JUDGMENT : IRSHAD ALI, J. 1. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohd. Aslam Khan, learned counsel for the petitioner, Sri S.P. Maurya, learned Standing Counsel for the State-respondent and Ms. Madhulika Yadav, learned counsel for the proposed respondents. 2. By means of the present writ petition, the petitioner has prayed as under :- "(a) That by means of a writ, direction or order in the nature of certiorari the judgment and order dated 31.7.1996, passed by the Additional Commissioner I, Lucknow, as contained in Annexure No.9 to the writ petition, as well as the judgment and order dated 16.8.1990, passed by the Prescribed Authority, as contained in Annexure No.7 to the writ petition, be quashed; (b) That by means of a writ, order or direction in the nature of mandamus the opposite parties no. 2 and 3 be directed to decide the dispute in accordance with the order dated 13.3.1976, passed by the Prescribed Authority; (c)... (d)..." 3. The present writ petition is directed against the judgment and order dated 31.07.1996 passed by Additional Commissioner-I, Lucknow, in Ceiling Appeal No. 86/89-90, whereby the appeal was dismissed as not maintainable and the order dated 16.08.1990 of the Prescribed Authority was affirmed. 4. Factual matrix of the case is that the petitioner’s father Shri Digvijai Prasad was issued notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (as amended in 1972) on 25.08.1974. He filed objections contending :- (i) Sale of 12.25 acres in favour of Smt. Nanhee Devi in 1970, duly mutated on 22.01.1971; she was in separate possession since then. It was also pleaded that separation had taken place between the petitioner and Smt. Nanhee Devi 15 years ago and since then, they are living in two distinct villages and were not living as husband and wife. (ii) Partition of 1971 between petitioner and his father by order of Sub Divisional Officer dated 14.04.1971; land mutated in petitioner’s favour. (iii) Independent tenure holders: Smt. Nanhee Devi, being a separated wife, was an independent recorded tenure holder, hence, her land could not be clubbed with that of the petitioner’s father. (iv) The unirrigated land and Usar land of village Saidpur has been shown as irrigated land. 5. (iii) Independent tenure holders: Smt. Nanhee Devi, being a separated wife, was an independent recorded tenure holder, hence, her land could not be clubbed with that of the petitioner’s father. (iv) The unirrigated land and Usar land of village Saidpur has been shown as irrigated land. 5. The objections of the father of the petitioner were dismissed by the prescribed authority and it was held as under :- (i) that partition suit was pending as on 24.01.1971; petitioner was a minor at that time. (ii) Sale deed in favour of Nanhee Devi was before 24.01.1971 but separation was not judicial. 6. Consequently, 62.79 acres (unirrigated) (equivalent to 48.16 irrigated acres) was declared as surplus land. 7. An earlier appeal, registered as Appeal No. 466/1975, had been partly allowed by the Ist Additional District Judge, Sitapur, on 13.03.1976, whereby findings on some issues were affirmed but issues 3, 4, 5 were remitted to the prescribed authority for fresh findings. Shri Digvijai Prasad had also preferred Writ Petition No. 1086/1976, which was dismissed vide judgment and order dated 30.8.1978. 8. After the death of Shri Digvijai Prasad, the present petitioner was substituted and carried on the proceedings. His statutory appeal, registered as Appeal No. 86/89-90 and the same was transferred to the court of Additional Commissioner-I, Lucknow Division, Lucknow for disposal. In pursuance to the judgment and order dated 13.3.1976, the prescribed authority was required to give findings on the issue Nos.3, 4 and 5 and return the same to the appellate court. The prescribed authority did not decide these issues in the light of the observations made by the appellate court. 9. The Appeal No. 86/89-90 was finally dismissed on 31.07.1996 by the Additional Commissioner, Lucknow, as not maintainable. A review application filed against the said order is stated to be still pending. Meanwhile, the opposite parties are proceeding with the allotment of the surplus land. The petitioner claims to be in possession and apprehends irreparable injury in the event of dispossession. 10. Submission of learned counsel for the petitioner is that the appellate authority has failed to exercise the jurisdiction vested in it and erred in dismissing the appeal as not maintainable instead of adjudicating it on merits. 11. The petitioner claims to be in possession and apprehends irreparable injury in the event of dispossession. 10. Submission of learned counsel for the petitioner is that the appellate authority has failed to exercise the jurisdiction vested in it and erred in dismissing the appeal as not maintainable instead of adjudicating it on merits. 