Reserved judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1105 (M/S) of 2010 Maheshwaranand Gaur S/o Sri Bishnu Dutt Gaur and three others - Petitioners. Versus District Magistrate, Pauri and two others - Respondents. Mr. T.S. Phartiyal, Mr. B.P. Nautial, and Mr. G.S. Negi, Advocates for the petitioners. Mr. Sudhir Kumar, Brief Holder, for respondents 1 and 2. Mr. Raman Kumar Sah, Advocate for respondent No.3. (Hon’ble B.S. Verma, J.) By means of this petition the petitioners have sought a writ in the nature of certiorari for quashing the impugned order dated 23-4- 2010( Annexure No.10 to the writ petition), passed by District Judge, Nainital, whereby Misc. Application No. 45/2007 has been dismissed and District Magistrate, Pauri Garhwal has been directed to hand over the possession of the disputed land to Sri Mahavir Singh. It is further prayed that a direction be issued to respondents 1 and 2 not to hand over the possession of the disputed land to Mahavir Singh, Respondent No.3, which belongs to the petitioners in Khata No. 56. Briefly stated the facts giving rise to this writ petition according to the petitioners, are that they have purchased land from Govind Ballabh S/0 Narayan Dutt in Khata No. 56 measuring 0.0168 hectare on 20-10-1999 in village Nandpur, Motadhak Tehsil Kotdwar and the petitioners names were also mutated in the Khata. Adjacent to the land of the petitioners, the land of respondent No.3 is also situated in Khata No.29. It is stated in para-5 of the writ petition that Mahavir Singh respondent No.3 had also instituted revenue suit No. 20/1999-2000 Mahavir Singh Vs. Maheshanand and others in the court of Assistant 2 Collector Ist Class Kotdwar U/S 209 of U.P. Z.A. and L.R. Act against the petitioners for ejectment stating that the petitioners have taken possession over his land by making a boundary wall measuring 78.80 x 2.80 meter. The said suit was dismissed by Assistant Collector Kotdwar by his judgment and order dated 3-9-2002. After dismissal of revenue suit Mahavir Singh again instituted Civil Suit No. 2/2003 Mahavir Singh Vs. Diwakar Khantwal and the petitioners, in the court of Civil Judge (J.D.) Kotdwar for permanent injunction restraining the petitionrs not to raise the construction. That suit was also dismissed by the Civil Judge (J.D.) Kotdwar and the petitioners had proved that the disputed land is in their ownership and possession. The controversy arose when one Smt. Malti Devi moved Misc. Application No. 1/2003 for execution of Motor Accident Claim Tribunal award of MACT Case No. 137 of 1999 Malti Devi Vs. Mahavir Singh and the Tribunal made request to Collector Pauri to recover the amount as arrears of land revenue. Pursuant to the order of Motor Accident Claims Tribunal, proceeding of recovery was initiated by the revenue authorities and the land of respondent No.3 Mahavir Singh was attached vide order dated 26-7-2004. After the attachment order the claimant and the respondent No.3 arrived at some compromise. The learned Motor Accident Claims Tribunal/District Judge has stayed further proceeding of recovery vide order dated 22-8-2004 and passed the order that attachment shall continue till the amount is paid. Thereafter vide order dated 5.7.2007 when the defaulted amount of the award was paid, the execution application was dismissed after full satisfaction on 11.4.2007 and direction was given to Assistant Collector Kotdwar to release the land measuring 2 Bighas ( 130 hectare) of Khata Nos. 56 and 29, which was attached on 26-7-2004, in favour of Mahavir Singh and hand over the possession to him. In compliance of the order the Assistant Collector did not hand over the possession to Mahavir Singh and only the attached land was released favour of respondent No.3 Mahavir Singh. Then the learned District Judge, Nainital on the Misc. Application No. 4-C moved by the judgment debtor, again directed the District Magistrate, Pauri Garhwal that in compliance of court’s 3 order dated 11.4.2007 possession of attached land be given to respondent No.3. After the order of District Judge, Nainital, the Collector Pauri has sent report dated 10-8-2007, to the District Judge, narrating all the facts and has mentioned in it that symbolic possession was taken over from Mahavir Singh and no physical possession was taken from him and no action was taken for the attachment of land and the land was also not given in the supurdagi of any one. If the land in question was in possession of Mahavir Singh, even after the attachment, and if any persons enter into the possession of the land during the attachment, for that Sri Mahavir Singh is responsible and he may initiate appropriate action for the ejectment of those persons. Thereafter the respondent No.3 Mahavir Singh again moved Misc. Application No. 45/2007 for disobedience of the order and after perusal of report of the Collector and all other relevant records, the learned District Judge, Nainital has dismissed the application vide impugned order for want of evidence and again directed the District Magistrate, Pauri