K. P. Singh, J. :- - (1.) THIS writ petition is directed against the judgment of the civil Judge, Jhansi dated 26-11-1976 in Misc. Ceiling Appeal No. 56 of 1976 Kailash Narain v. State of U. P.
(2.) LEARNED counsel for the petitioner has contended before me that the appellate authority has committed an error apparent on the face of the record in treating the share of the petitioner as 1/3 in Khata no. 87/1 of village Tilera, and has thereby wrongly determined the ceiling area possessed by the petitioner. According to the learned counsel for the petitioner if the share of the petitioner is held as 1/6, the land in his possession would be much less and the declaration of surplus area of the petitioner would stand vitiated in law. Learned counsel for the State has tried to justify the finding recorded by the appellate authority. It is better to quote the observations of the appellate authority which is as below :- ".........But still after the amendment of the plaint and after impleading Awadh Bihari, Avanish and Akhilesh, the appellant by amendment pleaded specifically and clearly that he had got 1/3rd share in the plots. While 2/3rd share belonged to defendants. Thus there was a clear admission on behalf of the appellant Kailash Narain that he had got 1/3rd share in the land of said Khata. It is strange to note that the copy of the judgment and preliminary decree has not been filed. The appellant had filed the copy of the final decree dated 2-12-1975 which is paper no. 39, but that decree cannot be taken into consideration in view of the provisions of Section 5 (7) of the Act which says that any partition made after 24th January, 1971 shall be ignored and shall not be taken into account."
(3.) THE learned counsel for the petitioner has placed reliance on paper no. 18, the judgment given by the Prescribed Authority in a previous ceiling case in which the share of the appellant was held as 1/6th in the Khata. But in view of Section 38-B (2) of the Act, such judgment does not operate as res judicata." From the above observations of the appellate authority it appears that the appellate authority has made the petitioner confined to his admission with regard to 1/3 in the aforesaid Khata. It is well known that the admission with regard to the share of a person in a disputed khata is an admission on the question of law. Since the facts given in the judgment as well as the writ petition indicate that the property is ancestral property and there being six sons the petitioner each would get only 1/6th share, it is but proper that the petitioner's claim should be examined on the basis of the evidence on the record as to whether the admission on question of law is a correct one or in the circumstances of the present case whether the petitioner's present stand that he would get only 1/6th share is legally correct. In my opinion the appellate authority has taken too technical views that the petitioner would be bound by the admission made title realising that the aforesaid admission is on the question of law and if in law, the petitioner is entitled to only 1 /6th share, the determination of surplus area would stand vitiated in law. At present there is a controversy whether the decision given by the ceiling authorities in the earlier proceedings would operate as res judicata. It is also in controversy as to whether the ceiling authorities could issue notice second lime unless there is some amendment effected in the case of the petitioner by the amended Act. The aforesaid question are sub- judice in some writ petition pending in this Court, hence I think to proper that the aforesaid question may be kept open to be decided by the appellate authority in accordance with law.;