SHANTI RAWAT Vs. BOARD OF REVENUE

JUDGEMENT

(1.) SHITLA Prasad Srivastava, J. This writ petition, under Article 226 of the Con stitution of India has been filed by the petitioner with a prayer to quash the order dated 9-2-1993 of the respondent No. 1 which is Annexure-8 to the writ petition and further to quash the order dated 11-8-1988 of the respondent No. 2 which is An-nexure-7 to the writ petition. Annexure-7 to the writ petition is the order passed by the Sub-Divisional Officer Haldwani, by this order the suit of the plaintiff for eject ment was decreed and four times of annual rent was awarded against the defendant and in favour of the plaintiff Annexure-9 to the writ petition is appellate Court order passed by the Board of Revenue in Second Appeal No. 1 of 1988-89 arising out of the Judgment dated 11-8-1988 passed by the Additional Commissioner, Kunaun Division Nainital arising out of original suit.

(2.) TO understand the real dispute be tween the parties it is necessary to have a look to the pedigree, which has been given in paragraph 1 of the writ petition and it is quoted herein below: Frank Rawat I_______ J. S. Rawat n B. S. Rawat =widow Smt. Shanti Rawat Ranvir Singh Rawat (R. 19) Pratap Singh Rawat (R. 20) Javant Singh Rawat (R. 17) Charulata Rawat (R. 18) It is stated that Frank Rawat, who was father-in-law of the petitioner, has ex ecuted a lease deed on 15- 1-1950 in favour of Ram Kishun Shanguri and Sri Loknani Shanguri ancestors of respondent Nos. 3 to 16 in respect of the land measuring 117 bighas 13 biswas of village Loharia Sal Dhara Narsingh. Tehsil Haldwani, District Nainital. Which is the land in dispute for a fixed period of five years. It is stated by the petitioner that during the period of (ease Rakesh Shanguri and also Sri Frank Rawat died Sri J. S. Rawat and Sri B. S. Rawat sons of Frank Rawat after the expiry of the aforesaid period of five years sent notice to Loknani Shanguri and heirs of Ram Kishun Shanguri asking them to vacate the land and give back the possession in terms of lease of the land in dispute. Notice was replied by the occupiers. It was alleged in the reply that they are ready to vacate the land provided the land holders pay Rs. 42. 000 as cost of improvement invested by the occupiers. The occupiers did not vacate the land in dispute hence Sri J. S. Rawat and Sri R. S. Rawat filed suit under Section 180 of the U. P. Tenancy Act against Sri Loknani Shanguri and heirs of Sri Ram Kishun Shanguri. The suit was contested by the defendants No. 1, 2, 3 and 5 on the ground that the defendants have invested about Rs. 42. 000- in improvement of the land in dispute, therefore the said suit should be decreed subject to the payment of the said amount. The respondent Nos. 1, 6 and 7 also filed written statement through their guardian. The trial Court decreed the suit on 14-4-1969. Thereafter U. P. Zamindari Abolition and Land Reforms Act. No. 11 of 1951 came into force on 1-7-1969. The defendants filed an appeal before the Commissioner taking a new plea of adhiwasi right because of the enforcement of the U. P. Zamindari Aboli tion and Land Reforms Act. The appeal was allowed on 31-7-1973 and suit was remanded back to the trial Court to frame issues of adhiwasi right and its effect. After remand, the defendants filed application on 20-11-1973 i. e. after 18 years of filing of the suit for amendment in the written statement to the effect that Frank Rawat has sold the land in dispute on 30-3-1950 'for Rs. 4,500/ -. But this amendment ap plication was rejected. The suit was ul timately decreed on 31. 12. 1985 against which the defendants filed an appeal before the Additional Commissioner which was allowed on 11-8-1988. Against the Judgment the petitioner filed Second Appeal No. 1 of 1988-89 which was al lowed on 8-1-1991 by the respondent No. 1. The judgment and decree dated 11-8-1988 was set aside and that of the trial Court was maintained against the aforesaid judgment. The respondent Nos. 3 to 12, 15 and 16 filed Civil Misc. Writ Petition No. 6304 of 1991 in which legal and technical plea was raised that Nand Kishore Shanguri, respondent No. 8 in the second appeal died on 16-5-1989 during the pendency of the second appeal and his heirs were not brought on record. There fore, the judgment of the Board of Revenue dated 8-1-1991 was nullity. It is stated that when the petitioner came to know she filed an application for recall of the judgment and decree dated 8-1-1991 and also applied for setting aside the abatement and to sub stitute the heirs of the deceased after con doning the delay before the Board of Revenue. This application was allowed by the Board of Revenue and second appeal was heard again on merit. Now the second appeal has been dismissed on 9- 2-1993. The petitioner has challenged the two or ders in this Court under Article 226 of the Constitution of India.

(3.) AN application supported by an affidavit of Smt. Shanti Rawat, petitioner, sworn on 17th May, 1997 was filed on behalf of the petitioner under Order 22, Rule 9, C. P. C. with a prayer to set aside the abatement if any, due to non filing of the substitution application of the deceased respondent No. 10. AN application for bringing the heirs has also been filed. AN application has also been filed by the petitioner to dispose of the application for setting aside the abatement at an early date. A counter- affidavit has been filed on behalf of the contesting respondents against the application for setting aside the abate ment. A copy of this counter-affidavit was served on the learned Counsel for the petitioner on 5-8-1997. In the counter-af fidavit it is stated that the petitioner has full knowledge of the death of respondent No. 10 Madan Mohan Shanguri.