LAKHPAT RAI Vs. STATE OF U P

JUDGEMENT

(1.) IN the objection against a notice under Section 10(2) of U.P. Imposition of Ceiling on Land Holdings Act (hereinafter referred to as the Act) the Petitioner alleged that the partition had already taken place and the share of property which has been given to other co -sharer has been erroneously clubbed with holding. This contention did not find favour with the Prescribed Authority hence he rejected the objection of the Petitioner. The Petitioner went in appeal. The appellate authority held that as the partition decree has not been filed by the Petitioner hence it was not liable to be taken into consideration. He further held that although the preliminary decree was passed in the year 1969, but as the same was given 'effect to by preparation of final decree after 24 -1 -1971 hence the same was liable to be ignored, and thereby dismissed the appeal. Aggrieved, the Petitioner has come to this Court under Article 226 of the Constitution.

(2.) THE question involved in this writ petition is whether the preliminary decree passed before the specified date, that is, 24 -1 -1971, could be binding or could be ignored. It is not in dispute that for ignoring a partition decree provision is given under Section 5(7) of the Act. Section 5(7) is reproduced below:

(3.) THE result is, that this writ petition is allowed and the impugned judgment of the appellate authority is quashed. The case is sent back to the appellate authority for deciding the appeal afresh in accordance with law. In the circumstances of the case, the parties shall bear their own costs. The stay order shall stand discharged.