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1984 DIGILAW 228 (ALL)

Bharthari v. Board of Revenue, U. P. , Allahabad

1984-03-13

K.P.SINGH

body1984
JUDGMENT K.P. Singh, J. - By means of this writ petition, the petitioners have challenged the judgment of the second appellate court dated 7.5.1973. 2. The trial court had dismissed the plaintiffs suit and the lower appellate court had decreed the plaintiffs' suit, whereas the second appellate court has restored the judgment of the trial court. Aggrieved by the judgment of the second appellate court, the plaintiffs have approached this Court under Article 226 of the Constitution. 3. The main grievance of the learned counsel for the petitioners before me is that the second appellate court has failed to consider all material evidence on record and has interfered with the findings of fact recorded by the first appellate court. He has also contended that the findings recorded by the trial court and the second appellate court on the question or possession stand vitiated in law as they have not approached the problem from correct angle. 4. The learned counsel for the contesting opposite-parties has tried to support the judgment of the second appellate court. According to him, the second appellate court has applied its mind to the claims of the parties, pleadings and evidence on record and it has arrived at correct conclusion and its findings cannot be interfered with in writ jurisdiction. 5. On the finding recorded by the Board, the sale-deed dated 1.5.1920 appears a mortgage-deed and the Board has commented that the appellate court did not consider that document; whereas the trial court had treated that document as farzi. Since the Board has not agreed with the trial court about the finding regarding deed of the year 1920, it should have examined the effect of that document on the pleadings of the parties. To my mind, the Board has not considered all the evidence on record while recording its findings and setting aside the findings of fact recorded by the first appellate court, its judgment is vitiated in law and deserves to be quashed. 6. In the result, the writ petition succeeds and is, accordingly allowed and the impugned judgment of the second appellate court dated 7.5.1973 is, hereby, quashed and the second appellate court is directed to re-consider the claims of the parties on their pleadings and evidence on the record as well as strictly in-accordance with law. Parties are directed to bear their own costs.