- (1.) HEARD learned counsel for both the parties and perused the record.
(2.) BY means of this writ petition, the petitioners have prayed for issue a suitable writ, order or direction in the nature of certiorari quashing the judg ment of the Board of Revenue dated 20-10-1983 (Annexure No. 5 to the writ petition) whereby the Board of Revenue allowed the review petition and the judg ment dated 30-8-1982 passed in Second Appeal No. 23 of 1979-80 has been set aside. The learned counsel for the peti tioners Sri Lokendra Dobhal has submit ted that now in view of the amendment Act No. 8 of 1977, every Bhumidhar with non-transferable rights, who was re corded Sirdar has become Bhumidhar with transferable right without paying ten times of land revenue. In view of the amendment, the name of the petition ers had already been recorded as Bhumidhar with transferable rights. The order passed by the learned Board of Revenue now by operation of law had become ineffective by which bhumidhari Sanad has been cancelled. Brief facts of the case are that a bhumidhari Sanad had been granted in favour of the petitioners on 16-9-1972 after depositing 20 times of land revenue. The respondent no. 4, Smt. Urmila Devi Jain, filed an application under Section 13/- A of the U. F Act No. 1 of 1951 in the Court of Tahsildar Pauri Garhwal on the ground that the petitioners had ob tained bhumidhari Sanad fraudulently and that she was disabled. The Tahsildar after hearing the parties, cancelled bhumidhari Sanad vide order dated 26-10- 1979. Aggrieved by the said order, the petitioners preferred Appeal No. 79-80 Mangal Singh and others Vs. Urmila Devi, which was dismissed by the Com missioner by a cryptic order without as signing any reasons vide order dated 2/- 8-1980. The petitioners further went up in Second Appeal before the Board of Revenue against the judgment and or der passed by the learned Commissioner, Pauri Garhwal confirming the judgment passed by the trial court dated 26-10-1979 thereby cancelling the bhumidhari Sanad of the appellant Mangal Singh. The Board of Revenue after hearing both the parties, vide order dated 30-8-1982 set aside the judgment and order of both the courts below and dismissed the ap plication filed by Smt. Urmila Devi, on the ground that the proceedings under Section 13/- A of the U. P. Z. A. and L. R. Act are summary in nature and the title must be got declared by the aggrieved party in a competent court and not in any indirect manner through summary proceedings. As regards the case of can cellation of Sanad bhumidhari, it can not be seen whether the entry made in favour of the petitioner was wrong or right.
(3.) AGAINST the judgment and order of the Board of Revenue, a review peti tion was filed by Urmila Devi Jain, re spondent no. 4, in Second Appeal No. 23 of 1979-80, which was allowed on 30-8-1982 on the ground that the error apparent on the face of record exists in the judgment. The review petition was heard by the same Member of the Board of Revenue and it was allowed on 20-10-1983 and it was observed that the appeal would be heard after obtaining trial court record of grant of Bhumidhari Sanad. The learned Member, Board of Revenue has set aside his earlier finding in which it was held that the proceedings under Section 134 are summary in nature. While deciding the second ap peal, the principles only were considered and there was a presumption of recorded entry of Sirdari of Mangal Singh and others in 1379 or 1380 Fasli but absence of trial court record of grant of sanad turns it into an error apparent on the face of record. The concealment of facts as to how the Sirdari entry was secured, detailed in earlier para, could not escape consideration in appeal, par ticularly when the learned trial Court considered and gave its finding on them and non-consideration amounted to an error apparent. It was also observed that disability of Smt. Jain is another factor which has escaped consideration and the fact that she was a widow since 1946 is so glaring that its effect could not be overlooked in the proceedings under Section 13/- A, if not in proceedings under Section 134.;