The necessity of framing substantial questions of law in second appeals is mandated, and mere long-term possession does not equate to adverse possession without requisite proofs of hostility.

JUDGMENT :

SAURABH SHYAM SHAMSHERY, J.

(Re: Civil Misc. Delay Condonation Application No. 2 of 2022 filed in Writ (B) No. 16410 of 1984)

Delay condonation application is allowed.

Delay in filing the recall application is condoned.

(Re: Civil Misc. Recall/Restoration Application No. 3 of 2022 filed in Writ (B) No. 16410 of 1984)

Cause shown for filing recall application is sufficient.

Recall application is allowed.

Order dated 08.03.2011, whereby the writ petition was dismissed for want of prosecution, is recalled.

The writ petition is restored to its original number.

Order on Petitions

1. Heard Mr. Diwan Saifullah Khan, learned counsel for petitioner, Mr. H.N. Singh, learned Senior Advocate, assisted by Mr. D.K. Srivastava, learned counsel for contesting respondents and Mr. Abhinav Krishna Srivastava, learned counsel for contesting respondents.

2. In the present case it is undisputed that the original respondent no. 5 has suffered an order of eviction under Rule 115C of U.P. Zamindari Abolition and Land Reforms, Rules, 1952.

3. The challenge thereof for eviction from the property in suit at the behest of the said respondent, before the Board of Revenue, was unsuccessful.

4. The present proceedings are arising out of a subsequent suit filed by the said original respondent under Section 229 B of U.P.Z.A. & L.R. Act, that on the basis of his long possession on the land in dispute he may be declared Shirdar.

5. In the aforesaid proceedings following 4 issues were framed:

6. The said suit was rejected by the Additional Collector, Agra, by an order dated 22.02.1975, that the plaintiff/original respondent no. 5 has failed to prove his possession as well as that the limitation provided at Serial no. 53 of Appendix III of Rule 338 of U.P. Zamindari Abolition and Land Reforms, Rules, 1952, would not be applicable in the facts and circumstances of the case, since the proceedings under Rule 115 C of the said Rule was only an order and not a decree.

7. The relevant part of above order is mentioned hereinafter:

8. The above referred order was challenged by the plaintiff/original respondent no. 5 by way of an Appeal No. 209/75-76 before the Additional Commissioner Agra, Division, Agra, however, the same was also rejected by an order dated 08.11.1976 affirming the findings returned by the Trial Court.

9. The relevant part of said order is mentioned hereinafter:

10. In the aforesaid circumstances, plaintiff/original respondent no. 5 filed a Second Appeal before the Board of Revenue. The Second Appeal was allowed by an order dated 28.08.1984 reversing the concurrent findings of the Trial Court and the First Appellate Court that limitation of one year provided under above referred schedule was applicable and since no proceedings were executed to evict the plaintiff/original respondent no. 5 and on basis of evidence since he was successful in showing his possession for last 12 years, the suit was accordingly decreed.

11. The relevant part of said order is reproduced hereinafter:

“9. Both the court below have committed illegality in not applying the period of limitation for executing order dated 18.06.1969 of Assistant Collector Ist Class under Rule 115-C which became final after rejection of revision by Board. The reasoning of both the courts below that period of limitation for execution of decree is not applicable to such order is highly erroneous and there is no evidence on record that any dakhal was taken and the plaintiff- appellant was ejected from the disputed land by exec