Rakesh Kumar And Others vs State Of U.P. & Others
2018 Latest Caselaw 3530 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 20.2.2018
 
Delivered on 02.11.2018
 
Court No. - 6
 
Case :- WRIT - C No. - 47592 of 2008
 
Petitioner :- Rakesh Kumar And Others
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Santosh Srivastava,Mrs. Karuna Srivastava
 
Counsel for Respondent :- C.S.C.,S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

1. This writ petition has been filed by the petitioner challenging the order dated 30.10.1995 passed by the Prescribed Authority (Ceiling) in Case No. 1 of 1993-1994 (State of U.P. Vs. Karan Singh) and also the order dated 14.7.2008 passed by the Additional Commissioner (Judicial), Saharanpur Division, Saharanpur rejecting the Appeal No. 1 of 2007-2008.

2. The facts necessary for decision of the controversy are as follows:-

3. A notice dated 31.1.1975 under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the 'Ceiling Act') was issued to the father of the petitioner, namely Karan Singh. Karan Singh filed his objections. Thereafter Case No. 460-A/1974 was registered and after hearing the parties, six issues were framed, and then the Prescribed Authority, Muzaffarnagar by order dated 3.6.1975 set aside the notice dated 31.1.1975 and held in favour of Karan Singh that out of 85 Bighas 17 Biswas and 2 Biswansi of land of his original holding 25 Bighas 17 Biswas and 10 Biswansi was unirrigated. Thus, the same was liable to be ignored. The total holding of Karan Singh was reduced to 59 Bighas 19 Biswa and 12 Biswansi. There were two major sons and at that time the ceiling limit was 64 Bighas 17 Biswas and 12 Biswansi. Therefore, the land of Karan Singh was held to be within the Ceiling limit. No Appeal was filed against this order by the State and it was allowed to attain finality.

4. All of a sudden two notices were issued on 10.8.1983 saying that prima-facie determination had been made on surplus land held by Karan Singh and his son - Mukesh Kumar of land held by them as on 8.6.1973 being surplus, objections were invited. Karan Singh as well as petitioner no. 1 - Mukesh Kumar filed their objections mentioning that on 3.7.1975 notice under Section 10(2) of the Act had been discharged and after passing of the aforesaid order dated 3.7.1975, no land had been additionally secured by the petitioner and also that the land of the petitioner had been reduced in Consolidation proceedings and that the petitioners were members of joint Hindu family and petitioner no. 1 - Mukesh Kumar having been born before the Abolition of Zamindari, he had half of a share over the land in dispute and half the share had been obtained by petitioner nos. 2 & 3 as coparcenary land. There was no surplus land with the petitioner. The objections dated 10.11.1993 along with affidavit dated 28.6.1995 filed by Karan Singh, and the objection dated 10.7.1995 filed by the petitioner no. 1 have all been filed as Annexure 3 to the writ petition.

5. It has been submitted that the respondent no. 3 without looking into such objections passed an order dated 30.7.1997 declaring 1.7540 hectare of land as surplus giving benefit to the father of the petitioner of only two major sons under Section 5(3) of the Act. On 20.11.1995, the respondent no. 3 declared plot no. 282 / 2 and 278 having area 1.7540 hectare of land as surplus.

6. The petitioners being aggrieved filed writ petition before this Court which was dismissed on 12.2.1996 on the ground of alternative remedy. They filed an Appeal thereafter under Section 13 of the Act which was accompanied by an application for condonation of delay. The said application was rejected by the Appellate Court by observing that the writ petition was dismissed on 12.2.1996 and the Appeal was filed on 4.4.1996 and there was considerable delay which was unexplained.

