B.L.Loomba - (1.) SMT. Bitana, wife of Ram Prasad has filed this writ petition under Art. 226 of the Constitution of India to have quashed the judgment and order dated 28-12-1983 of the Board of Revenue, Annexure-9, whereby the order of the Execution Court passed in execution of the decree in favour of SMT. Bitana, was set aside.
(2.) THE relevant facts appear like this : Smt. Bitana filed Suit No. 3/17/ 33/172 under Sections 229-B/209 of U. P. Zamindari Abolition and Land Reforms Act in the Court of Sub-Divisional Officer, Hardoi. Gulzari, Shrikrishna and Ram Prakash were defendants 1 to 3 in this suit. Dev Prayag and Ram Prasad, husband of Smt. Bitana were defendants 4 and 5. Gopal, Mangoo, Bafati, Shri Narain, Shrikrishna, Jalim, Nand Lal and Abdullah were the other defendants. She claimed 1/2 share in respect of the disputed plot No. 951 area 4-1-0 while the other half was said to belong to defendants 1 to 3, namely, Gulzari, Shrikrishna and Ram Prakash Other defendants, according to the plaint had no rights in respect of any part of the disputed plot. However, a relief for possession was also sought against defendants 6 to 13 in case they or anyone of them was found in possession of any portion thereof. This suit was dismissed by Sub Divisional Officer by his judgment and order dated 31-8-1970. According to the averments contained in the writ petition, appeal against this judgment was allowed by the Additional Commissioner, Lucknow, on 8-7-1971, according to which Smt. Bitana was held as co-bhumidhar along with defendants 1 to 3 except in regard to one bigha one biswa which was claimed by defendant No. 6 Gopal as his Sirdari. In the second appeal the Board of Revenue remanded the case to the Additional Commissioner and the matter was finally decided by Additional Commissioner by his judgment dated 3-8-1978 whereby the plaintiff was held entitled to a decree for possession in respect of two bigha thirteen biswas of plot No. 951 against Jalim, Nand Lai and Abdullah (defendants 10, 11 and 12). Shri Narain and Gopal defendants 6 to 9 were held bhumidhars to the extent of one bigha one biswa-copy of the judgment is Annexure-1. Through this order Shri Krishna, Jalim, Nand Lal and Rahimullah were directed to be evicted from the plot in question. Earlier judgment dated 8-2-1971 which was adopted in the brief judgment* dated 3-8-1978 has not been filed. In execution of the decree, warrant of possession was issued and the Amin as per the Dakhalnama dated 20-12-1978 delivered possession to Smt. Bitana in respect of two bighas thirteen biswas on the eastern side of plot No. 591. It appears an objection was filed by Gopal regarding delivery of possession which was disposed of by the Sub-Divisional Officer by a detailed order dated 1-5-1980, Annexure-5. According to this order Smt. Bitana was held co-sharer to the extent of two bighas thirteen biswas on the eastern side and possession was rightly delivered over that portion of the land by Amin on 20-12-1978. A revision was filed against this order by Gopal. The Additional Commissioner Lucknow by his order dated 17-11-1980 recommended to the Board of Revenue for setting aside the order of the Sub- Divisional Officer dated 1-5-1980 and the board of Revenue passed order dated 28-12-1983 contained in Annexure-7. The order of Sub-Divisional Officer passed in execution of the decree was set aside by the Board of Revenue on the ground that in the decree under execution, there was no relief for grant of possession of any specified portion on the plot and on the other hand the decree was for joint possession and in the absence of any direction in the decree possession in regard to any particular portion could not be delivered. Petitioner Smt. Bitana has challenged the validity and correctness of this order on the ground that it was open to the execution court to take evidence and demarcate the land and on the basis of evidence recorded by the execution Court the land two bighas thirteen biswas in plot No. 951 claimed by her in the suit was rightly identified. The writ petition has been contested by the respondents 9 and 10, namely, Sunder and Bhure Lal sons of Gopal who was defendant No. 6 in the suit. This Gopal along with Shri Narain was held to be bhumidhar to the extent of one bigha one biswa by judgment of the Additional Commissioner dated 3-2-71, read with judgment dated 8-2-78 which became final between the parties. In the counter-affidavit filed on behalf of respondents 9 and 10, it has been stated that Gopal was held bhumidhar in respect of one bigha one biswa and he was also in possession of one bigha, nine biswas and nineteen biswasn is of plot No. 951/1/3 and there being no decree of possession against him he could not be evicted Through affidavit of Sunder Lal dated 15-9-87 it was stated that old number of plot No. 951 was 694 and that partition had taken place between the ancestors of husband of Smt. Bitana and defendants 1 to 3, Gulzari Lal, Shri Krishna and Ram Prakash dated 10-6-1937, according to which the share of Manohar Shah, ancestor of husband of Smt. Bitana got 1/2 share towards west. Copy of this registered partition deed has been filed as Annexure-SI to this supplementary affidavit. The averments contained in this supplementary affidavit and the partition deed could not be controverted on behalf of the petitioner. As such what appears clearly is that as per partition deed of 10-6-1947 the ancestor of the petitioner got 1/2 share in the disputed plot towards west and her claim on the eastern side as such is not borne out from this document.
(3.) FURTHERMORE, the suit was for joint possession as against defendants 1 to 3 and there was no relief for exclusive possession in respect of particular portion of this plot. A decree passed in favour of the petitioner was also for joint possession, according to the averments contained in the writ petition. The relief of possession as per the order of the Additional Commissioner dated 3-8-78 was granted in respect of two bighas thirteen biswas as against Shri Krishna, Jalim, Nand Lal and Rahimullah. As such, the petitioner was not entitled to claim possession as against the contesting respondents 9 and 10 sons of Gopal. This Gopal, according to paragraph 7 of the writ petition was held bhumidhar to the extent of one bigha one biswa. This means the petitioner could not be delivered possession over one bigha one biswa which was claimed as bhumidhari by Gopal. A perusal of the order of the Additional Commissioner dated 3-8-1978 further indicates that this was the accepted position that the defendant-respondent No. 9 Shri Narain was Bhumidhar of 7 Biswa area. Under the order of the Board of Revenue dated 28-12-1983, Annexure 7, also it was stated that so far as defendant No. 6 Gopal was concerned he was declared Bhumidhar in plot 951 to the extent of 1 Bigha 1 Biswa and defendant No. 9 Shri Narain was declared Bhumidhar of 7 Biswas in this plot. The plaintiff-petitioner was declared to be co-tenant along with defendants 1 to 5 and her share was declared to be 2 Bighas 13 Biswas. The petitioner as also defendant Gopal and after his death Sunder Lal and Bhorey Lal, respondents 9 and 10 in the writ petition as also the defendant Shri Narain are thus entitled to get the Bhumidhari rights as decided and declared in the decree in question.;