11. It is further submitted that the Prescribed Authority did not record findings on issues 3, 4 and 5 in the manner directed by the appellate court in its order dated 13.03.1976, resulting in failure of justice. 12. Learned counsel for the petitioner submits that the order of the Prescribed Authority merged into the appellate order dated 13.03.1976 and hence, until disposal of the appeal, the determination of surplus land could not be treated as final. The acceptance of choice of land by the Prescribed Authority was premature and beyond jurisdiction as the appeal was pending. 13. It is also submitted that lands standing in the names of the petitioner and Smt. Nanhee Devi, being those of independent tenure holders, could not be clubbed with the holdings of Shri Digvijai Prasad. 14. In support of his submission, he placed reliance upon the following judgments :- (i) Ram Asrey and others Vs. Additional Commissioner Jhansi Division, Jhansi and others [ 2008 (105) RD 608 ] . Relevant paragraphs-8, 9, 13 and 14 are being quoted as under :- "8 . Taking support of the aforesaid section, learned Counsel for respondents submits that unless and until order has become final, no allotment can be made of surplus land declared of a tenure holder. Reliance has been placed upon a judgement reported in 1984 ALJ 403 Raj Bahadur and Ors. v. District Judge, Hamirpur and Anr. and reliance has been placed upon Para 4 of said judgement. The same is being reproduced below: "4. The petitioners claimed to be the allottees of the land. It is said that the allotment was made on 25,6.1976. It should be seen that no allotment could be made on the said date as the ceiling proceedings had not become final before the Prescribed Authority. The Prescribed Authority finally disposed of the ceiling case on 2 J. 12.1977 as is clear from the judgment of this Court in the earlier writ petition (Annexure 2 to this petition). Thereafter, an appeal was filed. The appellate court decided initially on 3.2.1979. The Prescribed Authority finally disposed of the ceiling case on 2 J. 12.1977 as is clear from the judgment of this Court in the earlier writ petition (Annexure 2 to this petition). Thereafter, an appeal was filed. The appellate court decided initially on 3.2.1979. I have already stated above that against the said appellate judgment dated 3.2.1979, the earlier writ petition was filed and 1 allowed the same and remanded the case again to the appellate court, which finally decided the appeal by the aforesaid impugned judgment dated 5.9.1981. It is, therefore, obvious that during the pendency of these ceiling proceedings first before the Prescribed Authority and thereafter before the appellate court, no valid allotment could be made in favour of anyone. In the ceiling proceedings the alleged allottees did not have any locus standi. The contest was between the tenure-holder and the State. It is not necessary to consider the case of the transferees etc. from the tenure-holder to determine whether in the ceiling proceedings such transferees-have a locus standi or not. However, so far as the alleged allottees are concerned. I am clear in my mind that they did not come at all in the picture till the ceiling proceedings became final and the notification under Section 14 of the Act is issued. I have already stated above that the final verdict of the appellate court was that the tenureholder did not hold any surplus land and, therefore, the notice under Section 10(2) of the Act stood discharged. In such a situation, there was no question of any surplus land vesting in the State and being the subject-matter of any allotment. 9 . Another judgement has been relied upon by learned Counsel for respondents reported in MANU/ UP/0297/2001 : 2001 (92) RD 538 Ram Bhajan v. Chief Revenue Officer/Prescribed Authority , Mirzapur and Ors. Reliance has been placed upon para 13, 14, 15, and 16 of the said judgement. The same are being reproduced below: 13. 9 . Another judgement has been relied upon by learned Counsel for respondents reported in MANU/ UP/0297/2001 : 2001 (92) RD 538 Ram Bhajan v. Chief Revenue Officer/Prescribed Authority , Mirzapur and Ors. Reliance has been placed upon para 13, 14, 15, and 16 of the said judgement. The same are being reproduced below: 13. It is well settled that the matter of declaration of the land as surplus is between the State and the tenure holder and nobody comes in between and thus once the State has chosen not to take up the matter to the higher forum, challenging the judgment of the Prescribed Authority by which notice for declaration of the land as surplus itself was withdrawn, no argument can be advanced by the petitioner raising any finger on this aspect that the tenure holder might have surplus land if the matter is examined in further details in the light of the facts as are being pleaded by him. 14. It is also settled that the allottee cannot acquire any better right than the right as exists with the State and thus the State itself having no right to the land as the same did not remain as surplus the claim of the allottee will fall short as the giver himself is not possessed to part anything to the petitioner. 