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2018 DIGILAW 345 (ALL)

Binda Prasad v. Board of Revenue U. P.

2018-02-07

SALIL KUMAR RAI

body2018
JUDGMENT & ORDER : Salil Kumar Rai, J. Heard Shri Ajay Kumar Singh, holding brief of Shri Birendra Singh, learned counsel for the petitioner. 2. The dispute in the present writ petition relates to Plot No. 1051A, measuring 0.578 hectares (hereinafter referred to as, 'disputed plot'). Initially Sri Raja Thakur Prasad Singh and subsequently his son Babu Gaya Prasad Singh were recorded as Sirdar of the disputed plot. In 1362 Fasli, petitioner was recorded as Sirdar of the disputed plot. Respondent No. 3 instituted Case No. 1 of 1993 under Section 229-B/176 of Uttar Pradesh Zamindari Abolition and Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950') praying that he may be declared co-tenure holder of the disputed plot alongwith the petitioner. In the plaint instituting the said case, respondent No. 3 alleged that he and the petitioner are sons of Bans Gopal. It was further alleged that Bans Gopal was in possession of the disputed plot as Sirdar and name of the petitioner was recorded merely because after the death of Bans Gopal, he was the Karta of the family. Further, contention of respondent No. 3 was that the disputed plot was ancestral property of petitioner and respondent No. 3, and therefore, respondent No. 3 was entitled to be recorded as co-tenure holder of the disputed plot. The aforesaid case was contested by the petitioner, who filed his written statement, wherein he denied the contention of respondent No. 3 and stated that the disputed plot was his self acquired property and was not the ancestral property of Bans Gopal. In his written statement, petitioner had also stated that he was rightly recorded as Sirdar of disputed plot in Khatauni of 1362 Fasli as he was in possession of the disputed plot in his own right and Bans Gopal, i.e. father of petitioner and respondent No. 3, was never in possession of the disputed plot. 3. The Trial Court i.e. Assistant Collector Class-Ist/Sub Divisional Magistrate, District-Banda vide his judgment and order dated 27.2.1999 dismissed Case No. 1/1993 instituted by respondent No. 3 on the ground that respondent No. 3 had not been able to prove that the disputed plot was ancestral property of Bans Gopal and the name of the petitioner was recorded as Karta Khandan of the family after the death of Bans Gopal, i.e. father of petitioner and respondent No. 3. Aggrieved by the aforesaid order, respondent No. 3 filed Appeal No. 162 of 1998-99, which was allowed by First Appellate Court i.e. Additional Commissioner, Chitrakoot Dham, Banda Division-(respondent No. 2) vide his judgment and order dated 25.10.1999. Through its aforesaid judgment, the First Appellate Court set aside the judgment dated 27.2.1999 passed by Trial Court and decreed Case No. 1/1993 holding that respondent No. 3 was a co-tenure holder of the disputed plot with the petitioner. Aggrieved by judgment and decree dated 25.10.1999 passed by First Appellate Court, petitioner filed Second Appeal before respondent No. 1-Board of Revenue U.P. at Allahabad, which was registered as Second Appeal No. 6/99-2000/Banda. The aforesaid second appeal was dismissed by the Board of Revenue U.P. at Allahabad vide its judgment and order dated 30.11.2000. The judgments and orders dated 25.10.1999 passed by First Appellate Court and 30.11.2000 passed by respondent No. 1 are put to challenge in the present writ petition. 4. Contention of counsel for the petitioner is that respondent No. 2 has erred in law in decreeing Case No. 1/1993 by setting aside the judgment of Trial Court without setting aside the finding of the Trial Court holding that respondent No. 3 had not been able to prove that the disputed plot was the ancestral property of petitioner and respondent No. 3 and that the name of the petitioner was recorded in the revenue records relating to the disputed property only as Karta Khandan of family after the death of his father Bans Gopal. I have perused the judgments of the Trial Court as well as that of First and Second Appellate Court. In its judgment dated 25.10.1999, the First Appellate Court has referred to the revenue records relating to 1333 Fasli, which show that Bans Gopal, i.e. father of the petitioner and respondent No. 3, was recorded as Sikmi Kasht in relation to the disputed property. The First Appellate Court has also referred to the revenue records of 1356 Fasli relating to the disputed plot, which show that petitioner was in possession of the disputed property since 13 years. The First Appellate Court has referred to the Date of Birth certificate of the petitioner, which shows that petitioner was merely 14 years of age in 1356 Fasli. The First Appellate Court has referred to the Date of Birth certificate of the petitioner, which shows that petitioner was merely 14 years of age in 1356 Fasli. On the basis of the aforesaid documents, the First Appellate Court has recorded its opinion that the petitioner could not have been in exclusive possession of the disputed plot since one year of age and relying on the revenue records relating to 1333 Fasli, which shows that Bans Gopal was in possession of disputed property, the First Appellate Court has recorded its finding that the disputed property was the ancestral property of the petitioner and respondent No. 3 and the name of the petitioner was recorded in the revenue records as the Karta Khandan of the family. On the basis of the aforesaid finding, the First Appellate Court decreed Case No. 1/1993 and declared respondent No. 3 to be co-tenure holder of the disputed plot. The aforesaid findings have been upheld by the Second Appellate Court i.e. respondent No. 1. The aforesaid findings of the First Appellate Court, in effect, set aside the findings recorded by the Trial Court to the effect that respondent No. 3 was not able to prove that disputed property was the ancestral property of respondent No. 3 and the petitioner. The said findings of the First Appellate Court and respondent No. 1/Second Appellate Court are based on evidence on record and there is no perversity or illegality in appreciation of evidence by the two Lower Appellate Courts or in the finding recorded by First Appellate Court which has been upheld by respondent No. 1 so as to invite interference by this Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition lacks merit and is accordingly dismissed. 5. Interim order, if any, stands vacated.