Suresh Chandra Vs State of Uttarakhand through Collector

Mr. M.C. Kandpal, learned Senior Advocate assisted by Mr. Devesh Kandpal, learned counsel holding brief of Mr. Chitrarth Kandpal, learned counsel for the petitioners.

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Mr. R.C. Joshi, learned Brief Holder for the State/respondent no.1. Mr. Lalit Belwal, learned counsel for the respondent nos.3, 4 & 5.

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Hon'ble Pankaj Purohit, J.

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By means of present writ petition, petitioners have sought the following reliefs:-

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“(i) Issue a writ, order or direction in the nature of certiorari of quash/set-aside the order dated 10.05.2018, passed by the Additional Commissioner, Kumaun Mandal, Nainital in Revision No.18 (2017-18) under Section 333 U.P. Z.A.L.R. Act, Smt. Saraswati Devi and other vs. Suresh Chandra & others.

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(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to sale/alternate or change the nature of the property in dispute.”

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Brief facts of the case are that the property in dispute, i.e., Plot No. 213, measuring 0.85 hectare, situated in Damuwadhunga Bandobasti, Tehsil Haldwani, District Nainital, originally belonged to Smt. Haruli Devi. On 12.04.1962, Smt. Haruli Devi executed a gift deed in favour of Late Shambu Dutt Tiwari, the father of the petitioners. The property was thereafter recorded in the Khatauni in the name of the petitioners’ father on 12.01.1993, after deletion of the name of Smt. Haruli

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Devi. The name of the petitioners’ father continued to be recorded in the Khatauni from Fasli year 1402 to 1407 as Bhoomidhar . Subsequently, one Shri Hari Dutt filed Revenue Suit No. 22/448 of 2004-05 before the Assistant Collector, 1st Class, Bhawar, Haldwani, Nainital, under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950, against the father of the petitioners. He claimed that the father of the petitioners was the Bhoomidhar of the land in dispute but that he (Hari Dutt) had acquired ownership rights over the same by virtue of adverse possession. Accordingly, he sought a declaration of bhoomidhari rights over the disputed property. The said suit was decided ex parte on 12.01.2007 against the petitioners’ father, declaring Hari Dutt as the Bhoomidhar-owner of the disputed property. Thereafter, the father of the petitioners filed an application under Order IX Rule 13 of the Code of Civil Procedure before the Assistant Collector, 1st Class, Bhawar, Haldwani, Nainital, for recall of the aforesaid judgment and order. After hearing both parties, the restoration/recall application was allowed on 15.02.2008, and the case was restored. The father of the petitioners was granted time to file a written statement, which he subsequently did. Thereafter, the father of the respondent filed Revision No. 58 of 2007-08 before the Commissioner, Kumaon Mandal, Nainital. The Commissioner allowed the said revision vide order dated 11.06.2008 and remanded the matter to the trial court for decision after hearing both parties. Aggrieved, the father of the petitioners filed Revision No. 9 of 2008 before the Additional Chief Revenue Commissioner. The said revision was decided on 29.06.2012, and the matter was again remanded to the trial court with directions to decide the application under

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Order 9 Rule 13 CPC after hearing both parties on merits. The trial court, after hearing both sides, allowed the application and recalled the orders dated 19.11.2007 and 12.01.2007, as well as the decree dated 16.01.2007, vide its judgment and order dated 23.11.2017. During this period, the father of the petitioners, the husband of respondent no. 3, and the father of respondent nos. 4 and 5, passed away. Thereafter, Smt. Saraswati Devi (wife of late Hari Dutt) and his sons, Shri Pramod Chandra and Shri Umesh Chandra, filed Revision No. 18 (2017-18)/45 (2017-18) against the petitioners (sons of late Shambu Dutt) challenging the order dated 23.11.2017 before the Additional Commissioner, Kumaon Mandal, Nainital. The learned Additional Commissioner, vide order dated 10.05.2018, set aside the order dated 23.11.2017 and remanded the matter to the trial court with a direction to rehear the case on the restoration/recall application. Feeling aggrieved, the petitioners have approached this Court.

