BAL KRISHAN Vs. CHIEF REVENUE COMMISSIONER & OTHERS

JUDGEMENT

(1.) By means of this writ petition, the petitioner has prayed for to issue a writ, order or direction in the nature of certiorari for quashing the order dated 19.05.1999 passed by Commissioner, Kumaon Mandal, Nainital and order dated 19.09.2002 passed by Chief Revenue Commissioner, Nainital.

(2.) Brief facts of the case, according to the petitioner, are that the petitioner along with respondent Nos. 3 and 4 purchased the plots in dispute from one Nepal S/o Sukhai and Baliraj S/o Ramlal by way of an agreement to sale dated 02.03.1972 and a sale deed dated 12.06.1972. After the death of Nepal his sons Om Prakash and Balraj Singh, who also executed the aforesaid agreement for sale, refused to execute the sale deed, therefore, the petitioner along with respondent Nos. 3 and 4 filed a suit, under Section 229-B of U.P. Zamidari Abolition & Land Reforms Act (in short 'UPZA&LR Act'), which was registered as Revenue Suit No. 22/15 of 1987-88. The learned Assistant Collector 1st Class, Rudrapur decreed the suit in favour of the plaintiffs vide judgment and order dated 18.04.1991. Against the said order Om Prakash and Balraj filed an appeal No. 150/98 of 1990- 91, which was dismissed by the learned Additional Commissioner, Kumaun Mandal, Nainital vide order dated 24.03.1993 and affirmed the order of the learned Assistant Collector. In pursuance of the aforesaid orders, the petitioner along with respondent Nos. 3 and 4 became joint Bhumidhars in possession over the plots in dispute and their names were recorded in revenue record and the petitioner became entitled for 1/3rd share of the plots in dispute. Since the entire plot in dispute was not partitioned, therefore, the petitioner filed a suit, under Section 176 of UPZA&LR Act, which was registered as Suit No. 22/108 of 1991-92 with a prayer that the share of the plaintiff be declared 1/3rd and thereafter lots be prepared of his share.

(3.) The suit was contested by the defendants/respondent Nos. 3 and 4 by filing written statement alleging therein that the petitioner is not entitled for 1/3rd share of the plots in dispute. The learned Assistant Collector, 1st Class, Rudrapur, after hearing the parties on the basis of pleadings framed as many as seven issues to decide the dispute. Both the parties have led their evidence before the Assistant Collector and the learned Assistant Collector decreed the suit vide order dated 21.04.1995, after hearing the parties to suit determined 1/10th share of the petitioner in the land in dispute on the basis of the possession. Feeling aggrieved by the order of the learned Assistant Collector, the petitioner preferred an appeal before the learned Additional Commissioner, Kumaun Mandal, Nainital, which was registered as Appeal No. 66/113 of 1994-95, which was allowed vide order dated 11.12.1995 and the judgment and decree dated 21.04.1995 passed by the Assistant Collector was set aside and the matter was remanded back for fresh adjudication. Thereafter, the learned Assistant Collector, 1st Class, Rudrapur, in view of the above direction, heard the matter afresh and decreed the suit in favour of the petitioner vide order dated 23.12.1998 and determined 1/3rd share of the petitioner as well as of respondent Nos. 3 and 4 each. Vijay Kumar and Surendra Kumar (respondent Nos. 3 and 4) feeling aggrieved by the said order preferred first appeal before the Commissioner, Kumaun Mandal which was registered as First Appeal No. 69 of 1998-99, who allowed the appeal vide order dated 19.05.1999 and determined 1/10 share of the petitioner. Feeling aggrieved by the said order, the petitioner preferred second appeal, which was registered as Second Appeal No. 87 of 1998-99 before the Board of Revenue, which was transferred to Chief Revenue Commissioner after creation of separate State of Uttaranchal (now Uttarakhand). The learned Chief Revenue Commissioner, after examining the record available before him, dismissed the second appeal vide order dated 19.09.2002 and affirmed the order dated 19.05.1999 passed by the learned Commissioner. Feeling aggrieved by the above orders, the petitioner preferred this writ petition before this Court.