7. The writ petitioners thereafter filed Writ Petition No. 4683 of 1997 which was allowed by this Court on 23.8.2007, remanding the matter to the Appellate Authority to take a fresh decision on the application for condonation of delay, with a direction that since the matter was very old, the Appellate Court should decide the same expeditiously on merit. After a photocopy of this Court's order dated 23.8.2007 was placed before the Appellate Authority, the Appellate Authority considered the Appeal No. 2/1995-1996 on merits, and rejected the same observing that Karan Singh had been issued notice showing 13.0540 hectare of irrigated land being held by him, whereas only 11.3000 hectare was permissible, the Prescribed Authority had given a detailed consideration to the objections filed by the tenure holder and had also dealt with the objections raised regarding res-judicata and observed that under Section 38-B of the Act any proceedings taken before 10.10.1975 could be reopened and that the doctrine of resjudicata would not apply. No documentary evidence was also placed regarding three major sons having a share of coparcenery.

8. Aggrieved by the rejection of the Appeal by the order dated 14.7.2008, this writ petition has been filed. It has been submitted in the writ petition that the concerned Lekhpal had certified that the age of the petitioner no. 1 was 25-26 years in 1974-1975 and that he was born before the Abolition of Zamindari, therefore he held half of his share by birth along with his father in the joint Hindu family property.

9. It has also been submitted that the Khasra of 1978 fasli as well as the statement of the concerned Lekhpal had made it clear that at-least 9 plots in the total holding of the father of the petitioners were unirrigated i.e. about 77-12-10, but the respondent no. 3 held that the tenure holder had not filed any evidence to show the nature of the land or that it was situated near the bank of the river or that it was Usar.

10. It has been submitted that it is for the State to prove that the land mentioned in the notice is irrigated land and it is not for the tenure holder to establish that the land is irrigated. For determining land to be irrigated or not, the relevant Khasra for the year 1378, 1379 & 1380 fasli had to be examined along with village map and other material available on record, beside local inspection could also be done under the provisions of Section 4-A read with section 3(14) of the Act. No such satisfaction as is required under Section 4-A of the Act was recorded.

11. Moreover, after the judgment and order dated 3.6.1975, the Ceiling Act had been amended w.e.f. 10.10.1976 by U.P. Act No. 20 of 1976. Under Section 31 sub section (3) of the Act required that the Prescribed Authority may within a period of two years redetermine the surplus land, but the second notice was issued to the father of the petitioners as well as to the petitioner no. 2 only on 10.8.1993 after the lapse of 18 years.

12. Moreover, in the order passed by the Prescribed Authority and the Appellate Authority, no finding had been recorded that any unirrigated land had become irrigated by establishment of State Irrigation Works, or that the petitioner had acquired any land additionally through a decree by a Court or as a result of succession or prescription. It was the same land as was held by the tenure holder in 1975 and there was no increase in the land, therefore proceedings under Section 10(2) read with section 29 of the Act could not have been undertaken.

13. It has also been submitted that Karan Singh, the original tenure holder had died during the pendency of Writ petition No. 4682 of 1997, and the petitioners had been substituted in his place. They were three sons of Karan Singh and all had been substituted and when the Appeal was considered on merits by the Appellate Court, it did not consider that the original holding had three co-tenure holders. Moreover, the aforesaid village was under Consolidation Operations which had also substantially reduced the holding of the petitioners.

14. Initially while entertaining this writ petition, this Court had granted an interim order directing status quo to be maintained till further orders. After such order was passed on 11.9.2008, a counter affidavit was filed by the respondents in which most of the paragraphs of the writ petition were not denied as matter of records. It was additionally stated in paragraph 3 of the counter affidavit that the Prescribed Authority had rightly issued notice under Section 10(2) read with section 29 of the Act and it was also stated that the grounds taken by the petitioners before this Court in the writ petition had already been rejected by the Courts below after considering relevant record or Khasras of 1378 fasli to 1380 fasli and the Courts below had specifically held that the disputed land was situated within the effective Command Area, or lift irrigation and also there was State / private tube-well and as such, the aforesaid land was irrigated. Nevertheless, the Courts below had given the benefit of two major sons to the tenure holder - late Karan Singh, while determining his surplus land and declared only two plots of land ad-measuring 1.7540 hectares as surplus.

