B.L.Yadav, J. - (1.) This petition under Article 226 of the Constitution is directed against order dated 26th March 1976 passed by Board of Revenue and the order dated 6-10-70 passed by Additional Commissioner Varanasi. The facts in brief are that suit under Section 229-B of U.P.Z.A. and L.R. Act (hereinafter referred as the Act) was filed by respondent no. 5 one Jagarnath claimed that the land in suit had been settled with him as sub-tenant before the date of vesting, and that he was in possession since the date of settlement in 1918 and after the date of vesting he became sirdar. The suit was contended by petitioner alleging that plaintiff respondent no. 5 was not sub-tenant and no settlement of tenancy was made with the plaintiff respondent no. 5 and that the land was given to Smt. Dhanesra in lieu of maintenance by his father, hence petitioner could not enquire sirdari right after the date of vesting. The suit was liable to be dismissed.
(2.) The trial court by the order dated 20-8-69 dismissed the suit of respondent no. 5. He preferred an appeal before the Additional Commissioner which had been allowed by judgment dated 6-11-70. The petitioner preferred second appeal which was dismissed by the Board of Revenue. It is against the order passed by respondents no. 1 and 2 that the present petition has been filed.
(3.) I have heard Sri Sankatha Rai appearing for the petitioner. He urged that Board of Revenue has committed an error in considering that the claim of petitioner was barred by principles of res-judicata. He further urged that the Additional Commissioner has appreciated oral evidence afresh whereas trial court has considered the same hence unless some special feature of the oral evidence has escaped attention of the trial court the same could not be appreciated in appeal as trial court had already applied its mind and considered oral evidence of the plaintiff respondent no. 5 and rejected the case. He relied upon Madhusudan v. Smt. Narayani Bai and others, 1983 SC 114 . In the instant case the Additional Commissioner has considered oral evidence of both the parties and rejected the same. He had placed reliance upon documentary evidence and after appreciating revenue papers entries, held that the father of respondent no. 5 was sub-tenant before the date of vesting and thereafter he became Sirdar and after relying upon documentary evidence, suit had been decreed by Additional Commissioner.;