- (1.) SHISHIR Kumar, J. By means of the present writ petition the petitioner has approached this Court for issuing a writ of certiorari quashing the order dated 10. 11. 1987 (Annexure-5 to the writ petition) passed by the respondent No. 2 and order dated 26. 6. 1989 (Annexure-6 to the writ petition) passed by the respondent No. 3. Further issuing a writ in the nature of mandamus commanding the respondents not to give effect to the orders dated 10. 11. 1987 and 26. 6. 1989, passed by the respondent Nos. 2 and 3 and further commanding the respondents that they be restrained from dispossessing the petitioner from the land in dispute.
(2.) THE brief facts arising out of the present writ petition are that a notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act was issued to Rajvir Singh, who contested the said proceeding on number of grounds, as the objection was considered and the matter was determined by the appellate authority. However, in view of the notice issued to Rajvir Singh, a share belonging to the petitioner was also included for the purposes of declaration of surplus land. No notice as required under Rule 8 of the Rules, 1961 was ever issued by the respondents to the petitioner, with the result the land belonging to the petitioner and his brothers namely Bhanu Pratap Singh, Narendra Pratap Singh, Vijai Vir Singh, Krishna Vir Singh and Ramvir Singh were also included. When the petitioner came to know about the inclusion of his land in the khata of his uncle, he filed an objection under Section 11 (2) of the Act and prayed that the determination should be made to this effect. A copy of the said objection dated 20. 7. 1981 has been filed as Annexure-1 to the writ petition. The prescribed authority without taking into consideration the question on merits was pleased to reject the same by order dated 24. 10. 1986. The petitioner filed an appeal against the said order and the appellate authority has allowed the appeal and remanded the matter to the prescribed authority for decision afresh. The learned counsel for the petitioner submits that a finding has been recorded by the appellate authority that the property belongs to one Sardar Singh and Sardar Singh was having three sons namely Om Pal Singh, Raj Vir Singh and Man Vir Singh. A pedigree showing heirs of Sardar Singh is being quoted : Sardar Singh S/o Sri Deen Singh Om Pal Singh Raj Vir Singh Man Vir Singh Date of Birth 1918 1920 1927 Date of death 1954 1. Bhanu Pratap Singh 1. Krishna Vir Singh 1. Vijay Vir Singh Date, of birth 2. 7. 1943 5. 1. 1945 1951 2. Gajendra Pratap Singh 2. Ram Vir Singh 2. Ajay Vir Singh Date of birth 3. 1. 45 1947 1952 3. Narendra Pratap Singh 3. Ran Vir Singh 1954 Date of birth 3. 12. 1947 1954 4. Rajendra Pratap Singh Date of birth 1952 Date of death 1975 5. Udai Pratap Singh Date of birth 1953 4. The learned counsel for the petitioner submits that a finding has been recorded by the appellate authority that it is an ancestral property of Hindu Joint Family and admittedly, the petitioner was born prior to 1952 and at the time of initiation of the ceiling proceedings the petitioner was major. A finding to this effect has also been recorded by the appellate authority that no notice to the petitioner was ever given as required under the Act. Taking into consideration all the relevant facts, the appellate authority vide its judgment and order dated 28. 5. 1987 allowed the Appeal No. 52/86-87 and remanded the matter to the prescribed authority to decide it on merits after giving opportunity to all the relevant parties. The prescribed authority without considering the finding recorded by the appellate authority has rejected the objection only on the ground that it was filed on 16. 7. 1987. The prescribed authority has dismissed the objection vide its order dated 10. 11. 1987. 5. Petitioner aggrieved by the aforesaid order, filed an appeal. The appellate authority too without considering the finding recorded by the appellate authority, taking into consideration that the petitioner has filed an objection on 16. 7. 1987, has rejected the appeal only on the ground of limitation without considering the case on merits. 6. It has been submitted by Sri A. K. Sharma, learned counsel for the petitioner that as soon as the petitioner came to know regarding the ceiling proceeding that the land of the petitioner is being clubbed, he filed an objection under Section 11 (2) of the Act on 20. 7. 1981 and on the basis of the aforesaid objection, the prescribed authority entertained the same and rejected by order dated 24. 10. 1986 and the petitioner aggrieved by the aforesaid order has filed an appeal under Section 13 (2) and the said appeal was allowed holding therein that property is of ancestral and Joint Hindu Family and in spite of the fact that the name of the petitioner is not recorded in the revenue record, he is entitled for notice and opportunity. Treating the objection filed earlier, the appellate authority has allowed the appeal and remanded the matter. Therefore, the authorities below had no jurisdiction to dismiss the objection of the petitioner on the ground of limitation. 7. The learned counsel for the petitioner submits that the judgment passed by the authorities below is liable to be quashed only on the ground that they have only considered the objection dated 16. 7. 1987. They have clearly ignored the fact that the objection was already filed by the petitioner immediately when they came to know regarding the aforesaid proceeding on 20. 7. 1981 and on the basis of the said objection, the proceeding by the prescribed authority and appellate authority have taken place and the matter was remanded. 