- (1.) S. P. Srivastava, J. A suit filed by the plaintiff-petitioners under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) in respect of plot No. 571/1, having an area of 1 acre 17- biswa and plot No. 582 having an area of 1 acre which were the bhumidhari holdings claiming a decree against Asha Singh, respondent No. 2 as well as the Gaon Sabha and the State Government was decreed by the trial court declaring the plaintiff to be the Bhumidhars of the land in dispute and in possession thereof. This decree was affirmed in first appeal. However, on a second appeal filed by the defendant Asha Singh, respondent No. 2, the Board of Revenue Respondent No. 1 vide its impugned order dated 7. 8. 81 upsetting the concurrent decrees referred to above remanded the case to the trial court for taking into consideration the relevant facts, documents and decision in their right perspective and then decide the case according to law.
(2.) FEELING aggrieved, the plaintiff-petitioners have now approached this Court seeking redress praying for the quashing of the impugned order passed by the Board of Revenue referred to above. I have heard Sri M. D. Singh, learned counsel for the petitioners and Sri N. B. Nigam, learned counsel representing the contesting defendant-Respondents and have also carefully perused the record. The facts in brief shorn of details necessary for the disposal of this case lie in a narrow compass. The plots in dispute admittedly constituted Bhumidhari holdings of the plaintiffs. The defendant Asha Singh claimed that the recorded tenure-holders of the plots in dispute had executed two docu ments one on 24. 4. 63 and the other on 24. 8. 63 whereunder while accepting Rs. 100/- as earnest money from Asha Singh they had agreed to sell the land in dispute in his favour on a consideration agreed upon and had also put him in possession of the aforesaid plots. Asha Singh, threafter appears to have in itiated proceedings under Sections 163/164 of the Act wherein an order dated 7. 5. 65 had been passed in pursuance whereof the name of Asha Singh was recorded as Bhumidhar of the land in dispute. This order appears to have been challenged in revision before the Additional Commissioner who vide his order dated 23. 7. 66 passed in reference recommended the Board of Revenue to dismiss the revision as not maintainable. The Board of Revenue vide its order dated 18. 11. 67 dismissed the revision. Thereafter proceedings under Sec tion 145 of the Code of Criminal Procedure appear to have been initiated in respect of the land in dispute which was attached in those proceedings and was ultimately released in favour of Asha Singh. It was thereafter that the suit giving rise to the present writ petition was filed by the plaintiffs seeking a declaration in regard to their being Bhumidhars in possession of the land in dispute which has now culminated in the impugned order.
(3.) THE trial court came to the conclusion that the order passed in the proceedings under Sections 163/164 of the Act allowing mutation in the name of defendant Asha Singh did not disclose that the right and title of the parties were decided. It also found that the aforesaid order had been passed ex- parte Considering the circumstance brought on record, the trial Court nega tived the contention raised by the defendant to the effect that the decision in the proceedings under Section 163/164 of the Act operated as res judicata. THE trial court further found that no sale deed had been executed by the plaintiffs in favour of defendant Asha Singh and consequently the title in respect of the land in dispute continued to vest in the plaintiffs unaffected by the order passed in the proceedings under Sections 163/164 of the Act which order could be challenged in a regular suit. THE trial court further found that a mere agreement of sale could not in any manner be deemed to have resulted in transfer of Bhumidhari rights of the plaintiffs in favour of Asha Singh. THE trial court noticed that the defendant Asha Singh had not cared even to file the alleged agreements of sale claimed to have been executed by the plaintiffs in his favour. THE only documents sought to be relied upon by the defendant Asha Singh in this regard were the alleged receipts dated 24. 4. 63 and 24. 8. 63. THEse documents were found by the trial court to be suspicious having interpolations and over writings. THE trial court refused to place reliance on the aforesaid documents and hold on their basis that the defendant-Asha Singh had been but in possession of the land in dispute as claimed. THE trial court noticed in this connection that the defendant Asha Singh had filed a suit for injunction against the plaintiffs in the court of Munsif and had also moved an application in the suit seeking an interim in junction. THE Civil Court, it was found, had rejected the application seeking interim injunction holding that the land in dispute continued to be in actual possession of the plaintiffs. THE oral evidence led by the defendant to prove his possession over the land in dispute was disbelieved. THE oral evidence led by the plaintiffs in support of his claim that the plaintiffs continued to be in possession of the land "in dispute was accepted holding the same to be worthy of credit. THE trial court proceeded to hold that the documents dated 24. 4. 63 and 24. 8. 63 relied upon by the defendant Asha Singh were forged and manipulated. Trial court opined that on the evidence and the materials brought on record the plaintiffs claim to be Bhumidhars in possession of the land in dispute was fully proved. It was also noticed that the defendant Asha Singh had filed a suit for specific performance of contract on the basis of the documents dated 24. 4. 63 and 24. 8. 63 but did not proceed with the suit which was returned for presentation before proper court which dismissed the same as barred by time. Holding the documents dated 24. 4. 63 and 24. 8. 63 as Farzi, forged and manipulated, the trial court decreed the suit as prayed. The defendant Asha Singh thereafter preferred a first appeal challeng ing the decree passed by the trial court. The first appellate court endorsed the finding of the trial court to the effect that the documents dated 24. 4. 63 and 24. 8. 63 relied upon by the defendant Asha Singh were forged and manipulated on which no reliance could be placed. It also recorded a finding that on the evidence led in the case it was fully established that the aforesaid two docu ments did not confer any right or title in favour of the defendant Asha Singh. The first appellate court further held that the requisite conditions con templated under Section 164 of the Act having not been satisfied the defen dant could not be deemed to have got any rights under the order of the sub-divisional officer passed in the proceedings under Section 163/164 of the Act. The first appellate court was, however, of the view that the ex parte order passed by-the Sub-Divisional Officer in the proceedings under sections 163/164 of the Act was in the nature of mutation proceedings which did not decide the right of the parties. The first appellate court disbelieved the claim of the defendant Asha Singh that he had been delivered possession of the property in dispute in the proceedings under Section 145, Cr. P. C. The first appellate Court also endorsed the finding of the trial court which had been arrived at on the basis of the appreciation of the oral evidence on the record observing that the trial court was right in holding that the plaintiffs were in possession. In view of its conclusions referred to above the first appellate court dismissed the appeal filed by the defendant Asha Singh. The Board of Revenue in its impugned order passed in second appeal appears to have come to the con clusion that the trial court had dealt with the matter in regard to the implica tions arising under the order passed in the proceedings under Section 163/164 of the Act in a superficial manner observing that the order dated 7. 5. 65 had become final extinguishing the rights of the recorded tenure-holders and the said order could not just be disregarded saying that it was an order of a sum mary nature. The Board of Revenue-further was of the view that the question relating to the possession had also not been dealt with in the right perspec tive. It was observed that the copy of the Dakhalnama dated 12. 3. 67 was on the record which showed that in the proceedings under Section 145, Cr. P. C. on the order of release having been passed in favour of defendant Asha Singh he was put in possession of the attached property.;