JUDGMENT Ram Surat Ram (Maurya) J. 1. Heard Sri Anoop Kumar Srivastava, for the petitioner and Standing Counsel, for the respondent, State of U.P. 2. This writ petition has been filed against the orders of Prescribed Authority (Ceiling), dated 30.01.1997, declaring 17-17-8 bigha land, in terms of irrigated land as surplus with the petitioner and Additional Commissioner dated 17.01.1998, dismissing the appeal of the petitioner, in proceedings under of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act). 3. Prescribed Authority (Ceiling) issued a notice dated 01.03.1989 to the petitioner under Section 10 (2), read with Section 29 of the Act, showing 27-19-11 bigha land, in terms of irrigated land as surplus with the petitioner. In the notice, an area of 48-11-12 bigha, irrigated land at village Tipahar, 3-15-1 bigha irrigated land at village Majhlepur, 3-17-1 bigha irrigated land at village Dhakauli and 0-13-0 bigha land at village Bahadurpur (total area 56-16-3 bigha) were shown as the holdings of the petitioner. It has been stated that aforesaid land of village Tipahar was inherited by the petitioner, after death of his brother Tribhuwan Kumar Jain as such he had come in ceiling limit. The petitioner contested the notice and filed his reply dated 20.03.1989, stating therein that an area of 22-1-1 bigha of plot 939 of village Tipahar was usar and un-irrigated land. Previously, proceedings under the Act was taken against Tribhuwan Kumar Jain, his elder brother, in which appellate court by judgment dated 27.08.1975 held an area of 22-1-1 bigha plot 939 as usar land and remaining area of 26-0-0 bigha of this plot as un-irrigated land this judgment has become final and operated as res-judicata. Land of villages Dhakauli, Majhlepur and Bahadurpur were usar and un-irrigated land and have been wrongly shown as irrigated land. Family of the petitioner consisted Adi Kumar Jain (born on 04.08.1932), Km. Bharti Jain, his daughter (born on 05.06.1963), Km Rachna Jain, his daughter (born on 03.05.1966), Hemant Kumar Jain, his son (born on 31.07.1967), Shishir Kumar Jain, his son (born on 01.07.1970) and Smt. Geeta Jain, aged about 50 years, his wife. As such he was entitled to two hectare extra land. 4. Prescribed Authority (Ceiling), after hearing the parties, by order dated 13.03.1995 held 25-4-9 bigha land, in terms of irrigated land as surplus with the petitioner. As such he was entitled to two hectare extra land. 4. Prescribed Authority (Ceiling), after hearing the parties, by order dated 13.03.1995 held 25-4-9 bigha land, in terms of irrigated land as surplus with the petitioner. The petitioner filed an appeal (registered as Ceiling Appeal No. 14) from the aforesaid order. Additional Commissioner, after hearing the parties, by his order dated 24.09.1996, held that under the Act, irrigated/un-irrigated land has to be determined according to the provisions of Section 4-A of the Act. Prescribed Authority (ceiling) without examining relevant evidence and only on the basis spot inspection report, held various land held by the petitioner as irrigated. There is no evidence to prove that both the daughters of the petitioners were unmarried on 08.08.1981, i.e. date of death of Tribhuwan Kumar Jain as such it cannot be decided as to whether, they were member of the family of the petitioner or not. Similarly there is no evidence in respect of date of birth of his both the sons. On these findings, the appeal was allowed and the matter was remanded to Prescribed Authority for fresh decision on the aforesaid two issues. 5. After remand, extract of khasra of relevant years were filed. The petitioner filed certified copy of extract of Death Register of Tribhuwan Kumar Jain, showing his date of death as 08.08.1991, attested copy of Mark Sheet of High School Examination of Hemant Kumar Jain, attested copy of Mark Sheet of High School Examination of Shishir Kumar Jain, original Invitation Cards relating to marriages of Bharti, showing date of marriage as 22.01.1990 and Rachna as 28.01.1993 and got his statement again recorded. Prescribed Authority (Ceiling), after hearing the parties, by order dated 30.01.1997, held that Tribhuwan Kumar Jain died on 08.08.1981 as such relevant date for determination of ceiling limit would be 08.08.1981. On that day, there were six members in the family of the petitioner, namely the petitioner, his wife, two daughters and two sons. As in his objection, the petitioner has mentioned, date of birth of his daughter Bharti as 05.06.1963 as such she being major