UMESH CHAND Vs. BOARD OF REVENUE ALLAHABAD

JUDGEMENT

(1.) Heard Sri H.N. Singh. counsel for the petitioners and learned standing counsel.

(2.) This writ petition has been filed by the petitioners praying for quashing of the order dated 20th November, 2001 passed by Board of Revenue, Allahabad and the order dated 22nd April, 1999 passed by Additional Commissioner,

(3.) The facts of the case as given in the writ petition are ; petitioners' father filed a suit under Section 229B of U.P. Zamindari Abolition and Land Reforms Act in the Court of Additional Commissioner for declaration of bhumidhari rights of Plot No- 84 impleading respondent Nos. 3, 4 and 5 as defendants. The case of the plaintiff was that father of respondent Nos. 3, 4 and 5. i,e.. late Sri Lobhi, took an advance of Rs. 6,750 and issued a receipt on plain paper containing his thumb impression on 9.5.1979 as advance against plot No. 84 area 8 dismal, It was pleaded by the plaintiff that father of defendants in his life-time avoided to execute the sale-deed and subsequently died, hence, the suit was filed for declaration of bhumidhari rights. Respondent No. 3 filed a written statement denying the plaint allegations. Other defendants appeared but they did not file written statement and the suit proceeded ex-parte against them. It was stated in the written statement that father of defendants, late Sri Lobhi, did not issue any receipt and his thumb impression on the receipt was denied. The possession was also denied. In the trial court, the plaintiff, Lalmani, also examined one witness. Chauthi, to prove the receipt. The plaintiff also examined himself. The trial court framed the issues and decreed the suit holding that receipt issued by Lobhi after taking money from plaintiff is a sale within meaning of Section 164 of U.P. Zamindari Abolition and Land Reforms Act. The defendants filed an appeal which was allowed by the first appellate court vide its judgment and order dated 22nd April. 1999. The first appellate court recorded a finding that trial court erred in accepting the thumb impression of Lobhi on the receipt without there being valid evidence. It was held that the thumb impression of Lobhi on the receipt ought to have been got examined by expert. It was held by the first appellate court that there was contradiction in the statement of plaintiff and his witness. Chauthi. A second appeal was filed by the petitioners which has been dismissed by the Board of Revenue vide its judgment dated 20th September, 2001. The Board of Revenue while dismissing the appeal held that no substantial question of law has been framed in the second appeal whereas second appeals can be considered only on substantial questions of law as required by Section 100 of Code of Civil Procedure. The second appellate court also noted that the receipt in question which refers to transfer of possession is not registered and has referred to decisions of this Court. The aforesaid judgment of first appellate court and second appellate court have been challenged in the present writ petition.