BASH DEO Vs. BOARD OF REVENUE AND ORS.

JUDGEMENT

(1.) Heard learned Counsel for the petitioners, learned Standing Counsel for the State -respondents and Sri Prakash Chandra, learned Counsel appearing for the private respondents.

(2.) This petition deserves to be allowed on the short question that the Board of Revenue while exercising powers of Second Appellate Court under Sec. 331(4) of the U.P. Z. A & L. R. Act, hereinafter referred to as the Act, exceeded the jurisdiction vested in it by setting aside the finding of fact recorded by the Trial Court and the First Appellate Court on the question of service of notice under Sec. 80 C.P.C on the State. The petitioners are the plaintiffs in the Suit for declaration of their rights under Sec. 229(B) of the Act. Upon written statement being filed the issues were framed. One of the issues framed was as to whether due notice under Sec. 80 C.P.C has been given to the State. The Trial Court after considering the material evidence on record and in particular the statement of Ramesh Chandra Saxena who was Suit clerk in Collectorate who had specifically stated that a notice under Sec. 80 C.P.C on behalf of Ram Swarup Vasudev had been received and recorded in the register on 23rd August, 1975 and that he had produced such register as Exhibit A -1. Further reliance was placed on the statement of Gopal Dutt Sharma who was Municipal Clerk and who had also stated that upon receipt of the notice, it was sent for preparation of the narrative and for the said purpose he had taken the record to the Government Counsel and such entry was recorded in the register on 23rd August, 1975. It was further stated that Government counsel had given his opinion on 24.10.1975 that there was no necessity of contesting the said suit. Based upon the aforesaid evidence of Ram Chandra Saxena and Gopal Dutt Sharma, the Trial Court had recorded a finding that due notice under Sec. 80 C.P.C had been given by the plaintiff before instituting the Suit. The First Appellate Court also confirmed the finding with regard to the notice being given under Sec. 80 C.P.C relying upon the same evidence. The Board of Revenue only relying upon the statement of the Counsel has held that due notice was not given.

(3.) From the perusal of the Judgment of Board of Revenue, I find that it did not take into consideration the evidence of Ramesh Chandra Saxena, the Civil Suit Clerk and Gopal Dutt Sharma with regard to the receipt of the notice. On all other issues the finding recorded by the Courts below were in favour of the plaintiff -petitioners. The dismissal of the suit on the technical ground of bar under Sec. 80 C.P.C that too without considering the evidence which had been relied upon by the Trial Court and the First Appellate Court in my considered opinion vitiated the judgment of the Board of Revenue. The question regarding service of notice is a question of fact. Both the lower Courts had recorded concurrent finding of fact. The Board of Revenue while exercising powers as a second appellate Court has interfered with a finding of fact thereby exceeding its jurisdiction. The writ petition is therefore liable to succeed.