R. B. Misra, J. - (1.) THE present petition under Article 226 of the Constitution seeks to challenge the order of the 2nd Additional Civil Judge, Aligarh, dated 19th August, 1976, confirming the order of the Prescribed Authority, under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act No. 1 of 1961). THE petitioner is a big tenure holder owning bhumidhari land in a number of villages in the district of Aligarh In pursuance of a notice dated 20th September, 1974, the petitioner filed an objection under section 10 (2) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Ceiling Act) and contested the correctness of the statement annexed with that notice. His objection, in the main, was that his share in the holding in question was only one-third; that the remaining two-third share in the holding belonged, to Hari Raj Singh and Ravi Singh, his major sons, and, therefore, the entire holding in the name of the petitioner could not have been included in the ceiling area applicable to him, that there had been a family settlement between the parties and the shares of the members of the family had been determined and the shares of the other members of the family could not be included in the ceiling area applicable to the petitioner, that he had transferred the land of village Kinhus to Kunwar Rani Laj Kumari and others for adequate consideration and that should be excluded from the ceiling area of the petitioner, that the land of his wife Smt. Indra Kumari is her Stridhan and that could not be included in the ceiling area of the petitioner and that the petitioner has a stud farm and the area in the said farm should have been excluded from the ceiling area of the petitioner. THE Prescribed Authority disposed of the objection of the petitioner by his order dated 31st December, 1974, declaring certain area to be the surplus area, as would be clear from the order dated 31st December, 1974 (Annexure '3' to the writ petition). THE order of the Prescribed Authority gave rise to two appeals; one by the petitioner and the other by his two sons, Hari Raj Singh and Ravi Raj Singh. THE 2nd Additional Civil Judge, Aligarh, however, dismissed both the appeals by his order dated 19th August, 1976. He came to the conclusion that Hari Raj Singh and Ravi Raj Singh being just minors of one or two years, were not in cultivatory possession and, therefore, they could not be the bhumidhars of the plots in question and so the petitioner alone was the tenure holder of the disputed plots. THE contention of the petitioner that by virtue of the family settlement on 20th June, 1969, the entire land of the family was partitioned and the same was recovered by court in the suit filed by Hari Raj Singh in 1972 was also repelled by the learned Judge in view of the provisions of Section 5 (7) of the Ceiling Act, as that was a partition of land after the 24th day of January, 1971. THE learned Judge also repelled the contention of the petitioner that the land of his wife Smt. Indra Kumari was her Stridhan on the ground that Smt. Indra Kumari had given her consent to include the land held by her in the ceiling area applicable to her husband, the petitioner. He took the view that the word "tenure holder" has been defined to mean the holder of a holding and the word "person" has been defined to include a family. Thus a family is an unit at par with the individual and the term "family" in section 2 (7) of the Ceiling Act, which includes himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters). So, the land held by them is liable to be aggregated in the ceiling area applicable to the petitioner. THE transfer made by Smt. Indra Kumari of the land situate in village Kinhus to Rani Lal Kumari was ignored, as the same was made after the 24th day of January, 1971, and it was not proved to the satisfaction of the Prescribed Authority that the transfer was made in good faith and for adequate consideration under an irrevokable instrument. THE learned Judge was also not satisfied that the petitioner had his stud farm. THE petitioner has now come up to challenge the order of the appellate authority by failing the present petition. Sri Jagdish Swarup, appearing for the petitioner, contends that Han Raj Singh and Ravi Raj Singh had two-third share in the ancestral property, including the Sir and Khudkasht land, as they were either conceived or born on the date immediately the date preceding the date of vesting, which took place on 1st July 1952, and, therefore, their shares should have been excluded from the ceiling area of the petitioner. This contention was raised on behalf of the petitioner, even before the appellate authority, but the same, as stated earlier, was repelled on the ground that Hari Raj Singh and Ravi Raj Singh were minors of about one year or even less and, therefore, the land in question could not be their Khudkasht and, consequently, the same could not be their bhumidhari within the meaning of Section 18 of the U P. Zamindari Abolition and Land Reforms Act is widely worded. Section 18, in so far as it is material for the purposes of this case, reads: "18. Settlement of certain lands with intermediaries or cultivators as bhumidhar: (1) Subject to the provisions of Sees. 10, 15, 16 and 17 all lands: (a) in possession of or held or deemed to be held by an intermediary as Sir, Khudkasht or an intermediary's grove: A bare perusal of section 18 of