15. The decisions as has been cited by the learned Counsel for the petitioner although lays down that the allottee has to be given opportunity of hearing before cancellation of the allotment, but in my opinion those decisions have no application to the facts of the present case. Those decisions can only apply when there is proceedings for cancellation of the allotment and some impropriety and illegality in the allotment proceedings are alleged, which can be subject matter of enquiry and scrutiny in that cancellation proceedings for which certainly the allottee will have to be given opportunity of hearing so that he can demonstrate the completion of all the formalities and validity of the allotment. But so far the present case is concerned neither the tenure holder has taken any ground nor have challenged the validity of the allotment on any ground which may be available for cancellation of the allotment. But so far the present case is concerned neither the tenure holder has taken any ground nor have challenged the validity of the allotment on any ground which may be available for cancellation of the allotment. Here by virtue of the fact that by the judgement of the Prescribed Authority no land remained as surplus and thus as a consequence thereof the Prescribed Authority has directed to restore the correct position of the revenue records and therefore, the decision as has been cited by the learned Counsel for the petitioner will not fit in the facts of the present case. 16. In fact the land having been given to the allottee by the Collector, the allottee cannot get any better title than the Collector was possessed, as the petitioner has stepped into the shoes of the Collector. In view of the judgment of the Prescribed Authority dated 22.5.86 the restoration of the correct entry in the revenue record and even restitution of the possession will be an automatic follow-up to which the petitioner can have no say in the matter as he has no locus standi to intervene in the matter of declaration of the land as surplus. 13. In Ram Bhajan's case (supra), this Court has further held that "if order has become final and it has not been challenged by the State, the restoration of possession after discharge of notice in the revenue record is an automatic follow-up to which allottee can have no say and they have no locus-standi to intervenes in the matter of declaration of the land as surplus." 14. In view of aforesaid proposition of law as held by this Court and in view of Section 14 of the Act, it is clear that unless and until proceeding against tenure holder has become final, in case, any allotment is made and if the notice under Section 10 is discharged, the tenure holder is entitled to possession. In any event, if the respondent State during pendency of proceeding on the basis of order passed by prescribed authority, allot the land to certain persons and handover possession, as soon as the notice is discharged the restoration of possession to the tenure holder is automatic. The allottees in that circumstances, will have no right to say regarding the validity and genuineness of the order passed in favour of tenure holder. The allottees in that circumstances, will have no right to say regarding the validity and genuineness of the order passed in favour of tenure holder. It is only State, who comes in picture to challenge the order passed, if any, in favour of tenure holder. Admittedly, the order dated 2.6.1999 has become final as it regards to the State. State has not filed any writ petition challenging the said order. Therefore, I am of the opinion that in spite of fact that petitioners were permitted to be impleaded before the Appellate Authority and they have been given opportunity to be heard but in the facts and circumstances of the case, as the appellate authority has already discharged the notice vide its order dated 2.6.1999 and has held that no land of respondent No. 2 is surplus, therefore, consequence of that will be that respondent No. 2 will be entitled to get possession of surplus land held by prescribed authority in his earlier order. Petitioners will have no right to challenge the order passed by Appellate Authority dated 2.6.1999. Only the State can have a say regarding the validity of the order dated 2.6.1999 passed by Appellate Authority but admittedly, the