BUDDH PRAKASH Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard Mr. Rahul Sahai, learned counsel for the petitioners, Mr. Mridul Kumar, learned Standing Counsel for the State-respondents and Mr. Rakesh Pandey, learned Senior Counsel assisted by Mr. Raj Kishore Pandey, learned counsel for the contesting respondent Nos. 4/2.

(2.) Brief facts of the case are that the dispute relates to plot No. 988 area 0.29 acre (old plot No. 1262/3, 1264/4) situated in Village-Tindwari, Pargana Tahsil and District- Banda. A civil suit No. 115/ 1982 for mandatory injunction was filed on behalf of the Sheetal Prasad (father of respondent Nos. 4/1 and 4/3) in respect to plot No. 988 area 0.29 acre stating that the petitioners are recorded owner of the plot in dispute and defendants have carried out unauthorized construction in the north western corner of plot No. 988, which is liable to be removed. Trial Court decreed the plaintiff suit vide judgment and decree dtd. 29/5/1985. Against the judgment and decree dtd. 29/5/1985 passed by trial Court, petitioners' father filed civil appeal No. 63/1985 which was allowed vide judgment dtd. 5/11/1985 setting aside the judgment and decree of trial Court dtd. 29/5/1985 on the ground of jurisdiction. The decree passed by the lower appellate Court was maintained up to Hon'ble Apex Court in special leave to appeal. Hon'ble Apex Court while dismissing the leave to appeal vide judgment dtd. 23/8/1999 permitted the plaintiff to avail appropriate remedy before appropriate forum. After the adjudication of civil suit by Hon'ble Apex Court vide judgment dtd. 23/8/1999 on the ground of jurisdiction Sheetla Prasad- (father of respondent Nos. 4/1 to 4/3) instituted a suit under Sec. 229-B read with Sec. 209 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. &. L.R. Act") in respect to plot No. 988 area 0.29 acre, which was registered as Suit No. 1 /60 of 2005-2006. Trial Court framed the issues in the aforementioned suit and permitted the parties to lead the evidence in support of their cases. Trial Court vide judment and decree dtd. 10/2/2017 decreed the plaintiff suit. The judgment and decree of trial Court dtd. 10/2/2017 has been maintained in appeal under Sec. 331 (3) of U.P.Z.A. and L.R. Act by the Commissioner vide judgment dtd. 12/3/2019. The judgment of Commissioner dtd. 12/3/2019 has been maintained further in second appeal by the Board of Revenue vide judgment dtd. 24/2/2023, hence this writ petition on behalf of the petitioners for the following reliefs:

(3.) Learned counsel for the petitioners submitted that the suit under Sec. 229-B/209 of U.P.Z.A. and L.R. Act filed by the plaintiff-respondent was decreed in the arbitrary manner. He further submitted that although issues were framed in the suit but the trial Court has not decided the suit in proper manner according to the issues framed in the suit. He further submitted that by cryptic order, the suit under Sec. 229-B/209 of U.P.Z.A. and L.R. Act has been decreed. He next submitted that earlier the civil suit for injunction was contested between the parties up to the Hon'ble Apex Court and civil suit was ultimately decided against the contesting respondents. He also submitted that without taking into consideration, the earlier proceeding which was contested between the parties, the suit under Sec. 229-B/209 of U.P.Z.A. and L.R. Act cannot be decreed. He further submitted that the appeal and second appeal have been also decided in arbitrary manner, as such, the impugned judgments passed by the trial Court/ first appellate Court/second appellate Court are liable to be set aside and matter is to be remitted back before the trial Court to decide the suit afresh in accordance with law.