15. A rejoinder affidavit was filed by the petitioners denying the contents of the counter affidavit and reiterating the pleadings in the writ petition that the second notice issued on 10.8.1993 was not maintainable, and any proceedings held in pursuance of the second notice were also without jurisdiction and illegal, and that there were three major sons of the tenure holder and the benefit of only two had been granted.

16. It appears from a perusal of the order sheet that this Court while hearing the matter on 15.3.2013 had directed the State respondents to substantiate the claim made in paragraph 10 of the counter affidavit that they had determined the extent of irrigated land as per requirement under Section 4-A of the Act. The State respondents were directed to file supplementary counter affidavit along with supporting evidence with regard to the determination under Section 4-A of the Act.

17. A supplementary counter affidavit was filed on 16.4.2013 by the Tehsildar (Judicial) Jansath, Muzaffarnagar annexing photocopy of Khasra of 1378 fasli to 1380 fasli, without filing any typed copy thereof, nor explaining the contents of such Khasras, and as to how the Prescribed Authority came to the conclusion from a perusal of the Khasra that land belonging to the tenure holder had become irrigated in the meantime and had also become capable of growing two crops in a year.

18. A supplementary rejoinder affidavit has been filed mentioning that the Prescribed Authority's order does not refer to the relevant Khasra for the year 1378 fasli to 1380 fasli, and denying the attempt of the respondents to supply additional reasons in the counter affidavit and the supplementary counter affidavit, in support of the order impugned.

19. This Court again on 7.5.2015 directed the State respondents to produce the notice issued under Section 29 of the Act under which the proceedings were initiated again.

20. A supplementary counter affidavit was filed again by the State respondents on 31.5.2013 annexing therewith, copies of notice allegedly issued under Section 29 with "Vivran Patra 3-Ka and 3-Ga" issued to the tenure holder and the petitioner no. 2 on 10.5.1993 relating to Rules 7 & 8 of the Rules framed under the Ceiling Act.

21. A supplementary rejoinder affidavit was filed by the petitioner thereafter on 24.7.2013 denying the contents of the affidavit filed by the State respondents on 29.5.2013, and alleging that the conditions mentioned Section 29 to re-determine surplus land did not exist yet the petitioner's father had been issued a second notice in colourable exercise of power.

22. It was moreover submitted that the Ceiling proceedings had been initiated against the petitioner's father - Karan Singh. He died sometime after the order was passed by the Prescribed Authority, but before the Appeal was decided. The three petitioners succeeded to the property of Karan Singh with one-third share each and the petitioners therefore could not be said to be having any land beyond the Ceiling limit, which fact was not noticed by the Appellate Authority while deciding the Appeal.

23. Sri R.C. Singh assisted by Sri Santosh Srivastava, Advocate has appeared for the petitioner and has argued that initially a notice was issued under Section 10(2) to the father of petitioners wherein objections were filed and notices were discharged on 30.06.1975. The order attained finality and later on, a notice was issued again purportedly under Section 29 of the U.P. Imposition of Ceiling and Land Holdings Act (hereinafter to referred as "Rural Ceiling Act") reopening what had earlier been settled by the authorities themselves. The predecessor-in-interest of the petitioners filed his objections and stated clearly therein that the matter cannot be reopened under Section 29 without the conditions mentioned in Sub Sections (A) and (B) thereof being satisfied. No additional land had been acquired by the tenure holder and also, no unirrigated land of the tenure holder had become cultivable. Therefore, no such re-determination can be made by the Authorities concerned.

24. In the objections filed by the petitioners' father it was also mentioned that the land in question was SIR/KHUDKAST land and the tenure holder had three sons who were born before Zamindari Abolition and date of vesting, and they became coparceners in his holding and therefore, his holding could not be said to be outside the prescribed Ceiling Limit, it was also submitted that some of the land had only one crop sown in it and was prone to flooding. Whereas, some of the land was unirrigated.