on 08.08.1981, cannot be treated as his family member as such there were five members in the family of the petitioner and he was not entitled to two hectare extra land. Nature of usar land has to be determined according Rule-3-A of the Rules. Nature of usar land has to be determined according Rule-3-A of the Rules. In khasra 1378 F, 1379 F and 1380 F, plot 939 of village Tipahar was not recorded as usar land as such no part of it can be treated as usar land. There is no source of irrigation as mentioned under Section 4-A of the Act as such an area of 22-1-1 bigha of plot 939 shall be treated as un-irrigated land. On these findings, he treated 22-1-1 bigha of plot 939 as un-irrigated, gave benefit of 7-7-1 bigha, in terms of irrigated land to the petitioner and declared 17-17-8 bigha as surplus with the petitioner. The petitioner filed an appeal (registered as Appeal No. 98) from the aforesaid order. Additional Commissioner, after hearing the parties, by order dated 17.01.1998 dismissed the appeal. Hence this writ petition has been filed. 6. The counsel for the petitioner submitted that the proceeding in this case has been initiated invoking provisions of Section 29 of the Act, as on death of Tribhuwan Kumar Jain, on 08.08.1981, the petitioner has inherited his properties i.e. plot 938 (area 0-10-0 bigha) and 939 (area 48-1-1 bigha) of village Tipahar as mentioned in notice under Section 10 (2) of the Act, dated 01.03.1989. Prior to this proceeding, proceeding under the Act was taken against Tribhuwan Kumar Jain, his elder brother, in which appellate court by judgment dated 27.08.1975 held that an area of 22-1-1 bigha of plot 939 as usar land and remaining area of this plot was unirrigated land. This judgment has become final and operates as res-judicata. Land of villages Dhakauli, Majhilepur and Bahadurpur were also usar and un-irrigated land and have been wrongly shown as irrigated land. The appellate authority, by judgment dated 24.09.1996, allowed the appeal and remanded the matter to Prescribed Authority (Ceiling) specifically directing to decide the issue relating to usar and irrigated land after examining the relevant documents, according to the provisions of Section 4-A read with Rule 3-A but Prescribed Authority (Ceiling), only on the ground that corps were mentioned in khasra 1378 F, 1379 F and 1380 F in plot 939 of Tipahar held it as irrigated land ignoring statement of Lekhpal that no State or private irrigation facility was available to this plot. Lekhpal in his statement has clearly stated that in remaining area of 22-1-1 bigha of plot 939, due to salinity no cultivation was going on which was fully corroborated with entries in khasra 1378 F, 1379 F and 1380 F as an area of it was shown as parati land. Statement of Lekhpal in this respect has been ignored and khasra have been misread in as much as word usar was not mentioned in it as such it was treated as un-irrigated land. Nand Lal, Lekhpal, who was In-charge of villages Majhlepur, Dhakauli and Bahadurpur, in his statement has admitted that three plots of village Majhilepur, half portion of plot 289 of village Dhakauli were usar and an area of 1-12-0 bigha of plot 289 was abadi but his statement has been illegally ignored by respondents-1 and 2. Family of the petitioner consisted Adi Kumar Jain (born on 04.08.1932), Km. Bharti Jain, his daughter (born on 05.06.1963), Km Rachna Jain, his daughter (born on 03.05.1966), Hemant Kumar Jain, his son (born on 31.07.1967), Shishir Kumar Jain, his son (born on 01.07.1970) and Smt. Geeta jain, aged about 50 years, his wife. As such he was entitled to two hectare extra land. He relied upon the judgment of this Court in Ghana Ram Vs. State of U.P., 1977 AWC 415, Ram Lal Vs. State of U.P., 1978 ALJ 1197, Maharaj Singh Vs. State of U.P., 1978 RD 278, Sheo Ram Singh Vs. Additional Commissioner, 2007 (78) AWC 2441 and Full Bench judgment of this Court in Prakash Singh Vs. The Prescribed Authority, 1985 AWC 796 (FB), in which it has been held that previous judgment of Prescribed Authority, having become final cannot be reopened by Prescribed Authority unless retrial of issue has been necessitated due to any amended provisions of the Act. He submitted that although remand order was confined to only two points but validity of remand order can be challenged before this Court as held by Supreme Court in Kshitish Chandra Bose Vs. Commissioner, AIR 1981 SC 707 . It is open for this Court to consider issue relating to res-judicata. The orders of respondents-1 and 2 are illegal. 7. He submitted that although remand order was confined to only two points but validity of remand order can be challenged before this Court as held by Supreme Court in Kshitish Chandra Bose Vs. Commissioner, AIR 1981 SC 707 . It is open for this Court to consider issue relating to res-judicata. The orders of respondents-1 and 2 are illegal. 7. In reply to the aforesaid arguments, Standing Counsel submitted that in view of Section 38-B of the Act, the previous judgment, including the judgments passed by the Prescribed Authority in the proceeding under the Act, does not bar re-trial of the issue, nor operate as res-judicata, as held by the Supreme Court in State of U.P. vs. Budh Singh 1997 (2) SCC 181 and Escorts Farms Ltd. Vs. Commissioner, Kumaon Division 2004 (4) SCC 281 . As such, the finding recorded by appellate authority in judgment dated 27.08.1975 is not relevant. Appellate authority by the judgment dated 24.09.1996 remanded the matter for limited purposes, i.e. to determine the nature of the land as to whether the land was irrigated/un-irrigated or usar land and to determine the number of members in the family of the petitioner, according to the provisions of Section 3(7) of the Act. The order dated 24.09.1996 has not been challenged by the petitioner, as such, he cannot be permitted to argue that the judgment in the previous proceeding operates as res-judicata in present proceeding as held by Supreme Court in K.P. Dwivedi Vs. State of U.P. And others, (2003) 12 SCC 572 . So far as the nature of the land as irrigated/un-irrigated or usar is concerned, it has to be decided according to the provisions of Section 4-A of the Act read with Rule-3-A. Usar land has been defined under under Section 3(20) of the Act and means lands determined to be usar in such manner as may be prescribed. For determination of the nature of the land as usar, Rule 3-A has been added in the Rules in 1973 in which, the nature of the usar land has to be determined on the basis of khasra 1376 F to 1380 F. In this case, Prescribed Authority (Ceiling), after examining khasras of relevant years, held that only 22-1-1 bigha land of plot no. 939 was un-irrigated land and there was no usar land. Benefit of un-irrigated land was given to the petitioner by order dated 30.01.1997. 939 was un-irrigated land and there was no usar land. Benefit of un-irrigated land was given to the petitioner by order dated 30.01.1997. So far as the other land is concerned, the Prescribed Authority (Ceiling) found that there is no source of irrigation, as such, the land is un-irrigated land. The findings of fact recorded by the Prescribed Authority in this respect do not suffer from any illegality. The word "family" has to be determined according to the provisions of Section 3(7) of the Act, which provides that "family" means the tenure holder himself or herself, his wife or husband, as the case may be, or minor sons and minor daughters, other than married daughters. The petitioner himself in his objections dated 20.03.1989 has stated date of birth of his daughter Bharti Jain as 05.06.1963. According to the evidence of the petitioner, Tribhuwan Kumar Jain, his brother, died on 08.08.1981. Thus relevant date for determination of ceiling limit is 08.08.1981. On that day, Bharti Jain was major, as such, she could not be included in the family of the petitioner. Total number of members of the family of the petitioner is less than six, as such, the petitioner is not entitled to the benefit of two hectare additional land, according to the provisions of Section 5(3)(a) of the Act. The writ petition has no merit and is liable to be dismissed. 8. I have considered the arguments of the parties and examined the record. On the basis of aforementioned arguments, three points arise for determination, i.e. (1) Whether the judgment of Appellate Authority dated 27.08.1975, declaring 22-1-1 bigha of plot no. 939 of village Tipahar as usar land and remaining area as un-irrigated land will operate as res-judicata? (2) Whether the petitioner was entitled to the benefit of two hectare additional land, according to the provisions of Section 5(3)(a) of the Act? (3) Whether findings of Prescribed Authority (Ceiling) determining land of the petitioner as un-irrigated and usar is correct? 