RADHEY SHYAM SAXENA Vs. SUB DIVISIONAL
LAWS(UTN)-2012-2-5
HIGH COURT OF UTTARAKHAND
Decided on February 28,2012

RADHEY SHYAM SAXENA Appellant
VERSUS
Sub Divisional Respondents

JUDGEMENT

- (1.) By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the judgment and order dated 30-7-1990 passed by the second appellate Court, i.e. Board of Revenue U.P. at Allahabad, whereby the appeal preferred by defendant No. 1 - Bishambhar Dayal (deceased respondent No. 4 herein) has been allowed and suit of the plaintiff-Radheshyam Saxena (deceased petitioner herein) was dismissed. During the pendency of the writ petition, the plaintiff-petitioner Radhe Shyam Saxena and the defendant-respondents No. 4 and 5 (Bishambhar Dayal and Dhanpat Rai) have died, therefore, they have been substituted by their legal heirs in the writ petition.
(2.) Briefly stated, the facts giving rise to the present writ petition are that the petitioner-plaintiff Radheshyam filed a suit for possession under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act (for short the Z.A. & L.R. Act) against the defendant-respondent Nos. 4 and 5 Bishambhar Dayal and Dhanpat Rai as well as State of Uttar Pradesh. The plaintiff filed the suit alleging therein that the plaintiff is the Bhumidhar of the land in suit comprising of plot No. 245, area 4 bigha, 8 biswa situated in village Kichha, Pargana Rudrapur, district Nainital and he entered into an agreement for sale with defendants Bishambhar Dayal and Dhanpat Rai on 28-8-1972, but the defendants did not honour the terms and conditions of the agreement and failed to get the sale deed executed and in the year 1976, the defendants attempted to take forcible possession of the land in suit, which led an apprehension of breach of peace. It is also alleged in the plaint that the defendants Nos. 1 and 2 by interpolation added the words handed over possession in the document for agreement for sale and also in collusion with the revenue staff managed entries of possession in the Khasara. It is also alleged in the plaint that Subhash Chandra, son of the plaintiff, lodged a complaint and the proceedings under Section 145 Cr.P.C. were drawn by the Sub Divisional Magistrate concerned which were decided on 27-11-1978 in favour of the defendants. The plaintiff filed a revision against the order passed by the Magistrate concerned, which was ultimately allowed by the Additional Session Judge, Nainital, who by order dated 7-8-1979 set aside the order of the Sub Divisional Magistrate with a direction to put the plaintiff in possession but the defendant Nos. 1 and 2 assailed the order of the Additional Sessions Judge before the Allahabad High Court in Criminal Revision No. 1508 of 1979, which was allowed on 20-5-1981 and the order passed by the S.D.M. was upheld. Aggrieved, the plaintiff-petitioner filed Special Leave Petition (Crl.) No. 2482/81 before the Apex Court. The Apex Court passed the order dated 27-11-1981 to the following effect:- Mr. R.K. Jain mentioned this matter today requesting for corrections of the order made on 16.11.1981. The court directed that the order of 16.11.1981 should be read as under: Special leave petition is rejected since it is directed against an order passed in a proceeding under s. 145 Cr.P.C. and it is always open to the father of the petitioner to file a suit in order to establish titles and recover possession of property. If the father of the petitioner files such suit within three months from today the trial court will dispose it of within 6 months from the date of filing the suit.
(3.) Thereafter the revenue suit under Section 209 of the Z.A. & L.R. Act was filed by the plaintiff-petitioner. The suit was contested by the respondent-defendants by filing written statement. The learned Assistant Collector framed necessary issued in the suit. Both the parties have adduced oral as well as documentary evidence. The learned Assistant Collector after hearing both the parties and considering the evidence led by the parties decreed the suit by judgment and decree dated 20-2-1984. Aggrieved by the said judgment and decree, the defendant Nos. 1 and 2 (respondent Nos. 4 and 5 herein) preferred Z.A. Appeal No. 65/27 of 1983-84. The first appellate Court did not find favour with the appellants-respondent Nos. 4 and 5 and dismissed the appeal by judgment and decree dated 28-6-1985.;


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