Garhwal that the order of the court dated 11.4.2007 be complied with. Aggrieved by this order the petitioners, who claim to be the owners of land in Khata No. 56 have filed this present writ petition. Counter affidavit has been filed by respondent No.3 in reply to refute the contentions of petitioners and it has been averred that respondent No.3 was owner of a jeep which met with an accident and in a MACT Case an award was passed against him on 2-10-1998, for which recovery proceeding was initiated and his land of both the Khatas 56 and 29 was attached on 26.7.2004 and Z.A. Form 73-D was issued in which boundaries of land were mention, the details of which is given in para No.5 of the counter affidavit. Form 73-D is also attached along with counter affidavit as C.A.-2. It is also averred in para-6 of the counter affidavit that respondent No.3 made a complaint against the son of Sri Vishnu Dutt Gaur who is at present Naib Tehsildar Pauri that he is disturbing the attachment property and Patti Patwari Motadhak has issued a letter/order dated 17-10-2006 that no construction should be raised over the attached property. Copy of the order dated 17-10-2006 has also been annexed as Annexure No.3 to 4 the counter affidavit. The aforesaid letter was issued by the Patwari to Bishan Dutt Gaur, Sunil Kumar, Sushil Kumar and Maheshanand. In para-7 it has been stated that order dated 17-10-2006 issued by Patwari was assailed by the petitioners by filing W.P. No. 1914 (MS) of 2006 before this Court and this Court vide order dated 22.12.2006 dismissed the petition at admission stage. The order of this court has also been annexed as Annexure No. C-A-4 to the counter affidavit. It is further stated in para-8 of the counter affidavit that when the land was attached on 27-6-2007, the attached land was in possession of respondent No.3 Mahavir Singh. Counter affidavit has been filed by the State and alleged that pursuant to order dated 23.4.2010 passed by District Judge Nainital, in contempt petition No. 45 of 2007, the District Magistrate, Pauri Garhwal vide order dated 3.6.2010 issued direction to Assistant Collector Kotdwar to hand over the possession of the attached land to respondent No.3. It is further alleged in the counter affidavit that the petitioners have various remedies in respect of disputed land under the provision of U.P. Z.A. and L.R. Act as well as Kumaon and Uttarakhand Zamindari Abolition Act to seek efficacious remedy and the writ petition is liable to be dismissed. In reply to counter affidavit the petitioners also filed rejoinder affidavit. Copy of sale-deed of the land which was purchased by the petitioners from Govind Ballabh on 20-10-1999 has been filed. In para-5 of the rejoinder affidavit it is stated that the complaint was made by respondent No.3 and allegation against Janardhan Prasad Naib Tehsildar is also false. Petitioners are in possession over the land since 1999 and the report of Patwari is illegal. In para-7 it is stated that as per revenue authority the physical possession over the land was not taken by the department due to the reason that respondent No.3 has sold out his land by registered sale deeds, copy of which has been annexed R.A.2. According to the petitioners the land was sold on 19- 6-2004 and the land was attached on 26-7-2004. In para-12 of the rejoinder affidavit it is stated that after the order of rejection of writ petition wherein liberty was given to the petitioners to move application before the appropriate authority, the application was moved U/S 151 C.P.C. in contempt proceeding before the District 5 Judge/MACT Nainital, by the petitioners and the averments made in the writ petition were reiterated in the rejoinder affidavit. I have heard learned counsel for the parties and perused the entire material on record. To decide the controversy in the case, sale deeds, which are in favour of petitioners, and have been executed by respondent No.3, as alleged by the petitioners, and other revenue entries are to be perused and it is to be seen whether the impugned order passed by District Judge, Nainital, is against the material on record and is perverse order. So far as the document of sale deed which was executed by Mahavir Singh in favour of Sushma Devi dated 19-6-2004 is concerned that pertains to Khata No. 29 and its plot number is 198-A of revenue village Nandpur and its area is 0.064 hectare. Another sale deed which was executed by Mahavir Singh is dated 19-12-2006 which was in favour of Smt. Sharda Devi wife of Umrao Singh Rawat and the land also pertains to the land of Khata No.29 of revenue village Nandpur, Patti Motadhak Tehsil Kotdwar. On the basis of these sale deeds names of purchasers have been mutated in revenue record in Khata No.29 as it reveals from Khautani C.A.