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2012 DIGILAW 225 (UTT)

SHIV LAL v. BOARD OF REVENUE

2012-05-15

B.S.VERMA

body2012
JUDGMENT Hon’ble B.S.Verma, J. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the judgment and order dated 25.10.1994 (Annexure 4 to the writ petition), judgment and decree dated 29.8.1993 (Annexure-2) and the judgment and order dated 4-2-1980 (Annexure No.1) passed respectively by the Board of Revenue, Additional Commissioner, Kumaun Mandal, Nainital and Assistant Collector, Bhabhar, Haldwani, district Nainital. By the order dated 4.2.1980, the suit of the plaintiff-petitioners, which was filed under Section 209 of the U.P. Z.A. and L.R. Act was dismissed and by the order dated 29.8.1993, the first appeal preferred by the plaintiff was dismissed and by order dated 25.10.1994, the second appeal filed by the plaintiff has been dismissed. 2. Briefly stated the facts giving rise to the present writ petition, according to the petitioners, plaintiff Kunti Devi filed a suit for possession under Section 209 of the U.P.Z.A. and L.R. Act (for short the Act) against the defendants Tara Dutt, Radha Ballabh and Keshi Ram, residents of village Kaladhungi, Tahsil Kaladhuni, district Nainital, in the court of Assistant Collector Bhabhar, Haldwani, Nainital- respondent no.3. The suit was filed mainly on the ground that the plaintiff is the exclusive owner of the suit land and that the defendants have taken illegal possession over the land of the plaintiff. The suit was resisted by the said defendants and stand has been taken in the written statement that the defendants were in possession over the suit land since 1960 from the time of husband of the plaintiff and the land actually had been sold out by the husband of the plaintiff, namely Ratan Ram. This fact finds support from the written agreement dated 25.4.1970. 3. The trial Court framed as many as six issues in the suit. 4. Both the parties led their evidence before the Assistant Collector. The trial Court after hearing both the parties dismissed the suit of the plaintiff by judgment and decree dated 4.2.1980on the basis of the findings recorded on Issue No.1 and 2 holding that the land was handed over to the defendants by the plaintiff and her husband and possession was delivered to them and that the defendants are in possession of the suit land for more than 15 years. Rest of the issues were also decided against the plaintiff. 5. Aggrieved by the said judgment and decree, the plaintiff Sm. Rest of the issues were also decided against the plaintiff. 5. Aggrieved by the said judgment and decree, the plaintiff Sm. Kunti Devi preferred an appeal bfore the Additional Commissioner, which was registered as Z.A. Appeal No. 71/78 of 1979-80, Smt. Kunti Devi Vs. Tara Datt. The learned first appellate Court after hearing both the parties dismissed the appeal by judgment and decree dated 29.8.1983 and upheld the judgment and decree passed by the trial Court. 6. Aggrieved further, the plaintiff Smt. Kunti Devi preferred Second Appeal bearing Second Appeal No. 19 of 1983-84 before the Board of Revenue. The second appeal too was dismissed by order dated 25.10.1994, which gave rise to the present writ petition. 7. Counter affidavit has been filed in the present writ petition. In the counter affidavit, the averments made in the writ petition have been denied and it has been specifically asserted that the suit was barred by time and that the defendants-contesting respondents were in possession over the suit land from the time of husband of late Kunti Devi, the plaintiff. 8. The petitioners filed their rejoinder affidavit. Later-on, the petitioners filed supplementary affidavit on 22.8.2008. The respondents, on the other hand, also filed supplementary affidavit praying that the writ petition has been rendered infructuous subsequent to execution of sale deed dated 6.7.2010 by the petitioners. 9. I have heard learned counsel for the parties and have perused the entire material placed before this Court. 10. Learned counsel for the petitioners has contended that the learned Assistant Collector has passed a cryptic order without considering any evidence on record and that the trial Court has decided the matter without appraisal of any evidence as well as without framing any Issues on the point whether the suit is barred by time. Learned counsel further contended that the trial Court dismissed the suit on the ground that land was given to the defendants by the predecessor of the plaintiff on the basis of agreement dated 2.7.1964 and 25.4.1970 although, according to the petitioners, these agreements have not been proved and these are unregistered agreements. The learned trial Court assuming the possession, on the basis of the agreements, dismissed the suit of the plaintiff. 11. The learned trial Court assuming the possession, on the basis of the agreements, dismissed the suit of the plaintiff. 11. Learned counsel for the petitioners has further contended that the appellate Court dismissed the appeal on the ground that the plaintiff failed to prove that the possession was taken by the defendant in October 1993, as has been alleged by the plaintiff, therefore, the suit under Section 209 of the Act is not maintainable. Learned counsel submitted that if the possession is not adverse, then the possession is unauthorized. The learned first appellate Court also observed in its findings that from a perusal of paper no. 59, i.e. copy of Khasra 1373 Fasli to 1377 Fasli and in 1380 to 1383 Fasli, the respondents were recorded in possession and the order was also passed on 28.7.1972 with regard to possession of plot no. 613/3 M. area 22 Bigha, 10 Biswa in the name of Tara Dutt son of Dharmanand. It was further observed that by a perusal of paper no. 39, copy of Khasra 1380 Fasli, the defendants were recorded in possession and that from a perusal of paper nos. 42, 43 and 44, which are copies of P.A.