Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the parties.
(2.) KUNWAR R.C. Singh, learned Counsel for the Petitioner stated that after filing of the affidavit by learned standing counsel on 28.03.2011 pursuant to the order dated 10.03.2011, the point regarding irrigated/unirregated nature of certain plots does not survive. The only point argued by learned Counsel for the Petitioner is regarding benefit of 4 bigha land to Dheer Singh, one of the two sons of the Petitioner (the other being Beer Singh). Initially in the notice dated 13.03.1974 it was proposed to declare 8 bigha 12 biswa 10.5 biswanciws land with the Petitioner as surplus land. Earlier also the matter had come to this Court in the form of writ petition No. 3420 of 1980 which was decided on 22.05.1981 true copy of the said judgment is Annexure 1 to writ petition. Through the said judgment matter was remanded to the appellate court. In the said judgment itself it is mentioned that against the notice Petitioner filed objections contending inter alia that his holding was ancestral Seer and Khudkasht and as one of his sons i.e. Beer Singh was born before the date of vesting, hence, he would be having share therein. The other point was regarding nature of land being irrigated unirrigated, usarar, kallar. In the said judgment it was held that grand son do not have share in the coparcenary property and Petitioner's son could not have any share in the property as Ratan Singh Petitioner's father, died after Zamindari Abolition. Matter was remanded only to consider the question of irrigated/unirrigated nature of the land. Thereafter, District Judge Muzaffarnagar decided the appeal on 29.03.1984 (Ceiling appeal No. 26 of 1978 Sukhvir Singh v. State) and it was held that Petitioner did not possess any surplus land. Thereafter, review petition was filed by the State which was allowed on 02.09.1985 and order dated 29.03.1984 was modified and it was declared that instead 7 bigha 15 biswas and odd, Petitioner possessed only 3 bigha 15 biswa and odd land as surplus land. The said order passed on review has been challenged through this writ petition. Through the impugned order only an arithmetical error was corrected. Eight plots had been treated to be unirrigatged even in the notice, hence, there was no question of granting any relief to the Petitioner on the basis that the said plots were unirrigated. Along with supplementary affidavit dated 25.03.2011 filed on 28.03.2011 copy of the notice has been annexed which clearly proves that the 8 plots in question were already treated to be unirrigated.
(3.) AS far as the question of granting benefit to Beer Singh or Dheer Singh on the ground that property in dispute was Seer and Khudkasht, is concerned the said point had already been decided in the earlier judgment passed by this Court, Annexure 1 to the writ petition, hence, it could not be reopened by the appellate court. Moreover, no such argument was raised before the lower appellate court also.;