S.R.Mishra - (1.) BY means of this writ petition, the petitioner has prayed for quashing the orders of respondents 1, 2 and 3.
(2.) THE facts giving rise are that respondent no. 6 filed a suit under section 229-B of U. P. Zamindari and Land Reforms Act claiming the cotenancy right in respect of the land in dispute which was admittedly owned by Oheesa. This claim was contested by. the petitioner on the ground that he was adopted about SO years back by one Sunder Lal. THE trial court after considering the documentary evidence decreed the suit declaring respondent no. 6 as co-bhumidhar of the plot in dispute to the extent of one and half share. Aggrieved by the said order of the trial court the petitioner filed appeal which was dismissed on 3-6-1988. THE petitioner filed second appeal which too met the same fate. Aggrieved by the order of respondent no. 1, the petitioner has come to this Court. I have heard the learned counsel- for the petitioner and the counsel for the respondents. It has been urged on behalf of the petitioner that dispute was about adoption by Sunder Lal before the respondents 1 to 3 and for determination of such dispute, oral evidence was material and non consideration of oral evidence has affected the merits of the case. Therefore, the orders of respondents I to 3 are liable to be set aside on this score alone. The learned counsel for the respondents submitted that the finding recorded by the respondents 1 to 3 is based on the fact that the Authorities did not believe the theory of adoption. Non consideration of oral evidence is, thus, not fatal and interference is called for in the writ jurisdiction.
(3.) FROM a perusal of the order of Sub Divisional Officer I find that though documentary evidence was considered but the oral evidence was consciously not considered and reason for non consideration was givan as under : "I am of the view that discussion of oral evidence as to the adoption of Lakhi by Sunder Lal is not necessary." The appellate authority and the Board of Revenue also accepted the judgment of the trial court. It has been held by this court that oral evidence is a part of evidence, and non-consideration thereof vitiates the judgment in the normal circumstances, except in those class of cases where documentary evidence are clinching, and, nothing turns on the oral evidence adduced in the case. But, in the present case, when the documentary evidence adduced by the parties cannot be said to be conclusive, and the adoption, which took place long back was to be proved by oral evidence without considering the same, the court of fact cannot hold that there is no need for consideration of oral evidence. Without considering oral evidence, no court can come to the conclusion as to whether oral evidence is worthless, or, not material for deciding the controversy involved in the case.;