The amendments made in the Principal Act do not affect the earlier decision regarding the ancestral Sir and Khudkasht nature of the petitioner's holding. Therefore, the findings recorded and the decision reached in the earlier proceedings cannot be set aside. The objection raised by the petitioner in the present proceedings is not barred by Section 49 of the Consolidation of Holdings Act.

Gopi Nath, J.

1. THIS is a writ petition under Article 226 of the Constitution arising out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act.

2. THE petitioner has challenged the orders passed by the Prescribed Authority and the appellate authority dated 6-4-1976 and 20-9-1976 respectively. The main ground of challenge is that since in earlier proceedings under the old Act no land was found surplus with the petitioner, the present proceedings were barred by the principle of res judicata. The appellate authority in the proceedings had by an order dated 31-5-1975 held that no land was surplus with the petitioner. Those proceedings were concluded before the amendment of the Principal Act by Acts 2 of 1975 and 20 of 1976. The order dated 31-5-1975 it was pleaded bound the parties and the present proceedings were misconceived. The authorities below however re-determined the ceiling area of the petitioner and declared an area of 12 bighas, 1 biswas and 5 biswansis as surplus. This was challenged as without jurisdiction.

The facts giving rise to the petition were as follows : A notice under Section 10(2) of the Act was issued to the petitioner under the Principal Act as amended by Act 28 of 1973 proposing to declare an area of 12 bighas 1 biswa and 5 biswansis of land as surplus. The petitioner's holding included an area of 35 bigha 11 biswas and 10 biswansis of land, which he claimed as ancestral sir and khudkasht. It was alleged that the petitioner's son Shugan Chand and his grand sons Naresh Chand and Suresh Chand had a 1/2 share in it and after excluding their share, the petitioner's holding had no surplus land in it. This objection was repelled by the Prescribed Authority by an order dated 30-11-1974. On appeal the appellate authority accepted the petitioners' contention that his son and grand sons had a 1/2 share in the disputed holding which was ancestral sir and khudkasht. The ceiling area was, accordingly, determined, and no land was found as surplus with the petitioner. The order of the Prescribed Authority was set aside and the notice issued to the petitioner was discharged by the appellate Authority by an order dated 31-5-1975. The learned District Judge observed in his order that i was conceded on behalf of the State that an area of 35 Bighas 11 Biswas and 10 Biswansis held by the petitioner was his ancestral sir and Khudkasht, in which his son had a half share. Besides this concession, the appellate authority, on a consideration of the evidence on record, also found that the disputed holding was ancestral Sir and Khudkasht of the petitioner. The relevant evidence including the Khataunis of the settlement years 1324 F. and 1359 F. and C.H. Forms nos. 23 and 41 were referred. This order became final between the State and the petitioner. After the amendment of the principal Act by U. P. Act 20 of 1976, a fresh notice was issued to the petitioner under Section 10 (2) proposing again to declare an area of 12 Bighas 1 Biswa and 5 Biswansis of his land as surplus. The petitioner raised two main objections before the Prescribed Authority (1) that the present proceedings were barred by the principle of res judicata as the matter had already been heard and decided in favour of the petitioner on merits, and (2) that an area of 35 Bighas 11 Biswas and 10 Biswansis of the petitioner's land was ancestral Sir and Khudkasht, in which his son had half share, and that land could not be held as the petitioner's exclusive holding. The Prescribed Authority held that the proceedings were not barred by the principle of res judicata in view of the provisions of Sec. 38-B of the Act. Fresh determination of the ceiling area could, accordingly, be made by the proceedings in question in view of the amendment of the principal Act by Act 20 of 1976, and the finding recorded in the earlier proceedings could not bar a fresh determination of the issues involved. It held that the land claimed as ancestral Sir and Khudkasht