A.P.Sahi, J. - (1.) HEARD Sri P.K. Mishra learned counsel for the petitioner and Sri Srivastava for the contesting respondents.
(2.) THIS petition arises out of a suit under Section 229-B of the U.P. Z.A. & L.R. Act, 1950, filed by the petitioner-plaintiff claiming adverse possession over the land in dispute. The Original suit No. 116 of 1984 was filed seeking declaration by the petitioner as bhumidhar, which was withdrawn with liberty to file a fresh suit. The petitioner thereafter filed two suits under Section 229-B in 1986, registered as Original Suit No. 2 of 1987-88 on the same grounds, and the other suit regarding another plot with the same prayer. Both the suits were contested by the contesting respondents denying the claim of possession by the petitioner and after evidence was led the suits were dismissed on 27th January, 1989. Two appeals were filed and the appeals were allowed on 28.12.1989 remanding the matter back to the trial Court to decide the matter afresh. The trial Court this time decreed the suits vide judgment dated 11th January, 1993. The contesting opposite parties filed appeals that were allowed on 8.4.1993. Two second appeals were, filed by the petitioner before the Board of Revenue against the judgment of the first appellate Court and the second appeals were allowed on 24.5.1994. One Ishaq moved a restoration application on 16.7.1994 and a review petition was filed on behalf of the respondent Nos. 3 to 5. The restoration application was allowed and the review petition was dismissed as infructuous as the appeals had been restored. The Board ultimately decided the appeals again on 24.9.1996 against the petitioner upholding the order of the learned Additional Commissioner dated 8.4.1993. Aggrieved the petitioner has filed the present writ petition.
(3.) THE contesting respondents have filed a counter-affidavit and the learned counsels have advanced their submissions. Sri P.K. Mishra contends that the procedure adopted by the Board of Revenue was incorrect and therefore the impugned order deserves to be set aside on this issue. Suffice it to say that the restoration was allowed and thereafter the matter was heard again, in such circumstances, it cannot be said that the Board has committed an error in deciding the matter again vide order dated 24.9.1996. Coming to the merits of the claim, the main contention of Sri P.K. Mishra is that the second appeal was dismissed inspite of the fact that a substantial question relating to ignoring of material evidence had been raised and without there being any finding on any misreading of the evidence by the trial Court, the first appellate Court had erroneously reversed the judgment. For this Sri Mishra has invited the attention of the Court to the statement of the Lekhpal of the Village, Ram Swaroop and he submits that there is a total non-application of mind and non-consideration of such relevant material that vitiates the finding recorded by the first appellate Court. The Board of Revenue while proceeding to hear the second appeals committed a manifest error by not framing this substantial question of law that arose on the facts of the case, hence the impugned order is vitiated.;