IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 1820 of 2008 WITH Stay Application No. 6630 of 2008 Smt. Doris Parveen Singh, W/O Late Sri Parveen Singh, R/O Village Prem Kutir, Kathgodam, Tehsil Haldwani, District Nainital. … Petitioner. Vs. Satish Chandra Singh and two others. …Respondents. Sri Syed Nadim & Sri Sudhir Chandra Shah, learned counsel for the petitioner. Sri Sharad Sharma & Sri Pooran Singh Rawat, learned counsel for the respondent no.1. Date November 12, 2008. P.C.: Hon’ble B.S.Verma, J. Heard Sri Syed Nadim and Sri Sudhir Chandra Shah, learned counsel for the petitioner and Sri Sharad Sharma and Sri Pooran Singh Rawat, learned counsel for the respondent no.1. By means of this writ petition, the petitioner has sought for issue an order or direction for setting aside the judgment dated 25- 7-2008 passed by the Additional Chief Revenue Commissioner, Circuit Court, Uttarakhand, Nainital in Second Appeal No. 22 of 2008 (Annexure No. 6 to the writ petition). Brief facts, giving rise to the present writ petition, are that the petitioner filed suit under Section229-B of the U.P.Z.A. and L.R. Act (for short the Act) to declare him sole Bhumidhar in the rest of the land of village Damuadhunga, excluding the land sold by the petitioner. During the pendency of the suit, the petitioner has also filed interim relief application under Section 229-D of the Act and it was prayed that the respondent no. 1 be restrained not to alienate the land in dispute of village Damuadhunga and not to change the nature of the land during the pendency of the suit. After hearing both the parties and considering the objection of the respondent no.1, the Assistant Collector, 1st Class Bhawar, Haldwani, district Nainital, dismissed the application on 23- 5-2002 and also dismissed the suit of the petitioner. Aggrieved by the said order the petitioner preferred Z.A. Appeal No. 56 of 2005-06 before the Commissioner, Kumaun Division, Nainital. The appeal, too, was dismissed by the appellate Court, Further aggrieved by the order passed in the appeal dated 10-1-2007, the petitioner preferred Second Appeal No. 22 of 2007 before the Additional Chief Revenue Commissioner, Circuit Court Uttarakhand, Nainital. After hearing both the parties, the Additional Chief Revenue Commissioner also dismissed the second appeal vide order dated 25-7-2008, hence this writ petition. Counter Affidavit has been filed by the respondent no.1. In paragraph no. 16, it has been stated that the respondent has also filed a suit under Section 176 of the Act for partition of the landing dispute. It is not disputed that no written statement was filed before the trial court at the time of deciding the application under Section 229-D of the Act. The written statement was to be filed in the suit by the respondent no.1. According to the petitioner, while deciding the Temporary injunction application under Section 229 D of the Act, the Assistant Collector has committed a manifest error of law. The suit has to be decided on its own merits. Learned counsel for the petitioner has further contended that the land is in possession of the petitioner as she inherited the property from her husband by succession after his death. Learned counsel for the respondent no.1 has contended that the suit under Section 229 B of the Act is not maintainable, because the petitioner herself admitted in the plaint that she is a recorded tenure holder and if she wants to get her share separated, remedy is partition suit. The recorded tenure holder can file suit for injunction before the civil suit. In reply thereto, learned counsel for the petitioner has submitted that the suit for injunction was also filed before the Civil Judge Senior Division, Nainital, bearing Civil Suit No. 42 of 2000. This suit was dismissed by the Civil Judged vide order dated 3-11- 2007 holding that the civil court has no jurisdiction to hear the suit. Learned counsel for the petitioner has informed the Court that this order has not been challenged in appeal or revision. Having heard learned counsel for the parties and after perusal of the averments made in the writ petition as well as counter affidavit and the order passed by the Civil Judge (Senior Division) Nainital, it is obvious that the land of the village Damuadhunga belongs to the petitioner as well as respondent no.1 and it comes out from a perusal of counter affidavit that the suit for partition is also pending for disposal. In such circumstances, the petitioner has failed to prove prima facie that she is in exclusive possession of the disputed land. The application under Section 229-D of the Act was rightly rejected by the trial court. So far as the dismissal part of the suit is concerned, the order is bad in law in view of the Apex Court judgment in the case of M/s Anand Associates Vs. Nagpur Improvement Trust and others [2001, SCD, Page 552]. Accordingly, the writ petition deserves to be partly allowed. The writ petition is partly allowed and part of the impugned order dated 23-5-2002 passed by the Assistant Collector 1st Class, Bhawar, Haldwani (Nainital), whereby the suit no. 22 of 2000- 2001 filed by the petitioner under Section 229 B of the Act was dismissed by the trial court, is set aside. The Assistant Collector concerned is directed to decide the suit after giving opportunity of hearing to the parties on merits expeditiously, preferably within a period of one year. The impugned order dated 25-7-2008 passed by the Additional Chief Revenue Commissioner, Circuit Court, Uttarakhand, Nainital, in second Appeal No. 22 of 2008 stands modified accordingly. Costs easy. (B.S.Verma,J.) RCP