Point of Law : Authorities have gone beyond the power under Section 38B of 'the Act of 1960' and wrongly redetermined the issue of family settlement, without any legal and vailid ground and wrongly doubted the family settlement only on basis of an assumption.

JUDGMENT :

Saurabh Shyam Shamshery, J.

1. This case has a chequered history and this is the third round of litigation which has reached up to this Court. The facts in brief are that the for first time, proceedings were initiated against the Rais Ahmed predecessors of the petitioners under Section 10(2) of the U.P. Imposition of Ceiling on Land Holding Act, 1960 (hereinafter referred to as 'the Act of 1960') in the year 1961, which were dropped by the Prescribed Authority, by an order dated 1.5.1963 on the ground that their had been a family settlement in the year 1959 before the due date and the land with tenant holder was within ceiling limit.

2. Thereafter, a second notice was issued under 'the Act of 1960' in the year 1974 and again objections were filed. The notice was cancelled by the order dated 31.1.1975 passed by the Prescribed Authority again on the ground that there was a family settlement and due to that, there was no surplus land with the tenant holder. It appears that a recall/review application was entertained and it was allowed on 25.7.1975 on the ground that mutation order which had been carried out, pursuant to the family settlement, had been put in abeyance by the Additional Commissioner and consequently, declared certain land to be surplus. The said order was challenged by way of filing an Appeal No.26 of 1975 and the same was allowed by an order dated 24.9.1975 and the order impugned therein was set aside. It was held that review/recall application was not maintainable and the question of title which was finally decided by the Prescribed Authority on 31.1.1975, could not be reviewed on discovery of a mutation order only. The order dated 24.9.1975 was not challenged by the respondent State Authorities.

3. A third notice was served on the petitioners and the objections were filed by the tenure holder, however, the Prescribed Authority by an order dated 23.7.1976 declared certain land of the tenure holder to be surplus. The said order was challenged by way of filing two appeals before the District Judge, Hamirpur, which were allowed by an order dated 27.9.1977. The family settlement between Rais Ahmed and his minor sons was accepted. It was declared that there was no surplus land with the tenure holder. It was also noted that the then Lekhpal, who was examined on behalf of the State also accepted that there had been a family settlement amongst Rais Ahmed and his sons. Despite proceedings against the petitioners were dropped three times, a fourth notice was issued on 14.5.1982 in view of the amendment whereby Section 38(b) was inserted in 'the Act of 1960' (came into force w.e.f. 10.10.1976). The objections were filed, which were rejected by the Prescribed Authority by an order dated 26.4.1984 on the ground that neither any entry on the basis of the family settlement was on record in any revenue records nor any circumstance was brought on record under which the said family settlement took place. The said order was challenged by way of filing an appeal which was allowed by an order dated 19.3.1985 and the matter was remanded back. The Prescribed Authority passed a fresh order on 14.5.1987 whereby certain land of the tenure holder was declared surplus on the ground that it was an oral family agreement as well as it was already set aside by an order dated 22.10.1959 which was not brought on record by the tenure holder. The said order was challenged by way of filing an appeal, however, the appeals were rejected by the Additional Commissioner, Jhansi, Division Jhansi, by an order dated 18.11.1987. The said order was challenged by the tenure holders by way of filing Civil Misc. Writ Petition before this Court, which was allowed by judgment and order dated 15.5.2006 and the matter was sent back to decide afresh. The Court noticed that there was no doubt about the family settlement of the rights in favour of tenure holder and his minor sons.

4. In pursuance of the above order, the Prescribed Authority decided the matter afr