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2007 DIGILAW 554 (UTT)

BHOOPAL SINGH v. STATE OF UTTARANCHAL

2007-11-13

B.S.VERMA

body2007
JUDGMENT Hon'ble B.S. Verma, J. This writ petition has been preferred for issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and orders dated 17.11.1997, 26.02.99 and 12.05.2003 contained as Annexure Nos. 8, 9, and 11 to the writ petition. 2. Relevants facts giving rise to the present writ petition are that the respondent no. 2 Laxman Singh filed Revenue Suit No. 22/33 of 1992-93 against the petitioners-defendants under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act (for short the 'Act') in the court of Assistant Collector, 1st Class Khatima, with the allegation that the plaintiff was granted land of Khasra No. 63/4, area 8-11 Bigha, Khasra No. 72/2 area 0-455 Hectare, Khasra No. 74/3 area 0-731 Hectare, in all 1-727 Hectare of village Nalai, Pargana Nanakmatta, Tehsil Sitarganj, District U.S. Nagar on lease with transferable rights by the Deputy Commissioner, Nainital on 1.4.1968. The plaintiff was serving in the Indian Army from 1957 to 1988. In the year 1986, the plaintiff authorized his nephews Sri Chandra Singh and Bhoopal Singh to lookafter the said land. The defendants-petitioners were looking after the land of the respondent no. 2 with his consent. When the plaintiff retired from service and asked the defendants to deliver the possession of the land to the plaintiff for cultivation in January 1989, they did not accede to it. The petitioner-defendants held illegal possession of the land. Hence the suit was filed for possession and recovery of damages. 3. The suit was contested by the defendant-petitioner, who filed their written statement. They asserted that their father took possession over the Banjar land in the year 1965 and he cultivated the same and retained possession thereon. In the year 1967, the father of the petitioners became mentally upset the lease of the land was obtained in the name of real uncle of the petitioners. The plaintiff was never in possession of the disputed land. The defendants also took the plea of a family settlement between the parties by way of amendment in the written statement. 4. The learned trial court framed necessary issues in the suit, recorded the evidence led by the parties, heard them and after perusing the evidence, the learned Assistant Collector came to the conclusion that the plaintiff-respondent No. 2 has been recorded as Bhumidhar in the revenue record with transferable rights. 4. The learned trial court framed necessary issues in the suit, recorded the evidence led by the parties, heard them and after perusing the evidence, the learned Assistant Collector came to the conclusion that the plaintiff-respondent No. 2 has been recorded as Bhumidhar in the revenue record with transferable rights. It was proved that he remained in the Army from 1957 to 1988. It was also further held that the defendants are in unauthorized occupation of the land since January 1989 and damage @ Rs. 900/- per Bigha per year is being caused to the plaintiff. The trial did not accept the contention of the petitioners-defendants that they are in possession of the disputed land since 1965. It was also held that the land was not given on lease to the plaintiff on the ground that the petitioners-defendants were minors. It was also held that the defendant-petitioners failed to prove the family settlement/partition by any written documents. Ultimately, the suit for eviction of the defendants was decree by judgment and decree dated 17.11.1997. 5. Aggrieved by the judgment and decree dated 17.11.1997, the defendant-petitioners preferred an Appeal under Section 331 of the Act bearing No. 27/61 of 1997-98 before the Additional Commissioner (Judicial) Kumaon Division, Nainital. The appellate court did not find favour with the contention of the petitioner-appellant and dismissed the appeal vide judgment and order dated 26.2.1999. 6. Aggrieved by the judgment of first appellate court, the petitioners filed Second Appeal No. 61 of 1998-99 before the Board of Revenue. The Second Appellate Court has held that the respondent No. 2- plaintiff has been entered as Bhumidhar in the revenue records. It was held that the plaintiff was serving in the Army from 1957 to 1988. It was also held that there was provision to grant lease of land under the Act to serving army personnel. It was also held that the petitioners failed to prove family settlement between the parties. The appeal filed by the petitioners was dismissed vide judgment and order dated 12.5.2003 passed by respondent no. 3. 7. I have heard learned counsel for the parties and perused the record including the impugned orders passed by the courts below. 8. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 of the Constitution of India is limited. 3. 7. I have heard learned counsel for the parties and perused the record including the impugned orders passed by the courts below. 8. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 of the Constitution of India is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned orders can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. It has been observed by the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others [(2003) 6 Supreme Court Cases, 675] that "On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate courts has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction." In the case "Ranjeet Singh Vs. Ravi Prakash" [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that "An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal." 9. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal." 9. From a bare perusal of the judgment and decree dated 17.11.1997 passed by the trial court it is obvious that the findings on all the issues were recorded on the basis of evidence oral and documentary led by the parties. The appellate court has also re-appreciated the evidence led by the parties and has recorded its independent findings on all material issues involved in the suit. The second appellate court in its judgment has observed that no substantial question of law was involved in the appeal. 10. Having considered the impugned judgment and orders and having heard the submissions of learned counsel for the parties, I do not find any perversity or serious infirmity in the impugned orders. The findings recorded by the courts below are fully based on proper appraisal of evidence and it cannot be said that the courts below have mis-read the evidence. There are concurrent findings of fact recorded by the trial court against the defendants-petitioners. They have failed to establish that their father had been in possession over the disputed land since 1965 as pleaded by them. They also failed to prove that the lease was granted to the respondent no. 2 because the petitioners were minors at the time of grant of lease. There is no merit in the writ petition, which is liable to be dismissed outright. 11. The writ petition is dismissed. Costs easy. 12. All applications stand disposed of.