R.P.Singh - (1.) BY means of this writ petition the petitioner has prayed for quashing of the orders passed by the Additional Commissioner and the Board of Revenue, decreeing the suit of respondents 3 to 7 under section 229-B of UP ZA and LR Act.
(2.) THE facts of the case briefly are that plaintiff-respondents filed a suit under section 229-B of UP ZA and LR Act, hereinafter referred to as the Act, for a declaration that they are the sirdars of the plot in suit with the allegations that the plaintiff and defendants 8 to 10 were the Zamindars but the name of defendants 8 to 10 alone were recorded over the plots in suit and the Patwari of the village being enmical wrongly recorded the names of defendants 1 to 4 and that the plaintiff and defendants 8 to 10 initially filed a suit for declaration of their bhumidhari right before the Civil Court which was decreed on 1-12-59. THE defendants 1 to 5 feeling aggrieved went up in appeal before the Civil Judge which was, however, dismissed on 19-11-60. During the pendency of the Civil Appeal it appears that consolidation proceedings started in the village under U P. Consolidation of Holdings Act. THE defendants 1 to 5 feeling aggrieved against the decree passed by Civil Judge went up in second appeal before this Court which was, however, allowed on 18-11-66 and the suit was dismissed in pursuance of which the names of defendants 1 to 5 were entered in the revenue papers on the basis of which on 20th July 1968 the defendants 1 to 5 who are the petitioners took possession over the land in suit. THE plaintiffs' case is that the plaintiffs continued in possession over the land in suit and even after the close of the consolidation operation on 23-7-60 the plaintiffs continued to remain in possession and matured sirdari rights by prescription by remaining in possession for more than six years and hence the suit was filed on these allegations. The suit was contested by the defendants 1 to 5 on the ground that the plaintiffs have not matured sirdari right and that in the earlier litigation before the Civil Court the plaintiffs suit for declaration of bhumidhari right was dismissed by the High Court in second appeal on 18-11-66 and further that the suit is barred by Section 49 of the U. P. Consolidation of Holdings Act. The Assistant Collector 1st Class on going through the evidence on record dismissed the suit. Feeling aggrieved the plaintiff-respondents went up in appeal before the Additional Commissioner who, however, allowed the appeal on the ground that the plaintiffs have matured sirdari right by remaining in adverse possession from 1369F to 1375F. Feling aggrieved the petitioners went up in second appeal before the Board of Revenue which was also dismissed. The petitioners now, feeling aggrieved against the orders passed by the Board of Revenue have preferred this writ petition.
(3.) HEARD Sri Ramji Saxena learned counsel for the petitioner and Sri K. R. Singh learned counsel for the contesting respondents. The learned counsel for the petitioners submitted that since the earlier suit filed by the contesting respondents for declaration of their bhumidhari right in the year 1957 was ultimately dismissed on 18th November 1966 when the petitioners second appeal was allowed by the High Court, the possession of the contesting respondents could in any case became adverse only after 18th November 1966 when the second appeal was decided by this Court and since according to the case of the contesting respondents themselves the petitioners obtained possession on 20th July 1968, hence the contesting respondents could not mature sirdari rights by adverse possession for more than the prescribed period of limitation and that the doctrine of lis pendens contained in section 52 of the Transfer of Property Act would enable the petitioners to overcome the consequences of the possession of the plaintiff respondents during the pendency of the earlier civil suit which terminated on 18th November 1966 by decision in the second appeal before this Court and hence the doctrine of lis pendens would operate enabling the exclusion of the time during the pendency of the earlier civil suit filed by the plaintiff-respondents. The learned counsel for the petitioner secondly contended that the Additional Commissioner has erred in reversing the finding on the question of possession recorded by the trial court without properly assessing the evidence on record.;