Document Fragment View
Fragment Information
Showing contexts for: 229b in Buddh Prakash And 2 Others vs State Of U.P. And 10 Others on 25 January, 2024Matching Fragments
1. Heard Mr. Rahul Sahai, learned counsel for the petitioners, Mr. Mridul Kumar, learned Standing Counsel for the State-respondents and Mr. Rakesh Pandey, learned Senior Counsel assisted by Mr. Raj Kishore Pandey, learned counsel for the contesting respondent nos.4/2.
2. Brief facts of the case are that the dispute relates to plot no.988 area 0.29 acre (old plot no.1262 / 3, 1264/4) situated in Village-Tindwari, Pargana Tahsil & District- Banda. A civil suit no.115/ 1982 for mandatory injunction was filed on behalf of the Sheetal Prasad (father of respondent no.4/1 & 4/3) in respect to plot no.988 area 0.29 acre stating that the petitioners are recorded owner of the plot in dispute and defendants have carried out unauthorized construction in the north western corner of plot no.988, which is liable to be removed. Trial Court decreed the plaintiff suit vide judgment and decree dated 29.5.1985. Against the judgment and decree dated 29.5.1985 passed by trial Court, petitioners' father filed civil appeal No.63/1985 which was allowed vide judgment dated 5.11.1985 setting aside the judgment and decree of trial Court dated 29.5.1985 on the ground of jurisdiction. The decree passed by the lower appellate Court was maintained up to Hon'ble Apex Court in special leave to appeal. Hon'ble Apex Court while dismissing the leave to appeal vide judgment dated 23.8.1999 permitted the plaintiff to avail appropriate remedy before appropriate forum. After the adjudication of civil suit by Hon'ble Apex Court vide judgment dated 23.8.1999 on the ground of jurisdiction Sheetla Prasad- (father of respondent nos.4/1 to 4/3) instituted a suit under Section 229B read with Section 209 of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. &. L.R. Act") in respect to plot no.988 area 0.29 acre, which was registered as Suit No.1 /60 of 2005-2006. Trial Court framed the issues in the aforementioned suit and permitted the parties to lead the evidence in support of their cases. Trial Court vide judment and decree dated 10.2.2017 decreed the plaintiff suit. The judgment and decree of trial Court dated 10.2.2017 has been maintained in appeal under Section 331 (3) of U.P.Z.A. & L.R. Act by the Commissioner vide judgment dated 12.3.2019. The judgment of Commissioner dated 12.3.2019 has been maintained further in second appeal by the Board of Revenue vide judgment dated 24.2.2023, hence this writ petition on behalf of the petitioners for the following reliefs:
iii. to issue a writ, order or direction in the nature of certiorari for quashing the judgment / order dated 10.2.2017 passed by the Deputy Collector (Revenue) / Assistant Collector Ist Class Banda in O.S. No.1/60 of 2005-06 (Sheetal Prakash vs. Buddh Prakash and Others) (Annexure No.4 to the writ petition)."
3. Learned counsel for the petitioners submitted that the suit under Section 229B/209 of U.P.Z.A. & L.R. Act filed by the plaintiff-respondent was decreed in the arbitrary manner. He further submitted that although issues were framed in the suit but the trial Court has not decided the suit in proper manner according to the issues framed in the suit. He further submitted that by cryptic order, the suit under Section 229B / 209 of U.P.Z.A. & L.R. Act has been decreed. He next submitted that earlier the civil suit for injunction was contested between the parties up to the Hon'ble Apex Court and civil suit was ultimately decided against the contesting respondents. He also submitted that without taking into consideration, the earlier proceeding which was contested between the parties, the suit under Section 229B/ 209 of U.P.Z.A. & L.R. Act cannot be decreed. He further submitted that the appeal and second appeal have been also decided in arbitrary manner, as such, the impugned judgments passed by the trial Court/ first appellate Court / second appellate Court are liable to be set aside and matter is to be remitted back before the trial Court to decide the suit afresh in accordance with law.
4. Mr. Rakesh Pandey, learned Senior Counsel assisted by Mr. Raj Kishore Pandey, learned counsel for the contesting respondent nos.4/2 submitted that there is no limitation for filing the suit under Section 229B of U.P.Z.A. & L.R. Act. He further submitted that earlier civil suit which was contested between the parties was for injunction and the instant suit has been filed for declaration, as such, the same was rightly entertained and decreed by the trial Court. He further submitted that the trial Court has considered the respective case of the parties as well as evidence on record adduced by the respective parties. He further submitted that considering the consolidation entries of the plot in question, the suit was decreed by the trial Court and decree has been maintained in first appeal as well as second appeal. He further placed the finding of fact recorded by the trial Court which has been maintained in appeal. He next submitted that no interference is required against the concurrent finding of fact recorded by the trial Court/ first appellate Court/ second appellate Court.
9. It is material that trial Court after recording finding on ownership, possession, limitation & bar of Section 49 of U.P. Consolidation of Holdings Act, 1953 has replied every issues framed in the suit as such it can be said that issues framed in the suit has not been decided by trial Court.
10. So far as scope of suit under Section 229B of U.P.Z.A. & L.R. Act is concern, this Court in the case reported in 2005 (99) R.D. 529, Pan Kumari vs. Board of Revenue, U.P. at Allahabad & Others has held that the suit under Section 229B of U.P.Z.A. & L.R. Act are suit of special character and there is no limitation for filing suit under Section 229B of U.P.Z.A. & L.R. Act. Paragraph No.6 of the judgment rendered in Pan Kumar (supra) will be relevant for perusal, which is as under: