I.M. Quddusi, J. - (1.) Case called out. Learned standing Counsel is present for the State, but no one is present for the respondent No. 1, Shyam Nath Singh. Although while admitting this writ petition a notice was issued to him and according to the office report neither. Acknowledgement Due nor undelivered cover has been received back after delivery of notice and the notice was sent by the registered post with Acknowledgement Due, hence it is deemed that the respondent has been served.
(2.) The brief facts of the case are that vide order dated 31.1.75 the prescribed authority under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to the Act) declared that respondent No. 1, Shyam Nath Singh was holding 17.70 acres surplus land. The said order was challenged in Appeal No. 634/75 before the learned District Judge, Shahjahanpur, which was dismissed vide judgement and order dated 6.8.75 passed by the III Additional District Judge, Shahjahanpur, but the order about the surplus land made by the prescribed authority was modified to the extent that the area of 17.70 acres land shall be taken from plot No. 118 B area 6.03 acres and plot No. 156 area 7.20 acres and plot No. 76 minjumla area 4.47 acres of village Sadarpur. Against that order a writ petition was filed in this Court, which was registered as Civil Misc. Writ Petition No. 9514/75, which was heard and decided on 25.1.78. While allowing the writ petition in part the judgement of the Additional District Judge with respect to the plots being irrigated was quashed and the appellate court was directed to summon the khasras of the years 1378 Fasli to 1380 Fasli and found whether the plots were irrigated or not. The parties were directed to give opportunity to adduce such other evidence as they may like to produce in that regard and in all respects the judgment of the appellate court was maintainable, including that the sale deed dated 29.5.75 executed in favour of Babu Singh and Jaswant Singh was not executed in good faith. Thereafter Misc. Cl. Appeal No. 634/75 was again decided by the Appellate Court in compliance of the direction of this Court vide judgement and order dated 3.9.83. The learned Appellate Court while allowing the appeal in part, remanded back the case to the prescribed authority (Ceiling) for declaring surplus land in the light of the findings given in the body of the judgement with a direction that the appellant shall give his choice before the prescribed authority.
(3.) Smt. Sunita Agrawal, learned Standing Counsel has urged that this Court had directed the learned Appellate Court to consider the record of 3 Faslis i.e. 1378 Fasli to 1380 Fasli, but the same was R-56 not considered by the Appellate Court and only the record of one Fasli i.e. 1380 and with regard to plot No. 156 & 118 the record of 1378 Fasli only was taken into consideration. The learned Appellate Court has indicated in its judgement that the Court summoned the Assistant Registrar Kanoongo, who was examined as P.W. 1. He filed the extract of khasra 1380 Fasli for the relevant plot, but in respect of the years 1378 and 1379 F, he testified that these were not available and hence the order of this court with regard to examining the relevant khasras for the years 1378 F, 1379 F and 1380F as also provided in Section 4 of the Act has not been followed. Hence the learned Appellate Court has committed manifest error in deciding the appeal without examining khasras of these three faslis. Though the learned Additional District Judge had tried its best to find out the fact, but in the absence of the relevant record, he has given his findings only on the basis of the evidence available on record.;