Keshav Chand and Others vs Board of Revenue, U.P., and Others

P.C. Verma, J.—This writ petition is directed against the judgment and order dated 14-8-1997 passed by the Respondent No. 1/Board of Revenue, UP.. Allahabad in second appeal No. 87 of 193-94, which is contained in Annexure No. 8 to the writ petition.

Facts, in brief, are that Amar Nath, father of Petitioner No. 1 to 5 and Gopi Nath, father of the Petitioner No. 6 to 11 were Zamindars of land in dispute i.e. Khasra No. 198-M at Maheshpura, Tehsil Kashipur, District Udham Singh Nagar. Respondent No. 2 Sabir Husain along with Kehar Singh and Gurdeep Singh had filed a suit before the Sub Divisional Magistrate, Kashipur u/s 59 of the UP. Tenancy Act for declaration of their rights over the land in dispute as hereditary tenants (Mauroosi Kashtkar) alleging that on 24-12-1959, Zamindars had executed a lease deed for 99 years in favour of Respondent No. 2. The suit was contested by the Petitioners. The Additional Collector 1sl Class/Sub Divisional Magistrate by his detailed judgment and order dated 30-8-1993 dismissed the aforesaid suit giving specific finding that the lease deed alleged to be executed in favour of Sabir Husain is in violation of the provisions of UP. Tenancy Act and is inadmissible in evidence and Sabir Husain is not entitled for any declaration in his favour.

Aggrieved with the aforesaid judgment of the trial court, Respondent No. 2 Sabir Husain along with Kehar Singh and Gurdeep Singh preferred an appeal before the Commissioner, Kumaon Division, Nainital, which was dismissed by the judgment and order dated 18-2-1994.

Aggrieved further by the aforesaid judgment, Sabir Husain filed second appeal No. 87 of 1993-94 before the Board of Revenue, Allahabad while Kehar Singh and Gurdeep Singh filed second appeal No. 121 of 1993-94. The Board of Revenue vide its common judgment and order dated 14-8-1997 allowed the appeal No. 87 of 1993-94 and dismissed the appeal No. 121 of 1993-94. Hence, this writ petition has been filed by the Petitioners challenging the aforesaid impugned judgment and order dated 14-8-1997 passed in appeal No. 87 of 1993-94.

A perusal of the impugned judgment and order passed by the Board of Revenue shows that it has reappreciated the evidence and recorded its own finding regarding genuineness of lease deed. It is settled law that in the second appeal only question of law can be decided and finding based on fact cannot be reviewed and a fresh finding cannot be recorded. Therefore, second appellate court fell into error in recording a finding of fact which is beyond the scope of Section 100 CPC which is adopted by reference u/s 331 of UP. Zamindari Abolition & Land Reforms Act. The Board cannot reassess the evidence of the parties in the second appeal and the matter would have been remanded.

Finding of fact by the second appellate court that Sabir Husain has perfected his title by adverse possession is also contrary to the evidence as according to the case of Sabir Husain, he was put into possession after the lease was executed in his favour. Therefore, it was permissive possession and not adverse.

Learned Counsel for the Respondent No. 2 relied upon the judgment of Supreme Court delivered in the case of State of West Bengal Vs. The Dalhousie Institute Society, . But here, in view of the peculiar facts and circumstances of the case, ratio of the said judgment is not attracted in this case.

For the reasons recorded above, the petition is allowed, Judgment and order dated 14-8-1997 passed by the second appellate court is set aside. Judgment and order of the trial court and the first appellate court are reaffirmed. No order as to costs. However, if Sabir Husain any way claims to have perfected his right, he may file a suit u/s 229-B of U.P.Z.A & L.R. Act.