IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WPMS No. 4772 of 2001 (Old No. 6217 of 1991) Godhan Singh & others. …….Petitioners. Versus State of U.P. & Ors. ……….Respondents. Mr. N.S. Negi, learned counsel for the petitioners. Mr. H.M. Raturi, learned Standing Counsel for the respondent no. 2 & 3. Mr. Anil Kumar Joshi, learned Counsel for the respondent no. 4. 8th August, 2008 Hon’ble P.C.Verma, J. This writ petition is directed against the order dated 15.5.1990 contained in Annexure No. 6 and 30.11.1990 passed by the respondent no. 2 contained in Annexure No. 9, order dated 10.8.1990 & order dated 2.3.1988 passed by the respondent no. 3 contained in Annexure No. 8 & 5 respectively. 2. Brief facts of the case are that a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1953 was issued to the respondent no. 4 namely Sri Pan Singh in the year, 1986 regarding the land situated in Village Pooranpur, Tehsil Kaladhungi, District - Nainital. The respondent no. 4, the father of the petitioner no. 1 and other petitioners filed their respective objections before the Prescribed Authority stating therein that there is no surplus land left out in favour of the respondent no. 4. 3. Thereafter, the Prescribed Authority after taking into consideration the objections filed by the parties, vide 2 order dated 2.3.1988 declared 24.04 Bighas land as surplus land. Against the said order, petitioners filed an appeal before the Commissioner, Kumaon Division. The Commissioner partly allowed the appeal of Pan Singh/respondent no. 4, but rejected the Ceiling Appeal No. 13/87-88 Ganga Datt and others Vs. U.P. State and others, Ceiling Appeal No. 14/87-88 Khim Singh and others Vs. U.P. State and others, Ceiling Appeal No. 15/87-88 Nar Singh Vs. U.P. State and others, Ceiling Appeal No. 16/87-88 Gopal Datt Vs.U.p. State and others, and Ceiling Appeal No. 17/87-88 filed by the petitioners and remanded the case for giving choice to respondent no. 4 in the land over which the petitioners are in possession. 4. When the case was remanded before the Prescribed Authority then the petitioners filed objection regarding the land, over which, he has already got the rights of Bhumidhar and is in adverse possession for last several years and no choice can be accepted and the land of the petitioners cannot be declared to be surplus. 5. The Prescribed Authority vide order dated 10.8.1990 rejected the objection of the petitioners and accepted the choice of respondents in respect of the land over which the petitioners were in possession and declared 24 Bigha 4 Biswa land as surplus of Plot No. 468/2, 479, A, 478, AB, 480/2B. 6. Against the said order, three appeals were filed one by the petitioners and others by one Kishnanand & Gopal Datt. The Commissioner vide order dated 30.11.1990 3 allowed the appeals of Kishnanand & Gopal Datt and dismissed the appeal of Petitioners, whereby, the respondent no. 4 was permitted to give his choice for suplus land from Plot Nos. 480/2 B measuring about 3 Bigha 14 Biswa, whereupon the petitioners are in continuous possession and got the Bhumidhari right. 7. Learned counsel for the petitioners has submitted that regarding the same land, a notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1953 was issued to the respondent no. 4 and 89.9 Bighas land of the respondent no. 4 was declared surplus including 24 Bighas land of the petitioners from Plot No. 341, 342, 344, 345, 346 in the year, 1974-75 and registered ceiling case No. 15 of 1974-75, the father of the petitioner no. 1 filed an appeal in the year, 1976 before 1st Additional District Judge, Nainital and on 30.3.1977, the 1st Additional Judge, Nainital allowed the appeal of the petitioners on 30.3.1977 and against the said judgment, the State Government did not file any writ petition nor challenged the said judgment, therefore, the present proceedings are barred by the principles of res-judicata. 8. Respondent has not filed any counter affidavit in order to rebut the case, though opportunity to file the counter affidavit has been given. 9. I have gone through the judgment passed by the court below. A perusal of the order dated 30.3.1977 shows that the Additional District Judge, Nainital after relying upon the Khasra No. 1374 F has recorded a finding that appellant Madan Singh (father of the present petitioners) 4 was recorded in possession from 1374 F and therefore, he has acquired Sirdari rights and the plots were not part of the holding of Pan Singh. Relying upon the said fact, the said appeal was allowed and the order passed by the Prescribed Authority dated 9.6.1976 was set aside observing that the plots claimed by the appellant were not the surplus land of Pan Singh. 10. The aforesaid order shows that the petitioners have perfected their rights over the land in dispute as they are in continuous possession over the land in dispute since 1374 Fasli. 11. For the reasons recorded above, I find force in the submission of the learned counsel for the petitioner. The impugned order dated 15.5.1990, 30.11.1990 and 2.3.1988 passed by the courts below are quashed. 12. Consequently, writ petition is allowed. No order as to costs. (P.C. Verma, J.) 8.8.2008 Rathour