R. S. Singh, J. - (1.) THIS writ petition arises out of the otder of Board of Revenue dated 19-2-1971 by which the econd appeal filed by the plaintiff-petitioner has been dismissed under Order XII, Rule 11 of the Code of Civil Procedure.
(2.) THE suit giving rise to the second appeal filed before the Board of Revenue was filed on the allegation that the land in dispute originally belonged to Smt. Champa and Smt. Toofania who sold the land in dispute to the plaintiff-petitioner. THEreafter the suit was filed for the ejectment of the defendant respondents on the allegation that they are in possession over the land in dispute as trespoassers and are liable to ejectment. THE suit was contested on the ground that the aforesaid tenure-holders have transferred possession to the defendant-respondents on the basis of a written deed dated 28-7-1964 on receiving Rs. 6250/-. THErefore, they are not trespassers and are not liable to ejectment. The suit was dismissed by the trial court and the decree of the trial court was affirmed by the first appellate court as well. The petitioner preferred a second appeal before the Board of Revenue which was dismissed under Order XLI, Rule 11 CPC. The petitioner has challenged the order of Board of Revenue in this writ petition before this Court. The main question involved in this case is as to whether possession transferred by the tenure-holders on the basis of a written deed which is not a sale or will or gift or exchange amounts to a transfer within the meaning of the Transfer of Property Act and as to whether the possession of the person is lawful or adverse. This is not a question of fact but obviously it is a question of law. Therefore, the appeal was worthy of admission under Order XLI, Rule 11 CPC by the Board of Revenue.
(3.) IN this view of the matter, I allow the petition, quash the order of the Board of Revenue dated 19-2-1971 and direct it to admit the appeal under Order XLI, Rule 11 CPC and hear and decide the same according to law. However, the parties shall bear their own costs. Petition allowed.;