ALLAH MOHAR Vs. NIAZ MOHAMMAD

JUDGEMENT

(1.) THIS writ petition is directed against the judgment of Board of Revenue dated 16th July, 1981 passed in a second appeal. It arises out of a suit instituted under Section 176 of U. P. Zamindari Abolition and Land Reforms Act, 1950 (in short Act').

(2.) THE facts essential for the purpose of this writ petition are that the land in dispute was acquired by Gafoor Khan who had four sons, namely, Allah Mohar, Chand Khan, Gayas Mohammad and Jhandu Khan. Plaintiff Niaz Mohammad is son of Jhandu Khan. Niaz Mohammad instituted suit for division of disputed holding claiming 7/16th share. THE case of Niaz Mohammad is that Gafoor Khan transferred l/4th share in his favour by a sale-deed dated 16.7.1976 and, therefore, on death of Gafoor Khan his share became 7/16th as besides land transferred by sale-deed he succeeded to 1 /4th share out of 3/4th share left by Gafoor Khan. With aforesaid pleas, the plaintiff Niaz Mohammad claimed for separation of 7/16th share as belonging to him. Gayas Mohammad, one of the defendants in suit, admitted claim of petitioner while Allah Mohar and Chand Khan contested the suit and claimed Niaz Mohammad share Is 1 /4th only and not 7/16th as claimed by him. THE contesting defendants claimed that plaintiff Niaz Mohammad was minor when his father died and his mother re-married Chand Khan. THE defendants claimed that sale-deed dated 16.7.1966 was executed by Gafoor Khan in favour of Niaz Mohammad so that minor gets his share after death of Gayas Mohammad and he is not deprived of it by other sons of his. It was for the purpose of being certain about Niaz Mohammad's share, during his lifetime, that he gets his share and it was not intended by Gayas Mohammad to give 1 /4th share to plaintiff in his Khata in dispute during lifetime so that he gets more land when succession opened. It was also claimed by contesting defendants that the sale-deed was without consideration and it was not binding on the parties. THE Assistant Collector, Ist Class, Aligarh decreed the suit and held share of plaintiff as 7/16th. THE contesting defendants preferred appeal which was allowed by Additional Commissioner, Agra Division by order dated 7.6.1979. In appeal, it was held that plaintiff had l/4th share while the other defendants had l/4th share each. Being dissatisfied with the decree passed in appeal, plaintiff Niaz Mohammad preferred a second appeal. THE Board of Revenue allowed second appeal, decreed the suit of plaintiff Niaz Mohammad and held his share as 7/16th while that of Allah Mohar, Chand Khan and Gayas Mohammad as 3/16th each. THE petitioners, aggrieved by judgment and decree passed by Board of Revenue, have preferred this writ petition.

(3.) THE next question raised, which requires consideration, is as to whether second appellate court exceeded its jurisdiction in interfering in findings of fact in this case. THE trial court held that it is admitted to parties that Gafoor Khan executed a sale-deed in favour of Niaz Mohammad of l/4th share. THE trial court recorded a finding of fact after disbelieving the case of petitioners that no consideration passed. It held that there would have been no difficulty to Niaz Mohammad in getting his share after death of Gafoor Khan as law entitled him and there was no such law to the contrary and, therefore, it did not accept explanation given by petitioners in this respect considering it to be without any sense. As trial court upheld the sale-deed, it determined the share of plaintiff as 7/16th but lower appellate court reversed the finding in respect of sale being valid by holding that Niaz Mohammad did not give any money to Gafoor Khan. THE lower appellate court considered the sale-deed as void for want of consideration. According to lower appellate court, the plaintiff was only helping Gafoor Khan in cultivation and, therefore, he could not have money for paying the sale consideration. THE lower appellate court was guided by the fact that it is unnatural that Gafoor Khan, if he required money, would not ask money from his eldest son but he will ask grand-son who was admittedly 20 years old. THE aforesaid finding of fact of sale being void for want of consideration has been interfered by Board of Revenue which is being objected before this court. THE power of Board of Revenue in second appeal to interfere in finding of fact is very limited. It is well-settled that a finding of fact cannot be interfered in second appeal where the finding of fact has been recorded in an appeal after considering relevant evidence. Such a finding of fact cannot be characterised as erroneous or arbitrary and the court will exceed its jurisdiction in interfering with the finding of fact recorded by appellate court. See National Insurance Co. v. State Bank of India, 1993 (2) SCC 673.