BHAGHIRATHI Vs. BOARD OF REVENUE

JUDGEMENT

(1.) HEARD Shri M.A. Khan, learned counsel for the petitioner and Shri D.C. Mukahrjee, learned counsel for contesting respondents. This writ petition was earlier allowed on 28.10.2003 without hearing anyone on behalf of contesting respondents as no one had appeared on their behalf. Thereafter, a re hearing/recall application was filed on behalf of contesting respondents which was allowed on 13.9.2013, order dated 28.10.2003 was set aside and arguments on merit of writ petition were heard on the said date. This writ petition involves an interesting question regarding applicability of section 34(5) of U.P. Land Revenue Act. Sub section (1) and (5) of section 34 are quoted below :

(2.) IT was stated in para 1 of the plaint that Birdanti who was Bhoomidhar in possession of the agricultural land in dispute had executed a registered sale deed of the same in favour of petitioner on 03.3.1965 for consideration of Rs.1000/ and possession was also delivered to him at the time of execution of sale deed. It was further stated that defendant no.2 Nirmal was wrongly asserting that he was son of Birdanti and had illegally executed some sale deed in favour of defendant no.1 Ram Sunder Singh. Date, month or year of the sale deed was not mentioned in the plaint. The only thing which was stated in para 4 was that defendant no.1 was claiming that he was Bhoomidhar on the basis of sale deed executed by defendant no.2 and on that basis defendant no.1 had got his name entered in the revenue record. In para 6 of the plaint it was stated that after forcibly getting his name entered in the revenue record defendant no.1 in collusion with defendant no. 2 dispossessed the plaintiff in March 1977, hence, plaintiff was entitled to get possession of the land in dispute from defendant no.1 and 2. The prayer sought in the plaint was for declaration to the effect that plaintiff was Bhoomidhar of the agricultural land in dispute and defendants had no concern therewith. Second prayer was for possession against defendant no.1 and 2.

(3.) AGAINST judgement any decree passed by Additional Commissioner defendants contesting respondents filed second appeal before the Board of Revenue in the form of Second Appeal no. 37(Z) of 1984 85 Ram Sunder vs. Bhagirathi. Board of Revenue through judgement and decree dated 01.02.1991 allowed the appeal and it was directed that "the plaint stands rejected under order 7 rule 11 C.P.C. The appeal was allowed only on the ground that the suit was barred by section 34(5) of the U.P.L.R. Act. In this regard it was held as follows.