9. Although Section 11 C.P.C. is not applicable to the proceedings under the Act but principle of res-judicata, constructive res-judicata and estoppel may be applicable to the proceedings under the Act. Supreme Court in Gangai Vinayagar Temple v. Meenakashi Ammal, (2009) 9 SCC 757 , held that res judicata is an ancient doctrine of universal application and permeates every civilised system of jurisprudence. Supreme Court in Gangai Vinayagar Temple v. Meenakashi Ammal, (2009) 9 SCC 757 , held that res judicata is an ancient doctrine of universal application and permeates every civilised system of jurisprudence. This doctrine encapsulates the basic principles in all judicial systems which provide that an earlier adjudication is conclusive on the same subject-matter between the same parties. The principles of res judicata reflect "a wisdom that is for all time". Privy Council in Sheoparsan Singh v. Ramnandan Singh, 43 Indian Appeal 91, traced the principle of res judicata from the old Hindu text of Katyayana. Res judicata was also expounded in Greek custom and also by the Roman jurists. The maxims: res judicata pro veritate accipitur (a thing adjudicated is received as the truth); The maxims: "si judicio tecum actum fuerit sive in rem sive in personam, nihilominus ob id actio durat, et ideo ipso jure posteo de eadem re adversus te agi potest: sed debes per exceptionem adjurari": if a defendant omits, either intentionally or negligently, to raise a question of res-judicata by an exception, no such question will be submitted whereas, if such a question is properly raised, it must be considered whether the issue has been rendered res judicata pro veritate accipitur. The principle of res-judicata is founded upon the maxims "1. nemo debet bis vexari pro una et eadem causa: no man should be vexed twice for the same cause;2. interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation; and 3. res judicata pro veritate accipitur: a judicial decision must be accepted as correct. 10. Relying upon Section 38-B of the Act, Standing Counsel submitted that judgment of earlier proceeding is not res-judicata. Section 38-B came up for consideration before Full Bench in Prakash Singh vs. Prescribed Authority and Others, 1985 AWC 796 (FB). In paragraph 18, Full Bench held as follows: - "...................If the amendments in the Principal Act do not call for any change in the determination of surplus land, the fresh notice under Section 10 (2) would not confer power on the Prescribed Authority to embark upon a re-assessment or re-determination of the surplus land. It is only in those cases where the amendments require the Prescribed Authority to redetermine surplus land that the notice under section 10(2) be issued. It is only in those cases where the amendments require the Prescribed Authority to redetermine surplus land that the notice under section 10(2) be issued. It is, therefore, obvious that there may be cases where the earlier decision as a whole may not require modification at all, or there may be cases where only partial modification may become necessary. For example, if the question is as to whether a particular plot of land is irrigated or not has been determined and does not call for any fresh decision. Since there is no amendment to the relevant provisions in this regard by the 1976 Amendment, there would be no necessity of the Prescribed Authority embarking on a fresh inquiry as to whether the said plots are irrigated or not. In such an event the previous order of the Prescribed Authority made before 10th October, 1975 will neither stand annulled nor be non-est." 11. If Section 38-B is interpreted in such manner as argued by Standing Counsel, it will give unguided powers to executive to harass the tenure holder at his whim and will create an endless litigation for ever. It will be arbitrary and violative of Article 14 of the Constitution. In this case, fresh notice has been issued to the petitioner on the ground that he has inherited the land of Tribhuwan Kumar Singh on 08.08.1981, due to which he had come within purview of the Act. According law as laid down by Full Bench, in Prakash Singh's (supra), re-trial of issue as to whether an area of 22-1-1 bigha of plot no. 939 was usar and remaining area of 26-0-0 bigha was un-irrigated, was not necessitated due to amended provision of Amending Act, 1976, its retrial was barred on the principle of res-judicata. However, due to subsequent judgments of Supreme Court in Budh Singh's and Escorts Farms Ltd.'s case (supra), previous judgment does not bar retrial of the issue. 12. The petitioner claimed that he was entitled to two hectare extra land. However, due to subsequent judgments of Supreme Court in Budh Singh's and Escorts Farms Ltd.'s case (supra), previous judgment does not bar retrial of the issue. 