Rajes Kumar - (1.) -Present petition under Article 226 of the Constitution of India is directed against the order dated 26.8.2008 passed by the Member, Board of Revenue by which second appeal filed by the petitioners has been dismissed.
(2.) BRIEF facts of the case are that the petitioners filed a suit under Section 229B of the U. P. Zamindari Abolition and Land Reforms Act claiming their share in the property standing in the name of Panchu on the ground that the said property was acquired by Late Sukhlal and was a joint family property and being great grandson of Sukhlal entitled for the share. In support of their claim, they produced Suryabali son of Gulab Singh who claims to be Jamindar of the village. In his statement, he stated that the said land was given on lease to late Sukhlal. Second witness produced by the petitioners was Lalchand. The claim of the respondents was that late Sukhlal had only two sons, namely, Kalu and Adhin. Gudar and Boli were not the sons of late Sukhlal but sons of Mahipal of village Khodaipur, Pargana Kantit, Tappa Upraudh, District Mirzapur. Kalu died without issue. Panchu was the son of Adhin. The property in dispute was standing in the name of Adhin and after the death, the name of Panchu was recorded being the son. He also submitted that the said property was self acquired property of Adhin and was not the allotted land of Sukhlal and thus, Girdhari had no right over the land in dispute. Pargana Adhikari vide order dated 11.1.1993 has held that the property in dispute belongs to the joint family. He further held that the petitioners had 1/4th share in the property in dispute. Being aggrieved by the order of the Sub-Divisional Magistrate, Ganga and Terhai sons of late Panchu filed Appeal No. 27 of 1993 before the Commissioner. The appeal was heard by the Additional Commissioner and decided by order dated 28.2.1995. The appeal was allowed and the order dated 11.1.1993 has been set aside. The appellate authority held that in the revenue record in 1603 fasli the name of Kallu son of Sukhlal was recorded. In 1346 Fasli the name of Panchu son of Adhin was recorded. In 1359 Fasli also the name of Panchu son of Adhin was recorded. In 1333 Fasli, the name of Adhin was recorded, in 1359 to 1391 Fasli in Khata Nos. 92, 39 Kita 11 Bighas, 2 Biswas exclusive name of Panchu son of Adhin was recorded. In the record, the name of late Sukhlal is nowhere recorded. He held that Suryabali Singh in his statement stated that the land was given to late Sukhlal on lease, while no document has been adduced in this regard. The statement of other persons have also not been relied upon as they were born after the death of Sukhlal and made the statement only on the basis of hearsay. On the basis of the material on record, he held that the land was not the joint family property and was never the property of Sukhlal and, therefore, the petitioners had no right over the land in dispute. Being aggrieved by the order of the Additional Commissioner, the petitioners filed second appeal before the Member, Board of Revenue, which has been dismissed by the impugned order. Member, Board of Revenue held that in the statement Suryabali Singh stated that the land was given on lease to late Sukhlal, while no document has been adduced in this regard. He held that the statement of other persons were also unreliable because they were born after the death of late Sukhlal and their statement were hearsay. He further held that no evidence has been adduced that the property in dispute was acquired by late Sukhlal. In this view of the matter, he held that the petitioners had no right over the land in dispute.
(3.) HAVING heard the learned counsel for the parties, I have gone through the impugned order and other documents annexed with the writ petition. I do not find any error in the order of the Board of Revenue. The petitioners are claiming the following pedigree of their family :;