JUDGMENT : 1. Heard Ms. Anapoorna Agnihotri, Advocate holding brief of Dr. Lalta Prasad Misra, learned counsel for the petitioners as well as learned Standing Counsel for the respondents. 2. By means of present writ petition the petitioners have challenged the order dated 26.03.1996, passed by the Prescribed Authority, Bahraich in Case No. 45/106, the order dated 10.11.2006, passed by the Additional Commissioner (Judicial), Devi Patan Division, Gonda in Case No. 238/2 and the order dated 08.03.1990, passed by the Prescribed Authority in Case No. 778/3/48/15, on the ground that in ceiling proceedings pending before the Prescribed Authority, Bahraich no notice was issued to the petitioners and for want of which the proceedings and the order passed thereunder are vitiated in law. 3. It is submitted by learned counsel for the petitioners that notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the "Act, 1960") was issued to one Sampata Devi with regard to land holding measuring 19.152 acres situated in Village - Gurchahi, Pargana - Ikauna, District - Shrawasti. Sampata Devi had filed objections to the said notice but did not contest the objections seriously. After Sampata Devi's land dwelled upon Smt. Bindra Devi and petitioners purchased the said land through registered sale deed dated 01.09.1970 from Bindra Devi and the land was also recorded in the name of petitioners subsequent to the registration of sale deed. During the course of pendency of the proceedings before the Prescribed Authority, Smt. Bindra Dei died and the petitioners possession over the land in question has been admitted prior to the cut of date fixed under Section 5 of the Act, 1960, under Explanation II in the light of the sale deed executed in 1970. The land in question stood excluded from the proceedings under Section 5 of the Act, 1960 on account of which for want of notice issued to the petitioners, the order is nullity. When the order came to the knowledge of the petitioners, they preferred an application under Section 11(2) of the Act, 1960, the same has been rejected. The order passed by the Prescribed Aurhority has been affirmed in the appeal. 4. In support of his contentions learned counsel for the petitioners has cited certain decisions of this Court one which is referred hereunder i.e. Shantanu Kumar Vs. The order passed by the Prescribed Aurhority has been affirmed in the appeal. 4. In support of his contentions learned counsel for the petitioners has cited certain decisions of this Court one which is referred hereunder i.e. Shantanu Kumar Vs. State of U.P. and Others, 1979 ALL L.J. 1174, wherein it has been held that once the authority concerned has arrived at the conclusion that the land in question included in the statement in C.L.H. Form 3 includes the land ostensively held in the name of any other person, it was incumbent upon the Prescribed Authority to serve upon the petitioners the requisite notice together with the copy of the statement and call upon him to show cause why that statement be not taken as correct. If no notice was issued under Section 11(1) of the Act, 1960, remedy is available to the petitioners to challenge the validity of the proceedings and by considering likewise facts involved in the matter, the Full Bench of this Court had proceeded to allow the writ petition and quash the order passed by the Prescribed Authority on this very ground. 5. From the perusal of the order passed by the Prescribed Authority dated 08.03.1990, it is obvious that the possession of the petitioners over the land in question has been discussed as it was stated by the concerned Lekhpal. The Explanation II of Section 5 of the Act, 1960 speaks that if on or before January 24, 1971, any land was held by a person, who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or license or on the basis of a decree, it shall be presumed unless the contrary is proved to the satisfaction of the Prescribed Authority, that the first mentioned person continues to hold the land and that it is so held by him ostensibly in the name of the second mentioned person. He further submits that the sale deed was executed in favour of the petitioners on 1st September, 1970 and since thereafter as per the statement of the concerned Lekhpal, they were holding the possession over the land in question. He further submits that the sale deed was executed in favour of the petitioners on 1st September, 1970 and since thereafter as per the statement of the concerned Lekhpal, they were holding the possession over the land in question. Under the circumstances, the benefit of this Explanation is not applicable to the petitioners to include the land treating them as ostensible owner. 6. Learned Standing Counsel on the other hand has opposed the writ petition on the point that the the observations made in the order of the Prescribed Authority has been misinterpreted as while recording the findings of the possession of the petitioners over the land in question, the statement of the concerned lekhpal has not been believed by the authority concerned and still the authority concerned has proceeded to take a decision in the matter. Under the circumstances, he submits that since petitioners have claimed right of possession over the land in question on the basis of the execution of sale deed, their case cannot be excluded from consideration under Explanation II of Section 5 of the Act, 1960, and accordingly, he submits that under Section 5 of the Act, 1960 the land in question had rightly been included under the ceiling proceedings. 7. Learned Standing Counsel has further submitted that from the order passed by the Prescribed Authority it is evident that the application for stay moved by the petitioners on 22nd September, 1999 has been rejected by the Prescribed Authority and the Prescribed Authority fixed the matter for hearing. He has next submitted that it is obvious from the order passed by the Prescribed Authority that the petitioners have no possession over the land in question and accordingly they cannot claim the possession over the land in question as well as any benefit arising out of possession in the proceedings in question. 