State has not filed any writ petition before this Court, challenging the order passed by appellate authority and that has become final." (ii) Ram Bhajan Vs. Chief Revenue Officer/ Prescribed Authority, Mirzapur and others [2001 (44) ALR 541] . Relevant paragraphs-13 and 14 are being quoted below :- "13. It is well settled that the matter of declaration of the land as surplus is between the State and the tenure holder and nobody comes in between and thus once the State has chosen not to take up the matter to the higher forum, challenging the judgment of the Prescribed Authority by which notice for declaration of the land as surplus itself was withdrawn, no argument can be advanced by the petitioner raising any finger on this aspect that the tenure holder might have surplus land if the matter is examined in further details in the light of the facts as are being pleaded by him. 14. 14. It is also settled that the allottee cannot acquire any better right than the right as exists with the State and thus the State itself having no right to the land as the same did not remain as surplus the claim of the allottee will fall short as the giver himself is not possessed to part anything to the petitioner." 15. Smt. Madhulika Yadav, Advocate by means of impleadment application has opposed the submission advanced by learned counsel for the petitioner on the ground that proposed opposite parties who have filed application for impleadment were allotted land from the surplus land in the year 1990. The proposed respondents are patta holders and poor landless scheduled caste persons and possession was handed over to them, who have been continuously in possession of the same since 1990 to 1997 and their names have been recorded in revenue record (khatauni), therefore, any order without impleadment will be bad in the eyes of law. 16. After having heard the submission advanced by learned counsel for the parties, I perused the material on record as well as the law report cited by learned counsel for the petitioner. 17. Ms. Madhulika Yadav, Advocate was heard in opposition without allowing impleadment application. The rights of the proposed respondents shall be subject to decision passed in the writ petition. 18. The petitioner’s father Shri Digvijai Prasad was issued notice under Section 10(2) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (as amended in 1972) on 25.08.1974. He filed objections stating therein that sale of 12.25 acres in favour of Smt. Nanhee Devi in 1970, duly mutated on 22.01.1971; she was in separate possession since then. It was also pleaded that separation had taken place between the petitioner and Smt. Nanhee Devi 15 years ago and since then, they are living in two distinct villages and were not living as husband and wife. Partition of 1971 between petitioner and his father by order of Sub Divisional Officer dated 14.04.1971; land mutated in petitioner’s favour. Independent tenure holders: Smt. Nanhee Devi, being a separated wife, was an independent recorded tenure holder, hence, her land could not be clubbed with that of the petitioner’s father. The unirrigated land and Usar land of village Saidpur has been shown as irrigated land. 19. Independent tenure holders: Smt. Nanhee Devi, being a separated wife, was an independent recorded tenure holder, hence, her land could not be clubbed with that of the petitioner’s father. The unirrigated land and Usar land of village Saidpur has been shown as irrigated land. 19. The objections filed by the father of the petitioner were dismissed by the prescribed authority holding that the partition suit was pending as on 24.01.1971 and the petitioner was a minor at that time. Sale deed in favour of Nanhee Devi was before 24.01.1971 but separation was not judicial. 20. Consequently, 62.79 acres (unirrigated) (equivalent to 48.16 irrigated acres) was declared as surplus land. At earlier point of time Appeal No. 466/1975, had been partly allowed by the Ist Additional District Judge, Sitapur, on 13.03.1976, whereby findings on some issues were affirmed but issue Nos.3, 4, 5 were remitted to the prescribed authority for fresh findings. Shri Digvijai Prasad had also preferred Writ Petition No. 1086/1976, which was dismissed vide judgment and order dated 30.8.1978. 21. After the death of Shri Digvijai Prasad, the present petitioner was substituted and carried on the proceedings. His statutory appeal, registered as Appeal No. 86/89-90 and the same was transferred to the court of Additional Commissioner-I, Lucknow Division, Lucknow for disposal. In pursuance to the judgment and order dated 13.3.1976, the prescribed authority was required to give findings on the issue Nos.3, 4 and 5 and return the same to the appellate court. The prescribed authority did not decide these issues in the light of the observations made by the appellate court. 