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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

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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

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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.

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