Anil Kumar, J. - (1.) HEARD Sri Yaduvansh Mani Singh Yadav, learned Standing Counsel for the petitioner, Sri R.P. Singh for the respondents and perused the record.
(2.) FACTS , in brief, of the present case are that after enforcement of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as an 'Act'), a notice under Section 10(2) of the Act has been issued to one Sri Akhileshwari Prasad Verma holding him to be tenure holder in respect to the property in dispute on 18.9.1978 and the matter was decided by the prescribed authority on 27.6.1980 and a land measuring 268 -340 Acre in terms of irrigated land has been declared as surplus. Against the said order Sri Akhileshwari Prasad Verma co -tenure holder had filed a separate appeal before the appellate authority, who by an order dated 29.11.1980 remanded the matter to the prescribed authority with the following findings: - - "As a result of my findings these three appeals are hereby allowed. The judgment and order dated 27.6.1980 passed by the learned prescribed authority is hereby set aside. The case is remanded to the learned Prescribed Authority to decide the case afresh in the light of the observations made above after issuing fresh notices. The parties are directed to appear before the prescribed authority on 18.12.1980." Aggrieved by the order dated 29.11.1980 passed by the appellate authority, State of U.P. Through Collector filed Civil Misc. Writ Petition No. 3167 of 1981(State of U.P. v. Akhileshwari Prasad and others), same was dismissed by an order dated 20.8.1981, the operative portion of the order is quoted as under: - - "As such the prescribed authority will decide the case without being influenced by the observations made by the Additional District Judge. The Prescribed Authority will decide in the lights of the parties independent of such deservation. The writ petition otherwise has not merits and under the above observation is dismissed in limine."
(3.) IN addition to above said fact, aggrieved by the said order dated 29.11.1980 a Writ Petition No. 3567 of 1981 (Vijay Prasad Verma and others v. State of U.P. And others) has also filed, the same was allowed by means of order dated 29.11.1982, the relevant order is quoted below: - - "It is well settled that co -tenancy rights can be acquired even in a sirdari land by estoppel and acquire sconce. Acceptance of persons as co -tenure holders does not amount of transfer vide (Gaya Singh v. D.D.C. : 1976 A.L.J. 618), a Division Bench decision. As the decree was prior to 24.1.1971 it was not open to the authorities under U.P. Imposition of Ceiling on Land Holdings Act, 1961 to ignore it except on the basis of a finding under explanation 1 or explanation 2 to section 5(i) of that Act. The learned district Judge has not given any finding that these explanations were attracted to the case. On the other hand, he has taken the view that these explanation were not material. Indeed, in a case of co -tenance these explanation would not be very relevant in as much as the possession of one co -sharer is taken to be constructive possession on behalf of other co -sharers. Accordingly the benefit of the decree of 1967 could not be denied to the petitioners. In the result, the writ petition is allowed and only the finding of the additional District Judge, in the judgment dated 29.11.1980 that the petitioners were no co -sharers in the land and that the land would be deemed to be held only by the persons whose names recorded in the patta is hereby quashed. The rest of the findings and directions contained in the appellate court's judgment shall remain unaffected. No order as to cost.";