K. P. Singh, J. - (1.) THIS is a plaintiffs writ petition against the judgment of Sri J. P. Gupta, I. A. S. Member, Board of Revenue, U. P. Allahabad, dated 25-8-1976, whereby the plaintiff's second appeal has been dismissed.
(2.) BRIEF facts giving rise to the present writ petition are that the plaintiff petitioner had filed a suit for declaration and in the alternative for possession u/Secs. 229B/209 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) concerning plots nos. 31/2 and 33/1. The claim of the plaintiff petitioner was based on a sale deed dated 8-12-69 executed by Smt. Ruqiya Begum who was originally married to Sri Rashid Khan, son of the original Zamindar. It was also alleged that the name of the contesting defendant opposite party was wrongly recorded over the disputed plots and that he was not in possession over the same hence the suit for declaration of Bhumidhari right and in the alternative for recovery of possession. The defence in the suit giving rise to the present writ petition was that the defendant had got the disputed plots on Batai from Abdullah Khan who was Khudkasht holder of the same and that the defendant had been in possession over the disputed land since long hence he acquired sirdari right by adverse possession. It has also been suggested that Rashid Khan who was son of Abdullah Khan had left his widow Smt. Ruqiya Begum and the latter had remarried the plaintiff-petitioner, hence she had no right and title in the disputed plots and that she could not execute any sale deed in favour of the plaintiff petitioner and no title was acquired by the plaintiff petitioner in pursuance of sale deed relied upon by him for Bhumidhri right in the present case. Bar of res-judicata was also pleaded on the basis of decision in Suit No. 22 of 1965 filed by the defendant opposite parties in the present writ petition against the petitioner Rashid Ahmad Khan as well as Smt. Ruqiya Begum regarding some other plots. The trial court through its judgment dated 23-4-1968 negatived the claim of the plaintiff on the finding that Smt. Ruqiya Begum (wife of Rashid Ahmad Khan, son of Abdullah Khan) had remarried the plaintiff-petitioner about 12 or 13 years ago, hence she had no specific right to execute the sale deed in favour of the plaintiff petitioner. The trial court deciding issue no. 7 held that the plaintiff's claim was barred by the principle of res judicata. Aggrieved by the judgment of the trial court the plaintiff petitioner preferred an appeal which has also been dismissed by the appellate court through its judgment dated 28-9-1970. It appears that in the opinion of the lower appellate court, evidence about remarriage of Smt. Ruqiya Begum with the present plaintiff petitioner was not satisfactory yet it held that the marriage was proved on the principle of res judicata (See Annexure "2" attached with the writ petition). Thereafter the plaintiff petitioner preferred a a second appeal which has also been dismissed by the second appellate court. The perusal of Annexure "4" attached with the writ petition (judgment of the second appeallate court) indicates that the second appellate court disagreed with the finding of the lower appellate court on the question of remarriage of Smt. Ruqiya Begum with the present plaintiff-petitioner and also held that the question of remarriage had already been decided between the parties in the earlier suit hence the aforesaid finding operated as res-judicata.
(3.) AGGRIEVED by the decision of the second appellate court the plaintiff petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioner has contended before me that the Revenue Courts have patenly erred in applying the principle of res judicata to the facts and circumstances of the present case. It has also been stressed before me that the second appellate court has exceeded its jurisdiction in disagreeing with the finding recorded by the first appellate court on the question of remarriage of Smt. Ruqiya Begum with the present plaintiff-petitioner on the basis of evidence led by the parties in the case. The learned counsel for the contesting opposite parties has tried to refute the contentions raised on behalf of the petitioner and has tried to support the judgments of the revenue courts in the suit giving rise to the present writ petition. According to the learned counsel for the contesting opposite party when the parties had joined issues an the question of remarriage in the earlier suit, the finding recorded in that suit was rightly held as binding between the parties. In any event, according to the learned counsel for the contesting opposite party the impugned judgments do not suffer from any patent error of law and the revenue courts have rightly negatived the claim of the plaintiff-petitioner.;