JUDGMENT 1. - Heard learned counsel for both the parties. 2. This petition is directed against the order passed by the Board of Revenue on 20th March, 1985, dismissing the appeal filed by the petitioner against determination of ceiling area vide order dated 18.7,1980. This proceeding took place as a result of order passed by the Government under 5 Section 15(1) of the Rajasthan Imposition of Ceiling on Agricultural Holdings 1973 (hereinafter called as "the Act of 1973"). 3. The chronology of the events shows as urged by the learned counsel for the petitioner that by order dated 18.5.1971 passed by the Addl. Collector, Sawaimadhopur Durga Singh, Karen Singh and to Yagyanarayan Singh as sons of Ummed Singh, predeceased brother of erstwhile holder Jagirdar Udai Singh were jointly holding 62 standard acres of land, of which 6.4 acres of land were transferred on 10.9.1968 which was recognised and the remaining land was considered as holding of their joint account. Under the ceiling law, each of the brothers could 15 hold the land upto standard acres in their possession, hence none of the brothers was found holding the land in excess of ceiling limit. Therefore, the proceedings under Chapter Ill B of the Rajasthan Tenancy Act, 1955 were dropped. 4. Thereafter, on commencement of Act 1973, on 27.2.1975, an order was made by the competent officer under the Act of 1973. In this proceeding, the petitioner Durga Singh tiled return as son of Udai Singh. He claimed that his son Vijay Bhagwat Singh was major as on 1.1.1973, therefore, separate unit should have been provided for his son in respect of holdings in his name. It was also contended that his widowed mother is also a member of his family and she should have been counted as member of his family, which would entitle him to retain the additional land, for additional member. In addition to above, certain transfers were also pleaded for recognition. 5. According to the order dated 27.2.1975, as on 1.1.1973 the petitioner vas holding 103 acres un-irrigated land after converting the land from assured irrigation into Barani land. The competent officer found that under declaration dated 7.1.1971 under Chapter 111-B of the Rajasthan Tenancy Act, 1955 the age of Bhagwat Singh was shown as 14 years and if that be correct, the age of Bhagwat Singh could not exceed 16 years as on 1.1.73. The competent officer found that under declaration dated 7.1.1971 under Chapter 111-B of the Rajasthan Tenancy Act, 1955 the age of Bhagwat Singh was shown as 14 years and if that be correct, the age of Bhagwat Singh could not exceed 16 years as on 1.1.73. Therefore, the exclusion of Bhagwat Singh from the family of Durga Singh and plea for separate unit for him was rejected. However, the transfers made by Durga Singh were accepted as cognizable and bonafide and claim for inclusion of mother's name into family and providing additional land, in that event, was also accepted. With these findings, it was found that the holder was entitled to for 64.80 acres of land and balance 4.20 acres came to be surplus land. Obviously, this calculation was made by excluding the lands of transfers made by the petitioner. 6. The computation of total land in the hands of the petitioner was not challenged by him. 7. Therefore, by order dated 20th April, 1978, the State Government in exercise of its powers under Section 15 of the Act directed re-opening of the ceiling case in the matter of Durga Singh. The petitioner was asked to answer that in the order dated 27.2.1975, the mother has wrongly been treated as member of family and transfers made in favour of Panna, Smt. Gita Daroga and Smt. Ram Kunwari have been wrongly recognised as they were not recognizable under the provisions of the Act. 8. The plea about the inclusion of mother as a member of family was rejected by the competent authority holding that for the purpose of the Act of 1973 under the definition of family under section 2, the mother is not included as a 25 member of the family, nor she should be allowed separate land by way of a separate unit because she had no share in the holding of Durga Singh. The transfers made by the petitioner were not also found such which could not be recognised. It was held that the transfer made in favour of Panna was made by registered sale deed dated 25.6.1973. Transfers made after 1.1.1973 has not been recognised under the Act, therefore, the transfer made in favour of Panne could not be recognised. The gifts made in favour of Geeta, Smt. Ram Kunwari and Suta Raiger vide Ex.3, 4 and 5 were not recognized. Transfers made after 1.1.1973 has not been recognised under the Act, therefore, the transfer made in favour of Panne could not be recognised. The gifts made in favour of Geeta, Smt. Ram Kunwari and Suta Raiger vide Ex.3, 4 and 5 were not recognized. These documents were not registered nor any attempt was made to get the mutation of lands made in the name of donees. Nor possession of donees was proved. In the facts and circumstances late emergence of these transfers were not found to be bonafide and were treated to be an attempt to create ante dated transfers of immovable property, which could be written at any time only for the purpose of avoidance of ceiling laws. 9. As regards the claim of the petitioner for inclusion of name of Bhagwat Singh, the Competent Authority noticed some additional facts from record, which were that in the school