12. The petitioner claimed that he was entitled to two hectare extra land. Relevant provisions in this respect is Section 5 (3) (a) of the Act, which is quoted below: - Section-5 (3) : - Subject to the provisions of sub-sections (4), (5), (6) and (7), the ceiling area for purposes of sub-section (1) shall be- (a) in the case of tenure holder having a family of not more than five members, 7.30 hectare of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares for each of his adult sons, who are either not themselves tenure-holders or who hold less than two hectares of irrigated land, subject to maximum of six hectares of such additional land. 13. A perusal of aforesaid provision shows that tenure holder can hold 7.30 hectare irrigation land for his family as defined under Section 3 (7) of the Act, and two hectare additional irrigated land for each of his adult son subject to maximum of six hectare additional irrigated land. According to own evidence of the petitioner, none of his sons was major on 08.08.1981 as such he was not entitled to two hectare additional irrigated land. 14. Now it has to be examined as to whether Prescribed Authority has correctly determined (a) un-irrigated and (b) usar land of the petitioner? Under Section 4 (i) one and half hectare un-irrigated is treated as one hectare irrigated land and two and half hectare of usar land is treated as one hectare irrigated land. Section 4-A of the Act, makes it mandatory for Prescribed Authority to examine khasras of relevant years, latest village map and such other records as it he may consider necessary and may also make local inspection for the purposes of determination of the nature of irrigated land. Usar land has been defined under Section 3(20) of the Act and has to be determined according to the provisions of Rule 3-A. Sections 4-A, 3(20) and Rule 3-A are quoted below: - 4-A. Determination of irrigated land. Usar land has been defined under Section 3(20) of the Act and has to be determined according to the provisions of Rule 3-A. Sections 4-A, 3(20) and Rule 3-A are quoted below: - 4-A. Determination of irrigated land. - The prescribed authority shall examine the relevant Khasras [ such years as the State Government may notify in this behalf], the latest village map and such other records as it may consider necessary, and may also make local inspection where it considers necessary, and thereupon if the prescribed authority is of opinion: firstly, (a) that, irrigation facility was available for any land in respect of any crop in any one of the aforesaid years, by - (i) any canal included in Schedule No. 1 of irrigation rates notified in Notification No. 1570-W-XXIII-62-W-1946, dated March 31, 1953, as amended from time to time; or (ii) any lift irrigation canal; or (iii) any State tube -well or a private irrigation work; and (b) that at least two crops were grown in such land in any one of the aforesaid years; or secondly, that irrigation facility become available to any land by a State Irrigation Work coming into operation subsequent to the enforcement of Uttar Pradesh Imposition of Ceiling on Land Holdings (Amendment) Act, 1972 and at least two crops were grown in such land in any agricultural year between the date of such work coming into operation and the date of issue of notice under Section 10; or thirdly, (a) that any land is situated within the effective command area of a lift irrigation canal of a State tube -well or a private irrigation work; and (b) that the class and composition of its soil is such that it is capable of growing at least two crops in an agricultural year; then the Prescribed Authority shall determine such land to be irrigated land for the purposes of this Act. Explanation -I - For the purposes of this section the expression 'effective command area' means an area, the farthest field whereof in any direction was irrigated - (a) in any of [such years as the State Government may notify in this behalf] or (b) in any agricultural year referred to in the clause 'secondly'. Explanation - II- The ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation - II- The ownership and location of a private irrigation work shall not be relevant for the purpose of this section. Explanation-III- Where sugarcane crop was grown on any land in any of [such years as the State Government may notify in this behalf], it shall be deemed that two crops were grown on it in any of these years, and that the land is capable of growing two crops in an agricultural year.] 