25. It has been argued that in the orders impugned passed by the Authorities concerned however, the objections made by the petitioners' father were not dealt with sufficiently and it was only mentioned that the objection of resjudicata will not apply in view of the provisions of Section 38-B of the Act. Moreover, by the orders impugned dated 30.10.1995 and 14.07.2008, a finding has been recorded that unirrigated land became irrigated land without examining the relevant Khasra of 1378, 1379 and 1380 Fasli. The total land held by the petitioners was arrived at 59 Bighas 19 Biswas and 12 Dhoors and illegally 1.7540 hectares of land was declared as surplus without any verifiable evidence by the non-speaking orders impugned in this writ petition.

26. The counsel for the petitioner, Shri R.C. Singh, has relied upon a judgment rendered by this Court in Indrapal Mishra Versus State of U.P., 2005 (98) RD 699 to argue that unless conditions mentioned under Section 29 are fulfilled, no decided case can be reopened as has been done by the Authorities by the orders impugned. He has also relied upon the judgments of this Court holding that redetermination under Section 38-B can be done only under certain conditions. These judgments being 1978 ALJ 1197 and 1979 ALJ 43. The learned counsel for the petitioner has also relied upon 1998 Volume 89 RD 124 regarding his argument that adult sons i.e. those sons who were born before the date of vesting shall become coparceners in Khudkast land. This Court while holding so has relied upon the Division Bench judgment rendered in Ram Chandra Versus Commissioner, 1970 RD 283.

27. Shri R.C. Singh has also placed reliance upon the judgments of this Court which hold that whether the land is irrigated or unirrigated or has become irrigated later on, has to be decided by examining the Khasra of 1378, 1379 and 1380 Fasli and also by on the spot inspection if need be, and other documents/land records maintained by the authorities which was not done in this case. The judgments relied upon by Shri R.C. Singh are 1995 RD 410; 1987 AJ 585; 1979 ALJ 25; and 1985 ALJ 125. It has also been argued by Shri R.C. Singh that during the consolidation proceedings although this Court has held that rural ceiling can also take place, but such rural ceiling operation should take into account the reduction in area of tenure holders under the consolidation proceedings. He has also relied upon 1979 ALJ 1259 and 1979 ALJ 166 to buttress his arguments.

28. Lastly, after reading out the orders impugned the learned counsel for the petitioner has submitted that second notice issued to the father of the petitioners was without jurisdiction as the matter had already been settled in 1976 itself and the orders impugned are non-speaking and do not record any finding on the basis of examination of land records and the relevant Khasra.

29. Shri Siddharth Singh, learned Additional Chief Standing Counsel, on the other hand, has pointed out from the counter affidavit, paragraph - 10 thereof, wherein it has been recorded that the land of the petitioner was irrigated by lift irrigation canal and State/private tube-well also. In pursuance of the orders passed by this Court to produce Section 29 Notice and Prescribed Form 3 Ka and 3 Kha, a supplementary affidavit was filed by the authorities on 31.05.2013 and to substantiate the contention raised in paragraph - 10 of the counter affidavit another supplementary counter affidavit was filed on 16.04.2013, bringing on record the Khasras of 1378, 1379 and 1380 Fasli. According to the learned counsel for the State-Respondents the extent of irrigated land has been determined as per requirement under Section 4-A of the Act and the orders impugned have been rightly passed.

