Kamal Narain Singh, J. - (1.) Ram Sahai petitioner has filed the present petition challenging the judgment and order of Board of Revenue, U.P., Allahabad, Additional Commissioner, Jhansi Division, and Addl. SDO, Garautha, Jhansi, and has prayed for issue of a writ of certiorari quashing the orders passed by these respondents. The facts which led to the filing of the present petition briefly are that the petitioner Ram Sahai, Ram Kumar, opposite party No. 4 and Ram Krishna, opposite party No. 5 were co -tenure -holders of certain plots. Ram Kumar filed a suit u/S. 176 of the UP ZA & LR Act for the partition of the holding. A preliminary decree was passed and the petitioner's share was declared to be 1/2 and that of respondents Nos. 4 and 5 one fourth each. After the confirmation of the preliminary decree there remained no dispute with regard to the shares. The holding in question was less than 6.25 acres, hence it could not be partitioned. Steps were taken by the trial court, Sub -Divisional Officer, Garotha to dispose of the land in accordance with the provisions of S. 178 of UP ZA and LR Act, hereinafter referred to as the Act. Valuation of the land was ascertained and fixed u/S. 179 of the Act and thereafter the court determined preferential right of purchase of the co -tenure -holders. The trial court held that Ram Kumar who was minor at that time had a preferential right of purchase as he was a landless person. The court, therefore, made an offer of sale to Ram Kumar who accepted the offer and deposited the sale money on 8 -5 -1967. The petitioner filed an appeal against the judgment and order of the SDO. The petitioner contended that Ram Kumar was not a preferential heir. During the pendency of the appeal before the Additional Commissioner, Bhagirath, father of Ram Kumar was murdered and after his death Ram Kumar inherited landed property from his father. At the time of the hearing of the appeal before the Additional Commissioner, the petitioner contended that since Ram Kumar had inherited landed property from his father, he could not be treated as a landless person and hence he had no preferential right of purchase u/S. 180 of the Act. The Additional Commissioner by his judgment dated 3rd April 1968 rejected this contention. Thereafter the petitioner filed second appeal before the Board of Revenue which was also rejected by its order dated 30 -6 -1969. The Board of Revenue held that the other co -sharers including petitioner had transferred their shares in order to become landless and to contest the claim of Ram Kumar. It further held that the rights of the parties could be determined on the date when the suit was filed and not with reference to any subsequent events which may have taken place during the pendency of the appeal. It, therefore, upheld the findings of the trial court as well as of the lower appellate court.
(2.) I have heard the learned counsel for the parties. It has been contended on behalf of the petitioner that the court was bound to take into account any subsequent event which went to the very root of the matter. It was urged that under the Act and rules framed thereunder only a landless person has been authorised to have a preferential right of purchase and therefore the very intent and purpose of the statute would be defeated if Ram Kumar is allowed to purchase the land in question even after he inherited sufficient area of land from his father. The learned counsel for the petitioner has, therefore, contended that the Board of Revenue as well as the other two courts have committed a patent error of law in refusing to take into account the subsequent event which went to the root of the subject matter in dispute.
(3.) Learned counsel for the respondent Mr. V.K.S. Chaudhary has urged that no appeal lay against the order of the trial court determining the preferential right of purchase by a co -tenure holder and, as such no appeal was maintainable before the Additional Commissioner or before the Board of Revenue. He has further contended that it is only the appellate court which can take into account subsequent events which may have taken place during the pendency of the appeal, and since no appeal was maintainable in the present case, the Board of Revenue or the Additional Commissioner could not take into account the fact that Ram Kumar had inherited landed property from his father during the pendency of appeal. Mr. Chaudhary further contended that on the date when the preferential right to purchase the land in dispute was decided, the petitioner Ram Sahai had land with him while Ram Kumar had no land in his name. It was during the pendency of the appeal before the Additional Commissioner that Ram Kumar transferred his land to Smt. Beni Bai in order to get right of purchase on the basis of being a landless person. Thus, according to him, the Act does not contemplate such a landless person for the purposes of giving a right to purchase land as a landless person. The petitioner's claim according to him was rightly rejected and there is no patent error of law in the impugned judgments.;