22. In pursuance to the judgment and order dated 13.3.1976, the prescribed authority was required to give findings on the issue Nos.3, 4 and 5 and return the same to the appellate court. The prescribed authority did not decide these issues in the light of the observations made by the appellate court. 22. The ceiling proceeding under Section 10(2) of The U.P. Imposition of Ceiling on Land Holdings Act, 1960 was initiated against Digvijay Prasad, the father of the petitioner and he filed the objection and the prescribed authority framed six issues and ultimately dismissed the objection of Digvijay Prasad on 31.10.1975 after taking the evidence and declared 48.16 acre surplus land against which Digvijay Prasad filed appeal No.466 of 1975 and Additional District and Sessions Judge, Sitapur partly allowed the appeal on 13.03.1976 and confirmed the finding on issue Nos.1, 2 and 6 and the case was remanded back to the prescribed authority to decide the issued Nos.3, 4, 5 as per provisions of Section 4-A of Ceiling Act and further directed to decide issued Nos.3,4, 5 within a month and the finding recorded by the prescribed authority be returned back so that the appeal may be finally decided. 23. The prescribed authority issued notice to Digvijay Prasad and he appeared in the court on 26.05.1976 and given statement that he do not want to give evidence and he has filed writ petition before Hon'ble High Court but no restrained order was produced and State was directed to produce evidence. 23. The prescribed authority issued notice to Digvijay Prasad and he appeared in the court on 26.05.1976 and given statement that he do not want to give evidence and he has filed writ petition before Hon'ble High Court but no restrained order was produced and State was directed to produce evidence. Meantime, Digvijay Prasad again moved an application on 02.07.1976 and prayed to stay the present proceeding till the decision of writ petition but as per order dated 26.04.1976 the possession of tenure holder shall not be disturbed and no restrained order was passed, therefore, the prescribed authority decided issue Nos.3, 4, and 5 on 12.07.1976 (Annexure SCA1 to supplementary counter affidavit) and prescribed authority sent the file back to the District Judge and the District Judge, Sitapur fixed the date 20.08.1976 for filing the objection against the finding recorded on issue Nos.3, 4 and 5 but Digvijay Prasad neither appeared nor filed any objection against the findings and he has also not given any fresh proposal to declare the surplus land and the District Judge sent file back to the prescribed authority on 20.08.1976 (Annexure SCA 2 to supplementary counter affidavit) for sending fresh proposals for declaration of surplus land as per order dated 13.03.1976 within 15 days and fixed the date on 15.09.1976 for further order and the prescribed authority sent the proposal on 30.08.1976 to District Judge, Sitapur and the District Judge finally decided Civil Appeal No.466 of 1975 vide order dated 11.10.1976 which was never challenged by the petitioner or his father Digvijay Prasad and the order dated 11.10.1976 become final. 24. Writ Petition No.1086 of 1976 Digvijay Prasad Vs. State of U.P. and Another was decided on 04.10.1989 but father of the petitioner suppressed about the order dated 11.10.1976 and the State taken possession over surplus land under Section 14 of U.P. Imposition of Ceiling on Land Holdings Act, 1960 and allotted the surplus land to several landless persons and the said allotment has also became final. 25. State of U.P. and Another was decided on 04.10.1989 but father of the petitioner suppressed about the order dated 11.10.1976 and the State taken possession over surplus land under Section 14 of U.P. Imposition of Ceiling on Land Holdings Act, 1960 and allotted the surplus land to several landless persons and the said allotment has also became final. 25. The petitioner filed an application to the prescribed authority on 26.07.1990 (Annexure SCA 5 to supplementary counter affidavit) after a lapse of 14 years and prayed that the allotment of surplus land should be stopped and further stop to take possession from petitioner and second application was filed on 26.07.1990 in which prayer was made to set aside ex parte order dated 12.07.1976 and decide the case after taking evidence on issues 3, 4 & 5 and the petitioner further filed an application on 09.08.1990 and given choice of the land suppressing the order dated 11.10.1976 passed by District Judge, Sitapur which become final due to non challenge of the same before any forum. 