register, the date of birth of Bhagwat Singh was originally mentioned as 5.8.1957 which has been corrected to 12.8.54 only on 17th April, 1974 after the first declaration under Chapter III-B of the Act of 1955 was made in 1971 and after the Act of 1973 came into as force. In this view of the matter, the plea of exclusion of Bhagwat Singh as a family member for holding separate unit was rejected according to this finding. The Competent Authority found that after converting the various types of land into Barani land as per ratio provided under Section 5(h) of the Act of 1973, the total holding of land in the name of petitioner as on 1.1.73 came to 106.65 acres of barani land. In terms of Section 4(1)(e) of the Act, the petitioner was entitled to hold 54 acres of land and remaining 52.65 acres of the land was declared as surplus. 10. This order dated 18th July. 1980 was subjected to challenge before the Board of Revenue by way of appeal. The contentions raised before the Board of Revenue were: firstly, that the petitioner had a son Bhagwat Singh who was a major on the relevant date and he was entitled to hold a separate unit for the adult son secondly, the petitioner has got mother, she is a member of the family and she ought to have been included in computation of members of family and on her inclusion additional land should have been provided. Lastly, it was also sought to challenge the finding about the non-recognition of transfers made in favour of Rama, Smt. Geeta and Smt. Ram Kanwari. 11. All the three contentions were rejected by the Board of Revenue adopting the reasons given by the competent authority as noticed above. Hence. this petition challenging the order dated 20th March, 1985 and the order dated 18.7.1980.Before proceeding further, it is necessary to notice two more facts.Firstly, in the first instance, this petition was finally heard and dismissed b. a learned Single Judge of this Court on 4th April, 1996. However, on a rE iiew petition filed on behalf of the petitioner, the review petition was it awed vide order dated 16th December, 1997 and the earlier order was Called. The principal contention raised for recalling the order was with reference to the order dated 18.5.1971 and order dated 27.2.1975 to which reference has been made above and which are the orders passed under Chapter III-B of the Act of 1955 and under the Act of 1973 respectively. 12. Another fact which emerges from the contention raised by the counsel for the petitioner before this Court was that while explaining the facts of this case it became obvious that the present petition arises in the ceiling case of Durga Singh under the Act of 1973 in which he has claimed himself to be adopted son of Udai Singh. It was stated in para (g) of the ground that Udai Singh died issueless and during his life time. he adopted the petitioner. Umaid Singh who was the brother of said Udaisingh had pre-deceased him. 13. At this juncture, it may be noted that as per submissions of the learned counsel for the petitioner, under the provisions of Chapter III-B of the Rajasthan Tenancy Act, claim made by the petitioner proceeded on the basis that on the death of Udai Singh. who had no heir from class one, was survived by Durga Singh, Karan Singh and Yagyanarayan Singh, sons of hispredeceased brother, Umed Singh as nearest heirs amongst Class II heirs, they succeeded him. It has not been disputed nor contended that wife of Udai Singh was not alive at the time of his death or at the time of laying the claim. It has not been disputed nor contended that wife of Udai Singh was not alive at the time of his death or at the time of laying the claim. In fact while claiming himself to be adopted son of Udai Singh, he is pleading for inclusion of wife of Umed Singh and his natural mother to be 40 member of his family as adopted son of Udai Singh. 14. In this background, so far as inclusion of the name of mother in the family members of the petitioner is concerned, it must fail, considering Durga Singh has put forward his case to be considered as adopted son of Udai Singh, Udai Singh was not survived by his widow who could be 45 treated as member of family of Durga Singh S/o Udai Sing, nor could she be an heir of Udai Singh to claim any share in the property of Udai Singh or her own right. 15. In fact, proceedings under the Act of 1973 have been conducted against the petitioner as per his return as the successor of Udai Singh. 16. The petitioner has himself chosen firstly to file return under Chapter MR of the Art of 1955 as son of Umed Singh and laid claim to lands of Udai Singh as one of his class 11 heirs as sons of predeceased brother of Udai Singh. In proceedings under the Act of 1973 he has laid claim to lands of Udai Singh as his son, a class Their. 