http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

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.