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1989 DIGILAW 990 (ALL)

Mool Chand v. Board of Revenue, U. P. Allahabad

1989-12-22

B.N.MISRA

body1989
ORDER B.N. Misra, J. - Petitioner No. 1 and deceased father of petitioners Nos. 2/1 and 2/2 were the defendants in a suit filed by respondents Nos. 4 and 5 praying for partition of the lands in dispute under Section 176 of the U.P. Zamindari Abolition & Land Reforms Act. 2. The case of the petitioners was that they were entitled to one-half share and respondents Nos. 4 and 5 were also entitled to one-half share in the disputed properties. The claim of respondents Nos. 4 and 5 was that they were entitled to two-third share in the disputed properties and the petitioners were entitled to the remaining one-third share in the said properties.. The trial court decreed the suit and held that the petitioners were entitled to one-half share and respondents Nos. 4 and 5 were entitled to the remaining one-half share of the disputed properties. Copy of the judgment of the trial court is Annexure-1 to the writ petition. Respondents Nos. 4 and 5 filed an appeal against the judgment of the trial court which was allowed by judgment dated 27-4-1971 (Annexure-2). The appellate court decreed the suit of respondents Nos. 4 and 5 holding that they were entitled to two- third share in the disputed properties and the petitioners entitled to the remaining one-third. The petitioners next filed second appeal in the Board of Revenue challenging the appellate court's judgment dated 27-4-1971. The Board of Revenue dismissed the second appeal filed by the petitioners by its judgment dated 21-8-1978 (annexure-3) and confirmed the findings recorded by the first appellate court. In this petition under Article-226 of the Constitution the petitioners have prayed for quashing the judgments of the first and second appellate courts and for restoring the judgment of the trial court. 3. Learned counsel appearing for the petitioners urged before this Court that the trial court's judgment was correct and justified in the facts of this case and, therefore, it was not proper for the lower appellate courts to set aside the findings of the trial court. The following genealogy which is admitted on both sides describes the relationship between the parties : It also not in dispute that the disputed lands 1 previously belonged to Imrit and Chokhey both of whom had one-half share. However, after eviction of both of them by the then Zamindar a fresh tenancy in respect of the. The following genealogy which is admitted on both sides describes the relationship between the parties : It also not in dispute that the disputed lands 1 previously belonged to Imrit and Chokhey both of whom had one-half share. However, after eviction of both of them by the then Zamindar a fresh tenancy in respect of the. disputed lands was settled with Sukhwa. Jhunia (widow of Chokhey) and Sheenath, who was then a minor, through his mother guardian Jhunia. Admittedly the term of the lease was for a period of seven years. It is submitted on behalf of the petitioners that although the name of Sheenath is recorded separately in the lease-deed, after seven years when the lease expired,the petitioners and respondents Nos. 4 and 5 reverted to their original shares of one-half each representing the branches of Sukhwa and Chokhey respectively. It is the case of both the contesting parties that even after the expiry of the lease, they have continued in possession of the disputed lands. There is no basis for the submission that though a while the lease was operative. the petitioner' share was one-third and the share of respondents Nos. 4 and 5 was two-third. after the expiry of the lease the share of the petitioners increased to one- half and the share of respondents Nos. 4 and 5 reduced to one-half. The evidence and materials placed before the Court have been duly considered by the first appellate court as well as the Board of Revenue and they have clearly held that according to the terms of the lease and even after expiry of the lease. respondents Nos. 4 and 5 are holding 2nd are entitled to hold two-third share in the disputed properties and the petitioners to one-third. The findings of the first appellate court and the second appellate court cannot be said to be perverse or based on no evidence justifying interference by this Court. 4. The jurisdiction of this Court under Article-226 is a limited one and it is not proper for this Court to re-evaluate the evidence as if it were an appellate court. 5. In the result this writ petition has no merit and is dismissed. Interim order dated 11-4-1979 is discharged. The final decree proceedings shall now be concluded as expeditious s possible. In the facts of this case parties 'will bear their own costs.