30. With regard to the second notice being issued to the original tenure holder - Karan Singh and to petitioner no. 2 - Mukesh Kumar, learned counsel for the petitioners has referred to the provisions of Section 29 and Section 38-B of the Act in Indra Pal Mishra Vs. Special Judge (EC Act), Banda 2005 (98) RD 699. A Coordinate Bench of this Court referred to Section 29 of the Act which reads as under:-

"29. Subsequent declaration of further land as surplus land.- Where after the date of enforcement of the Uttar Pradesh Imposition of Ceiling of Land Holdings (Amendment) Act, 1972,-

(a) any land has come to be held by a tenure-holder under decree or order of any court, or as a result of succession or transfer, or by prescription in consequence of adverse possession, and such land together with the land already held by him exceeds the ceiling area applicable to him; or

(b) any unirrigated land becomes irrigated land as a result of irrigation from a State irrigation work or any grove land loses its character as grove land or any land exempted under this Act ceases to fall under any of the categories exempted, the ceiling area shall be liable to be re-determined and accordingly the provisions of this Act, except Section 16, shall mutatis mutandis apply."

and has thereafter observed in paragraph 5 thus:-

"5. The aforesaid provision makes it clear that ceiling area of the tenure-holders is liable to be re-determined only if he comes to hold some land either under a decree or order of a court, or as a result of succession or transfer, or by prescription in consequence of adverse possession after 8.6.1973 and the land so acquired together with the land held by him exceeds ceiling limit."

31. I have carefully perused the order passed by the Prescribed authority and also that of the Appellate Authority. The Prescribed Authority does not record any finding that any unirrigated land had become irrigated from State Irrigation Works or that the petitioners had acquired any land either through decree of a Court, or as a result of succession or by a prescription.

32. The Appellate Authority has referred to Section 38-B of the Act, but has not considered the law as settled by various judgments of this Court, viz Ram Lal Vs. State of U.P. & others 1978 ALJ 1197 where this Court considered the true scope and construction of the Section 38-B of the Act.

33. This Court in Ram Lal (supra) considered whether a fresh notice re-determination of surplus land can be issued in all the cases decided earlier after the amendment of the Principal Act by amended Act No. 20 of 1976 w.e.f. 10.10.1976; or notices were to be issued only in those cases in which the amendment to the Principal Act had rendered re-determination necessary. This Court referred to the amendments carried out in the Principal Act by addition of Section 4-A laying down the principle on which irrigated land was to be determined. It was observed that these amendments did not recast the entire Act or introduced changes in all the Sections of the Act. They only touched certain Sections of the Act while preserving the rest of it. For example, in the definition clause, Section 3, changes were made only in some sub-sections but not all. In the definition of a grove in Section 3(8), originally trees like guava, pappaya and vine were not excluded. Under the amended definition, these tree plantations were not to be taken into account, with the result that the land covered by these trees could not be held as grove land. Thus, in a case where a holding in an earlier proceeding had been found to be grove land on account of the existence of guava trees, it could not be held to be a grove land under the principal Act as amended by the Amending Act, and the determination of the surplus area could be reopened on the ground of the amendment made in the definition of grove land. The Prescribed Authority could in such a case start fresh proceedings for re-determination of surplus land in view of the amendment necessitating it.

34. This Court in Ram Lal (supra) referred to several judgments of the Supreme Court which held that a change in law can affect the decision of a Court only to the extent that the decision becomes contrary to law. Only those findings or decisions could be reopened which made them contrary to law as amended after 10.10.1976. Since, in the case of original tenure holder, the original notice under Section 10(2) of the Act had been discharged on 30.6.1975 by giving benefit of law relating to tenures which were ancestral, or to Sir and and Khudkasht land, and after excluding the shares of two major sons, no land was found surplus with the father of the petitioners and no changes were carried out by the Amendment Act in the Principal Act relating to ancestral, Sir and Khudkasht land of a tenure holder, such a decision could not be reopened by taking recourse to the provisions under Section 38-B of the Act.

35. Learned counsel for the petitioner has also referred to judgments rendered in Smt. Kailash Kumari Vs. State of U.P. & others, 1980 ALJ 208 where a Coordinate Bench has referred to law laid down by the Division Bench in Sukhbir Singh Vs. Prescribed Authority 1979 (5) ALR 107 to the effect that second notice under the amended provisions could be issued only with reference to a situation where re-determination of surplus land became necessary as a result of amendments introduced by the Amending Act. In the subsequent Ceiling proceedings, the Prescribed Authority would be bound by all the findings recorded in the earlier ceiling proceedings, save where in view of the amendments effected in the Principal Act, the Prescribed Authority became entitled to reopen and retry an earlier finding.

