GOPAL SINGH Vs. BABLU AND ORS.

JUDGEMENT

(1.) PRESENT petition is filed assailing the judgment and decree dated 24.8.2002 passed by First Appellate Court -Additional Commissioner, Kumaon Division as well as judgment and decree dated 12.7.2004 passed by Chief Revenue Commissioner, Uttarakhand, Dehradun whereby suit filed by respondent No. 1, herein, for possession was decreed by First Appellate Court and second appeal arising therefrom was dismissed upholding the judgment and decree passed by the First Appellate Court. Undisputed, brief facts of the present case are that father of respondent No. 1 namely Kanhai Singh was bhoomidhar with transferable rights in possession of 2.552 hectares land of village - Dhanpuri, Tehsil - Haldwani, District Nainital; respondent No. 1, herein, through his guardian and natural mother Prema Devi has filed Revenue Suit No. 22/21 of 1993 -94 under section 229 -B of the U.P.Z.A. & L.R. Act against his own father Kanhai Singh impleading State Government as well (sic) Gram Sabha as party - defendants in the Court of Assistant Collector, 1st Class/SDO, Haldwani for declaration to declare the plaintiff/respondent No. 1, herein, as co -bhoomidhar along with his father to the extent of half share in the entire property measuring 2.552 hectares; it was stated in the plaint of the suit for declaration that property, in question, is co -parcenary joint Hindu family property, therefore, plaintiff/respondent No. 1, herein, has half share therein along with his fattier since birth; suit was decreed vide judgment and decree dated 29.6.1994 declaring the plaintiff/respondent No. 1 as co -bhoomidhar along with his father Kanhai Singh in the property, in question; Kanhai Singh, father of respondent No. 1, has sold the property vide different sale deeds in favour of Bhagwan Ballabh, Hari Dutt, Om Prakash and in favour of petitioner, herein; petitioner, herein, has purchased total 0.657 hectares land from father of respondent No. 1, herein, vide two sale deeds; respondent No. 1, herein, thereafter, filed suit for possession under section 209 of the U.P.Z.A. & L.R. Act against the petitioner, herein; suit so filed by plaintiff/respondent No. 1 was dismissed vide judgment and order dated 12.12.2001; plaintiff/respondent No. 1, herein, preferred First Appeal in the Court of Divisional Commissioner being ZA Appeal No. 47/50 of 2001 -02, first appeal so filed by the plaintiff/respondent No. 1, herein, was allowed vide judgment and order dated 24.8.2002; feeling aggrieved, defendant -petitioner, herein, has preferred Second Appeal being ZA Appeal No. 67/2002 -03, which was dismissed by the Additional Chief Revenue Commissioner, Uttarakhand vide judgment and order dated 12.7.2004; feeling aggrieved, petitioner has preferred present writ petition.

(2.) I have heard Mr. J.C. Belwal, Advocate for the petitioner, Mr. Gajendra Tripathi, Brief Holder for the State of Uttarakhand/respondents No. 2 to 4 and Mr. Dinesh Chauhan, Advocate for respondent No. 1 and have carefully perused the record.

(3.) ON the other hand, Mr. Dinesh Chauhan, Advocate for the plaintiff/respondent No. 1, has vehemently argued that decree dated 29.6.1994 has not been challenged anywhere, therefore, same cannot be held without jurisdiction, consequently, plaintiff/respondent No. 1 herein, has half share in the property along with his father, therefore, sale deeds executed by his father beyond the half share is nullity, consequently, decree passed by First Appellate Court decreeing the suit for possession is perfectly valid and does not require any interference.