JUDGMENT : ANIL KUMAR SHARMA, J. 1. This first appeal has been filed by the appellants under Section 96 of Code of Civil Procedure, 1908 against the judgment and decree dated 12-09-2003 passed in Civil Suit No. 10-A/03 by learned Third Additional District Judge, Gwalior dismissing the suit for declaration of title and declaring the order passed by the competent authority under Urban Land Ceiling and Regulation Act as void and ineffective being passed without affording any opportunity of hearing to the plaintiff. The brief facts of the case are that the plaintiff/appellants (original plaintiff Gopalrao Jamdar who has died during pendency of this appeal) is bhumiswami and in possession of agriculture land compromised in survey No. 2439, 2440, 2446, 2450, 2452, 2453, 2453/2, 2454, 2455, 2456, 2430 to 2438 admeasuring 10 bigha 19 biswa situated at Mauza Harkota, Taraganj Lashkar Gwalior. The suit land is agriculture property of the plaintiff since the time of erstwhile Estate of Gwalior in the name of plaintiff's father, thereafter in the name of plaintiff himself. The cremation of plaintiff ancestors took place at this land and Chhatriyas were also constructed in their remembrance. On 06-04-1998 certain persons come on spot took measurement of the subject land and they stated that the land was allotted by the Nazul Officer to Mahila Bal Vikas Department for the construction of hostel etc. and the permission for construction of road has also been given by the Municipal Corporation, Gwalior. This action of Nazul Officer was stated to have been taken on account of declaration of the said land to be surplus in a ceiling case. Plaintiff received no notice of the ceiling case. No land can be declared surplus without hearing him. Plaintiff still continued in possession of the suit land and the act of Nazul Officer is contrary to the provisions of Urban Land Ceiling and Regulation Act, therefore, the plaintiff filed the suit for declaration, however contended that the suit land is agriculture land and no master plan was enforced at the relevant time therefore, it was not vacant land under the Urban Land Ceiling and Regulation Act and could not have been declared surplus. It is further submitted that the mandatory provisions contained in Section 8, 9 and 10 of the said Act was not complied with, possession of the suit land has not been obtained by the competent authority from the plaintiff and possession of plaintiff continued till filing of the suit. 2. The State Government in its written statement contended that the disputed land has been declared as Government land in the revenue record and it is entered as Government Urban Land. In the written statement it has been further contended that the disputed land was declared as surplus by the competent authority under Urban Land Ceiling and Regulation Act on 07-07-1997 in case No. 22/96-97 and possession was obtained by Tahsildar Nazul. Thereafter, a piece of land admeasuring 130092 sq. ft. was allotted to M.P. Rajya Sahkari Awas Sangh Maryadit, Bhopal on 28-11-1998 and possession was delivered to it. Another piece of land area 32769 sq. ft., 25939 sq. ft. and 26615 sq. ft. were allotted to Adim Jati Kalyan Vibhag for Girls Hostel and Kanya Ashram and Manila Ashram Grin respectively and possession was delivered to them. The construction has been made by the allottees and thus the suit is liable to be dismissed. 3. Defendant/respondent No. 2 in his written statement denied the claim of appellant however it was contended that the Municipal Corporation, Gwalior has no concern with the disputed land. 4. Defendant/respondent No. 3 in its written statement adopted the written statement of respondent No. 1 and in addition, it was contended that the competent authority under Urban Land Ceiling and Regulation Act was necessary party hence the suit suffers from non-joinder of necessary party. It is further contended that the plaintiff has preferred an appeal bearing No. 31/97-98 under the Urban Land Ceiling and Regulation Act which has been dismissed on 17-04-2000. This order has attained finality and the civil suit is not maintainable to challenge the same. Further the civil suit is not maintainable for want of prayer of possession. It was further contended that the ceiling proceedings were validly conducted and the disputed land was declared surplus after giving opportunity of hearing to the holder. The objections were rejected on 30-01-1996. It is further contended by respondent No. 3 that the disputed land was deemed to be diverted as vacant land. It was further contended that the ceiling proceedings were validly conducted and the disputed land was declared surplus after giving opportunity of hearing to the holder. The objections were rejected on 30-01-1996. It is further contended by respondent No. 3 that the disputed land was deemed to be diverted as vacant land. It was governed by the provisions of M.P. Urban Land Ceiling and Regulation Act. Moreover, the master plan was also in force. It was further contended that a sum of Rs. 90,685/- was deposited by the defendant in the office of the competent authority on 25-08-1999 which may be claimed by the plaintiff. The suit is also stated to be barred by limitation. 