36. Sri R.C. Singh has also relied upon Rajeshwar Pratap Sahi Vs. Commissioner, Gorakhpur & others 1998 (89) RD 124. A Coordinate Bench of this Court had after referring two judgments of the Supreme Court in Kailash Rai Vs. Jai Jai Ram, AIR 1973 SC 893 and in Budhan Singh Vs. Nabi Bux, AIR 1970 SC 1880, had clarified that Section 18 of the U.P. Z.A. & L.R. envisaged that Sir and Khudkasht land, either in possession of the tenure holder or held or deemed to be held by the Intermediary, would become his bhumidhari. In an ancestral, Sir and Khudkasht land, a person could be entitled to an interest by virtue of his birth and the devolution in respect of Sir and Khudkasht land would be governed by Hindu law.

37. This Court referring to a Division Bench judgment in Ram Chandra & others Vs. Commissioner and Director, Consolidation, Meerut 1970 RD 283 had clarified that in a case of coparcenery land belonging to the Joint Hindu Family and coparcenary, the same would be deemed to have been settled on the co-sharers and coparceners under Section 18 of the U.P. Zamindari Abolition and Land Reforms Act and the mere circumstance that the name of such a co-sharer or coparcener was not recorded in the village records would not deprive him of the right he possessed in such land. It was noticed that the normal practice in a case of a coparcenary was to record the name of the father alone even though the property was jointly owned by him and his sons.

38. After consideration of the arguments advanced and the case laws cited, this Court finds from a perusal of the order passed by the Prescribed Authority that the Prescribed Authority has referred to the failure of the tenure holder to bring any evidence on record to show that his land was unirrigated.

39. This Court finds that the onus was wrongly placed on the tenure holder. In Ram Sagar Vs. Civil Judge, Behraich & others 1985 ALJ 125, this Court held that under Section 4-A of the Act, it was mandatory for the Prescribed Authority to have examined the Khasras for the relevant years 1378 fasli to 1380 fasli and should have also made a local inspection to see whether the land in question is irrigated or not.

40. It is well settled while the computing the irrigated area, the Prescribed Authority has to peruse the relevant Revenue records in order to find out whether other irrigation facilities were available to any land in respect of any crop in 1378 fasli to 1380 fasli by any canal, or any State tube-well or by a private irrigation work, and also to find out whether two crops were grown over such land, in any of the aforesaid three faslis. In all the notices issued under Section 10(2) of the Act, the State Government assumes the role of plaintiff and the tenure holder that of the defendant. The onus lies squarely on the State to establish that any land treated as irrigated land in the notice actually bears that character..

41. This Court in Ram Sagar (supra) referred to a Full Bench decision in Harishwar Dayal Vs. Second Additional District Judge 1982 Alld. 270 where it was held that the Prescribed Authority has to summon and examine the relevant Khasras, the Prescribed Authority has to mention in his order that the Khasras for the year 1378 fasli to 1380 fasli were perused by him, while deciding the issue regarding irrigation facilities being available.