8. Learned counsel for the petitioners disputes the above contentions of learned Standing Counsel. He submits that from the order of Prescribed Authority it is evident that Smt. Bindra Dei was treated as ostensible owner but she was co-tenure holder and further on the point of possession he submits that in light of the provisions of Section 14 of the Act, 1960, the possession can only be taken over after determination of surplus land in appeal. Since they preferred the appeal before the Additional Commissioner against the order passed by the authority concerned alongwith an application under Section 11(2) of the Act, 1960 and now the appeal is under challenge before this Court from which it is obvious that the proceeding is continuing without attaining finality and it is not open for the respondents to take a stand that the possession has been taken over. 9. It has been submitted by learned counsel for petitioner that they had purchased Gata No. 953, 954 and 987 from Smt. Bindra Dei on 01.09.1970 by a registered sale deed and on the basis of the said sale deed they had sought exclusion of the land from the holding of the recorded tenure holder. The Prescribed Authority as well as the appellate authority has rejected the objections filed by the petitioners. It has been pointed out that before both the authorities below, the petitioner could not demonstrate the title on the said land because of the fact that the petitioner had filed photocopy of the sale deed. 10. Learned counsel for the petitioners on the other hand submits that the petitioners may be given an opportunity to demonstrate before this Court that the aforesaid land was in fact transferred in favour of the petitioners by a registered instruments and they can produce thus original sale deed before Court to demonstrate that the said land was purchased by the petitioner on 01.09.1970. 11. Heard learned counsel for the parties and perused the record. 12. Learned counsel for the petitioners has produced the copy of original sale deed on the directions of this Court and the same has been looked into by learned Standing Counsel, who does not dispute that it is the same sale deed which was produced before the Prescribed Authority. 13. In the present case objections under Section 11(2) of the Act, 1960 were rejected by the Prescribed Authority, on the ground that the petitioners could not demonstrate their case and satisfy him about the sale deed, as only photo copy of the sale deed was filed and original copy was not filed. 14. From the discussion made above, this Court relying upon the judgment of this Court in the case of Shantanu Kumar Vs. 14. From the discussion made above, this Court relying upon the judgment of this Court in the case of Shantanu Kumar Vs. State of U.P. and Others (supra), is of the considered view that name of petitioners existed in C.L.H. Form - 3, which raises presumption with regard to possession of petitioners over the land in question at the relevant point of time when consolidation operations were undertaken. It is also to be seen that the said sale deed was executed on 01.09.1970 which is prior to the cut-off date and according to Explanation II of Section 5 of the Act, 1960, the actual cultivatory possession of the person has to be seen in case sale deed is executed prior to the cut-off date. 15. This Court in the case of Shantanu Kumar Vs. State of U.P. and Others (supra), has held :- "9. It is thus evident that the notice requiring the tenure-holder to show cause why the statement prepared by the Prescribed Authority be not taken as correct is to be issued to the tenure-holder in respect of whose holding the statement has been prepared. Under the proviso, the Prescribed Authority shall cause to be served a notice to the person in whose name the land included in C.L.H. Form 3 is ostensibly held. The Prescribed Authority prepares the statement on the basis of revenue records. If from the revenue records or other information, the Prescribed Authority comes to know that the land included in the statement in C.L.H. Form 3 includes land ostensibly held in the name of any other person, the Prescribed Authority is bound to serve notice on such person. The phrase used is 'shall cause to be served'. 10. The petitioner claimed under a sale deed. It is not disputed that the Petitioner's name was recorded in the revenue papers over the land which was transferred to him. It is admitted that the statement in C.L.H. Form 3 included the land held by the petitioner. He was hence a person in whose name some part of the land mentioned in the statement was believed by the Prescribed Authority to be ostensibly held. In this situation, it was incumbent upon the Prescribed Authority to serve upon the petitioner the requisite notice together with a copy of the statement and call upon him to show cause why that statement be not taken as correct. 11. In this situation, it was incumbent upon the Prescribed Authority to serve upon the petitioner the requisite notice together with a copy of the statement and call upon him to show cause why that statement be not taken as correct. 11. It is obvious that service of such a notice is preliminary to the acquisition of jurisdiction to proceed in the matter and decide whether the land ostensibly held in the name of the petitioner could be declared as surplus land in the hands of Bhupendra Singh. In the premises, the proceedings were without jurisdiction and void. Learned Standing Counsel submitted that the petitioner had knowledge and he should have filed an objection u/s 11(2) of the Act as has been held by a Division Bench of this Court in Dilbagh Singh v. The State of Uttar Pradesh, 1978 AWC 393 . The existence of another remedy under the Act cannot validate the proceedings which are void for lack of jurisdiction and which have resulted in the declaration as surplus land of an area which a person other than the tenure holder who has been heard, claims. The fact that the petitioner could have filed an objection u/s 11(2) will not breath life into or validate these dead proceedings." 16. The aspect of possession, it seems that was never discussed before the Prescribed Authority and accordingly from the aforesaid facts it is clear that the order of the Appellate Authority as well as Prescribed Authority are liable to he quashed, as the petitioners have demonstrated that transfer of land was made prior to 1971 that is they are in possession over the said land and further that their names find mention in C.L.H. Form-3, strongly suggests that contention of the petitioners is correct. 17. In the light of above, the impugned orders dated 08.03.1990, 26.03.1996 and 10.11.2006 are set aside. The matter is remitted back to the Prescribed Authority for deciding the matter afresh. It is provided that the petitioners will have four weeks time from today to file all the evidence to demonstrate that they are owners of the land in question. 18. Considering that much time has lapsed, let the proceedings be concluded expeditiously, say within three months, thereafter, in accordance with law after giving opportunity of hearing to all the parties concerned. 19. The writ petition is allowed.