8. It has further been submitted by the learned counsel for the petitioner that being the co-sharer of the property, the petitioner was entitled to notice under the Act. Admittedly, no notice has been given and the objection of the petitioner has not been considered on merits by the authorities below. Even the finding recorded by the appellate authority while remanding the case has not been upset. Reliance has been placed upon a judgment of the Apex Court in Kaifash Rai v. Jai Jai Ram and others, AIR 1973 SC 893 and reliance has been placed upon paras 9 and 10 of the said judgment. The same are being quoted below : "9. It should be remembered that the district court has recorded a definite finding that the defendants have not set up any plea of ouster. This finding, so far as we could see has not been disturbed by the High Court. The decree in Suit No. 918 of 1945 clearly recognises the right of the appellant as a co-sharer alongwith the defendants. In law the possession of one co-sharer is possession both on his behalf as well as on behalf of all the other co-sharers, unless ouster is pleaded and established. In this case, as pointed out by us earlier, the finding is that the defendants have not raised the plea of ouster. There is no indication in the Abolition Act or the Tenancy Act that bhumidhari rights are not intended to be conferred on all the co-sharers or co-proprietors, who are entitled to the properties, though only some of them may be in actual cultivation. One can very well visualise a family consisting of father and two sons, both of whom are minors. Normally, the cultivation will be done only by the father. Does it mean that when the father is found to be cultivating the land on 30. 6. 1952, he alone is entitled to the bhumidhari rights in the land and that his two minor sons are not entitled to any such rights. In our opinion, the normal principle that possession by one co-sharer is possession for all has to be applied. Further, even when one co-sharer is in possession of the land, the other co-sharers must be considered to be in constructive possession of the land. The expression 'possession' in clause (a), in our opinion, takes in not only actual physical possession, but also constructive possession that a person has in law. If so, when the defendants where in possession of the lands and when no plea of ouster had been raised or established, such possession is also on behalf of the plaintiff-appellant. Under such circumstances, the lands can be considered to be in the possession of the appellant or, at any rate, in his constructive possession. 1o. Clause (a), as we have pointed out, takes in two other contingencies also namely, lands held as khudkasht or lands deemed to be held as khudkasht. Even assuming that, in view of the finding of the District Court, the defendants are in possession and on that basis the plaintiff cannot be considered to be also in possession, nevertheless, the lands in question can be considered to be held or deemed to be held by the appellant also. The expression 'held' occurs in Section 9 of the Abolition Act. In interpreting the said expression, this Court in Budhan Singh v. Nabi Bux, (1970) 2 SCR 10 : AIR 1970 SC 1880, has held that it means 'lawfully held'. This Court has further observed that- "according to Webster's New Twentieth Century Dictionary the word 'hold' is technically understood to mean to possess by legal title. Therefore, by interpreting the word 'held' as 'lawfully held' there was no addition of any word to the section. According to the words of Section 9 and in the context of the scheme of the Act it is proper to construe the word 'held' in the section as 'lawfully held'. " 9. Further reliance has been placed by the learned counsel for the petitioner in a Full Bench decision of this Court in Shcmtcmu Kumar v. State of U. P. and others, 1979 ALJ 1174 and reliance has been placed upon para 3 of the said judgment. The same is being reproduced below : "3. It appears that the prescribed authority issued notice under Section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 to Bhupendra Singh, respondent No. 4. Bhupendra Singh filed an objection, inter alia, that his holding was ancestral under which his son Shantanu Kumar had a half share. This plea was rejected and an area of 3. 48 acres of Plot No. 105 was declared surplus land in the hand of Bhupendra Singh. Bhupendra Singh filed an appeal which was dismissed by the Additional District Judge, on the finding that Shantanu Kumar was not proved to have been born prior to the enforcement of the U. P. Zamindari Abolition and Land Reforms Act and so he did not have any share. It was also pleaded in appeal that notice as required by Rule 8 of the Rules to the transferee, namely, his son, was not issued and for this reason also the proceeding was vitiated. This plea was dismissed on the ground that such a plea was not taken in the original objection or in the ground of appeal. Shantanu Kumar can be presumed to have knowledge of these proceedings and yet he did not come up to contest and so the plea has no substance. The appellate judgment was rendered on January 10, 1977. The present writ petition has been filed by Shantanu Kumar on January 31, 1977. " 10. Further reliance has been placed upon a Full Bench decision of this Court in M/s. Upper Ganges Sugar Mills Ltd. v. Civil Judge, Bijnor and others, 1969 RD 202. In support of the contention of the Full Bench decision, the learned counsel for the petitioner submits that if the tenure holder is not recorded in the revenue records is not relevant for determining whether he is entitled to file an objection to the statement prepared under Section 10 (1) of the Act and issued to another person under Section 10 (2) of the Act. The above fact does not disentitle him to file an objection if he is otherwise entitled to do so. An objection can be filed under Section 11 (2) of the Act, if the tenure holder to whom a statement under Section 10 (2) of the Act has not