42. A Division Bench of this Court in Jaswant Singh Vs. State of U.P. & others 1979 ALJ 25 was dealing with the question whether oral evidence could be relied upon by the Prescribed Authority in determining irrigated land under Section 4-A of the Act. The Full Bench quoted Section 4-A of the Act and came to the conclusion that there are no words in Section 4-A to justify anything other than that specified therein, to be made use of by the Prescribed Authority, for the formation of opinion on the points specified in sub sections firstly, secondly and thirdly, thereof. The legislature thought it fit to confine the scope of enquiry to the examination of documents and local inspection presumably because almost everything that is mentioned in various sub-sections of 4-A was capable of being ascertained on the basis thereof and, indeed, where any fact can be ascertained on the basis of documents, oral evidence can serve no useful purpose. All evidence can be gathered from the village record. The village map would show whether there was an effective Command Area of a Lift irrigation or of a Tube-well, and a local inspection would show whether the land irrigated is such that can produce two crops in a year. The Division Bench judgment rendered in Jaswant Singh was reconsidered by a Division Bench in Shiv Ram Singh Vs. State of U.P. 1979 ALJ 565 and it was observed that oral evidence can also be taken into account only to support the findings arrived at on the basis of examination of Khasra of the relevant year, the village map or after local inspection. The same conclusion was arrived at by another Division Bench of this Court in Kallu Vs. State of U.P. 1979 AWC 579.

43. It has come out from a perusal of the order passed by the Prescribed Authority that no finding has been recorded on the basis of perusal of relevant Khasras and other relevant records including perusal of village map and local inspection that the land originally held by the earlier order passed by the Prescribed Authority dated 30.6.1975 to be unirrigated had become irrigated in the meantime, and the finding needed to be reopened in view of the amendments carried out by Amending Act No. 20 of 1976.

44. The Prescribed Authority did not look into the objections made by the petitioner's father with regard to the earlier order passed by the Prescribed Authority dated 30.6.1975 acting as resjudicata and preventing reopening of the issues already settled. The Prescribed Authority in its earlier order dated 30.6.1975 had also made observations in favour of Rakesh and Mukesh - two major sons of late Karan Singh being coparceners in joint Hindu family property.

45. The Prescribed Authority in the order impugned has only observed that the name of late Karan Singh alone has been recorded in the Revenue records as tenure holder, therefore the right of the two major sons to at-least half the share of the property cannot be looked into.

46. The Prescribed Authority has only given the benefit of two hectares of land to each of the two major sons treating them to the members of the family of the late Karan Singh and has not given any independent right to them that had accrued to them from their birth in the joint Hindu family. The right of coparceners before the date of vesting has been recognised even by the U.P. Z. A. & L.R. Act.

47. The Appellate Authority while considering the Appeal rejected the same in a summary manner. Under Section 38 of the Rural Ceiling Act, it has been provided that the Civil Procedure Code shall apply to all Appeals before the Appellate Authority. In Madhukar & others Vs. Sangram & others 2001 (4) SCC 576, the Supreme Court held that it is the duty of the Court of first Appeal that it would record its findings after dealing with all the issues of law, and the evidence led by the party. In case the Court of first Appeal does not fulfill its obligation to consider all oral and documentary evidence before it, it has failed to discharge the obligation placed on a first appellate court.

48. The Prescribed Authority having not considered the case of the tenure holders properly, it was the duty of the Appellate Authority to have gone into both questions of law and of facts raised in the Appeal by the petitioners. This duty was also not performed by the Appellate Authority.

49. Consequently, the order passed by the Prescribed Authority as well as the Appellate Authority are set aside. The matter is remanded to the Prescribed Authority to consider afresh keeping in mind the amendments carried out by the Amending Act No. 20 of 1976 in the Principal Act, and to see whether such amendments necessitated reopening of the findings recorded by the Prescribed Authority in pursuance of earlier notice issued under Section 10(2) of the Act in its judgment and order dated 30.6.1975. If re-enquiry is warranted then the Prescribed Authority shall consider the question of irrigated land after referring to the relevant Khasras of 1378 fasli to 1380 fasli, as well as relevant records relating to village map and if need be local inspection be carried out.

50. The Prescribed Authority shall keep in mind the law settled regarding ancestral property and the right of major sons as co-parceners in joint Hindu family property, while determining surplus land of the original tenure holder also.

51. Since, the matter is old, the Prescribed Authority shall endeavour to decide the case as expeditiously as possible say within a period of eight months from the date a certified copy of this order is produced before him.

52. The writ petition is partly allowed to this extent.

Order Date :- 02.11.2018

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