- (1.) R. H. Zaidi, J. Both these petitions arise out of the proceedings under U. P. Imposition of Ceiling on Land Holdings, Act, 1960 for short 'the Act' and are directed against common judgment and order passed by the Prescribed Authority dated 23-9- 80 and the appellate authority dated 17-8-81 petitioners pray for quash ing of the said orders.
(2.) BOTH these petitions were heard together and they are being disposed of by this common judgment. The relevant facts of the case, as unfolded in the writ petition and ascer tained from the other material on the record, are that on the enforcement of the Act, a notice was issued to the petitioner Nawab Nadir Shah Khan under Section 10 (2) of the Act. Total area of the holding was shown as 21. 82 hectares and Nawab Nadir Shah Khan was called upon to show as to why the area measuring 14. 02 hectare (in terms of the irrigated land) be not declared as surplus land. On receipt of the said notice Nawab Nadir Shah Khan filed his objection pleading that the land in dispute (which is situated in three districts i. e. Bijnor, Bareilly and Pilibhit) was sub ject-matter of three private trusts Wakfs Alal-aulad". First Wakf was created by means or registered wakf deed dated 17-12-1919 by Mohd. Shah Khan, second vide registered wakf deed dated 26-2-1920, by Smt. Durre Naz Begum and third vide registered wakf deed dated 14-12-1992 by Qamar Shah Khan. Under the said wakf deeds, Smt. Saeed Jahan Begum, Smt. Salim Begum, Sri Khurshid Ahmad Khan and Nawab Nadir Shah Khan were beneficiaries having their shares in proportion indicated in the said wakf deeds. It was contended that three wakf- deeds in question were separate; but in the said notice the subject-matter of three wakf deed was wrongly clubbed together. It was further pleaded that the ceiling area should be determined in accordance with the provision of law and Nawab Nadir Shah Khan who was only a Mutawalli of the wakf could not be treated as tenure-holder. It was urged that the notice issued by the Prescribed Authority in respect of the land in dispute was liable to be dis charged and no land out of the land in dispute could be declared as surplus. In the writ petition No. 10868 of 1983, the pedigree of the family of the petitioners has been given in paragraph 4, which is reproduced below:- Durre Najaf Begum M. S. Khan Qamar Shak Khan (Died issueless) Anwar Shaukat Saied Salim Khur- Jam- Shah Shah Jahan Jahan shid shed Khan Khan Begum Begum Jahan Jahan (dead) died is- (petiti- Begum Begum Nadir sueless oner) (dead) (dead) Shah son Khan Khur- shid Ahmad Khan The correctness of the said pedigree has not been disputed in the counter-affidavit. In has simply been stated to be not admitted. In support of the facts stated in the objections, oral and documentary, evidence was produced by Sri Nawab Nadir Shah Khan and others, including the wakf deeds referred to above. The Prescribed Authority has dismissed the objection filed by Nawab Nadir Shah Khan and declared 14. 02 hectares land as surplus vide its judgment and order dated 31-3-79.
(3.) AGGRIEVED by the judgment and order passed by the Prescribed Authority an appeal was filed by the petitioners. Appellate authority reversed the find ings recorded by the Prescribed Authority and held that the land in dispute was Bhumidhari land of the wakfs. Having recorded the said findings, the order passed by the Prescribed Authority was set aside and the case was remanded to it for decision afresh vide judgment and order dated 17-1-1980. In the said order it was held as under: "it may be pointed out that the Prescribed Authority has not considered the certified copies of Khewat and Kahatauni of Zamindari period and post-Zamindari period in respect of village Ghangara Piparia, Qasimpur, Sheopuri, Manzoorpur Tulsi and Mirpur Durga which are on record in which waqf-ul-aulad is recorded as Zamindar and the land is recorded as Zamindar's grove land of class (4) in the Khatauni. In such case on the enforcement of Zamindari Abolition and Land Reforms Act, Zamindar's grove land become Bhumidhari land of erstwhile Zamindari namely Waqf-ul-aulad. The Prescribed Authority also omitted to consider the statement of Lekhpal of village Jantorpur who stated that on the basis of Settle ment record of 1344 Fasli brought by him that the land in question of village Jahapur as recorded in the Settlement of Zamindar's grove in the Khewat and Waqf way recorded Zamin dar, consequently waqf became the Bhumidhar of the land in question. " The said order has become final. After remand, the Prescribed Authority again decided the case against the petitioners holding that Nawab Nadir Shah Khan was tenure holder of the land in dispute and the interest of the beneficiaries for the same cannot be con sidered separately. The Prescribed Authority again declared 14. 02 hectares (in terms of irrigated land) as surplus by judgment and order dated 23-9-80. The validity of the said order passed by the Prescribed Authority was again challenged before the appellate authority. The appel late authority affirmed the findings recorded by the Prescribed Authority and dismissed the appeal filed by the petitioners vide judgment and order dated 17-8-81. Petitioners, thereafter, ap proached this Court and filed the above noted petitions.;