Reserved on:20.08.2025 Delivered on:26.08.2025

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

Writ Petition (M/S) No.132 of 2012

Atul Shah and another ......Petitioners

Vs.

Addl. Chief Revenue Commissioner Circuit Court, Nainital, Uttarakhand

& Ors.

…..Respondents

Presence

Mr. Aditya Singh, learned counsel for the Petitioners.

Ms. Mamta Bisht, learned DAG with Mr. Yogesh Tiwari, learned Addl.

CSC, for the State of Uttarakhand.

Mr. Anil Kumar Joshi, learned counsel for the Respondent Nos.6 and 7.

Hon’ble Ashish Naithani, J.

1. The present writ petition under Article 227 of the Constitution of

India has been filed challenging the order dated 01.10.2011 passed by the Additional Chief Revenue Commissioner, Circuit Court, Nainital, whereby the second appeal preferred by Respondents No. 6 and 7 was allowed, setting aside the judgment and decree dated 26.10.2010

rendered by the Additional Commissioner, Kumaon Mandal, Nainital.

2. The land in dispute is situated in Village Damuadunga, Tehsil

Haldwani, District Nainital, comprising plots originally numbered 95/98 (now 88B, 101 to 113), measuring approximately 96 bighas. The

land stood recorded as a maurusi tenancy in the name of Shri Heera Lal Shah, son of Jai Lal Shah. Shri Heera Lal Shah expired in the year 1964, and his three sons, namely Jawahar Lal Shah, Chandra Lal Shah and Kailash Lal Shah, were recorded as his successors in the revenue records.

3. In the year 1972, the land was notified as a reserve forest, but the said declaration was subsequently set aside by the High Court of Judicature at Allahabad by order dated 06.01.1979. Thereafter, the names of the aforesaid three brothers continued in the records, and they were recognised as maurusi kashtkars, and, with the coming into force of the U.P. Zamindari Abolition and Land Reforms Act in the area, they became entitled to be treated as bhumidhar tenure holders.

4. It is alleged that, taking advantage of the absence of his brothers, Shri Jawahar Lal Shah procured mutation of his name exclusively over the entire land, though he was entitled only to one-third share. According to the Petitioners, despite requests, no partition was effected. On the other hand, it is the case of Respondents No. 6 to 8, the sons of late Jawahar Lal Shah, that the entries were valid and that their predecessor had also executed a will in his favour.

5. Shri Jawahar Lal Shah passed away on 27.09.1990. He was succeeded by his three sons, who are Respondents No. 6, 7 and 8 herein. Disputes arose thereafter, leading the Petitioners, who are the sons of the other two brothers, to file a declaratory suit on 07.09.1991 under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act before the Sub-Divisional Magistrate/Assistant Collector, Haldwani. They sought a declaration of their 1/3^rd share each in the land and consequential correction of the revenue records.

6. The trial court dismissed the suit by judgment dated 14.12.2006 (decree dated 18.12.2006). The Petitioners thereafter preferred ZA Appeal Nos. 98 (2006-07) and 84 (2007-08) before the Additional Commissioner, Kumaon Mandal, Nainital. By judgment dated 26.10.2010, the appeals were allowed. The order of the trial court was set aside, and it was held that the Petitioners were entitled to 1/3rd share each, while the remaining 1/3rd share vested in the heirs of late Shri Jawahar Lal Shah. All such heirs were declared to be bhumidhar tenure holders.

7. Aggrieved, Respondents No. 6 and 7 preferred Second Appeal No. 03 of 2010-11 under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act before the Additional Chief Revenue Commissioner, Circuit Court, Nainital. The appellate authority, by the impugned order dated 01.10.2011, allowed the second appeal. It was observed that since one of the parties (Madan Lal Shah) had predeceased the decree of the first appellate court and substitution of his legal heirs had not been carried out, the decree could not stand. Certain discrepancies in the description of the land