ORDER S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution. This petition arises out of proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act). 2. Ram Swaroop, the petitioner, and Dwarika Prasad, respondent 3, are real brothers. Proceedings under the Act were taken against the tenure holder Dwarika prasad by an order dated 20th Oct., 1975. This order was produced before me by the respondents with the consent of the petitioner. The land of Dwarika Prasad was declared surplus to the extent of 3.91 hectres of irrigated land. Since at the time when this order was passed, Dwarika Prasad did not appear, the plots in two Khatas, namely, Khatas Nos. 81 and 375, were declared surplus. Thereafter, on 6th July, 1978, Dwarika Prasad moved an application under S. 13-A of the Act by virtue of which he gave his choice in respect of the land, which was declared surplus. This application was initially rejected by the Prescribed Authority. Thereafter, an appeal was filed. The appellate Court by an order dated 31st May, 1979, remanded the case to the prescribed authority for considering the application of Dwarika Prasad in regard to the choice given by him in accordance with law. After remand, initially, the Prescribed Authority rejected the application for choice, but, subsequently, the order was reviewed and by another order dated 25th Nov., 1980, the choice given by Dwarika Prasad was accepted. After this was accepted by the Prescribed Authority, the petitioner filed an application on 23rd April, 1981, stating therein that, in fact, the choice, which had been given by Dwarika Prasad, related to the plots, which had come to the share of the petitioner by virtue of a partition said to have taken place on 7th June, 1974. This partition was by virtue of a compromise arrived at between the parties. This application of Ram Swaroop was rejected on 28th Jan., 1982. Against the order rejecting the application dated 28th Jan., 1982, the petitioner filed an appeal before the District Judge, Banda. The appeal was also dismissed on 10th Dec., 1982. The petitioner has now challenged the order dated 28th Jan., 1982, and 10th Dec., 1982, by means of the present petition. 3. I have heard the learned counsel for the parties. 4. The appeal was also dismissed on 10th Dec., 1982. The petitioner has now challenged the order dated 28th Jan., 1982, and 10th Dec., 1982, by means of the present petition. 3. I have heard the learned counsel for the parties. 4. Learned counsel for the petitioner has contended that in accordance with S. 12-A(d) of the Act, the Prescribed Authority as well as the appellate Court acted illegally in accepting the choice of the tenure holder Dwarika Prasad in respect of the plots, which were the subject of partition dated 7th June, 1974 and, as such, the authorities have erred in holding that the said partition was void in the eve of law. The argument of the learned counsel is that, firstly, the plots, which were not the subject matter of partition, should have been taken towards the surplus land and if that was not sufficient, then alone, the plots, which were the subject matter of partition, could have been taken towards the surplus land. 5. I have heard the learned counsel for the respondent Dwarika Prasad, who has rebutted the contention raised on behalf of the respondent. 6. Section 5 of the Act provides that on and from the commencement of the Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972, no tenure-holder shall be.entitled to hold in the aggregate throughout Uttar Pradesh any land in excess of the ceiling area applicable to him. The Amendment Act of 1972 came into effect from 8th June, 1973. The effect of S. 5, consequently, is that after 8th June, 1973, no-tenure holder entitled to hold land in excess of the ceiling area available to him. Sub-sec. (7) of S. 5, which is relevant for the purposes of determining the controversy in the present petition, relates to partition, which might have taken in respect of the land belonging to the tenure holder. It provides that in determining the ceiling area applicable to a tenure holder, any partition of land made after the twenty-fourth day of Jan., 1971, which but for the partition would have been declared surplus land under this Act shall be ignored and not taken into account. A proviso has been added in which, in certain circumstances, the partition though it may have taken place after the said date would still be recognised as a valid partition for the purposes of determining the ceiling area. 7. A proviso has been added in which, in certain circumstances, the partition though it may have taken place after the said date would still be recognised as a valid partition for the purposes of determining the ceiling area. 7. Section 12-A of the Act laid down the principles which would be applicable when an application is made by a tenure holder. It has been provided that as far as possible, the Prescribed Authority shall accept the choice given by a tenure holder. This power is subject to certain provisos. Proviso (d) is relevant for the purposes of the present case. It provides as under : "12-A(d). Where any person holds