Ram Surat Ram (Maurya), J. - (1.) HEARD Sri U.S. Sahai for the petitioner and Sri Azad Khan, Standing Counsel for Gaon Sabha.
(2.) THE writ petition has been filed against the order of Board of Revenue dated 5.6.2015 passed in Second Appeal No. 37 of 1984 -85 dismissing the Second Appeal filed by predecessor of the petitioner. The dispute between the parties related to plot No. 123 situated in village Gadhakala, pargana Miranpur and district Sultanpur. It is admitted to the parties that one Vritanti was the tenure holder of the land in dispute. Bhagirathi (now represented by respondents - 3 to 6) derives his title on the basis of sale deed dated 3.3.1965 allegedly executed by Vritanti in his favour. While the petitioner derive his title on the basis of sale deed dated 31.12.1970 executed by Nirmal son of Vritanti in favour of predecessor of the petitioner. Bhagirathi filed a suit under Section 229B/209 of UP Act No. 1 of 1951 for declaring him as bhumidhar of the land in dispute and for ejectment of the petitioner from the land in dispute. The suit was tried by the Assistant Collector 1st Class, Sultanpur who by order dated 18.9.1981 held that at the time of sale deed dated 3.3.1965 Vritanti was not bhumidhar as such the sale deed was not valid document. He further found that sale deed dated 31.12.1970 was a bonafide transfer for a valid consideration. The petitioner entered into the possession on its basis as such he was not liable to be ejected. He further found that suit was barred under Section 34(5) of UP Land Revenue Act 1901. On this finding the suit was dismissed. Bhagirathi filed an appeal from the aforesaid decree. The appeal was heard by Additional Commissioner, Faizabad Division, Faizabad who by judgment dated 3.12.1984 found that a perusal of khatauni 1373 F -1375 F shows that there is endorsement regarding grant of bhumidhari Certificate No. 28603 of the land in dispute thus it is clear that at the time of sale deed dated 3.3.1965 the recorded tenure holder has deposited required amount of land revenue and bhumidhari certificate was issued as such the sale deed dated 3.3.1965 was valid document. So far as the bar under Section 34(5) of UP L.R. Act is concerned, the proclamation has been filed in the suit that Bhagirathi had applied for mutation of his name on the basis of sale deed as such bar under Section 34(5) of UP L.R. Act is not applicable. On this finding the appeal was allowed and decree of the trial court was set aside and the suit was decreed. Ram Sunder Singh and Nirmal filed a Second Appeal against the aforesaid decree. The Second Appeal was heard by Board of Revenue who by the order dated 1.2.1991 has set aside the finding of the Commissioner regarding issue of bhumidhar certificate as well as execution of sale deed executed by Vritanti. He further found that proclamation of the proceeding under Section 34, which was brought on record, was the original proclamation and issued in the name of Vritanti as such Bhagirathi was not supposed to be in possession of the original proclamation and document appears to be procured and forged accordingly the suit is barred under Section 34(5) of UP L.R. Act. On this finding the Second Appeal was allowed and plaint was rejected under Order 7, Rule 11 CPC. Bhagirathi challenged the aforesaid order in Misc. Single No. 1472 0f 1991 before this Court. This Court found that as the suit was filed for ejectment and suit itself was for delivery of possession as the provisions of Section 34(5) of UP L.R. Act will not be applicable and the Second Appeal was wrongly allowed on this ground. On this finding the writ petition was allowed and the judgment of Board of Revenue was set aside and the matter was remanded to the Board of Revenue for deciding the second appeal afresh. After remand the matter was heard by Board of Revenue who by the impugned order dated 5.6.2015 found that in the sale deed it has been mentioned that in order to obtain bhumidhari certificate the required amount of land revenue has been deposited. The sale deed being the registered document was proved from the statement of the witnesses. Uma Shankar who was scribe of the sale deed has also proved its execution. In such circumstances, the finding of the appellate court regarding execution of the sale deed is upheld and it has been further held that Nirmal was not son of Vritanti as such sale deed executed by Nirmal dated 31.12.1970 was not valid. On this finding the second appeal has been dismissed. Hence this writ petition has been filed.
(3.) THE counsel for the petitioner submits that so far as the sale deed dated 3.3.1965 is concerned, it was executed by some impostor while Vritanti had already died in the beginning of the year 1965. Bhagirathi did not produce the original bhumidhari certificate on record and no reliance can be placed only on the basis of endorsement in the khatauni regarding conversion of nature of the land from sirdari to bhumidhari which could not be evidence regarding issuance of bhumidhari certificate. Kanhai Lal the alleged marginal witness of the sale deed, who in his entire statement, has not stated a word that sale deed dated 3.3.1965 was signed by Vritanti. He clearly stated that when he had signed the document, Vritanti was not present there. Further he has stated that he has not gone to the Registrar office thus due execution of the sale deed was not proved from the statement of Kanhai Lal and execution of sale deed dated 3.3.1965 has been wrongly taken as proved.;