5. Learned trial Court after recording the evidence dismissed the suit of plaintiff vide judgment and decree dated 12-09-03. Aggrieved by the impugned judgment and decree passed by learned trial Court, this appeal has been filed by the appellants on the grounds that there was interpolation in the file cover of the case by scoring out the name of Kamla Bai and addition of name of Ramrao which has not been initialed by the competent authority. Another ground has been raised by the appellants that Kamla Bai has been shown in the order-sheet dated 22-09-1981 as "Dharak" and thereafter in further order-sheets there is no power of attorney of appellants in favour of Kamla Bai. Presence of plaintiff/appellants as holder has not been mentioned in the entire file. Learned trial Judge has not given any finding that the plaintiff was ever served with any notice in the ceiling case. There is no material in the ceiling case to show that the holder/plaintiff was served with the mandatory notice under Urban Land Ceiling and Regulation Act. Finding on issues No. 1, 2 and 3 are incorrect and not tenable. Learned trial Judge has erred in holding that Kamla Bai has acted in the ceiling case on behalf of plaintiff. Kamla Bai has been treated as holder of authority which is revealed in the notice issued to Kamla Bai on various dates. The plaintiff/appellants has submitted Khasra and other documents wherein the plaintiff has been mentioned as Bhumiswami. Learned trial Judge has erred in holding that Kamla Bai has acted in the ceiling case on behalf of plaintiff. Kamla Bai has been treated as holder of authority which is revealed in the notice issued to Kamla Bai on various dates. The plaintiff/appellants has submitted Khasra and other documents wherein the plaintiff has been mentioned as Bhumiswami. The provisions of Urban Land Ceiling and Regulation Act, 1967 are applicable and same could not have been dealt with under the provisions of the Act, therefore, the alleged proceedings if any under the said Act are without jurisdiction and are equally null, void and ineffective. Mandatory provisions of Urban Land Ceiling and Regulation Act have not been followed. The plaintiff/appellants are still in possession of the land as is revealed in Khasra which give rise to the statutory presumption in his favour. 6. The moot questions which are arising in this appeal for consideration are as follows: i. Whether the provisions of Urban Land Ceiling and Regulation Act, 1967 are applicable to the land of the plaintiff/appellants? ii. Whether the order of competent authority declaring the disputed land as surplus has been passed without affording proper opportunity of hearing to the plaintiff/appellants? iii. Whether the proceedings of ceiling case without giving notice to the appellants and marking presence of Kamla Bai are proper? Appellants have also filed an application under Order XLI Rule 27 read with Section 151 of CPC for taking on record the additional evidence. The information was given under Right to Information Act vide letter dated 09-07-2007 issued by the office of the collector and Lagan receipts of the year 1995-96, 1996-97 and 1997-98. Since the documents have been given by the official of respondent No. 1, namely, Nazul Officer, Gwalior regarding lease deed of the suit land to Awas Sangh issued on 09-07-07 and receipts of revenue was given by the revenue officer at the time when the ceiling proceedings were pending in which the original plaintiff Gopalrao Jamdar has not appeared personally, therefore, these documents would be considered as additional evidence as they have been issued by the official of respondent No. 1, therefore, the application filed under Order XLI Rule 27 of CPC is hereby allowed. REGARDING QUESTION NO. 1 7. REGARDING QUESTION NO. 1 7. Learned counsel for the appellants has drawn attention towards definition of "Urban land" and submitted that the land mainly used for agriculture is not used for urban land, therefore, the provisions of Urban Land Ceiling and Regulation Act does not apply to the land of plaintiff. He has also drawn attention towards Section 2(o) of the Act which runs as follows: urban land" means- (i) any land situated within the limits of an urban agglomeration and referred to as such in the master plan or (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town committee, a Cantonment Board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture. Learned counsel for the appellants further drawn attention towards Section 2(q) of the Act which reads as under: vacant land" means land not being land mainly used for the purpose of agriculture in an urban agglomeration, but does not include- (i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated and (ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on the appointed day with the approval of the appropriate authority, and the land appurtenant to such building; and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building: Provided that where any person ordinarily keeps his cattle, other than for the purpose of dairy farming or for the purpose of breeding of live stock, on any land situated in a village within an urban agglomeration (described as a village in the revenue records), then so much extent of the land as has been ordinarily used for the keeping of such cattle immediately before the appointed day shall not be deemed to be vacant land for the purpose of this clause. 