land in excess of the ceiling area including land which is the subject of any transfer or partition referred to in sub-sec. (6) or sub-sec. (7) of S. 5, the surplus land determined shall, as far as possible, be land other than which is the subject of such transfer or partition, and if the surplus land includes any land which is the subject of such transfer or partition, the transfer or partition shall, in so far as it relates to the land included in the surplus land, be deemed to be and always to have been void, and (i) it shall be open to the transferee to claim refund of the proportionate amount of consideration, if any, advanced by him to the transferor, and such amount shall be charged on the amount payable to the transferor under S. 17 and also on any land retained by the transferor within the ceiling area, which shall be liable to he sold in satisfaction of the charge, notwithstanding anything contained in S. 153 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950; (ii) any party to the partition (other than the tenure holder in respect of whom the surplus land has been determined) whose land is included in surplus land of the said tenure- holder shall he entitled to have the partition re-opened." 8. From Proviso (d), it is clear that if a person holds land in respect of the ceiling area, including land which is the subject of any partition, referred to in sub-sec. (6) or sub-sec. (7) of S. 5. From Proviso (d), it is clear that if a person holds land in respect of the ceiling area, including land which is the subject of any partition, referred to in sub-sec. (6) or sub-sec. (7) of S. 5. the surplus land determined shall, as far as possible, be land other than land which is the subject of partition and if the surplus land includes any land, which is the subject of such partition, the partition shall in so far as it relates to the land included in the surplus land be deemed to be and always to have been void. The words "transfer or partition referred to in sub-secs. (6) and (7) of S. 5" are significant. It is only when a transfer has been ignored under S. 5(6) or, similarly, a partition has been ignored under sub-sec. (7), that the Legislature contemplated that in such a case, the surplus land determined shall, as far as possible, be land other than the land which is the subject of transfer or partition. 9. In the instant case. it is apparent from the order dated 20th Oct. 1975, by which the land was declared surplus, that the land in dispute was not land which was a subject matter of partition which had been ignored by the Prescribed Authority and, as such, Proviso (d) in terms does not apply and no benefit can be taken by the petitioner of the Proviso. 10. Learned counsel for the petitioner has relied upon a decision of this Court in Jogendra Singh v. State of Uttar Pradesh, 1983 All LJ 1297. This case relates to a case of transfer. Hon'ble Mehrotra, J. (as he then was), after examining all the authorities, came to the conclusion that where a land has been transferred to a person and which has been ignored under S. 5(6) of the Act, the transferee is entitled to see that, as far as possible, the said land be not declared as surplus land of the tenure holder. In the case of Jogendra Singh v. State of Uttar Pradesh (supra), the transfer took place on 28th Jan. 1972, and this transfer was ignored under S. 5(6) of the Act. Since it was a transfer which was ignored under S. 5(6) of the Act, on the interpretation put by him, proviso (d) of S. 12-A of the Act would clearly apply. 1972, and this transfer was ignored under S. 5(6) of the Act. Since it was a transfer which was ignored under S. 5(6) of the Act, on the interpretation put by him, proviso (d) of S. 12-A of the Act would clearly apply. The petitioner cannot take benefit of the principles laid down in the case of Jogendra Singh v. State of Uttar Pradesh (supra), as that was not a case where the provisions of S. 5(6) of the Act were not applicable. In view of the above, I am of the opinion that it cannot be said that the view taken by the Prescribed Authority or the appellate court was, in any way, manifestly erroneous. 11. Learned counsel for the petitioner, in the end, urged that on 26th Dec, 1963, Dwarika Prasad had filed a Partition Suit No. 16 under S. 176 of the U.P. Zamindari Abolition and Land Reforms Act and a decree was passed on 1st June, 1964. In the counter-affidavit, it has been stated that the consent decree dated 1st June, 1964, was not given effect to and for this reason, the entire land was considered to be the tenancy of Dwarika Prasad. This plea, which has been taken now by the petitioner, was not taken before the courts below neither any document has been filed by the petitioner in relation to this plea before the courts below. This plea is an afterthought and, in the circumstances, the petitioner cannot be permitted to take up this plea at this late stage now under Article 226 of the Constitution which is based on disputed questions of fact. 12. In the result. the petition fails and, is accordingly, dismissed, but, in the circumstances of the case, the parties are directed to bear their own costs.