-2. So far as the sale deed dated 20-10-1999 in favour of the petitioners which was executed by Govind Ballabh is Annexure No.10 to the counter affidavit filed by respondent No.3, the the land of this sale deed pertains to plot No. 198-B and its Khata number was 61 in the year 1999 and now Khata No. is 56 according to petitioners themselves and it also reveals from Khautani pertaining to Khata No. 56. Therefore, in view of the fact that by bare perusal of the sale deeds, the land of plot No. 198-B is recorded in Khata No. 56 and plot No. 198-A is recorded in Khata No. 29. It is pertinent to mention here that the Khata number changes after every five years when new khautani is prepared as per alphabet, but the plot numbers remain the same and it only changes in settlement proceeding or in consolidation proceeding. There is no dispute between the parties that the land plot No.198-A is recorded in Khata No. 29 and land of plot No. 198-B is recorded in Khata No. 56. According to respondent No.3 he sold out the land of Khata No. 29, plot No. 198-A to Smt. Sushma Devi and to Smt. Sharda Devi 6 and that land has no concern with the land of Khata No. 56 and both the numbers are differently marked on sazara as plot No. 198-A and 198-B, as reveals by the report of Patti Patwari dated 20-9-2007 available on original record which was produced by learned Brief Holder for the State before the Court. As per above report of Patwari 0.070 hectare land of Khata No. 29 was attached, which was sold out by the respondent No.3 and 0.060 hectare land was attached out of 0.130 hectare land from Khata No. 56 and the respondent No.3 is also recorded tenure holder of 0.130 hectare land in Khata No. 56 and the contention of petitioners is totally false that respondent No.3 is not having any share in Khata No. 56. Learned counsel for the petitioners has vehemently contended that since the respondent No.3 had already sold out his land to Smt. Sharda Devi and Smt. Sushma Devi and possession was never taken up by the revenue authorities at the time of attachment of the land, in the garb of attachment order the respondent No.3 wants to take possession of the land of the petitioners, for which revenue suit No. 20/1999-2000, U/S 209 U.P. Z.A. and L.R. Act and Civil Suit No. 2/2003 were filed by respondent No.3 and these suits have been dismissed. Therefore, the respondent No.3 has no right in the land which is in possession of the petitioners. In reply, the learned Advocate Sri Raman Kumar Sah, appearing on behalf of respondent No.3 has submitted that civil suit and the suit U/S 209 of U.P.Z.A. and L.R. Act have been filed regarding the land of Khata No. 29 and no suit has been filed with respect to the land of Khata No.56. In support of his contention, learned counsel for the respondent No.3 has placed reliance on Annexure No.3, filed by petitioners themselves with the petition which is copy of judgment dated 28-9- 2006 passed by Civil Judge (J.D.) Kotdwar in C.S. No. 2/2003. The another copy of judgment dated 3-9-2002 passed by Assistant Collector Kotdwar in revenue case No. 29/1999-2000, has been filed by respondent No.3 as C.A.11. By a bare perusal of these judgments it shows that these suits have been filed in respect of land of plot No. 198-A of Khata No. 29. Therefore, the contention of the petitioners is misconceived and cannot be accepted. Further by a perusal of sale- 7 deeds which were executed by respondent No.3 in favour of Smt. Sharda Devi and Smt. Sushma Devi were also in respect of land of plot No.29 as has been mentioned by the Collector and Patwari in their reports and petitioners themselves have filed these sale-deeds along with the rejoinder affidavit. Therefore, the sale deeds executed by Mahavir Singh have no concern to the land of Khata No. 56. This fact is undisputed that 0.060 hectare land was attached from the possession of respondent No.3 in Khata No. 56 and 0.070 hectare land of Khata No.29 was attached from the possession of respondent No.3. It will not be out of place to mention here that during the course of argument the learned Brief Holder for the State was directed to file the ^^QnZ dqdhZ^^ (attachment sheet) to verify the fact whether possession of attached land has been taken over symbolic or actual by the revenue authorities. The learned Brief Holder has summoned the original of recovery file, on the basis of record of this file he has made a statement at Bar in presence of concerned Sub Divisional Magistrate who was present in the court at the time of argument that the ^^ QnZ dqdhZ^^ (attachment sheet) is not available on the file. The statement has been made on the basis of facts mentioned in para-3 of report of Naib Tehsildar dated 22-6-2007. Learned counsel appearing for the respondent No.3 has submitted that possession of the land was not taken over, therefore, the ^^QnZ dqdhZ^^ (attachment sheet) was also removed from the file so that this fact could not be verified whether the possession, symbolic or actual, was taken from respondent No.3. The counsel for respondent No.3 also submitted that there is report of Naib Tehsildar dated 27-06- 2007 on the recovery file, in which was mentioned the land was attached from the possession of Mahavir Singh and the possession was with him. I have perused the report of Naib Tehsildar dated 27.06.2007. By a bare