Darshan Prashad and Anr. v. Civil Judge Ii, Gorakhpur and Ors.

KASLIW AL, 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 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 E Darshan Prashad. The appellan~ filed objections, but the same were dis- missed 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. Saras- F ~ wati 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 A 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 G was that notice issued under Section 10(2) was illegal and without jurisdic- tion. 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 H 268 SUPREME COURT REPORTS' [1992] 2 S.C.R. A 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. 1.0 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 ~ct, require any tenure-holder to furnish such particulars by af­ fidavit 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 matter 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 F 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 G 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 ground that if an earlier judgment is said to operate as res judicata in the subsequent proceedings, then all the necessary facts indudings H pleadings of the earlier litigation must be placed in the subsequent ~· ' ... .. .,. . DARSHAN v. CIVIL JUDGE [KASLIWAL, J.] 269 proceedings. The High Court further observed that in the instant case, the A 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 de.cide whether the second notice could he said to be illegal. B 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 pased 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 C present proceedings was in any manner illegal or without jurisdiction. It was next conteru.Ied ou behalf of the Learned Counsel for the appellants that Smt. Saraswa~i Devi had left the company of the appellant Darshan Prashad and had started living with her parents even before .the D 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 E award was given in favour of Smt. Saraswati D~vi 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. Saras­ wati Devi over the lands situated in village Karmahava Khurd, Tappa F 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 G 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 a judicially separated wife H A and·the agricultural lands in her ownership and possession long before the coming into force of the Ceiling Act, 1960, ca~ot 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 (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. It 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 D 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 petiti0n for divorce might have been presented. Thus, in order to get a judicial separation, it was necesary 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) of the Ceiling Act, 1960. ·It is further important t.J 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 G above proyisions 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 H Counsel for the appellants that a wider meaning should be given to the • ' ) DARSHAN v. CIVIL JUDGE [KASLIWAL, J.] 271 term 'judicially separated' wife to include a wife who may be living A separately from her husband and agriculturcil land owned or possessed in lieu of her right of maintenance sh6uld 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 benefi- cial act for the landless has used the term 'judicially separated' wife after B 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 hus­ band, 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 C the same are dismissed with no order as to costs. R.P. Appeals dismissed.