North Eastern Railway Administration, ... vs Bhagwan Das (D) By Lrs

3. In order to appreciate the issue, requiring determination, a few material facts may be stated:

4. Vide order dated 13th March, 2001, the Trial Court decreed the suit, inter alia, holding that the respondent is a Bhumidar and in possession of the suit land and the transfer of possession by the U.P. Government to the appellant was not proved. Against the said decree, the appellant filed appeal before the District Judge, which was dismissed vide order dated 13th November, 2001.

5. Being aggrieved, the appellant preferred second appeal before the High Court. Alleging that the respondent had obtained the decree by concealing material facts, it was averred that, as per the official records, the name of Kanhai, grandfather of the respondent, was entered as Maurnsin Khasikar in Varg-2 at Zaman 8 in the revenue record, which showed that he was simply a Pattedar, while the State of U.P. was its owner. It was pleaded that vide government order dated 16th June, 1969 the suit land (3.615 acres) was ordered to be transferred to the appellant on deposit of Rs.4855.60p. In pursuance of the said order, the appellant deposited the money and took possession of the land in question from Kanhai, who had not only received Rs.201.56p as compensation from the government, he had delivered the possession of the land to the appellant and had also moved an application to Tehsildar Khatima for deleting his name from the revenue records. He also gave a statement to the effect that he was not in possession of the land and, therefore, since October, 1971 the appellant had become the owner in possession of the land. It was also stated that since the State of U.P. was the owner of the land, there was no question of acquiring it by issuing notifications under Sections 4 and 6 of the Land Acquisition Act, 1894. It was also alleged that Kanhai had fraudulently, without getting any notice issued either to the State of U.P. or to the appellant, obtained the Bhumidhari Sanad in the month of December, 1971, although prior to that period he had already surrendered possession of the land and was not in possession thereof. It was, thus, pleaded that Sanad having been obtained by playing fraud, it was null and void and could not create any right or title in favour of Kanhai. Subsequently, in support of the said pleas and contentions, in order to bring on record the copies of the official records, the appellant moved an application under Order 41 Rule 27 C.P.C., before the High Court on 3rd April, 2002.

7. Aggrieved, the appellant moved an application seeking review of order dated 17th July, 2002, on the ground that some material facts had escaped the attention of the Court while passing the order dated 17th July, 2002.

18. In the result, the appeal is allowed and the judgment and orders dated 17th July, 2002 and 14th June, 2005 are set aside. The matter is remitted back to the High Court, which shall, after hearing the parties, take a fresh decision on the applications preferred by the appellant under Order 41 Rule 27 and Order 6 Rule 17 C.P.C. and thereafter form its opinion afresh on the merits of the second appeal. We may clarify that we have not expressed any final opinion on the merits of the second appeal as well as the applications, which shall be considered and disposed of by the High Court on their own merit in accordance with law.

19. The appeal stands disposed of accordingly leaving the parties to bear their own costs.