A.P.Sahi, J. - (1.) THIS is a defendant's writ petition in a suit filed by the respondent-plaintiffs for a declaration that they are the tenure holders of the land in dispute and the defendant-petitioner having failed to prove his possession on any count, the plaintiffs were entitled for the declaration as sought for. THIS dispute relates to agricultural holdings, the succession and claim whereof is governed by the provisions of the U.P. Z.A. & L.R. Act, 1950 and the rules framed thereunder read-with the allied laws.
(2.) THE respondents 3 to 9 fall under the same family pedigree which is quoted hereinbelow: JUDGEMENT_492_ADJ10_2011Image1.jpg THE dispute relates to the claim by the defendant-petitioner acquiring rights through a sale-deed from Smt. Phulesara who died issue-less on 28th August, 1966. THE nature of the tenure as then existed was sirdari land which was a tenure with non-transferable rights. THE legislature however introduced provisions under the Act for converting this nature of tenure to a bhumidhari which is a Class-1 tenure upon the deposit of twenty times land revenue to acquire full rights of tenancy so as to enable the tenure holder to dispose of the property. Smt. Phulesara executed sale-deeds in favour of the petitioner-defendant on 10.8.1966 in respect of Plot Nos. 65/2,65/3,112/2 and 113/3. The defendant- petitioner, apart from the sale-deeds claimed to be in possession of the said plots alongwith Plot No. 112/3, from the time of his father Baideo prior to the abolition of zamindari and accordingly also claimed adverse possession over the said plots. The defendant-petitioner got his name recorded in Class -9 of the Land Records Manual, which is the column of a trespasser. This entry of a trespasser according to the defendant-petitioner was reflected in the revenue records of 1371 fasli to 1377 fasli, which corresponds to 1964 AD to 1972 AD. This entry is for the period during which the sale-deed was executed. The father of the respondents 3 to 5 Laxmi Dubey and the respondent No. 9 Omkar Dubey joined as plaintiffs in original suit No. 426 of 1972 arraying the petitioner as defendant No. 1 and the other respondents as defendants second set, praying for a declaration that the plaintiffs are co-sirdars of the plots in dispute under the pedigree referred to hereinabove. The name of the defendant No. 1 on the basis of the alleged sale-deed which has been entered in the revenue record, should be expunged and the plaintiffs should be declared to be the sirdars. In the alternative if their possession is not found, they may be put in possession thereof. A copy of the plaint is Annexure -1 to the counter-affidavit dated 17.1.2006 filed by the respondent. The disputed land shown therein are plot Nos. 65/2,112/2 and 113/2 only. Later on the plaintiffs came to know of the alleged entry of Class-9 in favour of the petitioner as a trespasser in relation to some additional land as well, apart from the land referred to in the plaint of the first suit, as such they instituted another suit in the year 1974. A copy of the plaint of the second suit is Annexure 2 to the said counter-affidavit where the details of the holdings in dispute were entailed, including the additional plots beyond the sale-deed, and which also discloses the undisputed family pedigree reproduced hereinabove. Both suits were consolidated and the suit relating to Plot No. 65/2 and Plot No. 113/2 was decreed whereas the suit relating to Plot No. 112/2 was dismissed by the trial Court on 30.8.1974. Acopy of the said judgment is Annexure 1 to the writ petition. The trial Court held that so far as the land under the sale-deed is concerned, Smt. Phulesara could not have executed the sale-deed as the plaintiffs and the defendants second set had already a declaration of their shares in a suit of partition under Section 176 decided on 6.8.1974 and secondly the defendant- petitioner could not have acquired sirdari rights over the said plots. However, the trial Court dismissed the suit with regard to Plot No. 112/2 holding that Form No. P.A.-10, indicating possession of the petitioner-defendant as a trespasser was available hence the suit for said plot was dismissed.
(3.) APPEALS were filed against the said judgment and decree and the same was allowed on 23.3.1977 on the ground that additional evidence had been inducted by the trial Court for which no opportunity was given to the parties and as such the judgment and decree of the trial Court was vitiated. The matter was accordingly remanded to the trial Court to decide the matter again. The said judgment is on record along with the counter-affidavit of Opposite Party No. 9 Omkar Dubey dated 21,12.2005. After remand the entire suit was decreed on 27th July, 1982. The petitioner filed two appeals against the said judgment and decree of the trial Court which was allowed on 12th April, 1990 and the matter was again remanded to the trial Court. Against this remand order the respondent-plaintiffs went up in second appeal before the Board of Revenue and the Board allowed the second appeal on 2nd June, 2003 on the ground that the first appellate Court which had passed an order of reversal was absolutely slip shod without containing any reasons. The matter therefore went before the first appellate Court once again. ;