- (1.) SHITLA Pd. Srivastava, J. This peti tion under Article 226 of the Constitution of India has been filed by the petitioner challenging the judgment and order dated 31 -8-1998, passed by the respondent No. 1 in Ceiling Appeal under Section 13 of U. P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as Act only ).
(2.) THE brief facts for the purpose of present wr,it petition as mentioned is ap parent fropi record are that the Smt. Siya Rani, widow of Mangal Singh was the original tenure-holder. She was served with a notice under Section 10 (2) of the Act. THE filed objection against the notice. THE Prescribed Authority declared 32. 20 acres of land in irrigated terms surplus land by his order dated 20th June, 1976. Aggrieved by the aforesaid order appeal No. 626 of 1976 was filed by Smt. Siya Rani and others. This appeal was allowed in part by the appellate Court on 14th January, 1978. THE appellate Court held that plot Nos. 524 and 534 are not irrigated but they are unirrigated. THE appeal was dismissed. THE judgment of the Prescribed Authority was modified. Writ petition No. 1091 of 1973 was filed by the tenure holder, Smt. Siya Rani, which was allowed on 14th November,1978. THE High Court set aside the judgment of the appellate Court and directing the ceiling authorities to redeter-mine the surplus area and remanded the case to the ceiling authorities. A special leave petition was filed against the order of the High Court in the Supreme Court. THE Supreme Court dismissed the special leave petition, meaning thereby that the order of the remand passed by the High Court with a direction to the appellate Court to decide the controversy in the light of the law laid down in Jasvant Singh v. State of U. P, 1978, AWC page 579, the appellate Court heard the matter again and remanded the case to the Prescribed Authority, vide order dated 31st August, 1988. This order has been challenged by the petitioner in this writ petition. Heard Sri Murlidhar, Senior Advo cate of the petitioner and Sri Sanjay Gos-wami, learned Standing Counsel. Shri Murlidhar learned Counsel for the petitioner has urged that full facts have not been given in the judgment of the Deputy Director of Consolidation. The correct facts are that originally Sri Mangal Singh was the tenure holder, who has executed a gift-deed on 8th April, 1969 and trans ferred plot No. 841 measuring 19. 14 acres to his minor son Virendra Singh and by another gift deed of the same date the transferred an area of 19. 73 acres of plot No. 807 and plot No. 842 in favour of other minor son Mahendra Singh. The two sons named above on the date of gift deed were 4 years two months and 10 months of age respectively. It is stated that the name of minor sons were mutated in the revenue papers and the remaining area held by Mangal Singh approximately 52. 77 acres remained recorded in the name of Mangal Singh, who died on 19th December, 1971. He had executed unregistered will on 24th January, 1971 in favour of his wife and also got two registered adoption deeds ex ecuted on 22nd October, 1971, asserting that his two minor sons had been given in adoption to Meather and Ghasite. It is submitted that Smt. Siya Rani was the step-mother, that the name of Smt. Siya Rani was mutated after the death of Man gal Singh on the basis of the will including the area covered by two gift deeds executed in favour of the minor sons. That when the matter was remanded by the High Court to the appellate Court, the minors became the majors. The village came under Consolidation of Holding Scheme in 1975 and the petitioners attained the age of majority in 1985-86. They filed objection before the Consolidation Officer for mutation of their names ifc place of Mangal Singh on 25th August, 1986, the Consolidation Of ficer allowed the objection directed that the name of Smt. Siya Rani be removed from the holding of Mangal Singh and the petitioners' name was ordered to be recorded. An appeal was filed before the Settlement Officer Consolidation by Smt. Siya Rani against this judgment of the Consolidation Officer. That in appeal which was pending before the appellate authority after the order of remand by the High Court application under Order XXXII, Rule 12, CPC was filed by the petitioner on 9th October, 1987. The appellate authority rejected the application under Order XXXII, Rule 12, CPC on the ground that the scope of the appeal was very limited as per directions issued by the High Court for remanding the case. It further held that the application does not bear the signatures of the petitioners or their Advocate and the guardian had been contesting the ceiling appeal before they had attained the age of majority.
(3.) THE learned Counsel for the petitioner has urged that the property transferred to the minor sons of gift deed should not have been clubbed with the holding of Smt. Siya Rani and secondly that the petitioners being the step-sons were not the members of the family of Smt. Siya Rani, who was their step-mother, therefore, also the land of the petitioners could not have been clubbed with the hold ing of Smt. Siya Rani, inherited from her husband on the basis of the will. That the appellate Court has illegally rejected the application as the minor has a right to elect when he becomes major to discharge his guardian and contest himself. His further contention is that when in the consolida tion proceedings an order was passed mutating the name of the petitioners as tenure holders in place of Mangal Singh then that land should not have been taken into consideration, while determining the ceiling area of Smt. Siya Rani and further that as the petitioners were not the real sons of Smt. Siya Rani, rather they were step-sons, therefore, their land should not have been clubbed with Smt. Siya Rani. His contention is that the judgment of the consolidation authorities will operate as resjudicata against Smt. Siya Rani. Learned Counsel for the petitioners has placed reliance on the decision Akshaybar and Ors. v. Board of Revenue 1987 RD 366, on the point that the minor defendant may elect to contest the case after becoming major. He has also placed reliance on a case Riazuddin v. Dy. Director of Consolidation, 1986, ALJ 685, wherein it has been held that it is the discretion of the minor to appear before the Court after becoming major to at one the proceedings or to repudiate the same on the point of step-son. Learned Counsel for the petitioners has placed reliance on the case, Smt. Gurbir Kaur v. State of U. P. , 1980, A. W. C. 372, wherein it has been held that under Section 5 (3) of the Act the word son as occurring in section 3 (7) would not include a step-son. Learned Counsel for the petitioner has further urged that the judgment 'of the Consolidation Officer dated 25th August, 1986 will be binding on Smt. Siya Rani as this judgment super sedes the judgment treating Smt. Siya Rani as tenure-holder. He placed reliance on Section 38-B of the Act and urged that when the application under Order XXXII, Rule 12, CPC was filed by the petitioners it was prayed therein that the order of the appellate Court be set aside and the petitioners maybe given chance to adduce evidence and opportunity of hearing, then the earlier decision that Smt. Siya Rani was treated to be the tenure holder, will not bar as resjudicata against the petitioner.;