perusal of this report it appears that some manipulation was made in it. It seems that in para-4 last line ^^dCtk Hkwfe dk ugha fy;k x;k Fkk cfYd vkns’kkuqlkj ;Fkkor Fkkk^^ has been inserted after preparation of the report with the same pen and with the same hand writing. This matter requires scrutiny, but this court without observing any comments on merit, leave this fact to be verified by the Collector 8 concerned to see whether any such manipulation has been made in the said report by the Naib Tehsildar or not. However, disciplinary inquiry in the matter of removing the ^^QnZ dqdhZ^^ (attachment sheet) from the record of original recovery file is necessarily be initiatied by the Collector concerned. Here it is also to be mentioned that although the scope of writ jurisdiction is very limited and the evidence cannot be re-appreciated like in appeal, but in order to see whether the impugned order is perverse in nature or not, some evidence is necessarily to be perused. Perusal of report dated 10-8-2007, submitted by Collector Pauri Garhwal to District Judge Nainital, reveals that in compliance of order dated 11.4.2007 the property was attached and symbolic possession was taken from Mahavir Singh. Thereafter the attached land was released in favour of Mahavir Singh vide order dated 2.7.2007 passed by Assistant Collector Kotdwar. The above report nowhere shows that symbolic possession of attached land was ever given back to Mahavir Singh, therefore, the learned District Judge has rightly come to the conclusion that the possession of the land be handed over to Mahavir Singh. So far as the locus of the petitioners is concerned, their land has not been attached and they have also misled the Court by writing Khata No.56 only and deliberately they have not mentioned plot number in their pleadings because plot No. 198-A is altogether different plot which lies in Khata No.29 and plot No. 198- B is the plot of Khata No. 56, wherein the respondent No.3 has also 0.134 hectare land, out of which 0.070 hectare land was attached. Therefore, the revenue authorities are obliged to give back the possession of attached land to respondent No.3. According to respondent No.3 the petitioners have made effort to encroach the land, who were restrained by Patti Patwari vide his order dated 17-10-2006, which has been mentioned in the earlier part of this judgment. Learned counsel appearing for the respondent No.3 has submitted that if any person encroaches upon the attached land during that period, then the authorities are obliged to remove the trespasser from the land, in view of provision of Section 284-A of U.P.Z.A. and L.R. Act. 9 The provision of Section 284-A U.P. Z.A. and L.R. Act is quoted below:- “284-A. Ejectment of persons occupying the attached land without title- Any person taking or retaining possession otherwise than in accordance with the provisions of this Act, of any land attached under this chapter shall be liable to ejectment and to pay damages- (a) in case of the land being let out or sold under section 284, on the suit of the lessee or purchaser, as the case may be, and (b) in any other case on the suit of the Collector or of the Land Management Committee according as the attachment is made by the Collector or the Committee.” Therefore, in view of above provision of law, the respondent No.3 is entitled to be given possession on his land in Khata No. 56, measuring 0.070 hectare, which was attached through Collector. There is no dispute of land of Khata No. 29 i.e. plot No. 198-A, therefore, this Court is not observing anything regarding that land pertaining to Khata No. 29. In view of discussion made above, I do not find any perversity in the impugned order passed by the learned District Judge, Nainital and the same is liable to be upheld. The writ petition is dismissed. However, before parting with this judgment, it is to be mentioned here that this fact is not disputed that the land was attached and ^^QnZ dqdhZ^^ (attachment sheet) was prepared and this fact has also been mentioned by the revenue authorities in so many reports brought on record in the writ petition, therefore, the Collector Pauri Garhwal, is directed to initiate disciplinary proceeding against the delinquent official, who has removed the ^^QnZ dqdhZ^^ (attachment sheet) from the original file of recovery proceeding, and take necessary action in this regard. Along with aforesaid inquiry proceeding, the Collector Pauri Garhwal, shall also examine this fact, whether in the report of Naib Tehsildar dated 27-06-2007, some manipulation has been made or not, as has been observed by me in the preceding paragraph. Let the photo copies of reports of Naib Tehsildar dated 22-6- 2007 and 27-6-2007, and report of Patwari Motadhak, Kotdwar dated 20-9-2007 along with copy of Sazra, referred in this judgment, be 10 kept on the file of this writ petition from the original record of recovery proceeding. The original record of recovery proceeding be handed over to learned Brief Holder of the State. Dated: 01-07-2011 (B.S. Verma, J.) ISB