- (1.) R. H. Zaidi, J. Instant petition under Article 226 of the Constitution of India, arises out of the proceedings under U. P. Imposition of Ceiling on Land Hold ings Act, 1960 (for short the Act), and is directed against the order dated 19-2-1997, passed by the Appellate Authority in exercise of powers under Section 13 of the Act, allowing the appeal filed by the respondent No. 1, against the order passed by the Prescribed Authority.
(2.) RELEVANT facts of the case are that plot No. 1210/2, measuring 3. 25 Acre (new plot Nos. 153 'ka' and 153 'kha' hereinafter referred to as the land in dispute, situated in village Mathia Jai Kishun, Tppa Dan- dopur, Pargana Sidhua Jobna, Tehsil and District Padrauna, was treated as part of the holding of Smt. Mohni Devi and others and was declared as surplus by the Prescribed Authority, vide its judgment and order dated 30-4- 1994, which has become final. Petitioners thereafter filed objection under Section 11 (2) of the Act. claiming that they were the tenure-holders of the land in dispute on the basis of gift deed alleged to have been executed by Sri Maheshwari Rai in their favour. It was pleaded that the petitioners were in pos session of the land in dispute, the same was therefore liable to be excluded from the holding of Smt. Mohini Devi and others long before the enforcement of the Act, they, became the owners of the land in dispute. Their names were also mutated in the revenue papers. The land in dispute was wrongly treated as part of the holding of Smt. Mohini Devi and others, and was illegally declared as surplus vide judgment and order dated 30-4-1994. As soon as the petitioners came to know about the aforesaid order they filed an application under Section 11 (2) of the Act, and prayed for exclusion of the land in dispute from the surplus land. In support of their cases petitioners have filed extract of Khatauni for the years 1359f, 1362f and 1366f, be sides other documentary evidence and also produced petitioner No. 1, Dharmendra Rai as witness. The application filed by the petitioners was opposed by the respondent No. 1, the State of U. P. , and not by the recorded tenure-holders. Prescribed Authority referred to the Khatauni entries, and relying upon the documentary evidence, noted above, held that Mahesh wari Rai, father of Dharmendra Rai was the owner and in possession of the land in dispute. After him the petitioners were in possession of the same and allowed the application filed by the petitioners. The land in dispute was directed to be excluded from the surplus land declared out of the holding of Smt. Mohini Devi and others by its judgment and order dated 22-1-1996. Aggrieved by the judgment and order passed by the Prescribed Authority, the State of U. P. , respondent No. 1, filed an appeal before the Appellate Authority. The Appellate Authority, for the reasons recorded in the judgment disbelieved and discarded the aforesaid revenue entries and on the basis of the said entries declined to recognise the petitioners as owners/tenure-holders of the land in dis pute. After reversing the findings recorded by the Prescribed Authority, the appeal was allowed by the judgment and order dated 19-2-1996. The petitioners there after filed the present petition challenging the validity of the order passed by the Appellate Authority, referred to above. Learned Counsel for the petitioners vehemently urged that the ap peal was filed by the respondent No. 1 against the order passed by the Prescribed Authority beyond the period of limitation, the same was, therefore, liable to be dis missed, the Appellate Authority exceeded in its jurisdiction in allowing the appeal without condoning the delay. It was also urged that the Appellate Authority reversed the order passed by the Prescribed Authority without reversing the findings recorded by it, and without taking into consideration the relevant evidence on the record, particularly oral evidence. On the other hand learned stand ing Counsel submitted that the delay in filing the appeal was condoned by the Ap pellate Authority on an application filed by the State and thereafter the appeal was decided in accordance with law. It has also been submitted that the Appellate Authority has taken into consideration the entire relevant evidence on the record and after reversing the findings recorded by the Prescribed Authority rightly set aside the order passed by the Prescribed Authority in accordance with law, the findings recorded by the Appellate Authority are findings of fact, which are based on evidence on the record, and the same can not be interfered with under Article 226 of the Constitution of India.
(3.) I have considered rival submissions made by the learned Counsel for the par ties and perused the record. It is evident from the objection filed by the petitioners before the Appel late Authority (paragraph 7 on page 57 of the writ petition and also from Annexure-SA 2 to the Supplementary Affidavit, whereby the delay in filing the appeal was fully explained) that the petitioners ob jected to the condonation of delay in filing the appeal. However, before the Appellate Authority objection regarding limitation and condonation thereof was not raised as in the impugned order there is no refer ence of the said objection. It appears that the said objection was either given up by the petitioners, or the delay was condoned by the Appellate Authority. From the material on record the learned Counsel for the petitioners has failed to substantiate his argument that the appeal was decided by the Appellate Authority without con doning the delay. It is a question of fact, therefore, I decline to permit the learned Counsel for the petitioners to raise the said point for the first time before this Court under Article 226 of the Constitu tion of India.;