Judgment

B.P.JEEVAN REDDY, J.

(1) LEAVE granted.

(2) HEARD the counsel for both the parties.

(3) RESPONDENT Phool Singh filed a declaration of his agricultural holding as required by and under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. After an appropriate inquiry, the Prescribed Authority determined his holding. According to the said determination, he was holding surplus land to the extent of 8..26 acres of irrigated land. While determining his holding, it is necessary to mention, the lands tRANSFERRED by him in favour of the appellant Ravindra Singh and his wife Smt Kamla Devi under sale deeds dated 2/9/1975 (in respect of 6 acres 66 decimals of land) and -dated 3/9/1975 (in respect of 6 acres 67 decimals of land) were included in his holding, inasmuch as the said sale deeds were subsequent to 24/1/1971. This was done following the provision in Ss. (6 of Section 5 of the Act, which reads as follows:

"(6 In determining the ceiling area applicable to a tenure-holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account: Provided that nothing in this Ss. shall apply to (a) a transfer in favour of any person (including government) referred to in Ss. (2; (b) a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a Benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family. Explanation 1.For the purposes of this sub-section, the expression transfer of land made after the twenty-fourth day of January, 1971, includes (a) a declaration of a person as a co-tenure-holder made after the twenty-fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty-fourth day of January, 1971; (b) any admission, acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner. Explanation II. The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit."

(4) WHEN the stage of surrender of surplus land arrived, respondent Phool Singh sought to surrender land which was tRANSFERRED in favour of the appellant and his wife, to which the Prescribed Authority did not agree on the ground that it was a tRANSFERRED land. Against the said non-acceptance of land surrendered by him, Phool Singh filed a writ petition in the Allahabad High court which was dismissed on 26/3/1979. Phool Singh carried the matter to this court by way of Special Leave Petition No. 4975 of 1979 which was dismissed by this court on 7/5/1981 under the following order:

"SPECIAL leave petition dismissed but the petitioner will be entitled to choice in respect of plots forming the subject-matter of the sale deed."

Treating the aforesaid order of this court as an authority entitling him to surrender land of his choice, Phool Singh wanted the Authorities to accept the surrender of the land tRANSFERRED in favour of the appellant and his wife. The Authority accepted the said surrender overruling the objections of the appellant. An appeal preferred by the appellant was dismissed by the Additional Commissioner and a writ petition filed by him in the Allahabad High court (CMWP No. 9302 of 1986 was also dismissed

(5) IN this appeal the learned counsel for the appellant relies upon the provisions contained in clause (d) of the proviso to Section 12-A of the Act. Section 12-A reads as follows:

"12-A. In determining the surplus land under Section 11 or Section 12, the Prescribed Authority shall, as far as possible, accept the choice indicated by the tenure-holder to the plot or plots which he and other m