JUDGMENT : M.P. MEHROTRA, J. 1. This petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. 2. In brief, the facts are these: The Petitioner was issued the usual notice u/s 10(2) of the said Act and he filed the objections. The objections were disposed off by the Prescribed Authority and thereafter the Petitioner went up in appeal to the appellate court below. The State also felt aggrieved with a part of the order of the Prescribed Authority and, therefore, it also went up in appeal to the said court. Both the appeals were disposed off by one common judgment by the appellate court. The appeal of the Petitioner was dismissed but that of the State was partly allowed. Now, the Petitioner has come up in the instant petition and his learned counsel, Shri M.C. Dwivedi, has raised the following submissions before me. 3. Firstly, it is contended that the Prescribed Authority and the appellate court were not justified in upholding the inclusion of the land which was hell by a deity as the tenure-holder. According to para 16 of the petition land in the name of the deity in the village Biragawa Buzurg comprised two khatas and the respective area of each khata has been stated to be 2.28 acres and 3.32 acres. Thus the total land measuring 5.61 acres is stated to be in the name of the deity. The counsel's point is that this land should not have been clubbed with the land of the Petitioner because the deity and the Petitioner are two separate tenure holders holding land in their own separate, individual rights. This contention seems to me to be well-founded. The Prescribed Authority emphasised the point that the Petitioner was the sarbarakar of the deity in question and, therefore, he was in cultivatory possession of the same. The said authority invoked the aid of Section 5 of the said Act for including the land held in the name of the deity in the holding of the Petitioner. The appellate court observed; It is a private temple of which the sole and the exclusive manager is the Appellant himself. He has not shown that the income derived from the land holding in the name of Thakur Ram Janki Ji was being solely utilised for the benefit of the idol. The appellate court observed; It is a private temple of which the sole and the exclusive manager is the Appellant himself. He has not shown that the income derived from the land holding in the name of Thakur Ram Janki Ji was being solely utilised for the benefit of the idol. It would thus appear that Thakur Ram Janki Maharaj were only as benamidar of this property and the real tenure-holder is the Appellant himself. In my opinion, therefore, the finding of the learned Prescribed Authority is quite correct and does not require any interference. It will be seen that the appellate court allowed itself to be impressed by an absolutely new approach to the question. The Prescribed Authority never stated that the idol was a mere benamidar for the Petitioner. The Prescribed Authority clearly stated that the tenure-holder was the idol and the sarbarakar cultivated the land in that capacity. The appellate court was not justified in deviating from the line of the Prescribed Authority and toe finding of benamidar was wholly uncalled for. It seems that the appellate court allowed its mind to be influenced by the considerations which have relevance u/s 6(1)(f) where the requirement undoubtedly is that the income of a public religious or charitable trust, wakf or endowment or institution should be wholly untilised for religious or charitable purposes before the land held by such trust, wakf, endowment or institution will be granted exemption under the said provision. The said provision was, therefore, not called for in the instant controversy. Again, it seems that the appellate court took into consideration explanation 1 to Section 5(1) which lays down as under: Explanation 1. In determining the ceiling area applicable to a tenure-holder all land held by him in his own right, whether in his own name, or ostensibly in the name of any other person, shall be taken into account. In applying the said explanation there should be some basis for holding that a person holds land ostensibly in the name of any other person. Such a finding cannot be sprung at the appellate stage without any basis whatsoever and by way of a surprise. Therefore, the appellate court's finding has to be treated as without jurisdiction and, in any case it is an error apparent on the face of the record. Such a finding cannot be sprung at the appellate stage without any basis whatsoever and by way of a surprise. Therefore, the appellate court's finding has to be treated as without jurisdiction and, in any case it is an error apparent on the face of the record. Section 5(5) lays down as under: In respect of any holding held by any private trust, (a) Where the shares of its beneficiaries in the income from such trust are known or determinable, the beneficiaries shall, for the purposes of this Act, be deemed to have the shares in that holding in the same proportions as their respective shares in the income from such trust; (b) In any other case, it shall be governed by Clause (e) of Sub-section (3). 