- (1.) B. Dikshit, J. This writ petition has arisen as a notice was issued to petitioner under Section 29 to show cause as to why 19. 02 acres of irrigated land belonging to him be not declared as surplus. The notice has been contested by petitioner. The Prescribed Authority under U. P. Imposition of Ceiling on Land Holdings Act (in short Prescribed Authority) held that petitioner had only 13 acres of irrigated land and, therefore, he did not declare any land of petitioner surplus. State preferred an appeal. The appellate court reversed the finding of Prescribed Authority in respect of minority of petitioner's son and held him major. The appel late court remanded the case for decision afresh in respect of determination of irrigated land held by petitioner. It directed that the dispute in respect of land to be irrigated or unirrigated be decided by Prescribed Authority in the light of Section 4-A of U. P. Imposition of Ceiling on Land Holdings Act (in short Act' ). The Prescribed Authority on remand considered the case in respect of land being ir rigated or unirrigated and declared only 1. 67 acres of irrigated land as surplus. The appellate court held plot Nos. 18, 19, 74 and 134 to be single crop land. The tenure-holder went in appeal against declaration of 1. 67 acres irrigated land as surplus. The State neither filed appeal nor any cross-objection against the order of Prescribed Authority. The appellate court reconsidered the whole case and by im pugned order held 19. 03 acres of irrigated land as surplus being an area held by petitioner beyond ceiling limit.
(2.) COUNTER affidavit and rejoinder affidavit have been exchanged and therefore the writ petition is being disposed of finally at the stage of admission in accordance with rules of the Court. The learned counsel for petitioner argued that in absence of appeal or cross-objection by State the appellate court did not had power' to reopen the find ings recorded in favour of petitioner and hold that petitioner has 19. 03 acres ir rigated land as surplus when Prescribed Authority declared only 1. 67 acres as surplus. He also argued that the appellate Court could determine plot Nos. 18,19, 74 and 134 as irrigated only on the basis of test laid down under Section 4-A of the Act by considering Khasra entries of 1376 to 1378 Fasli and appellate Court ap plied wrong test by determining said plots as irrigated land on the basis of Sajra of 1376 to 1378 Fasli. The learned Standing Counsel in opposition argued that under Order XLI, Rule 33 of Code of Civil Procedure the finding of Prescribed Authority could be reversed and more land could be declared surplus than what was declared by Prescribed Authority. He also argued that so far plot Nos. 18,19, 74 and 134 are concerned, they have been declared surplus in view of Sajra entries of 1376-77 Fasli to the effect that the land is within command area of a canal as well as after con sidering also oral evidence in this respect. Section 38 (1) of the Act provides that in hearing and deciding an appeal under the Act, the appellate court shall have all the powers and privileges of a civil court and follow the procedure for hearing and disposal of appeals laid down in Code of Civil Procedure. Relying upon said provisions the appellate court has held that it has the power under Order XLI, Rule 33 of the Code of Civil Procedure to correct the error of Prescribed Authority and it can pass order which should have been passed by the Prescribed Authority. Order XLI, Rule 33 of Code of Civil Procedure has been subject matter of consideration by Apex Court in the case of Nirmala Bala v. Balai Chand, AIR 1965 SC 1974 wherein it has held as under : "the rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates in terference also with a decree which has by acceptance or acquiescence become final so. as to enable the Court to adjudge the rights of the parties. Where-in an appellate Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order XLI, Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. " The last part of the observation of the Hon'ble Supreme Court that the rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from is fully applicable in this case. Here there was no reason before appellate court to re-open that part of the order which had become final as the State did not feel aggrieved and did not approach the appellate court by challenging it. If the State was dissatisfied with the findings recorded by Prescribed Authority, it ought to have filed an appeal before the appellate authority. In absence of an appeal by the State, the appellate authority exceeded its jurisdiction in reversing the findings and declaring 19. 03 acres of land as surplus. Thus the argument of learned counsel for petitioner to this effect is sustained.
(3.) THE second contention of the learned counsel for petitioner also has sub stance. THE remand order was specific that the Prescribed Authority will determine whether plots Nos. 18, 19, 74 and 134 are irrigated in accordance with Section 4-A or Section 29 in case they have subsequently become irrigated. After remand the Prescribed Authority and appellate Court were required to consider only if under Section 4-A the land is to be treated irrigated. THE Prescribed Authority and appel late Court have not declared land to be surplus on the basis of Section 29 but they have considered the case in respect of said plots on the ground of being within command area of a canal. This could be done if the land was covered by the test laid down under Section 4-A Firstly and Thirdly where test provided is that the determination of irrigated land will be on the basis of Khasra entries but if it is under Section 4-A Secondly then land becomes irrigated on a date after the enfor cement of U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972. THE appellate Court has not considered the land to be irrigated on the basis of test laid down in Section 4-A but taking into consideration that the land was shown in Sajra of the village in 1976-77 Fasli within command area of canal that it has held it to be irrigated. THE test laid down under Section 4-A of the Act has to be followed in all cases where ceiling area is to be re- determined after coming into operation of U. P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 which has not been taken into consideration for declaring the land to be irrigated. THE appel late court has considered the matter on the basis of different test and, therefore, the finding of appellate Court cannot be upheld and the case is to be sent back to the appellate Court for decision afresh in the light of aforesaid observations. For aforesaid reason the writ petition succeeds and is allowed. The order of Additional Commissioner, Jhansi Mandal, Jhansi dated 28tn April, 1988 (Annexure VI to writ petition)' is quashed and he is directed to redetermine the dispute in respect to plot Nos. 18,19,74 and 134 by applying test laid down under Section 4-A.;