3  sub-section (9) to mean the land  or lands  held by a person as a bhumidhar, sirdar, asami of  Gaon Sabha  or an asami mentioned in Section 11 of the Uttar  Pradesh zamindari Abolition and Land Reforms Act, 1950.   A conjoint  reading of  Section 5(1), 3(17) and 3(9) clearly indicates  that  if  a  person  holds  the  land  as bhumidar, sirdar  or asami,  amongst others. as laid down by the said  provision then  such land  will be  liable  to  be included for  computing ceiling of his holding under Section 5(1).   It is  difficult to appreciate how the term ‘holding held by  a tenure-holder’  should be  confined only  to such

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lands which  are possessed by him as owner and would exclude such lands  which are  owned by him but which are not in his physical possession.  Section 5(1) nowhere contemplates that the lands must also be physically possessed by him before be could be said to have held such lands even though he was the full owner  thereof.    If  the  construction  canvassed  by learned counsel  for Respondent  No.3 is  accepted then even though a  tenure-holder may be the full owner of the land if he had parted with the possession of the land in favour of a licensee or  a tenant he could not be said to have held such land as  tenure-holder.   On the  scheme of the Act.  such a construction cannot be said to have been under countenanced. A person  can be  said to  be holding the land as full owner even if  the actual  possession of such land might have been parted by him in favour of someone else who might enter into such possession  by his  permission and under his licence or by a lease treated by him.  In all such cases he can be said to  be  in  constructive  possession  or  legal  possession. Similarly in  case of  agreements of  sale by which no title passes from  the transferor  of possession to the transferee thereof, it  cannot  be  said  that  merely  because  actual physical possession  of such  land can  be protected  by the transferee  of   possession  against   its  transferor,  the transferor ceases  to  legally  hold  such  a  land.    This question is   no  longer res integra as it is concluded by a decision of  a three  member Bench of this Court in the case of State of Andhra Pradesh v. MOhd. Ashrafuddin (supra).  It is true  that in  that case  the court  was  concerned  with Section 3  of the  Andhra Pradesh  Land Reforms  (Ceiling on Agricultural Holdings)  Act.  It defined the word ‘’holding’ to mean  the entire  land held  by a  person  as  an  owner, amongst others,  and there was an explanation that where the same land  is held  by one  person in  one capacity  and  by another person  in any  other capacity,  such land  shall be included in  the holding  of  both  such  persons.    Still, however, the  first part of the definition in Andhra Pradesh Act. namely,  ‘’holding’ to  mean the  entire land held by a person as  an owner  is analogous  to the  definition of the word ‘holding’  as found  in the  present Act as per Section 3(9) which  also defines the word ‘holding ’as land or lands held by a person.   t is true that in the Andhra Pradesh Act there is  an explanation  which makes  the land  covered  by agreement to  sell liable to be included also in the holding of the  transferee.   In absence  of such  an explanation in Uttar Pradesh  Act. such  land may  not be  included in  the holding of  the transferee.   However,  the liability of the transferor to  get such land included in his holding remains untouched in both the Acts.  To that extent, schemes of both the Acts  run on parallel lines.  So far the term ‘land held by a  person’ is  concerned, in  the aforesaid decision, the following pertinent  observations are found in paragraph (9) of the Report:      "It is  now  well  settled  that  a      person in  possession pursuant to a      contract  for  sale  does  not  get      title to the land unless there is a      valid  document  of  title  in  his      favour.  In the instant case it has      already ben  pointed out  that  the      transferee came  into possession in      pursuance of  an agreement for sale      but no  valid  deed  of  title  was      executed in his favour.  Therefore,      the  ownership  remained  with  the      respondent-transferor.  But even in

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    the absence  of a  valid   deed  of      title the possession pursuant to an      agreement  of  transfer  cannot  be      said  to   be   illegal   and   the      transferee is  entitled   to remain      in possession.  If per chance he is      dispossessed by  the transferor, he      can   recover    possession.    The      transferor   cannot file  any  suit      for getting back possession but all      the same he will continue to be the      owner of  the  land  agreed  to  be      transferred.   The  respondent,  in      our considered  opinion,  satisfies      the conditions  contemplated by the      definition of  the  term  ‘holding’      and the  land  transferred  by  him      under a  defective title  deed will      from part of his holding.  The High      Court, therefore,  erred in holding      that the  land in possession of the      transferee cannot  be taken to be a      part  of   the   holding   of   the      transferor-respondent".      In the  aforesaid decision  it is,  therefore,  clearly held that  even  when  the  land  is  transferred  under  an Agreement  to   Sell  in   favour  of  the  transferee,  the transferor can  be said  to be holding the said land and the land transferred  by him  under a  defective title dead will form part  of his  holding.   It  has  also  been  in  terms observed that  the High Court erred in holding that the land in possession of the transferee cannot be taken to be a part of the  holding of  the transferor-respondent.    A  similar situation arises  in the  present case.  As the Agreement to Sell  does   not  create  any  interest  in  favour  of  the transferee and  such land  can be  treated to  be a part and parcel of  the holding  of the  transferor.  the  result  is inevitable that  the appellant-State is entitled to succeed. It must  be held  that despite  the Agreements  to  Sell  in favour of the transferees concerned, that had taken place in 1970, the  said lands  which  continued  to  remain  in  the ownership of Respondent No.3 could be legally included  as a part of his holding.      As a result of the aforesaid discussion, therefore, the appeal is  allowed.   The judgments  and orders  of the High Court as  well as  the lower Appellate Court are quashed and set aside  and  the  decision  rendered  by  the  Prescribed Authority determining  31 Bighaa 10 Biswas 15 Biswansis land as surplus  holding of Respondent No.3, is restored.  In the facts and  circumstances of  the case there will be no order as to costs.