4. In my opinion, this provision clearly shows that a private trust is to be treated as a separate tenure-holder and the land held by such trust should not be clubbed or amalgamated with the land held by the trustee or the manager of the trust in his own individual capacity. 'Tenure-holder' has been defined in Section 3(17) in these words: "tenure-holder" means a person who is the holder of a holding but, (except in Chapter III) does not include (a) a woman whose husband is a tenure-holder; (b) a minor child whose father or mother is a tenure-holder. 'Person' in the aforesaid provision will also include a deity who has always been recognised as a juristic person. Therefore, in my view, Shri Dwivedi is right in contending that the aforesaid area of land should be excluded from the total area of land held by the Petitioner. 5. Counsel next contended that so far as plots Nos. 1269 and 1270 are concerned, they should have been excluded because they are stated to be samadhis and reliance was sought to be placed on Section 6(1)(c) of the said Act which exempts land used as cremation ground or as a graveyard but excluding cultivated land. In my opinion samadhis cannot be treated as cremation ground. Counsel invited my attention to the Commissioner's report. The appellate court below disregarded the said report on the ground that there is no provision under the Act for the appointment of a commissioner. In my opinion samadhis cannot be treated as cremation ground. Counsel invited my attention to the Commissioner's report. The appellate court below disregarded the said report on the ground that there is no provision under the Act for the appointment of a commissioner. Counsel has placed reliance on Smt. Phoolbasa v. State of U.P. It is not necessary to go into this controversy in the instant case because, in my opinion Samadhis cannot be treated as equivalent to cremation ground. It is not disputed that the plots in question are recorded in the revenue records as cultivatory plots and in the judgment of the appellate court it is observed; In the extract of Khasra for 1375 and 1377 Fasli one crop with irrigation from canal has been grown in these plots. In my opinion, therefore, this contention of the learned Counsel has to be rejected. 6. Shri Dwivedi next contended that in respect of plot No. 1485 of village Bangra and plot No. 264 of village Nichauli the appellate court was not justified in treating the same as single crop irrigated land and that they should have been treated as unirrigated. He has drawn my attention to the fact that plot No. 264 of village Nichauli is held by the deity and, therefore, this plot need not be considered here because it will go out of the holding of the Petitioner on account of my aforementioned finding. So far as plots No. 1485 is concerned, counsel relied on annexure 2 which is described as a true copy of khasra Jamabandi of the Betwa canal. It seems to me that under the explanation to Section 4 the plot was correctly held to be single crop land. The explanation is as follows: Explanation-For the purposes of Clause (ii) the expression 'single crop land' means any unirrigated land capable for producing only one crop in an agricultural year in consequence of assured irrigation from any State irrigation work or private irrigation work. In view of the language used in that explanation it is obvious that the land is treated as unirrigated but still because of its capability to produce only one crop in an agricultural year in consequence of assured irrigation from any State irrigation work or private irrigation work, it is held to be single crop land. In view of the language used in that explanation it is obvious that the land is treated as unirrigated but still because of its capability to produce only one crop in an agricultural year in consequence of assured irrigation from any State irrigation work or private irrigation work, it is held to be single crop land. The said criterion is fully satisfied here because the Betwa canal was undoubtedly there in the relevant Fasli year serving as the source of assured irrigation. There is no denial that the said canal was a State irrigation work. 7. No other point has been raised before me. 8. I accordingly allow the petition in part, and quash the judgment of the appellate court below which is annexure 4 in part. The direction given by the appellate court to the Prescribed Authority directing it to recalculate the ceiling and surplus land of the Petitioner shall stand subject to the modification that while calculating such land, the plots held by the deity in question shall be excluded from the holding of the Petitioner. In the circumstances of the case, there shall be no order as to costs.