the U. P. Zamindari Abolition and Land Reforms Act indicates that Sir and Khudkasht land, either in possession of a tenure-holder or held or deemed to be held by an intermediary will become his bhumidhari. THE appellate court was under the impression that unless an intermediary was in actual possession as Khudkasht holder, he could not get the benefit of section 18 of the U. P. Zamindari Abolition and Land Reforms Act. This was presumably because of the earlier view taken by this court in Rama Kant Singh and others v. Deputy Director of Consolidation and other 1965 A.L.J 313. In Kailash Rai v. Jai Jai Ram and others A.I.R. 1973 S.C. 893, the Supreme Court had the occasion to consider the expression ' possession" in clause (a) of section 18 (1) of the U. P. Zamindari Abolition and Land Reforms Act. THE Supreme Court observed: "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 were 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. 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, never the less, the lands in question can be considered to be held or deemed to be held by the appellant also. THE expression 'held' occurs in S. 9 of the Abolition Act. In interpreting the said expression, this court in Buddhan Singh v. Nabi Bux 1970 2 S.C.R. 10 = A.I.R. 1970 S.C. 1880 has held that it means 'lawfully held'." In view of the law laid down by the Supreme Court, Hari Raj Singh and Ravi Raj Singh would also be the tenure-holders of the land in dispute, as on the finding of the appellate authority itself, Hari Raj Singh was born on 10th June, 1951, and Ravi Raj Singh was born on 22nd September, 1952, but was conceived before 1st July, 1952, when the U. P. Zamindari Abolition and Land Reforms Act came into force. THE land in dispute being ancestral Sir and Khudkasht they would get an interest by virtue of their birth. In respect of Sir and Khudkasht land, the devolution would be governed by Hindu law and the view taken by the appellate authority cannot be sustained in view of the law laid down by the Supreme Court. THEre is, however, another aspect, which cannot be lost sight of. THEre had been proceedings under the U. P. Consolidation of Holdings Act in between and it was open to Hari Raj Singh and Ravi Raj Singh to file an objection under section 9 of the U. P. Consolidation of Holdings Act for getting the entries in the revenue papers corrected and get them declared as tenure-holders along with Chetanya Raj Singh, but they did not file any objection under section 9 with the result that they were not held to be the co-tenure-holders along with Chetanya Raj Singh and the entire land was taken to be the sole tenure of Chetanya Raj Singh, the petitioner. No objection having been raised by Hari Raj Singh and Ravi Raj Singh in consolidation proceedings. THEir title cannot be determined subsequently, either by the civil or revenue court. Learned counsel for the State strenuously relied upon the consolidation proceedings. His contention is that Section 49 of the U.P. Consolidation of Holdings Act would stand as a bar to the declaration or rights and title of Hari Raj Singh and Ravi Raj Singh. Sri Jagdish Swarup, however, contends that section 49 of the U. P. Consolidation of Holdings Act would bar the jurisdiction of a civil or revenue court to adjudicate on the rights of the tenure-holders in respect of the land lying in an area for which a notification had been issued under Sub-section (2) of Section 4 to adjudicate on any other rights arising out of the consolidation proceedings. It is well settled now that the Prescribed Authority is neither a civil court nor a revenue court and, therefore, section 49 of the U. P. Consolidation of Holdings Act, in terms, would not apply to the present case. Besides Section 38-B of the Ceiling Act contemplates that no finding or decision given before the commencement of this section in any proceeding or on any issue (including any order, decree or judgment by any court, tribunal or authority in respect of any matter governed by this Act, shall bar retrial of such proceeding or issue under this Act, in accordance with the provisions of this Act as amended from time to time. THE amended section 38-B of the Ceiling Act was brought in by U. P. Act No. XX of 1976 with effect from 10th October, 1975, when the appeal against the order of the Prescribed Authority was pending before the learned Civil Judge. THE decision of the consolidation authorities was, admittedly, much before the 10th of October, 1975, and, therefore, the decision of right and title of the tenure-holders by the consolidation authorities would not bar the consideration of the same question by the authorities under the Ceiling Act. In exercise of the powers under Article 226 of the Constitution of India, this court is not the appellate authority and, therefore, it could not take into consideration either the subsequent change of fact or law and has to find out whether the impugned order suffers from any manifest error of law or from excess (or want of jurisdiction. Bat, in the instant case, section 38-B of the Ceiling Act had already been brought on the Statute Book by U. P. Act No. XX of 1976 with effect from 10th October, 1975, and, therefore, the appellate court was bound to take into consideration the amended Section 38-B of the Ceiling Act, but that has been completely lost sight of by the court below. This omission