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It is contended by learned Senior Advocate appearing for the petitioner that that the impugned order dated 10.05.2018 passed by the learned Additional Commissioner, Kumaon Mandal, Nainital, is wholly illegal, arbitrary, and contrary to the settled principles of law, inasmuch as the trial court had already decided the restoration application on merits after hearing both the parties, and therefore there was no justification for remanding the matter once again for rehearing on the same issue. He further contends that the learned Additional Commissioner failed to appreciate that the order of recall dated 23.11.2017 did not finally decide the rights of the parties, but merely restored the suit to its original number to be decided on merits. Therefore,

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interference at this interlocutory stage was wholly unwarranted.

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Learned Senior Advocate appearing for the petitioners also submits that the petitioners, being the lawful successors of Late Shambu Dutt Tiwari, derive valid title over the property in dispute through a registered gift deed dated 12.04.1962, duly reflected in the Khatauni entries. The respondents’ claim of adverse possession is false and untenable in law.

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Respondent No. 1 has filed a counter affidavit. In the counter affidavit, it has been stated that the learned Additional Commissioner, Kumaon Mandal, has merely remanded the matter to the trial court for fresh consideration after providing full opportunity of hearing to both parties, and that the said order is well-reasoned and requires no interference. It has further been stated that the present writ petition, being directed against a remand order, is not legally maintainable and is therefore liable to be dismissed.

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Respondent nos. 3, 4, and 5 have also filed a counter affidavit. In the counter affidavit, it has been stated that the impugned order is legal and based on sound principles of law, and that the order dated 23.11.2017 was rightly set aside. It has been specifically denied in the counter affidavit that the decree was obtained by any fraud or collusion.

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In reply to the counter affidavit filed by respondent no. 5, the petitioners have filed a rejoinder affidavit. In the rejoinder affidavit, it has been stated by the petitioners that no person can be declared as Bhoomidhar on the basis of adverse possession. It has

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further been stated that the respondent has filed the revision against the ex parte recall order only with the intention to delay the proceedings, whereas the trial court has rightly directed that the case be heard and decided on its merits.

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Heard learned counsel for the parties and perused the material available on record.

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The principal grievance of the petitioners is that the learned Additional Commissioner erred in remanding the matter once again when the trial court had already decided the restoration application on merits after hearing both sides. It is contended that the order dated 23.11.2017 merely restored the suit for decision on merits and did not finally adjudicate the rights of the parties, and therefore, interference at that stage was wholly unwarranted.

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Having considered the rival submissions, this Court finds that the impugned order dated 10.05.2018 does not finally decide the rights of either party. The Additional Commissioner has only remanded the matter for reconsideration of the recall application after affording full opportunity of hearing to both parties. Such an order is interlocutory in nature and is intended to ensure compliance with the principles of natural justice.

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It is well settled that writ jurisdiction under Article 227 of the Constitution is not ordinarily exercised against remand orders unless it is demonstrated that the authority concerned has acted wholly without jurisdiction or in flagrant disregard of law. In the present case, the impugned order merely directs the trial court to rehear the restoration application. No illegality or

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perversity is apparent on the face of the record. Further, as the impugned order ensures that both sides are given adequate opportunity to present their case before the trial court, this Court does not find any ground to interfere at this stage.

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For the reasons stated above, this Court finds no merit in the writ petition. The impugned order dated 10.05.2018 passed by the Additional Commissioner, Kumaon Mandal, Nainital, does not suffer from any illegality or infirmity warranting interference under Article 227 of the Constitution of India.

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Accordingly, the writ petition is dismissed. However, the learned trial court is directed to expedite the hearing of the application filed under Order 9 Rule 13 of the CPC, which shall be decided in accordance with law, but not later than two months from the date of production of the certified copy of this order.

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Pending application, if any, stands disposed of accordingly.

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(Pankaj Purohit, J.) 10.11.2025

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AK

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Suresh Chandra v. State of Uttarakhand through Collector

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Suresh Chandra v. State of Uttarakhand through Collector

Case brief

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