17. The aforesaid conduct not only shows the manner in which ceiling 5 matters are conducted by the petitioner for retaining as much land as possible in connivance with his brothers in the family of natural birth and to avoid ceiling law. This is apart from the fact that provisions of the Act of 1973 governs determination of ceiling land in respect of any person as on 1.1.1973. The provisions of Chapter III-B of the Act, cannot be applied on their own force for any purpose of ceiling proceedings under the Act of 1973, except for the purpose of determining whether the ceiling entitlement under the Act of 1973 is less than the ceiling area under Chapter IIIB. The provisions of Chapter III-B of the Act, cannot be applied on their own force for any purpose of ceiling proceedings under the Act of 1973, except for the purpose of determining whether the ceiling entitlement under the Act of 1973 is less than the ceiling area under Chapter IIIB. This is so because ceiling area in respect of a person has to be determined on the basis of measure of ceiling area applicable to that 15 person under Chapter IIIB of the Act of 1955 or under the provisions of the Act of 1973, whichever is less as the case may be. 18. It is true that under the definition of family under Section 30-B of the Rajasthan Tenancy Act, mother is included in the constitution of family but as per the provisions under the Act of 1973, mother has not been included in the definition of family. The petitioner's claim to inclusion of name of mother is not founded to include widow of Udai Singh his adoptive mother in the case, he has submitted his return as adopted son of Udai Singh, for the simple reason that Udai Singh's wife was not alive at the time of his death. Udai Singh while claims himself to the adopted son of Udai Singh. wants inclusion of Umaid Singh's wife in family as 'mother'. Apparently, this plea is incompatible with his claim to be son of Udai Singh. Thus, it cannot be said that the Board of Revenue has erred in rejecting the claim of the petitioner for inclusion of Ummed Singh's widow as mother of adopted son of Udai Singh amongst members of Durga Singh's family. 19. The rejection of contention about the exclusion of Bhagawat Singh from members of the family and entitlement for separate unit of Bhagwat Singh on the ground that he was above 18 years of age also in my opinion, does not suffer from any error apparent to call for interference in these proceedings. 20. As per the declaration filed by the petitioner under Chapter 111-B of the Rajasthan Tenancy Act 1955 on 7.1.71, Bhagwat Singh was shown to be a minor of 14 years of age. By simple arithmetic calculation on 1.1.1973, he could not be more than 16 years of age, and could not be treated as major. 20. As per the declaration filed by the petitioner under Chapter 111-B of the Rajasthan Tenancy Act 1955 on 7.1.71, Bhagwat Singh was shown to be a minor of 14 years of age. By simple arithmetic calculation on 1.1.1973, he could not be more than 16 years of age, and could not be treated as major. The certified copy of the scholar's register showing 12th August, 1954 to be date of birth of Bhagawat Singh also was rightly not accepted by the authorities below. The date of birth recorded in the scholar's register in the first instance, was also different which recorded his date of birth as 5.8.57, which accorded the date of birth shown in the return filed on 7.1.71. The change in the scholar's register has taken place in the year 1974 after the Act of 1973 has come .into force. The inference of lack of bona fide in making alteration in the circumstances appears to be reasonable and is not liable to be disturbed by this Court in exercise of its extraordinary jurisdiction. 21. The other contention raised by the lerned counsel for the petitioner about ignoring of the transfers made by him also has rightly been negatived by the Board of Revenue. Because transfers made after 1.4.73 are not to be recognised in absolute. Question of bonafide of such transaction is not germane. The 'other transfers' alleged to have been made by way of gift which is evidenced by unregistered deed whereas any transfer of immovable property is required by law to be by legal document only. Secondly, no evidence of actual delivery of property and acceptance by respective donees of gift was placed on record. no effort was made to get entries of transfer s made in the revenue records with these circumstances, undisputably existing the order of Board of Revenue does not suffer from any error apparent on the face of record in this regard. 22. The learned counsel for the petitioner vehemently urged that looking to the order of authorities under Chapter 111E of the Act of 1955 dated 18.7.71 and the earlier order passed under the Act of 1973 dated 7.2.75, there could not be such declaration of surplus lands, nor the petitioner could be held to be in possession of holding in excess of what has been held in the two orders. 23. 23. This contention was not made at any time before hearing of this 15 petition before any other authority, It is also apparent from the order passed on the Review Petition, wherein it was observed that this case was not pleaded before the Board of Revenue, as well as not noticed by this Court that the entire land could not be treated as of Durga Singh, ignoring the land of Karan Singh. 