8. It is further submitted by learned counsel for the appellants that the provisions of Urban Land Ceiling and Regulation Act are applicable to the urban land as it was exist on the "appointed day" as defined in Section 2(a) of the Act which is 28th January, 1976. On bare perusal of definition of Urban land, it is clear that the land used for agriculture purpose on appointed day i.e. 28th January, 1976 is to be excluded from the purview and ambit of applicability of the Act and in other words the provisions of Urban Land Ceiling and Regulation Act does not apply to the agriculture land even if it is situated in Urban area. 9. Learned counsel for the appellants further submitted that the entry of the land in the Khasra shows that it is used for agriculture purpose. The demand of land revenue till 1996 also shows that it is agriculture land. 9. Learned counsel for the appellants further submitted that the entry of the land in the Khasra shows that it is used for agriculture purpose. The demand of land revenue till 1996 also shows that it is agriculture land. The burden of proof lies on respondent/defendant to prove that it is not agriculture land or it has been diverted from agriculture land to any other purpose. There is no document filed by the respondent to show that the plaintiff's land was diverted. 10. The attention of this Court has been drawn towards the statement of Shared Modak (DW-1) who is Regional Officer of M.P. Rajya Sahkari Sangh Maryadit Gwalior and this witness in his cross-examination has admitted that the record of change of land use is with him but he has not produced it before the Court. The record of ceiling case has been made available by learned Government Advocate which shows that in Samvat 2035 to 2037 an entry of crops of wheat is made in the Khasra but in the year 1993 to 1996 the Khasra shows that the land has been given for Government use but considering the provisions of Urban Land Ceiling and Regulation Act, the user of land is to be seen on the appointed day i.e. 28th January, 1976. Since the plaintiff land was used for agriculture purpose on the appointed day, therefore, the provisions of Urban Land Ceiling and Regulation Act are not applicable to the land of plaintiff. REGARDING QUESTION NO. 2 11. The second ground raised by learned counsel for the appellants is regarding passing of the order by the competent authority without affording proper opportunity of hearing to the plaintiff/appellants. On perusal of record of the ceiling case, it is clear that the name of Kamla Bai has been mentioned as "Dharak" in various order-sheets. In first two order-sheets dated 01-09-1981 and 22-09-1981, learned counsel for the appellant has drawn attention towards the fact that on the cover of case file name of Kamla Bai Patni Gopalrao Jamdar has been initially mentioned and afterward name of Kamla Bai has been scored out and the name of Gopalrao Jamdar "Putra Ramrao" has been added. 12. Learned counsel for respondent No. 1 submitted that the file cover is not part of proceedings, therefore, any correction made in the file cover in the name cannot be taken as proceedings initiated against Kamla Bai. 12. Learned counsel for respondent No. 1 submitted that the file cover is not part of proceedings, therefore, any correction made in the file cover in the name cannot be taken as proceedings initiated against Kamla Bai. The argument of learned Government Advocate is acceptable but on perusal of first page of order-sheet it is clear that on the top of the order-sheet name of Kamla Bai Patni Gopalrao Jamdar has been written and in the first two order-sheets name of Kamla Bai has been mentioned although in the first order-sheet it has been mentioned that Kamla Bai is wife of possessor. Thereafter, several other order-sheets shows that Kamla Bai has signed the order-sheet in the first page in which it has been mentioned that Kamla Bai has filed the return under Section 6(2) of the Urban Land Ceiling and Regulation Act on behalf of her husband but it has nowhere been mentioned in the return that she has filed the return on behalf of her husband Gopalrao Jamdar and in front of column No. 3 of part-B name of Gopalrao Jamdar as Bhumiswami or possessor and again at page No. 3 amongst the name of other persons who are having interest in the land, name of Gopalrao Jamdar has been mentioned as husband, name of Chandrakant and Ashok Kumar has been mentioned as sons of Gopalrao Jamdar. The nature of land has been mentioned as agriculture. Copy of the Kistbandi Khatoni has been enclosed along with return showing the name of Gopalrao Jamdar as agriculturist and showing payment of Lagan of the land in the year 1973-74. The record further shows that every notices have been issued to Kamla Bai after hearing of the case but the notice under Section 8 of the Act dated 15-09-1983 has been issued to Gopalrao Jamdar according to office copy along with the copy of draft statement dated 24-06-1983 has been sent to Gopalrao Jamdar, against which objections have been filed in the name of Gopalrao Jamdar which has been sent by Kamla Bai. The order declaring the suit land surplus has been passed on 30-10-1996 by the competent authority. In the order dated 30-10-1996, it has been mentioned that except the house which is situated at the land of appellants, remaining land is agriculture land and from the income of agriculture land, the family of owner is being maintained. The order declaring the suit land surplus has been passed on 30-10-1996 by the competent