- (1.) BOTH these appeals arise out of com mon judgment and order passed by the Prescribed Authority as well as Appellate Court and common questions are in volved for determination in these writ petitions, therefore, for the sake of con venience, both the writ petitions are be ing decided by this common judgment.
(2.) BY means of these writ petitions, the petitioners State and Yakoob Ali Khan have prayed for quashing the im pugned order dated /-1-1983 and 22-10-1984 passed by the Prescribed Au thority Kichha at Rudrapur, and I Addi tional District Judge, Nainital. The Pre scribed Authority had held that the ob jection filed by the petitioner Yakoob Ali Khan was barred by time, hence the same being not entertainable was re jected. Being aggrieved by the said or der, the petitioner Yakoob Ali Khan as well as State of LJ. P. went up in appeal and the Additional District Judge also dismissed the Ceiling Appeal No. 23 of 1983 and Ceiling Appeal No. 37 of 1983 respectively vide judgment and order dated 22-10-1984. At the outset it may be men tioned that the appellate court has de cided Ceiling Appeal No. 17 of 1983, C. Shivasani Vs. State of U. P. and others, Ceiling Appeal No. 23 of 1983 Yakoob Ali Khan Vs. Hem Chandra Tyagi and others and Ceiling Appeal No. 37 of 1983, State of U. P. Vs. Hem Chandra Tyagi and others by a common judgment as all these appeals arose out of the same judgment and similar controversy was involved in all these ceiling appeals. It may be mentioned that the State of U. P. has assailed the judgment and or der dated 22-10-1984 (Annexure No. 2 to the writ petition) alone passed by the Appellate Court while the petitioner Yakoob Ali Khan has challenged the orders passed by the Prescribed Author ity and the 1 Additional District Judge both. For a just decision of the case, a reference to the brief facts is necessary. Notice under Section 10 (2)of the U. P. Imposition of Ceiling on Land Holdings Act 1960 (for short the Ceiling Act) was issued to the tenure holder Yakoob Ali Khan on 28-1-1975 by the Prescribed Authority, who filed objection alleging that if land in his cultivation had to be declared surplus then the land of plot no. 2 and 3 be declared surplus Otherwise the notice being illegal be discharged. The Prescribed Authority after filing of objections decided the case on 18-3-1975 and declared 23. 32 hectare irri gated land as surplus pertaining to plot no. 3 measuring 408 Bigha, plot no. 2 measuring 20 Bigha 13 Biswa and plot no. 4 measuring 11 Biswa situated in village Chachar as well as plot no. 83 measuring 98 Bigha 1 Biswa, plot no. 85 measuring 20 Bigha 5 Biswa, plot no. 86 measuring 1 Bigha and plot no. 87 meas uring 4 Bigha 3 Biswa of village Gaughat Tahsil Kichha, District Nainital (now U. S. Nagar ). After the judgment was delivered Sri Hem Chand Tyagi and Smt. Mithilesh Tyagi filed application for permission to implead them as parties to the case. Their application was disposed of the same day with an order to the effect "judgment al ready given this case K. W. F" by the Pre scribed Authority.
(3.) HEM Chand Tyagi filed appeal No. 212 of 1975 against the said order, while the petitioner Yakoob Ali Khan filed appeal no. 316 of 1975 against the aforesaid order. The appeal filed by the petitioner was decided by the then Civil Judge Nainital vide judgment and order dated 10-06-1976 whereby relief of 2 hectares more land was given to the appellant for his third adult son and re maining part of the judgment was main tained. Appeal No 282 of 1975 was dis missed on 28-06-1977 being not main tainable as appellants were not parties to the proceedings under the Act. HEM Chandra Tyagi and Smt. Mithilesh Tyagi filed writ petition before the High Court, which was decided on 15-1-1979 thereby the judgment dated 15-3-1975 passed the Prescribed Authority as well as judgment and decree passed on 28-6-77 by the Civil Judge' Nainital were quashed and the case was remanded to the Prescribed Authority for deciding the issue whether petitioners HEM Chandra Tyagi and Smt. Mithilesh Tyagi are the tenure holders or not and in case it is established that they are tenure holders then to decide the case on merits. It was also observed by the High Court that it shall be open to the petitioners to ap ply before the Prescribed Authority at Kichha and Aligarh and in that event the State would choose to proceed against the petitioners only at one place. After remand of the case, the State of U. P chose to proceed against Hem Chandra Tyagi and Smt. Mithilesh Tyagi in the court of the Prescribed Au thority Kichha at Rudrapur and not be fore the Prescribed Authority Koil District Aligarh. Hem Chandra Tyagi and Mithilesh Tyagi filed objections before the Prescribed Authority under Section 11 (2) of the Act alleging therein that their adverse possession was duly re corded against the original tenure holder Mumtaz Jahan Haidar and others dur ing record operations held in 1958-59 in Class 20. The original tenure holder never filed any suit for their ejectment, hence they acquired hereditary tenancy rights against the original tenure holder under the provisions of the U. P Tenancy Act being in adverse possession. It was alleged that on the appointed date, i. e. 8-6-1973, they were tenure holders of the disputed land as they had acquired rights by prescription and statutory pro visions of law. U. P. Zamindari Abolition and Land Reforms Act (for short ZA and LR Act) came into force in the district Nainital on 1-/-1969 and on this date of vesting they were Sirdars of the suit' land and Yakoob Ali Khan never held possession over the land since 1958 till the date of filing objection, i. e. 30-/-1982. It was also alleged that since they were not party to proceedings in Suit No. 2/1 of 1972 therefore the decision of the suit was not binding on them. Moreover, since the Second Appeal aris ing from the said suit was pending be fore the Board of Revenue, hence the judgment of the trial court and the first appellate court in Suit No. 2/1 of 1972, Smt. Mumtaz Jahan Haider Vs. Yakoob Ali had not yet become final. It was also alleged that since the record opera tions held in 1958-59 till date, they had been continuously recorded on the dis puted land in revenue record and their names find place in 1374 Fasli, when by statutory provisions, a person recorded in adverse possession acquired Adhivasi rights and later-on by virtue of Govern ment Notification, they had become Sirdar and thereafter Bhumidhar of the said land. According to them under the provisions of Z. A. and L. R. Act, an Adhivasi can not be evicted and per Section 230a of the Z. A. and L. R. Act, the land of the Adhivasi cannot be clubbed with the holding of any other person.;