MAHENDER PAL SINGH Vs. AJAI PAL SINGH

JUDGEMENT

(1.) Heard Sri H.N. Singh, learned Senior Counsel assisted by Sri R.P.S. Chauhan and Sri Shadab Ali, learned counsel for the petitioners, Sri V.M. Zaidi, learned Senior Counsel assisted by Sri S.N. Shukla, Sri Ravindra Singh and Brijesh Ojha, learned counsel for the contesting respondent no.1.

(2.) The brief facts of the case are that plaintiffrespondent no.1 (Ajai Pal Singh) filed a suit under Sec. 229 B of U.P.Z.A. and L.R. Act on 13/1/1997 against dependants-petitioners (Mahendra Singh and Mahipal Singh) as well as State of U.P. and Nagar Nigam claiming 1/3 share in Plot No.438 area 1.31 and Plot No.742 area 0.85 total area 2.16 situated in Village-Majhola, Tahsil and District- Moradabad on the ground that plaintiff's father, namely, Ramesh Singh was son of Prem Singh and Ramesh Singh died in the life time of Prem Singh, as such, plaintiff is entitled to 1/3 share in the property. Defendants filed their written statement denying the plaint allegation to the effect that plaintiff (Ajai Pal Singh) is not son of Ramesh Singh and is wrongly claiming right over the property of Prem Singh inherited by defendants being sons of Prem Singh, the plea of limitation as well as res judicate were also raised in the written statement on the ground that earlier suit under Sec. 229 B of U.P.Z.A. and L.R. Act filed by plaintiff was dismissed by trial Court vide order dtd. 28/2/1990 with liberty to file fresh suit within two months, but the present suit has been filed after about seven years, the bar of Sec. 34 (5) of U.P. Land Revenue Act, 1901 was also raised in the written statement. Before the trial Court ten issues were framed and the parties adduced oral and documentary evidences in support of their cases. Trial Court after considering the entire evidence on record vide judgment and decree dtd. 13/4/2015 / 15/4/2015 dismissed the plaintiff's suit recording finding of fact that plaintiff has failed to prove that he is son of Ramesh Singh. Plaintiff challenged the judgment and decree of trial Court before Commissioner through appeal under Sec. 331 of U.P.Z.A. and L.R. Act which was dismissed by Additional Commissioner vide judgment and decree of the Court below. Plaintiff filed a second appeal under Sec. 331 (4) of U.P.Z.A. and L.R. Act before the Board of Revenue, U.P. at Allahabad which has been allowed by the Board of Revenue vide judgment dtd. 20/7/2018, hence this writ petition on behalf of defendants-petitioners.

(3.) This Court while entertaining the writ petition has passed the following interim order dtd. 13/9/2018: