Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 931 OF 2002 (Old No.37601 of 1994) Smt.Kamal Sood ………. Petitioner Versus Board of Revenue U.P. at Allahabad and others. ……… Respondents. ……………………… Sri V.K.Kohli, learned Senior counsel assisted by Sri I.P.Kohli learned counsel for the petitioner. Sri B.D.Upadhyay, learned counsel for the respondent No.5. Date Aug. 06,2008 Hon’ble P.C.Verma,J. This petition has been filed by the petitioner seeking writ of certiorari quashing the impugned judgments dated 03.08.1994, 22.12.1990 and 25.05.1987 passed by respondent Nos. 1 to 3. 2. The facts of the writ petition in brief, are that the respondent No.5 filed a suit in the year 1983-84 before the Assistant Collector 1st Class, Dehradun under Section 209 of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) impleading the State of U.P. and the petitioner as defendants seeking ejectment of the petitioner from the land measuring 1.67 acres of Khasra No. 394/1 situated in Village-Jakhan Pargana Central, Dehradun on the allegations that the said property was gifted by one Sri R.C.Sood by gift deed dated 26.07.1961. Smt. Pushpa Sood wife of Sri R.C.Sood died during the life time of her husband, therefore Sri R.C.Sood called one of his relatives 2 Smt.Kamla Sood (petitioner) who resided with him and looked after him. Sri Sood died in 1973. The petitioner, however, continued to reside the property despite notice to quit. The petitioner contested the suit and alleged that the possession of the property was never given to the plaintiff and as such the gift deed was never acted upon. The petitioner is using the suit property for the abadi purpose and she had acquired right by adverse possession. The trial court decreed the suit for ejectment of the petitioner by order dated 25.05.1987. 3. Against the said order of the trial court the petitioner filed an appeal before the respondent No.2 /Commissioner, Garhwal Division on the ground that no issue on the point of unidentifiability of the land was framed and without deciding this point no findings for ejectment can be given. The appellate authority also dismissed the appeal vide judgment and order dated 22.02.1990. 4. Aggrieved by the judgment dated 22.02.1990 the petitioner filed second appeal before respondent No.1/Board of Revenue who also dismissed the appeal of the petitioner by the impugned order dated 03.08.1994 and modified the decree of the trial court in favour of the plaintiff (respondent No.5). 5. I have heard the learned counsel for the parties and perused the material on record. 6. The learned counsel for the petitioner contended that the Board of Revenue has committed mistake directing the trial court to amend the decree in 3 the light of the map (paper No.17/3) prepared by the Tehsildar. In case the second appellate court was satisfied that the decree of the trial court was not correct it should have remanded the matter for decision afresh regarding the identifiability of the land in dispute. Further, the possession of the property was never given to the respondent No.5 and as such the gift deed was never acted upon. I find no force in the argument of the learned counsel for the petitioner. The second appellate court recorded its finding that the trial court has jurisdiction to prepare decree in respect of agricultural land only and in the decree the house has wrongly been mentioned by mistake of employee who prepared the decree in the case and it can be amended. The Board of Revenue has committed no mistake in directing the trial court to amend the decree according to the judgment. It is not disputed between the parties that the petitioner was residing with Sri R.C.Sood with his consent and she is not legal heir of Sri Sood. After the death of Sri Sood the petitioner was in unauthorized occupation of the house and land appurtenant thereto. The suit was filed within twelve years of the death of Sri Sood. The courts below have recorded the finding that the petitioner is liable to be evicted from the disputed property. The finding is based on the evidence led by the parties. Hence the matter is concluded by the finding of fact. I do not find any illegality in the orders passed by the authorities below. Hence, no interference is called for in the impugned orders. 4 7. The judgment and decree passed by the Board of revenue is confirmed subject to decision of civil suit relating to proof of gift deed. 8. The writ petition has no merit and is dismissed. (P.C.Verma,J.) 06.08.2008. P.Singh 5