Honble Sudhir Agarwal, J.—Heard Sri Manoj Misra, learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. The writ petition is directed against the order dated 30.3.1991 passed by Prescribed Authority/Addl. District Magistrate under Section 10 (2) of U.P. Imposition of Ceiling on Land Holdings Act, 1860 (hereinafter referred to as the Act) and the order dated 29.1.1992 passed by the Commissioner, Moradabad Division, Moradabad, dismissing the appeal of the petitioner.

3. A notice under Section 10 (2) of the Act was served upon petitioners father Het Ram Singh on 12.3.1988 to show cause as to why his holding of 17.40 acres be not declared surplus. He filed objection on 24.3.1988. During the continuance of the said proceedings before the prescribed authority, Sri Het Ram Singh died and the petitioners were substituted as his legal heirs. The petitioners filed sale-deeds executed separately in their names showing that they were all major having their own income and have purchased the land independently and, therefore, their holdings cannot be included with the holding of their father. The prescribed authority, however, rejected their objection and held that except of the sale-deeds, no evidence was produced to show that the sons were separately residing from the father and their holdings were separate and moreover, one of his son, namely, Shishu Pal Singh obtained loan from the State Bank by mortgaging fathers property and this shows that the land was jointly held by the petitioners and their father as one unit and consequently, declared a total 17.40 acres of land as surplus and directed for taking over its possession. The petitioners filed Ceiling Appeal No. 99 of 1991 before the Commissioner, which was rejected on 29.1.1992.

4. The learned Counsel for the petitioners submitted that the petitioners are not included within the term "family" defined under Section 3 (7) of the Act and in order to include their holding by placing reliance on Explanation 1 of Section 5 of the Act, heavy onus lies upon the State to prove that the holding was benami, i.e., "ostensibly in the name of any other person, though it is a land held by him in his own rights". In the case in hand, the respondents have proceeded otherwise by observing that the petitioners did not produce any evidence to show that the land was not held by petitioners father in his own rights and, therefore, the basic approach of the respondents is clearly erroneous, illegal and contrary to law. He has also placed reliance on a single judgment of this Court in Writ Petition No. 2315 of 1997, Banshi Singh and others v. District Judge, Moradabad and others, decided on 3.1.1979. The learned Standing Counsel opposed the submission and supported the reasons assigned by the respondents.

5. It would be appropriate to consider what the Act has prohibited and in what manner. Section 5 of the Act imposes ceiling on the land providing that no tenure-holder shall be entitled to hold in the aggregate throughout U.P., any land in excess of ceiling area applicable to him. The term "tenure-holder" has been defined in Section 3 sub-section (17) of the Act and reads as under :

"3. Definitions.—.............................

(17) tenure-holder means a person who is the holder of a holding but except in Chapter III does not include—

(a) a woman whose husband is a tenure-holder;

(b) a minor child whose father or mother is a tenure-holder;"

6. The term "holding" has been defined in Section 3 (9) and reads as under :

"3. (9) holding means the land or land held by a person as a bhumidhar, sirdar, asami or Gaon Sabha or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, other than a sub-tenant, or as a Government lessee, or as a sub-lessee of a Government lessee, where the period of the sub-lease is co-extensive with the period of the lease;"

7. The term family in relation to tenure-holder has been defined in Section 3 sub-sec