1981 INSC 0129
                                   Irshad Ali Khan (dead) by Lrs. and Others

                                                           Vs

                                              State of U. P. and Others

                                       Civil Appeals Nos. 812-14 of 1981

                                       (Syed M. Fazal Ali, V.B. Eradi JJ)

                                                      25.02.1981

                                                     JUDGMENT

FAZAL ALI, J. -

1. After having heard learned counsel for the parties we are of the opinion that neither the District
Judge nor the prescribed authority seems to have gone into the real question in the case as to
whether Mumtaz Ali, who was the original owner of proprieties comprising 103 Bighas, 16 Biswas
and 9 Biswansis, continued to be in cultivatory (sic) possession of the land until his death which
occurred long after the coming into force of the Act. The District Judge as also the prescribed
authority have merely relied on the notice under Section 10(2) issued by the prescribed authority
wheel it was mentioned that Mumtaz Ali continued to be in possession. This fact was seriously
controverted by the appellants before the prescribed authority as also before the District Judge but
there is no clear finding by any of these authorities regarding the question of possession. The
definite case of the appellants was that Mumtaz Ali and Irshad Ali had separated each getting half
other total land. It was also alleged that the grandsons of Mumtaz Ali, namely the four sons of
Irshad Ali - Mukarram Ali, Zafar Ali, Kanwar Ali and Anwar Ali - had purchased the lands from
Mumtaz Ali as far back as 1957. This plea also does not appear to have been noticed by the
authorities concerned. However, the dominant question to be decided by the authorities would be
whether Mumtaz Ali Continued to being cultivating possession of the lands in dispute held by him
in 1071.

2. Another argument addressed to us was regarding the grove. This however, is concluded by
findings of fact and does not called for any interference by this Court.

3. In these circumstances, therefore, we allows this appeal and remit the case to the prescribed
authority for considering the question as to whether or not Mumtaz Ali was in cultivating possession
of the land in 1971 when the Ceiling Act came into force after examining the contentions raised by
the appellants before him. The prescribed authority will also determine possession of the lands
claimed by them in 1971. The parties are directed to appear before the prescribed authority on
March 25, 1981.

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