JUDGEMENT
B.L. Yadav, J. -
(1.)BY this petition under Article 226 of the Constitution, the Petitioner has prayed for a writ of certiorari quashing the order dated 10 -3 -1977 passed by the Board of Revenue in a suit under Section 209 of the UP ZA and LR Act (hereinafter referred to as the Act) filed by the Petitioner alongwith Om Prakash for ejectment of Respondents Nos. 4 and 5 from plot Nos. 11/6/4 area about 23 bighas situate in village Pandri Jagir, Pargana Richa, Tahsil Baheri, district Bareilly. The suit was filed by making allegations that Plaintiff purchased the land from Hari Raj Singh by sale deed dated 22 -6 -1966 and came in possession over the land and continued in possession peacefully, but the Respondents Nos. 4 and 5 i.e. Defendants Nos. 1 and 2 took possession otherwise than in accordance with law and against the consent of the Petitioner in 1375 -F. The relief for damages was also claimed. The Respondents Nos. 4 and 5 contested the suit alleging that the Plaintiffs were not bhumidhars and the sale deed was illegal and the land was not identifiable on the spot and that the Defendants were not trespassers, rather they have acquired sirdari rights. It may also be stated that the Defendants did not take any objection about the validity of the notice under Section 80, Code of Civil Procedure.
(2.)THE State Government, however, filed a separate statement denying the Plaintiffs claim and also took an objection that notice under Section 80, Code of Civil Procedure was not given to or served on the State and that the suit was not maintainable.
The trial court framed issue No. 1 on the ground whether Plaintiff had served notice on the State and in case notice has not been served what is its effect. This issue was, however, replied to the effect that although the State Government has filed the written statement but it did not contest the matter further and hence the validity of the notice under Section 80, Code of Civil Procedure does not have any effect on the case. The suit was on merits decreed by the judgment and order dated 29 -9 -1972.
(3.)THE Respondents Nos. 4 and S preferred a first appeal which was dismissed as regards the other points, but it was held that notice under Section 80, Code of Civil Procedure was mandatory and on account of the absence of the notice he suit was defective and liable to be dismissed under Order VII, Rule 11 -D of the Code of Civil Procedure. In this view of the matter the appeal was allowed and the suit of the Petitioner was dismissed. The second appeal filed by the Petitioner also failed. It is against the judgment of the Board of Revenue dated 10 -3 -1977 and of the Additional Commissioner dated 18 -6 -1973 that the present petition has been filed.
Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.