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2006 DIGILAW 493 (UTT)

Dhaluwalal Kushta Sewa Samiti v. Board of Revenue

2006-08-31

RAJESH TANDON

body2006
Judgement - Heard Sri U.K. Uniyal, Sr. Advocate, assisted by Sri Sobhit Saharia counsel for the petitioner, Standing Counsel for respondent no. 1 to 3 and Sri Lokendra Dobhal and Sri K.N. Joshi counsel for the respondent no. 4. 2. By the present writ petition, the petitioner has prayed for a writ of certiorari quashing the order dated 8-9-2000passed by the respondents no. 1. 3. Briefly stated Sri Bachan Singh maternal uncle of respondent no. 4 filed a suit under Section 229-B of U.P.Z.A. & L.R. Act, for declaration of his ownership over Bhumidhari Khasra No. 1/13 area 16 Nali 14 Muthi land. During the pendency of the case Bachan Singh expired and the respondent no. 4 Bhag Singh was substituted in place of his maternal uncle. According to the petitioner he is in actual physical possession since 1949 and his name was also entered in the revenue record in Varg-5. In the year 1969 the Kumaon and Garhwal Zamindari Abolition Act, came into existence in District Tehri Garhwal and as per provision of Section 10 of Kumaon Garhwal ZamindariAbolition Act, the persons, who were Sirdar prior to 30-6-1969, have become Asami after 30-6-1969 and as per provisions of section 36 of the K.zA Act. The Assistant Collector, Narendra Nagar by its order dated 25-11-1992 dismissed the suit against which respondent no. 4 file an appeal, which was decided vide order dated 308-1993 and the case was remanded back to the trial Court for deciding it afresh. Thereafter the trial court dismissed the suit ex parte vide order dated 25-2-1994. The respondent no. 4 filed an appeal before the Commissioner, Garhwal Division who vide order dated 20-6-1995 dismissed the same. Respondent no. 4 filed the second appeal before the Board of Revenue, who allowed the same vide order dated 8-9-2000. 4. Feeling aggrieved by the order passed by the Board of Revenue in Second appeal, present writ petition has been filed. 5. The respondents have filed counter affidavit and have alleged that Bachan Singh maternal uncle of respondent no. 4 was in possession over the disputed land since 1940 and in accordance with the provisions of section 180 (2) of U.P. Tenancy Act, he has become Bhumidhar over the land in dispute. As per notification dated 16-2-1981, the respondent no. 5. The respondents have filed counter affidavit and have alleged that Bachan Singh maternal uncle of respondent no. 4 was in possession over the disputed land since 1940 and in accordance with the provisions of section 180 (2) of U.P. Tenancy Act, he has become Bhumidhar over the land in dispute. As per notification dated 16-2-1981, the respondent no. 4 is entitled to be regularized over the land in dispute and he comes in the class of landless agricultural labourer. Patwari concerned, in proceedings under Section 122 (B) of U.PLA. & L.R. Act has stated that Bachan Singh maternal uncle of respondent no. 4 was in possession over the land in dispute since 1940. Other witnesses Dhum Singh and Bachan Singh have also stated in their statement that the respondent no. 4 is in possession over the land in dispute prior to the year 1958. 6. Bachan Singh who was the maternal uncle of respondent no. 4 was the Sirtan of the land in question according to the laws relating to the land holdings in the erstwhile Tehri Garhwal State. He was regularly paying rent of the land to the Malgujar Sri Jappa Singh. On 17-1969 due to operation of Kumaon Zamindari Abolition Act, Sri Bachan Singh has become Sirtan and on 28-1-1977 he became Bhumidhar. Bachan Singh was in possession over the disputed land since 1940. There is colony for the persons suffering with leprosy but that colony has no concerned with the land of Bachan Singh. 7. In the suit under section 122-B of U.P. ZA & L.R. Act, Patwari of the region admitted that Bachan Singh was in possession over the land in dispute since 1940. Respondent no. 4 also filed revenue receipts and electricity bills etc. but the trial Court has not considered the evidence adduced by the respondent no. 4. Respondent no. 4 also filed money order receipts which he has sent to Jappa Singh, Malguzar. 8. Plaintiff respondent no. 4 was having possession over the land in dispute before operation of the Kumaon Zamindari Abolition Act. He got Sirdari rights in 1969 and on 28-11977 he became Bhumidhar. Respondent no. 4 has not claimed any relief against the petitioner Dhaluwala Kustha Sewa Samiti in his suit neither the petitioner has any right or interest over the land in suit nor he has any locus standi. 9. He got Sirdari rights in 1969 and on 28-11977 he became Bhumidhar. Respondent no. 4 has not claimed any relief against the petitioner Dhaluwala Kustha Sewa Samiti in his suit neither the petitioner has any right or interest over the land in suit nor he has any locus standi. 9. The Board of Revenue has rightly allowed the appeal of respondent no. 4, and decreed his suit. The name of Sri Bhag Singh was directed to be mutated in place of Bachan Singh in the revenue record. I find no illegality or material irregularity in the order passed by the Board of Revenue so as to interfere under Article 226/227 of the Constitution of India in view of the observations made by the Apex court in the case Babhutmal Raichand Oswal vs. Laxmibai R. Tarte, AIR 1975 SC 1297, as under: "The power of superintendence of High Court under Article 227 being extraordinary is to be exercised most sparingly and only in appropriate cases. The power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot, in guise of exercising its jurisdiction under Article 227, convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court can not, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to see that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it." 10. In view of above, writ petition lacks merit and is hereby dismissed. No' order as to costs. * * *