may be because the learned counsel for the parties never drew the attention of the learned Civil Judge to Section 38-B of the Ceiling Act. THE fact, however, remains that in view of section 38-B of the Ceiling Act, the Prescribed Authority while determining the ceiling area could examine the question as to whether the petitioner was in possession of more than the ceiling area. THE Prescribed Authority did not hold Hari Raj Singh and Ravi Raj Singh as tenure-holders on the simple ground that they did not raise any objection under the U. P. Consolidation of Holdings Act. By that time, Section 38-B of the Ceiling Act had not seen the light of the day, but Section 38-B had already come into force when the appeal before the appellate authority was pending. THE question, therefore, has got to be reconsidered in view of the provisions of Section 38-B of the Ceiling Act. THE question arises if the land of Smt. Indra Kumari could be clubbed in the holding of the petitioner. According to Sri Jagdish Swarup, the same could not be clubbed in the holding of the petitioner. He referred to Section 5 (3) of the Ceiling Act. Section 5 (3) in so far as it is material for the purposes of this case, reads: "5(3). Subject to the provisions of sub-sections (4), (5), (6) and (7), the Ceiling area for purposes of sub-section (1) shall be: (a) in the case of a tenure-holder having a family of not more than five members, 7-30 hectares of irrigated land (including land held by other members of his family), plus such additional land which together with the land held by him aggregates to "two hectares, for each of his adult sons, who are either not themselves tenure-holders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land." Section 3 (7) of the Ceiling Act defines 'family" in the following terms: "3 (7) 'family' in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters)." In determining the ceiling area, the authority has to take into consideration the land held by the family which includes the husband and wife and the minor children and, therefore, the land in the name of Smt. Indra Kumari has got to be taken into consideration while determining the ceiling area of the petitioner. THE contention of Sri Jagdish Swarup, that the land held by Smt. Indra Kumari should not be taken into account, as she was a tenure-holder in her own right, is not well founded. If the term 'family' includes both the husband and wife and the minor children, the land held by them shall be taken into account for determining the ceiling area. If the Legislature had intended otherwise, it would have expressed so in a clear language or by necessary implication. Besides, to interpret the section in the way Sri Jagdish Swarup wants would mean to defeat the very purpose of the Legislature. THE Legislature intended that no tenure-holder should have more than the prescribed area and in determining the prescribed area, the unit is the family and family includes the husband and wife and the minor children and, therefore, the entire land held by the family has got to be taken into account. Sri Jagdish Swarup, next, contended that the petitioner had a stud farm and that should have been excluded while determining the ceiling area. THE finding recorded by the civil judge is against the petitioner. THE learned judge held that there was no satisfactory evidence to establish that the petitioner had a stud farm. Much argument was advanced on the use of the words "owned and possessed" by the learned Judge. In order to appreciate the argument of the learned counsel, it would be convenient to quote the small paragraph dealing with this point. It reads: "THE appellant Chetan Raj has filed certain papers to show that he possesses a stud farm. In his statement Chetan Raj Singh has not stated that he owns a stud farm. THE appellant Chetan Raj Singh has not stated as to in which plot he maintains the stud farm. THEre is no satisfactory evidence to establish that the appellant Chetan Raj Singh has a stud farm." THE expression used by the learned Judge may not be a happy expression, but the fact remains that the evidence on the record did not satisfy him that the petitioner had a stud farm. In his deposition, he did not state as to in which plot, he had the stud farm. In the petition, it has not been stated that the finding recorded by the Civil Judge is vitiated on the ground of misreading. THE deposition of the petitioner has not been filed along with the writ petition. In the circumstances, the observation made by the learned Judge has to be accepted as correct unless it is proved by the petitioner that the finding on this question recorded by the learned Judge is vitiated on any of the recognized grounds or by any error of law. This contention, therefore, has no force. No other point was raised before me. For the reasons given above, while confirming the findings of the appellate authority on other points, I set aside the finding on the question that Hari Raj Singh and Ravi Raj Singh are not the co-tenure holders with the petitioner Chetanya Raj Singh. Consequently, the order of the appellate authority is quashed and the case is sent back to it for deciding that point afresh in the light of the observations made above. THE findings on other points, which have been confirmed, shall not be considered. In the circumstances of the case, the petitioner is entitled to his costs.;