MUNNI DEVI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Petitioners have approached this Court seeking the following reliefs:

(2.) Facts leading to filing of present writ petition are that Late Bhawan Singh, father of petitioner nos.1 to 3, filed a suit being suit no.22/42 of 2002-03 before the Assistant Collector 1st Class Bhabar Haldwani, under Sec. 229-B of U.P.Z.A. and L.R. Act for declaration of his rights over the land in dispute on the basis of adverse possession. In the plaint, the plaintiff contended that he took forcible possession over the property in dispute and he is in possession over the land in dispute for more than 40 years against the wishes of the original tenure holder Nandan Singh and that he has perfected his rights and title as a bhumidhar with transferable rights. Defendant Nandan Singh filed his objections and contended that he has sold the land in dispute to his daughter Smt. Durga Devi and his son-in-law and therefore the suit is not maintainable. Defendant also moved an application under Order 7 Rule 11 of C.P.C. before the Assistant Collector stating that no cause of action arose against the defendant Nandan Singh because he had transferred the land in dispute on 27/5/2003 to Smt. Durga Devi through a registered sale deed and that the land in dispute was also mutated in her name whereas the suit was filed on 30/12/2002. It was also contended that during mutation proceedings, objections were also filed by the plaintiff/petitioner, which were rejected by the revenue court; plaintiff is aware of the fact that the suit land has already been transferred and mutated in the name of Smt. Durga but even then he has filed the suit against Nandan Singh; and, that there arose no cause of action against the defendant Nandan Singh. On the application moved by the defendant under Order 7 Rule 11 of C.P.C., the plaintiff Late Bhawan Singh filed his objections. Plaintiff also filed impleadment application and amendment application so as to impleadment Smt. Durga Devi in the suit as defendant. During the pendency of suit, plaintiff Bhawan Singh passed away, as such, his legal heirs moved substitution application. Learned Assistant Collector Ist Class Haldwani, vide judgment and order dtd. 20/8/2010, dismissed the suit of the plaintiff. Being aggrieved, petitioners preferred Revenue Appeal No.62 of 2009-10 before the Commissioner, Kumaun Mandal, Nainital, which was dismissed vide judgment and order dtd. 27/10/2010. Further aggrieved, petitioners then preferred second appeal no.01 of 2011-12 before the Board of Revenue, Uttarakhand, Nainital, which also met the same fate. Hence, this writ petition.

(3.) Learned counsel for the petitioners would submit that the original defendant, by committing fraud, had sold the property in dispute to his daughter Smt. Durga Devi through a forged and fabricated sale deed but the courts below did not consider this aspect of the matter and dismissed the suit of the plaintiff. Learned counsel for the petitioner would contend that for the purpose of adjudication of application under Order 7 Rule 11 of the CPC only the plaint is to be seen and the averments of the defendants in the written statement or otherwise cannot form the basis of rejection of the plaint. To buttress his submission, learned counsel would place reliance upon Mayar (H.K.) Ltd. Vs. Owners and Parties, Vessel M.V. Fortune Express AIR 2006 SC 1828. He would refer to para-11 of the judgment, which is reproduced below: