Hon’ble A.P. Sahi, J.—All the seven petitioners are the sons of Late Sri Sadashiv, resident of Village Bardwara, Tehsil Karvi, District Banda who have come up questioning the correctness of the order of the Prescribed Authority dated 31.3.1986 and of the learned Commissioner in appeal dated 4th of February, 1988 under the provisions of U.P. Imposition of Ceiling on Land Holdings Act.

2. A notice was issued under Section 10(2) of the Act proposing to declare 13.41 acres of land surplus in the hands of the tenure holders. The petitioner Krishna Pal and others filed objections which was pursued by one of the petitioners Krishna Pal. The authorities proceeded to record the statements of the revenue officials and, thereafter the prescribed authority proceeded to hold that the land proposed as surplus deserves to be declared as such. The petitioners were called upon to offer their choices under the order dated 31.3.1986.

3. An appeal was preferred by the petitioners and the order of the prescribed authority was affirmed on 4th February, 1988. The present writ petition was instituted and an interim order was granted on 18.3.1988 restraining the respondents from dispossessing the petitioners from the land in dispute. The writ petition was admitted on 12.5.1988 whereafter a counter-affidavit has been filed on behalf of the State to which a rejoinder has also been filed by the petitioners. An interim order was further passed by this Court on 19.5.1988 in favour of the petitioners. The rejoinder affidavit brings on record a judgment dated 20.6.1998 by the Sub-Divisional Magistrate in a suit under Section 229-B of the U.P.Z.A. & L.R. Act. A copy of the said rejoinder was served on the learned Standing Counsel as per endorsement thereon on 12.8.2002.

4. Learned counsel for the petitioner contends that the impugned order proceeds on erroneous assumption of facts and on a misconstruction and misconstruing of the evidence on record as a result whereof, both the authorities have arrived at a wrong conclusion. Not only this, the law which has been applied is on the basis of wrong facts and as such the impugned orders are liable to be set aside as there is no surplus land available in the hands of the petitioners.

5. Learned Standing Counsel has taken a stand that the findings recorded are based on evidence and, therefore, this Court may not interfere with these findings of fact in relation to the date of death of Sadashiv and Raghu Nandan.

6. The facts in short are that there is an undisputed pedigree as noted below:

Dwarika Prasad

Sadashiv Raghu Nandan

(died issueless)

Krishna Gomti Tilak Ram Madan Jay Ram Badan

Pal Narain Narain Prakash Mohan Narain

7. Sadashiv and Raghu Nandan were real brothers, who were admittedly the recorded tenure holders of the entire land. The date on which the tenure has to be calculated is 24th January, 1971 and for some transactions dated 9.6.1973. These are the two dates on which the land has to be determined in the hands of a tenure holder and which cannot exceed 18 acres of land in the irrigated sense. There is no dispute that both the brothers were alive in 1971 and 1973 respectively and, therefore, both of them had equal shares in the holding. The entire holding in the irrigated sense between two brothers is reported to be 32.29 acres. If the said land is divided into half, both the brothers Sadashiv and Raghu Nandan receive less than 18 acres individually and, therefore, they could not have been proceeded against for holding surplus land in respect of the shares that would come to them in terms of calculations under the Ceiling Act.

8. The dispute arose when one Mr. S.L. Tiwari the Sub Divisional Magistrate of Karvi during his tenure received information through reliable sources, that Raghu Nandan who was issueless, predeceased his brother Sadashiv in the year 1975 or 1976 and as a consequence thereof Sadashiv became owner and rec