24. It has been noticed above that the petitioner's case in proceedings under the Act of 1973 has been that the petitioner was adopted son by Udai Singh during his lifetime as his son. As per his own contention, he would inherit the entire property of Udai Singh as an heir of Class-I to the exclusion of any person enumerated in Class-II heirs in Section 25 8 of the Hindu Succession Act, 1956. That is basic deviation in stand taken by the petitioner from the one-he took in the ceiling proceedings under the old ceiling law. Under the Old Act, the stand taken by the petitioner was that on demise of Udai Singh, who had died intestate without any heir of Class-I, he alongwith his three brothers, being sons of Umaid Singh, a predeceased brother of Udai Singh, succeeded to the estate of Udai Singh in equal shares under per capita rule. However, in the proceedings under the Act of 1973 right from the beginning, the petitioner Durga Singh has stated that he alone succeeded Udai Singh as his adopted son as an heir of Class-I. As per the stand taken by the petitioner,if anybody else is recorded as his co-tenant or independent tenant of the lands left by Udai Singh. it cannot be as successor of Udai Singh, but only as a result of transfer, if any, made by Durga Singh. However, no such transfer has been pleaded by Durga Singh. The proceedings under the Act, 1973 cannot be considered as a proceeding in continuation of the proceedings that were taken under Chapter 111-B of the Rajasthan Tenancy Act. The petitioner having declared himself as son of Udai Singh in the proceedings under the Act of 1973 and which was accepted by the authorities under the Act of 1973, cannot now turn to proceedings under the old ceiling law and fall back on the proceedings under Chapter III-B. The petitioner cannot be allowed to approbate and reprobate. The petitioner having declared himself as son of Udai Singh in the proceedings under the Act of 1973 and which was accepted by the authorities under the Act of 1973, cannot now turn to proceedings under the old ceiling law and fall back on the proceedings under Chapter III-B. The petitioner cannot be allowed to approbate and reprobate. In a writ of certiorari, it would not be permissible, ordinarily, to make out entirely a new case, than what was before the Tribunal or Court whose orders are to be judicially reviewed. 25. Another contention which has been raised before this Court was about the computation of his holdings. So far as the finding about total holdings by the petitioner is concerned, it has not been agitated by the petitioner at any time that there is any error in computation of his holdings. He cannot now be permitted to find fault with reference to the materials which were not brought on record and contrary to plea taken by him. 26. About the order passed under Chapter III-B of the Act, suffice it to say that the said order has been made only at the behest of petitioner on entirely different edifice about succession to holdings of Udai Singh. 27. The learned counsel contended that since final statement was already published, the measure of lands held by Durga Singh became final and could not have been altered subsequently. 28. For this reason, computation of holdings of petitioner in excess of final statement already published, was impermissible. 29. So far as publication of final statement under section 13 in pursuance of findings recorded in the order dated 27.2.75 is concerned, it is subject to other provisions of the Act of 1973 which include Section 15 also, which provides for reopening of the orders passed under the Act of 1973 as well as under the old Ceiling law determining ceiling of any person at earlier point of time. Therefore, the final statement made in pursuance of order dated 27.2.75 was also liable, on reopening under Section 15 of the Act, to be modified accordingly. Since transactions of transfers made by the petitioner which were earlier recognised and excluded from computation, on reopening have been found to be non recognisable under the Act of 1973 and such transfers were bound to be an addition in the final statement. Since transactions of transfers made by the petitioner which were earlier recognised and excluded from computation, on reopening have been found to be non recognisable under the Act of 1973 and such transfers were bound to be an addition in the final statement. In the order dated 27.2.75, the competent officer converted all lands of different quality into barani lands as holdings of the petitioner Durga Singh. The land thus found to be in the holding of the petitioner comes to 103 acres of unirrigated land after converting the land of superior quality into inferior as per the ratio prescribed thereunder. 30. Otherwise, also this being a question of fact, requires investigation into cognate facts which is not ordinarily practice of this Court while exercising its jurisdiction under Article 226 and 227 of the Constitution. 31. Lastly, it is contended by the counsel for the petitioner that at any rate, the conversion of all lands into lowest category is contrary to the requirement of Section 5(e) of the Act of 1973. The land ought to have converted into highest standard of land in case he holds different varieties of land. It is true that statute provides conversion of different quality of land into highest class of land held by the holder. But the petitioner has not been able to explain whether by reverse conversion, it will make any difference in end conclusion to his detriment. If there is any such case, he may make an appropriate application before the competent authority for making conversion of his holdings of different class, as per Section 5(e). The competent authority may then make an order about the areas which could be retained by him in accordance with Section 4. This application, if so advised, may be made by the petitioner within a period of four weeks. The same may be decided within two months of making of such application. 32. Consequently, subject to the above, this writ petition is dismissed with no order as to cost.Writ Petition dismissed. *******