K.N.GOYAL, J. - (1.) THIS writ petition is directed against an order of the appellate authority under the U. P. Imposition of Ceiling on Land Holdings Act. The challenge to the constitutionality of certain amendment made to this said Act is not pressed in view of the provisions of Article 31-B of the Constitution. Learned counsel for the petitioner has, however, assailed the findings of the appellate authority in respect of three objections. The first plea was that the petitioner had transferred plots nos. 102 Ka and 128 by a sale-deed dated 15-4-1971. Both the authorities have held the transfer to be otherwise than bonafide. The transfer being subsequent to 24th day of January, 1971, it was for the petitioner to prove to the satisfaction of the Prescribed Authority that the same was in good faith and for adequate consideration. Neither the Prescribed Authority, nor the appellate authority was so satisfied, and the finding of the appellate authority on this point does not appear to suffer from any legal infirmity.
(2.) THE next objection of the petition was that plot no. 557 was grove. It appears that the Prescribed Authority and the appellate authority both believed the statement of, the Lekhpal to the effect that out of a total area 4 Bighas, 18 Biswas 15 Biswansis of this plot 1 Bigha, 3 Biswas and 16 Biswansis was under cultivation. The petitioner has himself filed a copy of the deposition of the Lekhpal along with the rejoinder affidavit. It appears from the same that the statement of the Lekhpal was not even subject to cross-examination so far as plot no. 557 was concerned. Learned counsel for the petitioner has, however, argued that if the character of the plot was one that grove of land, the mere "fact that cultivation had subsequently been started over a comparatively minor portion cannot have the effect of changing the character of a part of the plot. The grove should be treated as one unit and the character of the whole plot should be treated as that of grove had even though over a portion thereof cultivation may have been commenced. In this connection, he has relied on two rulings of the Board of Revenue reported in Bechan Singh v. Ram Sagar Singh(1940 R. D. 14.), and Manohar Das v. Kazim Husain(1939 R. D. 326). Both these rulings were under the Agra Tenancy Act and dealt with the question as to whether the tenant would be deprived of his rights in the plot vis-a-vis the Zamindar by reason of starting cultivation over a portion thereof and further whether the permission of the Zamindar would be necessary for replanting of the trees. Reliance has also been placed on Shiv Sahai v. Har Nandan(1963 R. D. 119), in which a learned single Judge of this Court held that the definition of 'grove land' in the U. P. Tenancy Act did not exclude cultivation altogether, but merely required that the number of trees should be large enough to prevent the land from being used primarily for any other purposes. This ruling does not touch on the controversy before me. So far as the U. P. Imposition of Ceiling on Land Holdings Act is concerned, 'grove land' and 'grove' have been defined in section 3 (8). According to this definition, grove land mean any specific piece of land in a holding having trees planted thereon before a specified date in such num­bers that they preclude, or when full grown will preclude, the land or any considerable portion thereof from being used primarily for any other purpose and the trees on such land constitute a grove. The definition given in this Act is almost verbatim the same as in the U. P. Tenancy Act. But there are two variations. Firstly, it has been specifically provided that guava, papaya, banana or vine plants shall not be taken into account. Secondly, it is provided that the trees must have been planted before 24th January, 1971. Thus, the relevant date for seeing the character of any specific piece of land in a holding is 24th January, 1971. The definition does not refer to any particular plot. This legislation deals with ceiling, and a special multiple is prescribed for groves. The apparent reason is that legislature wanted to encourage the plantation of groves and also that anyone who had planted groves, should get a concession in the matter of determination of ceiling. If, therefore, the charac­ter of any specific piece of land in a holding was changed, then the tenure-holder is not entitled to the specified concession in respect of that particular portion. Of course, even in the grove portion one may have some customary cultivation. But where a portion of the plot is separated from the remainder and cultiva­tion is started on that separated portion, then it cannot be deemed to have continued the character of a grove for the purposes of this Act. In view of the un-cross-examined statement of the Lekhpal on this point, the finding of the appellate authority in this regard must be held to be unassailable. The third point raised on behalf of the petitioner was that plots nos. 434 and 565 and the cultivated part of plot no. 557 were unirrigated. On this question, the findings that these plots were irrigated through a tube-well, situat­ed in plot no. 446. It appears from the judgment of the appellate authority that in between plots nos. 446 and 434 there is a Galiyara and again in between plots nos. 446 and plot no. 565, there is a plot no. 464 belonging to a stranger and a Chak road. The learned Civil Judge has, however, held that irrigation was possible even after crossing the Galiyara or the Chak Road, and that the Galiyara and the Chak road must have been at a lower level than the fields. The statement of the Lekhpal on this point appearing to be equivocal and hearsays that he did not actually see the plots being irrigated. The finding of the appellate authority on this point is based on a conjecture or survise and not on any specific piece of evidence. If the evidence on this point was not clear, it was open to the Prescribed Authority or the appellate authority to have made a local inspection for ascertaining the true position. This they do not appear to have done. Thus, the finding on this point cannot be sustained.
(3.) IN the result, the writ petition succeeds in part. The finding of the appellate authority on the question as to whether the plots nos. 434 and 5(65 and the cultivated part of plot no. 557 are irrigated or not is hereby quashed. The rest of the judgment of the appellate authority shall stand. The Appellate Authority shall rehear the appeal on this issue and decide the same afresh in accordance with law in the light of the observation made in this judgment. No order is made as to costs.;