IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/ S) No. 573 of 2007

Smt. Hema Devi … Petitioner

Versus

State of Uttaranchal & Others … Respondents

Mr. B.D. Pande, Advocate, for the petitioner.

Mr. Yogesh Chandra Tiwari, Standing Counsel, for the State.

Mr. Jitendra Chaudhary, Advocate for the respondent no. 3 to 6.

J U D G M E N T In Suit No. 22/55, filed by Narayan Singh, petitioner was added as defendant no. 7; since Bhawani Dutt, original tenure holder, passed away before filing of suit by Narayan Singh, therefore, his legal representatives were added as defendants in the said suit. Petitioner filed counter-claim in the suit filed by Narayan Singh claiming bhumidhari right over the land belonging to Bhawani Dutt, by contending that it is she, and not Narayan Singh, who perfected title by adverse possession. Both suits were dismissed by learned Trial Court (Assistant Collector, 1^st Class), vide common judgment dated 28.6.1993.

Hon’ble Manoj Kumar Tiwari, J.

This writ petition, filed under Article 227 of

the Constitution, is directed against the judgment dated 28.6.1993, rendered by Assistant Collector, 1^st Class, Haldwani in Suit No. 22/94 of 1986-87 (renumbered as Suit No. 22/27 of 1992-93); judgment dated 24.2.1994, passed by Commissioner, Kumaon Division, Nainital in Appeal No. 288 of 1992- 93; and also the judgment and order dated 11.3.2004, passed by Additional Chief Revenue Commissioner, Uttarakhand in Second Appeal No. 94

of 1993-94.

2. It transpires that petitioner and her uncle’s son, namely, Narayan Singh filed separate suits claiming bhumidhari right due to adverse possession, over the land belonging to one Mr. Bhawani Dutt. Both the suits were filed under Section 229-B of Zamindari Abolition and Land Reforms Act. The suit filed by petitioner was numbered as Suit No. 22/27 of 1992-93, while the suit filed by her cousin Narayan Singh was registered as Suit No. 22/55 of 1986-87.

3. Counter-claim filed by petitioner in Narayan Singh’s Suit No. 22/55 of 1986-87 was also dismissed by Trial Court by holding that neither Narayan Singh nor petitioner could substantiate their claim that they perfected their title by adverse possession. Learned Trial Court further held that the land in question is public utility land and bhumidhari right cannot be granted in respect of such land. Learned Trial Court further held that no evidence was led to show that the revenue entries made in favour of the original tenure holder were forged and fictitious. Regarding petitioner’s counter-claim, Trial Court held that she could not produce any evidence in support of her claim regarding continuous possession over the land in question.

4. Petitioner filed one appeal against dismissal of her Suit No. 22/27 of 1992-93, however she did not challenge dismissal of her counter-claim by the Trial Court. Narayan Singh also filed first appeal challenging dismissal of his Suit No. 22/55 of 1986- 87. Both the appeals, one filed by petitioner and another by Narayan Singh, were dismissed by learned Commissioner, Kumaon Division by common judgment dated 24.2.1994. Learned First Appellate Court affirmed the finding returned by Trial Court on the plea of adverse possession, taken by petitioner as well as Narayan Singh.

5. Against the judgment rendered by learned Commissioner, petitioner filed second appeal before Additional Chief Revenue Commissioner, while Narayan Singh did not file any second appeal. Second Appeal No. 94 of 1993-94, filed by petitioner, was dismissed by learned Additional Chief Revenue Commissioner vide judgment dated 11.3.2004. Learned Second Appellate Court refused to interfere with the finding returned by the Trial Court, as affirmed by the First Appellate Court. Learned Additional Chief Revenue Commissioner held that part of the land comprised in Khata No. 20 and 39 is public utility land, over which bhumidhari right cannot be granted to anyone. The Second Appellate Court further observed that as legal representatives of Bhawani Dutt do