been issued, is entitled to file an objection to the statement prepared under Section 10 (1) of the Act. 11. Further reliance has been placed by a judgment of this Court in Ram Chander and others v. Director of Consolidation, Meerut, 1970 RD 283. In support of the aforesaid contention, the learned counsel for the petitioner submits that in a Joint Hindu Family if the property is joint and ancestral and such land belonging to father and two sons at the time of vesting, the father and sons will be co-sharers and intermediaries within meaning of U. P. Z. A. and L. R. Act, 1950. The father alone is not entitled to transfer more than his share. Further it has been held by the Division Bench of this Court that sons "were also proprietors alongwith the father of the zamindari property and the khudkasht land belonging to the Joint Hindu Family and coparcenary. Inasmuch as the land in dispute belonged to the Joint Hindu Family, the sons were co-sharers in the khudkasht also. Inasmuch as they were intermediaries and co-sharers of the khudkasht land in dispute, the same may not be deemed to have been settled then by the State Government under the provisions of Section 18 of the U. P. Z. A. and L. R. Act. The mere circumstances that their names were not recorded in the village records would not deprive them of the rights that they have possessed in the land in dispute. The normal practice in a case of coparcenary is to record the name of the father alone even though the property is jointly owned by him and his sons. " 12. In support of the aforesaid contention, the learned counsel for the petitioner submits that the judgment and order passed by the courts below are liable to be quashed. 13. A counter-affidavit has been filed. In the counter-affidavit it has been stated that the petitioner in spite of the knowledge of the proceeding has filed an objection on 20. 5. 1986 and not on 20. 7. 1981 under Section 11 (2) before the prescribed authority. No objection was filed before the prescribed authority on 20. 7. 1981, as alleged by the petitioner. 14. Sri Damodar Pandey, learned counsel for the respondents has made an application under Order I, Rule 9 for impleading only on the ground that the property which was declared surplus, a patta has been granted in their favour and they are in the possession of the land in dispute. 15. I have heard learned counsel for the petitioner and learned standing counsel and have perused the record. 16. It is clear from the record that notice under Section 10 (2) of the Act was issued to one Rajvir Singh and he only filed an objection and has also filed an appeal and certain lands were declared surplus. When the petitioner came to know that certain lands belonging to the petitioner are going to be declared as surplus in a proceeding against one Rajveer Singh, uncle of the petitioner, he filed an objection on 20. 7. 1981 under Section 11 (2) of the Act. On the basis of the aforesaid objection, the proceedings were initiated and the prescribed authority has rejected the objection filed by the petitioner. The petitioner filed an appeal which was allowed and remanded, holding therein that it is an ancestral property belonging to Joint Hindu Family and one Sardar Singh, as tenure holder was having three sons and it is a Joint Hindu Property. Taking into consideration all the relevant facts, the appellate authority has allowed the appeal and remanded the matter to the prescribed authority but the prescribed authority has clearly misconstrued against the evidence on record that in spite of the fact that petitioner was having knowledge filed an objection on 16. 7. 1987, therefore, the same cannot be considered and the objection under Section 11 (2) of the Act is not maintainable, as it was to be filed within thirty days, as provided under Section 5 (2) of the Act. The appellate authority has also committed the same mistake dismissing the appeal only on the ground that it has been filed beyond time. It has been held that the objection filed by the petitioner was beyond time, in spite of the fact that the petitioner was having knowledge of the ceiling proceeding. 17. I have considered the submissions made on behalf of the parties and have perused the record and after going through the record it is clear that when the petitioner came to know regarding the proceeding that his land has been clubbed in the ceiling proceeding, he immediately filed an objection in the year 1981 and on that basis a proceeding was initiated and by virtue of remand by the appellate authority dated 28. 5. 1987, the subsequent proceeding has taken place. The objection dated 16. 7. 1987 is a supplementary objection, therefore, both the authorities have clearly misread the relevant records and the apparent fact that the proceeding has been initiated only on the basis of the objection dated 20. 7. 1981 (Annexure- 1 to the writ petition) submitted by the petitioner. The further relevant fact is that both the authorities have not considered the case on merits. 18. In view of the aforesaid fact, the writ petition is allowed. The orders dated 10. 11. 1987 (Annexure-5 to the writ petition) passed by the prescribed authority, respondent No. 2 and the order dated 26. 6. 1989 (Annexure-6 to the writ petition) passed by the Additional Commissioner, respondent No. 3 are hereby quashed and the matter is remanded back to the prescribed authority to decide the objection dated 20. 7. 1981 filed by the petitioner under Section 11 (2) of the Act on merits after affording an opportunity to the petitioner as well as the relevant affected parties. As the matter is very old, therefore, it will be appropriate that the prescribed authority may decide the same, if possible, within a period of six months from the date of production of the certified copy of this order. No order as to costs. .;