Decided on November 23,2007

Smt. Naruli Devi wife of Late Nathu Singh,,Diwan Singh son of late Sri Nathi Singh and,Smt. Bhaguli Devi wife of Diwan Singh Appellant
Smt. Basanti Tilara wife of Chandan Singh,,Mahendra Singh son of Sri Radha Bisht and,Sarvjeet Singh S/o late Radha Bisht Respondents

Referred Judgements :-



Rajesh Tandon, J. - (1.)HEARD Sri U.P.S. Negi, Advocate for the review applicants and Sri C.M. Shah, counsel for the respondents.
(2.)PRESENT review application has been preferred by the appellants for review of the order dated 4.5.2007 passed in Second Appeal No. 1157 of 2001, summarily dismissing the appeal as no substantial question of law in the second appeal was found.
The review applicants have moved the present review application on the ground that the appellants have framed as many as six substantial questions of law in the memo of appeal but none of them has been considered by this Court at the time of deciding the second appeal. The review applicants have further framed as many as six entirely different substantial questions of law and have prayed that the same may be considered at the time of hearing of review application.

(3.)THE following new substantial question of law has been framed:
a. As it emerges from the record and findings recorded by the Courts below that the respondents in this Appeal were not recorded owners of the disputed land. The disputed land is recorded in the name of Diwan Singh and his brother, thus the respondents being unrecorded have no right and title over the suit land and no injunction could have been granted in their favour and against the defendant Diwan Singh/applicant who is recorded owner of the suit land and has right and title over the suit land.

b. That it was in the pleadings of the applicant/petitioner that the Civil Court has no jurisdiction to decide the case and both the courts below have not decided this issue in consonance with the prevailing legal position that if the plaintiffs are unrecorded in other word if the disputed land is not recorded in the name of the plaintiffs in the revenue records suit for injunction in the civil court is not maintainable and it should be filed in the Revenue Court This was a very material issue, which this Hon'ble Court has not decided while passing the impugned judgment.

c. That both the Courts below have perversely decided the question of inheritance and succession of the property of Ratan Singh, Smt. Radhika and Smt. Mohini Devi. The view of the Courts below was absolutely illegal and perverse while interpreting the provision of Section 174 of U.P.Z.A. & L.R. Act 1950. It was the material point, which was required to be decided in the light of Section 174 of U.P.Z.A. &L.R. Act, but this has not been decided.

d. That it is admitted to the parties that Smt. Radhika dna Smt. Mohani were found murdered on the same day some times in 1987. It is also emerges from the record that Smt. Radhika and Smt. Mohani got disputed lad on the basis of the Will said to have been executed by Sri rattan Singh in their favour. Even if the property in dispute is to be deemed self acquired property of Smt. Radhika Devi after her death the succession opened under section 174 of Z.A. & L.R. Act and Dewan Singh and his two brothers Anand Singh and Kunwar Singh were entitled to succeed the said property being son's son of Smt. Radhika and Ratan Singh. The plaintiffs have no right to the property. Not only this Smt. Naruli Devi Appellant being the widow of predeceased son Nathu Singh s/o Radhika and Ratan Singh is also entitled to the dispute property as per provision laid down in Section 174 of U.P. Z.A. & L.R. Act, 1950.

e. As regards to the half share of Smt. Mohani the aforesaid property given to her in the Will was to be given to Sri Diwan Singh as per terms of the Will. It is important to metion that only life interest was created in favour of Smt. Mohani over the property in suit, even otherwise, the succession of her property was open under section 174 of Z.A. & L.R. Act and the applicant/Diwan Singh, Anand Singh and Kunwar Singh being Mohani's brother's sons were entitled to inherit the said property and rightly recorded in the revenue records.

f. That the applicant/appellants are poor cultivators and they are legally entitled of the suit property and this property is rightly recorded in the names of Diwan Singh and his brothers and the plaintiffs have no right to the suit property and these points have not been considered in the impugned judgment of this Hon'ble Court as well as the judgments of courts below. These points being substantial question of law requires determination by this Hon'ble Court and in view of this it is a sufficient ground for reviewing the impugned judgment and decree.

So far as, the merit of the review petition is concerned, the review petition can be filed only for consideration of important matters or evidence which, by mistake or error on the face of the record could not be considered when the order was passed.


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