-10, the possession was shown from 1372-73 Fasli and 1376-77 Fasli. In addition, according to Shiv Lal, general power of attorney holder of the plaintiff who was examined as P.W.1, admitted that in 1373 Fasli, the respondents entered into possession forcefully. Shiv Lal further admitted that by agreement dated 2.7.1964, possession was given to Keshi Ram defendant. P.W.2 Mohan Lal also admitted that in the year 1965, the defendants were in possession and they were cultivating the land on Batai. The appeal was dismissed on the ground that on 3rd October 1977, the plaintiff failed to prove unauthorized possession of the defendants, therefore, the suit is not maintainable. The second appellate Court has also affirmed these findings and has further held that the suit was time barred. 12. Learned counsel for the petitioners also contended that the second appellate Court dismissed the appeal holding that the suit was time barred, while the trial Court and first appellate Court have held that the plaintiff has failed to establish the unauthorized possession of the defendants and finding has been given that the possession was authorized. 13. Learned counsel appearing for the contesting respondents-defendants Mr. 13. Learned counsel appearing for the contesting respondents-defendants Mr. Lok Pal Singh has contended that so far as the possession, which was given by the plaintiff is concerned, the same has been admitted by P.W.1 Shiv Lal and witness P.W.2 Mohan Lal. This fact has not been disputed by the plaintiff that the defendants are in possession of the suit land. 14. The question is whether the suit under Section 209 of the Act can be maintained against the defendants or not or the suit is barred by time. The first appellate Court and the second appellate Court have addressed on these issues. 15. Learned counsel for the respondents has further contended that in Kaladhungi, district Nainital, the provisions of U.P. Z.A. and L.R. Act were enforced on 1.7.1969 and this fact is admitted to the plaintiff-petitioners that the defendants were in possession prior to 1969. This fact is also not disputed that no suit was filed prior to the year 1969, rather the suit was filed by the plaintiff in the year 1978, after the Z.A. and L.R.Act came into force. As per Z.A. provision, under Section 209, in serial no. 30 of Appendix, the suit can be filed within three years and not beyond that when the provisions of the Act came into force and if the original tenure holder failed to file the suit for ejectment under Section 180 of the U.P. Tenancy Act, then the legal effect would be that the defendants/trespasser have acquired the rights of hereditary tenants and as per provisions of Section 131 of the Z.A. and L.R.Act, which was enforced on 1-7-1969, the defendants would be deemed to have become Sirdar under Section 131 of the Act and thereafter by operation of law Bhumidhars, therefore, the defendants cannot be ejected by the plaintiff. 16. Having heard the submissions of the learned counsel for the parties and having gone through the impugned judgment orders, I am of the view that the learned trial Court has dismissed the suit by a cryptic order and in a somersault manner, which cannot be sustained in the eye of law. 16. Having heard the submissions of the learned counsel for the parties and having gone through the impugned judgment orders, I am of the view that the learned trial Court has dismissed the suit by a cryptic order and in a somersault manner, which cannot be sustained in the eye of law. So far as the orders passed by the first appellate Court and second appellate Court are concerned, the first appellate Court has held that the suit is not maintainable and the second appellate Court has held that the suit is time barred, while first appellate Court and the trial Court do not say so. The suit was not decided on its own merits. Therefore, the orders passed by the first appellate Court as well as the second appellate Court are liable to be set aside. 17. So far as the legal plea is concerned, the defendants have not raised such plea before the trial Court, therefore, I am of the view that in the interest of justice as well as in the fitness of things, it is a fit case for remand of the suit to the Assistant Collector concerned. The writ petition therefore deserves to be allowed. 18. The writ petition is allowed with no order as to costs. The impugned orders are set aside. The suit of the plaintiff-petitioners is remanded to the Assistant Collector Bhabar, Haldwani (Nainital) for decision afresh. Liberty is given to both the parties, to amend their pleadings in the suit and they can raise specific pleas in support of their claims and may also adduce new evidence and the learned trial Court shall also frame specific issues- whether the suit under Section 209 of the Act is maintainable or not and whether the suit is barred by time, if the pleadings are so amended by the defendants in their written statements. The Assistant Collector shall also frame additional issues accordingly and shall decide all the issues and the suit afresh on merits without being prejudiced by the order passed by the appellate Court as well as this Court. 19. Both the parties shall maintain status quo regarding possession as on today till the decision of the suit by the Assistant Collector, who shall decided the suit in accordance with law expeditiously as far as possible. The parties shall appear before the Assistant Collector concerned on 4.6.2012.