RAM SURAT RAM (MAURYA), J. - (1.) HEARD Sri Rajesh Ji Verma, Senior Advocate, assisted by Sri S.P. Lal, for the review applicant and Sri R.D. Dauholia, for contesting respondents -4 and 5.
(2.) THE writ petition was filed against the orders of Assistant Collector dated 12.12.1984 decreeing the suit filed by Tota Ram and declaring him as bhumidhar of the land in dispute, Additional Commissioner dated 19.08.1996, modifying aforesaid decree, in the appeal of the petitioner and decreeing suit for ejectment of the petitioner from the land in dispute and Board of Revenue U.P., dated 16.08.2007, dismissing second appeal of the petitioner. The writ petition was dismissed by the judgment dated 07.05.2010 after hearing the counsel for the petitioner. The petitioner has filed this clarification/recall application on 08.12.2010 along with delay condonation application although it is virtually a review application. Delay in filing the review application was condoned and review application was heard on merit.
(3.) THE dispute between the parties is in respect of sirdari plot 1010 (area 2.66 acre) and 1/2 share in bhumidhari plots 1641, 1642, 1643, 1644, 1645, 1646, 1647, 1049, 2082, 2083, 2084 and 2085 (total area 2.25 acre) of village Lakhaura, pargana Kurawali, district Mainpuri. In consolidation new plot 906 (area 5.06 acre) was carved out in the name of Tota Ram (now represented by respondents -4 and 5). According to the petitioner, Tota Ram entered into an agreement to sell dated 06.02.1968 (registered on 19.03.1968) of the land in dispute with the petitioner and took entire sale consideration of Rs. 7000/ - and handed over possession over the land in dispute to the petitioner. Plot 1010 was sirdari land and village was under consolidation operation as such it was agreed between the parties that after finalization of consolidation operation, bhumidhari certificate of sirdari land would be obtained and sale deed be executed. After close of consolidation operation, execution of the sale deed was avoided by Tota Ram, then the petitioner filed a suit (registered as O.S. No. 39 of 1970) for specific performance of the contract on 20.10.1970. This suit was dismissed by Trial Court. The petitioner filed Civil Appeal No. 78 of 1973 from the decree of the Trial Court, which is pending in the Court of Additional District Judge, Court No. 3, Mainpuri. In the meantime, dispute between the parties in respect of possession over the land in dispute took place as such proceedings under Section 145 Cr.P.C. was initiated on the application of Tota Ram by the preliminary order dated 07.09.1970 in which Additional Sub -Divisional Magistrate by order dated 24.11.1970 held that the petitioner was in possession of the land in dispute on the date of attachment and directed to release the property in favour of the petitioner. Criminal Reference No. 366 of 1971 submitted by District Judge for allowing the revision of Tota Ram was rejected by this Court by judgment dated 21.07.1971. The petitioner was again put in possession over the land in dispute. Tota Ram filed a suits (registered as Suit No. 187 of 1980) under Section 229 -B/209 of U.P. Act No. 1 of 1951 on 23.04.1980 for ejectment of the petitioner from the land in dispute. Assistant Collector by judgment dated 12.12.1984 decreed the suit filed by Tota Ram and declared him as bhumidhar with transferable right but no decree for ejectment was passed. The petitioner filed an appeal (registered as Appeal No. 209 of 1984 -85) from the aforesaid decree. Additional Commissioner, by judgment dated 19.08.1996, did not accept the arguments of the petitioner but instead of dismissing the appeal modified the decree of the trail court and decreed the suit for ejectment the petitioner from the land in dispute. The petitioner filed a second appeal (registered as Second Appeal No. 53 of 1995 -96) from the aforesaid decree, which was dismissed by Board of Revenue U.P., by judgment dated 16.08.2007. The writ petition was also dismissed by the judgment dated 07.05.2010 after hearing the counsel for the petitioner. The petitioner filed this review application on the grounds that on the findings of Trial Court that agreement to sell dated 06.02.1968 was a valid document, the suit under Section 209 of U.P. Act No. 1 of 1951 was not maintainable so long as earnest money (in this case, full sale consideration was paid) taken by Tota Ram is not returned to the petitioner as held by this Court in Durani and others Vs. Board of Revenue, U.P.,1980 RevDec 275. In any case, possession over the land in dispute was given by Tota Ram at the time of agreement to sell dated 06.02.1968 while suit was filed on 23.04.1980 which was barred by limitation and ought to have been dismissed. Possession given to the petitioner over the land in dispute, in part performance of the contract, he has right to protect his possession in view of Section 53 -A of Transfer of Property Act, 1882; possession of the petitioner was not unlawful and suit under Section 209 of U.P. Act No. 1 of 1951 was not maintainable. Trial Court decreed the suit only in respect of title of Tota Ram and did not decree the suit for ejectment of the petitioner. Tota Ram neither filed any appeal from the decree of Trial Court nor filed any cross objection in the appeal of the petitioner, even then Additional Commissioner modified the decree of the Trial Court and granted decree for ejectment of the petitioner. Board of Revenue, U.P. committed an illegality in not framing correct substantial question of law although grounds were taken by the petitioner in the memorandum of second appeal. In the judgment dated 07.05.2010, this Court held that findings recorded by criminal court in the proceeding under Section 145 Cr.P.C. are summary in nature and they are always subject to decision by a competent Civil Court. On its basis the counsel for the petitioner submitted that on its own findings, the suit before Revenue Court was not maintainable and the writ petition ought to have been allowed. ;