B. L. Yadav. J. - (1.) BY the present petition under Article 226 of the Constitution of India prayer is that impugned order dated 28-7-1987 passed by the Additional Commissioner in appeal under section 331 of UP ZA and LR Act 1950 (for short the Act) and order dated 20-8-1991 passed by the Board of Revenue in second appeal may be quashed by issuing a writ of certiorari.
(2.) FACTUAL matrix of the case is that the petitioner, filed a suit on 28-11-1984 in the court of Assistant Collector 1st Class Kichha Nainital under section 209 of the Act against the defendant/respondent no. 3 seeking the relief for ejectment on the ground that the defendant has occupied the agricultural land in dispute otherwise than in accordance with the law, whereas the land in suit was allotted to the petitioner. The defendant respondent no. 3 contested the suit alleging that plaintiff has executed an agreement for sale dated 28-5-1974 in favour of defendant and a sum of Rs. 11,000/- was paid in cash to the plaintiff by the defendant and it was decided that remaining sum of Rs. 1,100/- would be paid at the time of execution of sale deed and possession was delivered to the defendant at the time of execution of the agreement for sale. The trial court decreed the suit, whereas lower appellate court allowed the appeal of respondent no. 3 and dismissed the suit. The Board of Revenue dismissed the Second Appeal preferred by the petitioner, the plaintiff.
(3.) MR. K. K. Srivastava, the learned counsel for the petitioner urged that the defendant respondent no. 3 should have filed a suit for specific performance of the contract and under the law he cannot acquire Bhumidhary rights. Reliance was placed on Gulab Shanker Tiwari v. Deputy Director of Consolidation, 1982 ALJ 706 and Kedar v. Distt. Judge, 1978 ALJ 836. Mr. J. S. Dabbas, learned counsel for the respondent no. 3, who has filed caveat, urged that for the transaction between the parties section 164 of the Act was applicable hence the suit has correctly been dismissed.;