26. The State has filed the order dated 12.07.1976, 20.08.1976, 30.08.1976 and 11.01.1976 before the prescribed authority and the prescribed authority rejected both the applications by a reasoned order dated 16.08.1990 without mentioning aforesaid orders and the appeal filed by the petitioner was also dismissed on 31.07.1996 by the Additional Commissioner, Lucknow as not maintainable. 27. The appellate authority has dismissed the appeal No.86/89-90 on the ground that while allowing the appeal partly, the Ist Additional District Judge, Sitapur on 13.03.1976 remanded the matter back to the prescribed authority keeping the appeal pending. The prescribed authority after deciding the issue Nos.3, 4 and 5 listed it in the pending appeal which was finally decided the appeal on 11.10.1976. The order passed in the appeal finalized was not challenged by the petitioner in writ petition, or in revision or before any forum, therefore, the judgment and order passed in the appeal became final. 28. The appeal No.86/89-90 was filed against the order passed by the prescribed authority for deciding issue Nos.3, 4 and 5 before the Additional Commissioner, Lucknow, who dismissed the appeal as not maintainable on the ground that the appeal has already been decided in which the order of prescribed authority was affirmed, therefore, the appeal No.86/89-90 was dismissed on 31.07.1996. 28. The appeal No.86/89-90 was filed against the order passed by the prescribed authority for deciding issue Nos.3, 4 and 5 before the Additional Commissioner, Lucknow, who dismissed the appeal as not maintainable on the ground that the appeal has already been decided in which the order of prescribed authority was affirmed, therefore, the appeal No.86/89-90 was dismissed on 31.07.1996. The order passed by the appellate court does not suffer from any infirmity or illegality in view of the fact that pending appeal against the judgment and order dated 13.03.1976 the matter was remanded back to the prescribed authority to decide issue Nos.3, 4 & 5 afresh keeping the appeal pending. Thereafter, the matter was decided by the prescribed authority and was placed in the pending appeal which has been decided by the appellate court which has not been assailed at any forum, therefore, the judgment and order passed in the appeal attained finality. 29. The appellate authority has not exercised jurisdiction vested in it due to reason that earlier appeal which was kept pending has been decided and the next appeal No.86/89-90 was not maintainable. The finding recorded by the prescribed authority on the issue Nos.3, 4 & 5 was duly submitted before the appellate court which was accepted and the appeal was dismissed vide order dated 11.10.1976. 30. Subsequent appeal filed against the order of prescribed authority passed in deciding the issue Nos.3, 4 & 5 and appeal No.86/89-90 the finding recorded by the appellate authority does not suffer from any infirmity or illegality as was held that the appeal is not maintainable. The order of the prescribed authority merged into appellate court order passed at earlier point of time, therefore, the appeal No.86/89-90 was not maintainable. 31. In case the petitioner was aggrieved by the order passed by the appellate court at earlier point of time accepting the order of prescribed authority the petitioner was aggrieved, he would have filed the writ petition against that order. There was no occasion to file fresh appeal for the same purpose. During pendency of appeal remanding the matter to the prescribed authority by recording finding of issue Nos.3, 4, 5 the prescribed authority decided the issue and placed it in the pending appeal, which was subsequently dismissed and the same was not assailed at any forum, therefore, the order passed in the appeal attained finality. 32. During pendency of appeal remanding the matter to the prescribed authority by recording finding of issue Nos.3, 4, 5 the prescribed authority decided the issue and placed it in the pending appeal, which was subsequently dismissed and the same was not assailed at any forum, therefore, the order passed in the appeal attained finality. 32. In regard to order passed in the appeal no.86/89-90 vide judgment and order dated 31.07.1996 the review application filed against the said order has already been decided but the date of order was not pointed out and the same has not been assailed in the writ petition. The judgments relied upon by learned counsel for the petitioner which have been noticed in the present judgment are not applicable to the facts and circumstances of the case. The appeal has rightly been dismissed as not maintainable. 33. In view of totality of facts and circumstances of the case, the present writ petition filed against order of prescribed authority and passed in the subsequent appeal No.86/89-90 do not suffer from any infirmity or illegality. 34. The writ petition lacks merit and is hereby dismissed. 35. No order as to costs.