authority. In the order dated 30-10-1996, it has been mentioned that except the house which is situated at the land of appellants, remaining land is agriculture land and from the income of agriculture land, the family of owner is being maintained. This fact has been considered in the order that since 1983-84 i.e. Samvat 2030 the land has not been used for agriculture purpose and it has been kept as Padat while user of the land on the appointed day i.e. 28th January, 1976 has not been considered, therefore, even if it is taken for granting, the ceiling proceedings were against Gopalrao Jamdar, the land was used for agriculture purpose as it is clear from Khasra entries available in the record of ceiling case, therefore, the provisions of Urban Land Ceiling and Regulation Act were not applicable to the suit land. There is no evidence of effective service of Gopalrao Jamdar at the time of initiation of ceiling proceeding. The return filed by Kamla Bai shows the name of Gopalrao Jamdar as a person having interest in the land in dispute along with his two sons but even then no notice or opportunity of hearing was given to him and the proceedings have been initiated against Kamla Bai without confirming the fact that who is Bhumiswami of the land and Kamla Bai never submitted any document on behalf of her husband, therefore, the proceedings of ceiling case without giving notice to the appellants is not sustainable. REGARDING QUESTION NO. 3 13. So far as the ceiling case is concerned, it is observed above that no notice has been given to the plaintiff-Gopalrao Jamdar even after return filed by Kamla Bai mentioning the name of Gopalrao and his sons amongst the persons having right and interest in the property. First page of order-sheet also shows that the proceedings were taken place by mentioning the name of Kamla Bai as "Dharak" and Kamla Bai has never filed the return on behalf of her husband. Although after enquiry, the notice has been issued to the plaintiff-Gopalrao Jamdar which was served on Gopalrao Jamdar in person but Kamla Bai has appeared in response to the notice dated 15-09-1983 issued under Section 8 of the Urban Land Ceiling and Regulation Act. Although after enquiry, the notice has been issued to the plaintiff-Gopalrao Jamdar which was served on Gopalrao Jamdar in person but Kamla Bai has appeared in response to the notice dated 15-09-1983 issued under Section 8 of the Urban Land Ceiling and Regulation Act. Bhumiswami of the land Gopalrao Jamdar and his sons have not been given notice even after filing of return by Kamla Bai and the proceedings of ceiling case are irregular if not illegal but as it has been held that the land of the plaintiff/appellants was agriculture land to which the provisions of Urban Land Ceiling and Regulation Act does not apply, therefore, the whole proceedings of ceiling case are illegal as Khasra entries mentioning the land as agriculture land showing the crops and Lagan with respect to the land of appellants in the year 1976 have been filed and even then overlooking the appointed day 28th January, 1976, the competent authority has passed the order by holding that since in the year 1983-84 i.e. after publication of draft statement the land is not used for agriculture or it is Padat land. 14. Learned counsel for respondent No. 1 has submitted that the surplus land has been allotted to some Government Departments and they have raised the construction over the land therefore, since possession of surplus land has been taken by the ceiling authority, hence even after repealing of Urban Land Ceiling and Regulation Act the suit is not maintainable, thus the plaintiff is not entitled to get any relief but there is no document regarding taking possession from the appellants even respondent No. 3 who is claiming possession on the basis of Patta no Patta has been filed by him in support of his claim/pleading. Further the information obtained by the appellants from Nazul Officer under Right to Information Act vide letter dated 09-07-07, Collector District Gwalior has informed the Public Information Officer that the lease deed allotting the land to Awas Sangh has been transferred but since the case is pending in the Court the lease deed has not been signed and issued which means possession of the suit land has not been handed over to respondent No. 3. So far as allotment of land to other Government departments is concerned there is nothing on record to show that any construction has been raised by any of the departments. So far as allotment of land to other Government departments is concerned there is nothing on record to show that any construction has been raised by any of the departments. Since the proceedings of ceiling case with regard to suit land are illegal as it was agriculture land, therefore, anything done in furtherance of illegal order is also illegal and it is amounting to perpetuity of illegality, hence respondent/State is bound to restore the possession which exists before initiation of ceiling proceeding. Since there is nothing on record to show that possession of surplus land has been taken, therefore, after repealing of Urban Land Ceiling and Regulation Act, the provisions of Urban Land Ceiling and Regulation Act are not applicable to the disputed land, hence there is no document regarding taking of possession of the suit land, regarding allotment of suit land to other Government Departments or respondent No. 3 even the lease deed has not been executed till year 2007. 