S.P.PANDEY - (1.) THIS is a revision petition under Section 333 of the UPZA & LR Act, (hereinafter referred to as the Act) preferred against the judgment and order, dated 11-12-1997, passed by the learned Additional Collector (Administration), Sambhal, Moradabad in Case No. 62 of 1997 under Section 122-C (6) of the Act.
(2.) BRIEFLY stated, the facts giving rise to the instant revision petition, are that Om Prakash and Gyanwati moved an application under Section 122-C(6) of the Act before the learned trial Court on 23-7- 1996 against Nanak and others, for cancellation of the allotment dated 26-9-1994 in respect of plot No. 191 which is illegal. On notice, the opposite parties contested and filed their objections on 16-8-1996, denying the allegations and stating inter- alia that the allotment was valid; that they are in possession of the land in dispute and that the case of the applicants was time-barred and also barred by Section 27/49 of the UPCH Act, as the land in dispute was set apart for abadi during the consolidation operations. The learned trial Court, after completing the requisite formalities, set aside the approval, dated 29-9-1984 of the resolution, dated 26-9-1994, vide its order, dated 11-12-1987. It is against this order that the instant revision petition has been preferred before the Board by Nanak etc. I have heard the learned counsel for the parties and have also perused the record of the case, on file. For the revisionist, it was contended that since the lease was granted to the allottees in the year 1984 and the application for cancellation of the same was moved in the year 1996 i.e. after about 12 years, the same was beyond the period of limitation and is barred by the provisions of Article 137 of the Indian Limitation Act and therefore, the learned Court, below, was erred in holding otherwise, ignoring the provisions of Article137 of the Indian Limitation Act; that since the affidavits, filed by the members of the LMC were inadmissible in evidence as no permission for the same was granted by the learned trial Court, has also erred in law in entertaining and relying on the same; that the learned Court of first instance has grossly erred in relying upon the Form CH-24, as it relates to Rule 41 of the UPCH Rules and does not show that the plots mentioned therein have been made chak- out; that the observation of the learned Court, below to the effect that the land, in dispute, was chak-out during the consolidation operations, is wrong as CH Form 18 was not filed which relates to the chak-out land; that the order passed by the learned Additional Collector is no order in the eyes of law as during consolidation proceeding, the land was recorded as the Gaon Sabha property and the LMC was fully competent to allot the same to the revisionists; that the findings, recorded by the learned Court, below, are illegal, perverse and against the facts and circumstances of the instant came, as the present proceedings are barred by Section 27/49 of the UPCH Act as well as by the principles of acquiescence and estoppel; that the instant application is not maintainable, as the question of title is involved which could only be decided in a regular suit under Section 229-B of the Act and the impugned order is, therefore, based on surmises and conjectures and suffers from material illegality and irregularity and as such, the same cannot be allowed to sustain and deserves to be set aside. In support, reliance has been placed on the case laws, reported in 1994 RD 92 (HC) (Para 10) and 1993 RD 286 (FB) (BR). In reply, the learned counsel for the opposite parties urged that the learned Court, below was, perfectly justified in rendering the impugned order in the facts and circumstances of the instant case; that the impugned order is valid, in law, as the learned trial Court has recorded findings of fact after due and proper appreciation of evidence on record and, therefore, this revision petition, having no force, deserves to be dismissed outright.
(3.) I have closely and carefully examined the contentions, raised by the learned counsel for the parties and the relevant records on file and the case laws, cited above. A bare perusal of the record clearly reveals that the learned trial Court was perfectly justified in setting aside the approval, dated 29-9-1984, of the resolution, dated 26-9-1984. It has been observed in the impugned order, passed by the learned trial Court that the resolution, dated 26-9-1984, is doubtful in view of the fact that the Pradhan and the members of the LMC have categorically denied the passing of the resolution and admitted the land, in dispute, to be the personal property of Om Prakash and, therefore, the learned trial Court held the resolution, dated 26-9-1984 as Farzi. It has also held the case not barred by limitation in view of the case law, reported in 1994 RD 211, in which it has been held that there is no limitation prescribed in this respect after 16-3-1972. It has also observed that since the Plot No. 220 of the land, in dispute, was earlier 691 which was in the ownership of the ancestors of the applicants, the same was not the property of the Gaon Sabha, as a whole and the LMC had no authority in law, to allot the same. The suit was also not held to be barred under Section 27/49 of the UPCH Act as the land in dispute, was abadi and remained outside the consolidation proceedings. It has further been observed that Nanak has himself admitted in his examination-in- chief that the land in dispute, is not being used for abadi purposes but for tying cattles and making cow-dung-cakes. With these observations, the learned trial Court has held the resolution, dated 26-9-84 doubtful and set aside its approval, dated 29-9- 1984.;