- (1.) THIS writ petition is directed against the judgment and order dated 14-8-1997 passed by the respondent no. 1/board of Revenue, U. P, Allahabad in second ap peal no. 87 of 193-94, which is contained in Annexure no. 8 to the writ petition.
(2.) FACTS, in brief, are that Amar Nath, father of petitioner no. 1 to 5 and Gopi Nath, father of the petitioner no. 6 to 11 were Zamindars of land in dispute i. e. Khasra No. 198-M at Maheshpura, Tehsil Kashipur, District Udham Singh Nagar. Respondent no. 2 Sabir Husain along with Kehar Singh and Gurdeep Singh had filed a suit before the Sub Di visional Magistrate, Kashipur under Sec tion 59 of the U. P. Tenancy Act for declaration of their rights over the land in dispute as hereditary tenants (Mauroosi Kashtkar) alleging that on 24-12-1959, Zamindars had executed a lease deed for 99 years in favour of respondent no. 2. The suit was contested by the petitioners. The Additional Collector 1st Class/sub Divisional Magistrate by his detailed judg ment and order dated 30-8-1993 dis missed the aforesaid suit giving specific finding that the lease deed alleged to be executed in favour of Sabir Husain is in violation of the provisions of U. P. Tenancy Act and is inadmissible in evidence and Sabir Husain is not entitled for any dec laration in his favour. Aggrieved with the aforesaid judg ment of the trial court, respondent no. 2 Sabir Husain along with Kehar Singh and Gurdeep Singh preferred an appeal before the Commissioner, Kumaon Division, Nainital, which was dismissed by the judg ment and order dated 18-2-1994. Aggrieved further by the aforesaid judgment, Sabir Husain filed second ap peal no. 87 of 1993-94 before the Board of Revenue, Allahabad while Kehar Singh and Gurdeep Singh filed second appeal no. 121 of 1993-94. The Board of Rev enue vide its common judgment and or der dated 14-8-1997 allowed the appeal no. 87 of 1993-94 and dismissed the ap peal no. 121 of 1993-94. Hence, this writ petition has been filed by the petitioners challenging the aforesaid impugned judg ment and order dated 14-8-1997 passed in appeal no. 87 of 1993-94.
(3.) A perusal of the impugned judg ment and order passed by the Board of Revenue shows that it has re- appreciated the evidence and recorded its own finding regarding genuineness of lease deed. It is settled law that in the second appeal only question of law can be decided and find ing based on fact cannot be reviewed and a fresh finding cannot be recorded. There fore, second appellate court fell into error in recording a finding of fact which is be yond the scope of Section 100'cpc which is adopted by reference under Section 331 of U. P. Zamindari Abolition and Land Re forms Act. The Board cannot reassess the evidence of the parties in the second ap peal and the matter would have been re manded. Finding of fact by the second ap pellate court that Sabir Husain has per fected his title by adverse possession is also contrary to the evidence as accord ing to the case of Sabir Husain, he was put into possession after the lease was executed in his favour. Therefore, it was permissive possession and not adverse.;