15. Learned counsel for respondent No. 3 has placed reliance on the judgment of Apex Court in the matter of Ishwar Dutt Vs. Land Acquisition Collector and another, (2005) 7 SCC 190 , in the matter of Ramadhar Shrivas Vs. Bhagwandas,: 2006 (I) MPJR 229 and in the matter of U.P. State Road Transport Corporation Vs. State of U.P. and another,: (2005) 1 SCC 444 and submitted that the order passed by the competent authority has been upheld in appeal and it operate as res-judicata, therefore, the civil Court has no jurisdiction to entertain the suit but the veracity of order of competent authority is challengeable in the civil Court on the ground of natural justice and legality of action since the provisions of Urban Land Ceiling and Regulation Act are not applicable to the said land which is undisputedly agriculture land on the appointed day i.e. 28th January, 1976 and no notice has been given to Gopalrao Jamdar or his sons as the proceeding has been initiated against Kamla Bai in the beginning, therefore, these judgments are not applicable in the present case. 16. Further reliance has been placed by learned counsel for respondent No. 3 on the judgment of Naseema Bai Vs. 16. Further reliance has been placed by learned counsel for respondent No. 3 on the judgment of Naseema Bai Vs. Jaiprakash and others,: 2005 (2) MPLJ 453 in which it has been held that if the finding of trial Court reasonably sustainable on evidence on record appellate Court should not interfere except for very cogent reasons. Findings of learned Court below are against the specific provisions of law hence the provisions of Urban Land Ceiling and Regulation Act are not applicable to the agriculture land, therefore, this judgment does not apply to the present case. Learned counsel for respondent No. 3 further placed reliance the judgment of Apex Court in the matter of Roop Kumar Vs. Mohan Thedani,: (2003) 6 SCC 595 which relates to lease or licence but since no lease deed has been issued by the Collector in favour of respondent No. 3 before filing of suit, therefore, this judgment is not applicable to the present facts and circumstances of the case. 17. Learned counsel for respondent No. 3 has also submitted that in a suit against the order of competent authority under Urban Land Ceiling and Regulation Act detailed enquiry is not contemplated. In support of his arguments he has placed reliance on the judgment of Apex Court in the matter of Guruvayoor Devaswom Managing Committee and another Vs. C.K. Rajan and others,: (2003) 7 SCC 546 but in this judgment, the Apex Court has held that roving enquiry in such cases is not contemplated and the principles of natural justice and fair play ought to be followed even in pro bono publico proceedings, hence this judgment is also not applicable in the present case. 18. Learned counsel for respondent No. 3 further placed reliance on the judgment of State Bank of India Vs. Ram Chandra Dubey and others: (2001) 1 SCC 73 on the point that the relief claimed but not granted shall be deemed to have been denied by the Court. This judgment relates to service matter, therefore, it is not applicable in the present facts and circumstances of the case. Ram Chandra Dubey and others: (2001) 1 SCC 73 on the point that the relief claimed but not granted shall be deemed to have been denied by the Court. This judgment relates to service matter, therefore, it is not applicable in the present facts and circumstances of the case. Under the above circumstances, the order passed by the competent authority which has been upheld by the appellate authority also is against the provisions of Urban Land Ceiling and Regulation Act, hence the provisions of Urban Land Ceiling and Regulation Act were not applicable to the agriculture land and the land possessed by the appellants was agriculture land even after 6-7 years from the appointed day i.e. 28th January, 1976, therefore, learned Court below is not justified in dismissing the suit filed by the plaintiff Gopalrao Jamdar of whom the appellants are legal representatives, therefore, the impugned judgment passed by learned trial Court is hereby set aside and suit filed by the plaintiff/appellants is decreed as under: i. It is declared that the plaintiff-Gopalroa Jamdar (after his death his L.Rs. who are appellants herein) is Bhumiswami of the disputed land of survey No. 2439, 2440, 2446, 2450, 2452, 2453, 2453/2, 2454, 2455, 2456, 2430 to 2438 and possession holder and the order passed by the competent authority under Urban Land Ceiling and Regulation Act declaring the land as surplus is illegal and void and allotment of land in furtherance to the order of competent authority is also illegal and void. ii. Respondents are restrained by permanent injunction from raising any construction over the suit land and not to interfere in possession of the plaintiff/appellants either themselves or through their contractor or employee. iii. Respondent No. 3 is also restrained by perpetual injunction from making any construction over the suit land and to remove the construction made during pendency of the suit and to maintain status-quo as it was exist on the date of filing of suit. iv. Respondents shall bear cost to the appellants and bear their own cost. Counsel fee be calculated according to rules if pre-certified.