Counsel for the Appellant : Mr. Pradeep Hairiya, learned
Standing Counsel and Mr. Yogesh
Chand Tiwari, learned Standing
Counsel.
Counsel Respondents: Mr. D.S. Patni, learned Senior
Advocate assisted by Mr. D.
Barthwal, Mr. Piyush Garg and
Mr. Lalit Sharma, learned counsel
(Mr. Rakesh Thapliyal, J.)
1. The instant second appeal (with connected
matters) is arising out of the proceedings pursuant to
suit filed by the plaintiffs/respondents for seeking
perpetual/ mandatory injunction with the following
relief:-
(b) Mandatory injunction directing the defendant to
restore the plaintiff names in the Khatauni and
other relevant revenue record struck off by the
order of the District Magistrate, Nainital dated
31.12.1981.
2. In para 15 of the plaint, following averment has been
made:-
15. That the plaintiffs possession over the
property in question is not under any grant
under the provision of Govt. Grant Act and in
the circumstances they have reasonable
apprehension that the defendant shall deprive
them of their aforesaid property in an illegal
manner and thus they shall suffer a irreparable
loss which cannot be ascertained in terms of
money or cannot be compensated. Hence, they
are entitled to the protection of the court.
3. A written statement was filed by the State the
relevant extracts of which are being reproduced herein as
under:-
6- fd okn la[;k 5 ftl rjg rgjhj fd;k gS ekU; ugha gSA
okLrfodrk ;g gS fd oknh ds fo:n~/k ;ww0 ih0 ,DV ua0 22 lu~ 1972 dk
eqdnek dk;e gqvk Fkk ysfdu mDr okn ds rF; orZeku okn ds rF;ksa ld
fojhr gksus ds dkj.k izfroknh in cfU/kr ugha gSA
15- fd okn dk in la[;k 15 ekU; ugha gSA oknhx.k dks fcuk dkuwuh
izfdz;k viuk, gqn csn[ky ugha fd;k tk;sxk tgkW rd xoeSZUV xzkUVl dk
iz'u gS mlds izkslsl oknh izfroknh nksuksa ij ykxw gksrs gSa ysfdu nhokuh
okn ds nokjk oknhx.k vius vf/kdkjska dh ?kks"k.kk ugha djk ldrk gSA
23- fd iz'uxr Hkwfe jktdh; Hkwfe gksus ls vkSj xoZesaV xzkUV ,DV ds
vUrxZr gksjs ls ml ij VkUlQj vkQ izksiVhZ ,DV ykxw ugha gksrk gSA
vr,o euksgj yku n~okjk vius thou dky esa voS/k :I ls oknhx.k dk
uke p<+okuk voS/kkfud gksus ls izHkkfor ,oa fujLr FkkA
24- fd oknh us vius uke tks nk0 [kk0 vey njken djok;k og Hkh
vk/kkj jfgr ] dkuwu ds foijhr] vf/kdkj {ks= ls ckgj ,oa voS/k gksus ls
fujLr ,oa izHkkoghu FkkA Sub Divisional Magistrata
Bhabor dks nk0 la0 vihy lquus dk vf/kdkj ugha FkkA
4. No replica was filed. Thereafter trial court proceeded
with the suit by framing following issues:-
(i) Whether the plaintiffs are the Bhumidhars in
possession of the land in suit? As alleged in the
plaint?
(ii) Whether the disputed land belongs to the State
Government and plaintiffs are the trespasser
thereon?
(iii) Whether the Eviction Suit no. 22/9 of 82-83
State vs. Virendra Kumar and others is not
maintainable? As alleged in para 13 of the plaint?
(iv) Whether the order of Collector Nainital dated
31.12.81 is illegal, void and ineffecting? As alleged in
the para no. 10 and 11 of the plaint?
(v) Is the court not competent to try the suit? As
alleged in the W.S.
(vi) Is the suit barred u/s 41 of S.R.Act?
(vii) Is the suit barred u/s 15 of U.P. Act no. 22 of
1972?
(viii) Is the suit undervalued and the court fees paid
is insufficient?
(ix) To what relief if any are the plaintiffs entitled?
5. All the issues were decided in favour of the plaintiff/
respondent.
Issue no. 4 as framed by the trial court is again
reiterated herein as under:-
(iv) Whether the order of Collector Nainital
dated 31.12.81 is illegal, void and ineffecting?
As alleged in the para no. 10 and 11 of the
plaint?
This issue no. 4 was answered by the trial court
which reads as under:
"The plaintiffs right had also been
challenged by the State in mutation cases but
the plaintiff succeeded in those cases also. Now
the defendant is stopped from challenging
these entries, which had become final and
conclusive. There is no evidence on record on
the point that the entries were fictitious and
manipulated fraudulently by the plaintiff. Such
long entries could not be struck off
surreptitiously by the learned Collector without
giving any opportunity of hearing to the
plaintiffs."
It is further observed that under U.P.L.R.
Act 1901 the Collector could correct or struck
off the entries in annual register u/s 33/39 and
40, but there is a procedure for their correction
also. In view of full bench ruling cited in 1980
R.D. at page 1 Bahadur vs. State and another
only applications for the oblivious errors of a
clerical nature could be entertained and where
a error or omission or not of this type a
application for correction u/s 33/39 would not
be maintainable. In view of the Hiralal's case
cited in 1966 R.D. at page 10 entry to be
corrected coming down from 1952 could not be
corrected u/s 33/39 of the Act. The proper
remedy was to file a declaratory suit u/s 229 B
but as per evidence on record entries in the
instant case were corrected/struck off merely
on the advice of D.G.C.(R) and no proceedings
were drawn. Even the copy of the order was not
issued to the plaintiffs as it is evident from the
paper no. 61C. It is settled law that an illegal
order would not be binding on the parties
effected. Since the order was ab initio illegal
and void and against the principle of natural
justice, it had no binding effect on the plaintiffs
and the possession of the plaintiffs remained
with them as it was before passing the
impugned order, Thus it is obvious that the
plaintiffs are the Bhumidhars in possession of
the land in suit and the defendant have no right
over the land. Both the issues are decided
accordingly."
6. The suit filed by the plaintiff was subsequently
allowed and decreed by the Munsif, Haldwani on
20.10.1984. Being aggrieved, with the judgment and
decree passed by the learned Munsif, Haldwani FA No. 113
of 1984, was filed by the State in which cross objection
was filed by the plaintiff/respondent with the following
relief:-
"It is, therefore, prayed that the cross-
appeal/objection may kindly be allowed and the
part of the decree impugned, i.e, "till the
decision of the Board of Revenue, Appl. 6c2 is
also decided accordingly" be rescinded and
deleted from the rest of the decree with cost."
7. Being aggrieved, instant second appeal was
preferred which was dismissed by a detailed judgment
dated 05.11.2004 by holding that there is no substantial
question of law. Subsequently, review petition was also
filed that too was dismissed on 27.08.2005, and thereafter
being aggrieved with the order dismissing the appeal, the
State went in appeal before Hon'ble Apex Court and
Hon'ble Apex Court remanded the matter on 18.05.2023
by allowing the appeals and also set aside the judgment of
the High Court with a direction to expedite the appeals
preferably within 12 months. Further, the State was also
directed to produce the entire records and notification
before the High Court and render assistance in earlier
disposal of these matters. In para 59, the Hon'ble Apex
Court also observed that the matter is being remanded
back to the High Court for fresh adjudication on the issues
formulated in para 34 of the judgment and observations
made above. In para 34 of the judgment, following issues
were framed by the Hon'ble Apex Court which reads as
under:-
i. Did the respondents' predecessor-in-
interest purchase ownership rights or leasehold
rights from Mr. John Vaughan?
ii. In case of the latter, the next question
that arises is whether the leasehold rights stood
legally transferred to the predecessor of
Respondents as per the conditions of the 1924
Lease Deed, which was governed under the
Government Grants Act of 1885?
iii. If the leasehold rights cannot be held to
be validly transferred under the 1924 Lease
Deed, whether the same stood determined at
the time of execution of Sale Deed because of
violation of the stipulated conditions?
iv. If the abovementioned question is
answered negatively, did the 1924 Lease Deed
stand determined at the expiration of the initial
lease period of thirty years?
v. If the 1924 Lease Deed stood determined
after the initial lease period of thirty years,
whether the respondents are entitled to seek
protection of holding over of the lease under
Section 116 of the Transfer of Property Act of
1882?
vi. Alternatively, could the leas ever deemed
to have been subsisted because of the doctrin
of acquiescence and through the conduct of
Respondents? Furthermore, if the same could
accord them any benefit under the Zamindary
Notification?
vii. Regardless of the fact that the lease deed
is deemed to have subsisted, was it possible for
predecessor or Respondents to be accorded the
status of 'Occupancy Tenant' under the 1939
Act, which resulted in them being subsequently
accorded the status of 'Sirdar' under the
Zamindary Notification?
Viii. Furthermore, could the predecessor of
Respondents have been accorded the status of
'Sirdar' through any other alternative method
as indicated under the Zamindari Notification?
In other words, did the Respondents'
predecessor obtain status of 'Sirdar' on account
of being recorded as a 'hereditary tenant' or a
'government lessee' as per Section 131 of the
Zamindary Notification?
8. Now substitution application has been moved for
substituting the legal heirs of Respondent no. 2/3. There is
no objection to this. The same is allowed. Consequently,
setting aside abatement application IA No. 4705 of 2025
also stands allowed.
9. Mr. Lalit Sharma, learned counsel put his appearance
on behalf of legal heirs of respondent no. 2/3 to whom the
application has been moved for substitution.
10. Registry is directed to shown the name of Mr. Lalit
Sharma, as counsel for legal heir of respondent no. 2/3.
Let he may file memo of appearance by 30.06.2025.
11. The State/appellant is directed to file amended
memo of the parties within 24 hours.
12. Put up this matter on 02.07.2025 at 2:00 pm for
further arguments. Both the parties are directed to
prepared two pages synopsis with bullet points.
(Rakesh Thapliyal, J.)
Parul
