Judgment :

1. Delay condoned.

2. Leave granted.

3. Heard learned counsel on either side.

4. Respondents herein had filed a suit, being Revenue Case No. 22/45 Year 1989-90, before the Sub Divisional Magistrate/Assistant Collector (SDM), under Section 229B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short ‘U.P. Act’) stating that they were in continuous cultivation and in possession of land measuring 0.515 hectare in Plot No. 137 of Khata No. 44 in village Itawa Tehsil Sitargunj, District Nainital, for over 20 years. Despite having adverse possession, their names had not been recorded as Bhumidars in the Revenue Records and hence a declaration was sought for to that effect.

5. The Court of the SDM, however, dismissed the suit vide judgment dated 19.03.1991 holding that the respondents could not establish adverse and continuous possession over the disputed land and that the land in question belonged to Tharu tribe and the Bhumidar right could not be obtained by non- Tharu tribe persons. Aggrieved by the said judgment, the respondents took up the matter in appeal before the Additional Commissioner (Judicial), Kumaon Division, Nainital under Section 331 of the U.P. Act.

6. The appeal was elaborately considered by the Additional Commissioner, on law as well as on facts, and he recorded a finding that the land in dispute belonged to original ‘Kashtkar’ (tillers) of the land, members of Tharu tribe and on their land the respondents could not claim any Bhumidar rights. Further, it was also held that the adverse possession of the respondents for prescribed period before 3.6.1981 could not be proved. Holding so, the appeal was dismissed vide judgment dated 12.07.1991 and the order of the SDM was confirmed.

7. The respondents again took up the matter in two separate appeals before the Board of Revenue under Section 331(4) of the U. P. Act and both the appeals were heard together. The respondents claimed that their rights had been perfected before the Act 20 of 1982 came into force by which the provision prohibiting the perfection of title on the land belonging to Scheduled Tribe was added.

8. The Board of Revenue took the view that the Lakhpal, examined on behalf of the State, had admitted the possession of the respondent’s land and they were in continuous possession for over twenty years on the date of the institution of the suit and had perfected their title under Section 210 of the U.P. Act, before incorporation of the proviso by Act No. 20 of 1982.

The Board of Revenue, therefore, allowed the appeals and decreed the suit vide its order dated 29.1.1992 and set aside the orders passed by the SDM and the Additional Commissioner.

9. State of Uttarakhand (previously State of Uttar Pradesh), through the District Collector, preferred Writ Petition (M/S) Nos. 4031 of 2001 and 4034 of 2001 etc., before the High Court of Uttarakhand at Nainital. The High Court dismissed both the writ petitions vide order dated 21.11.2008 following its earlier order dated 07.08.2008 passed in Writ Petition No. (M/S) 4035 of 2001. Aggrieved by the same, these appeals have been preferred by the State of Uttarakhand.

10. Smt. Rachana Srivastava, learned counsel appearing for the State of Uttarakhand, submitted that the High Court and the Board of Revenue have committed an error in reversing the well considered judgments of the SDM and the Additional Commissioner. Learned counsel pointed out that they had come to the definite conclusion on facts that the respondents had not established any right under Section 210 of the U.P. Act. The Revenue record produced would clearly establish that the respondents had not perfected their title by adverse possession or otherwise. Further, it was also pointed that the Board of Revenue had failed to frame any substantial question of law as per Section 331(4) of the U. P. Act and under Section 100 C.P.C. as amended, consequently, committed a grave error in reversing the concurrent findings rendered