3. Definitions. - In this Act, unless the context otherwise requires - (20) 'usar land' means land determined to be usar in such manner as may be prescribed; Rule-3-A. [Section 3(20), Any land included in a holding which was not used for growing crops during the year, 1376 Fasli to 1380 Fasli (both inclusive) due to the presence of salinity, stone, grit or kankar shall be treated to be an usar land.] 15. In this case, entire holding of the petitioner was treated as irrigated land in the notice. The petitioner contested the notice and in his objection has stated that plot no. 939 of village Tipahar was unirrigated and usar land. In paragraph-4 of the objection, he has stated that land of villages Dhakhauli, Majhlepur and Bahadurpur are un-irrigated and usar lands. Appellate Authority, by order dated 24.09.1996, remanded the matter to determine the nature of the land. After remand, Prescribed Authority by the impugned order dated 30.01.1997 found that plot 939 is un-irrigated land. The plea that a part of it to the extent of 22-1-1 bigha was usar land, has been rejected on the ground that in khasra 1378 F, 1379 F and 1380 F, no part of it has been recorded as "usar" land. No finding has been recorded in respect of land of villages Dhakhauli, Majhilepur and Bahadurpur. 16. According to Section 4-A of the Act, after examination of khasra 1378 F, 1379 F and 1380 F, latest village map and such other records, Prescribed Authority was required to record a findings that land of the petitioner were irrigated from State or private irrigation work and at least two crops were grown in 1378 F, 1379 F and 1380 F or new irrigation facility became available and composition of soil is such that it is capable of growing at least two crops in an agricultural year. No such finding has been recorded. 17. No such finding has been recorded. 17. If entire area of 48-1-1 bigha of plot 939 was un-irrigated then its area in terms of irrigated land would be 32-14-0 bigha and the petitioner would be entitled to benefit of 16-7-0 bigha but Prescribed Authority gave benefit of 7-7-1 bigha. It is not possible to say that only an area of 22-1-1 bigha was un-irrigated and remaining land is irrigated. In any case specific findings that land was irrigated from State/private irrigation work is required to be recorded. Findings of Prescribed Authority regarding irrigated land is illegal. 18. Usar land has to be determined according to the provisions of Rule 3-A, which provides that any land included in the holding, was not used for growing crop during 1376 F to 1380 F due to presence of salinity, stone, grit or kankar, shall be treated to be usar land. Admittedly, some part of plot no. 939 was not used for growing crop in the aforesaid years. Kulvant Singh, Lekhpal of village Tipahar, has stated that over a part of the land, due to salinity, it was unfit for growing crop. Prescribed Authority has illegally ignored the statement of Lekhpal and confined his finding only on the basis of khasra although khasra are relevant for examination as to whether crops were grown in it or not. In khasra of relevant years, some part of the land was shown to be not used for growing crops and reason has been given in the oral statement of Lekhpal that soil was having salinity and unfit for growing crops, which was admissible in evidence, but it has been illegally ignored. 19. Similarly, Nand Lal, Lekhpal of villages Dhakauli, Majhilepur and Bahadurpur in his statement has stated that all the three numbers of village Majhilepur and plot 289 of village Dhakauli, were usarili land and half of area of plot 289 was surrounded by boundary wall and in the shape of abadi. This statement has also been totally ignored and although under the remand order, he was required to determine the nature of entire land afresh. Thus, the judgment of Prescribed Authority in this respect suffers from illegality. 20. In the result, the writ petition succeeds and is allowed. Orders of Prescribed Authority (Ceiling) dated 30.01.1997 and Additional Commissioner dated 17.01.1998, are set aside. Thus, the judgment of Prescribed Authority in this respect suffers from illegality. 20. In the result, the writ petition succeeds and is allowed. Orders of Prescribed Authority (Ceiling) dated 30.01.1997 and Additional Commissioner dated 17.01.1998, are set aside. The matter is remanded to Prescribed Authority (Ceiling) to re-determine the ceiling area after deciding un-irrigated land and usar land separately in accordance with law as well as observations made above.