S.S.CHAUHAN,J. - (1.) THE present petition has been filed challenging the order dated 31.08.1993 passed by the Board of Revenue and the order dated 03.02.1992 passed by the Additional Commissioner, Moradabad Division, Moradabad.
(2.) THE dispute relates to plot no.47 measuring 3.94 acres, plot no.52 measuring 2.56 acres, plot no.162 measuring 4.12 acres and plot no.209 measuring 7.07 acres; the total area of all the plots is 17.69 acres. Name of Hari Prakash son of Darbari Ram/respondent and Musammat Khilanda Bai widow of late Hemraj (aunt of the petitioners) was entered jointly in the khatuani of 1373 fasli to 1375 fasli. In the same khatauni, name of Kishun Chand son of Khilanda Bai also came to be recorded. The petitioners came to India at the time of partition along with a group of Manak Chand, who was the group leader. Hemraj alias Hema Ram was alive at the time of partition and was a member of the said group. At the time of rehabilitation, the disputed property was given to Hemraj alias Hema Ram who died before commencement of Chakbandi operations. Smt. Khilanda Bai wife of Hemraj alias Hema Ram succeeded to the disputed property and died issueless. After her death, the petitioners being the sons of Sobha Ram being the natural heirs succeeded to the property. Father of Hari Prakash, namely, Darbari Ram had died in Pakistan and half of the area of the disputed plot was in the name of Hari Prakash and the other half in the name of Musammat Khilanda Bai. When the petitioners came to know about this, they filed objection under Section 34 of the U.P. Land Revenue Act (for short "the Act") interalia on the ground that Khilanda Bai widow of Hemraj died issueless and the petitioners are their heirs. Hemraj was brother of Sobharam and uncle of the petitioners petitioners. By virtue of the order passed by the Tehsildar, name of Hari Prakash and others was expunged. Name of the petitioners was entered in the half area of the plot and an appeal under Section 210 of the Act was filed before the Sub Divisional Magistrate, who allowed the appeal. Against the order of the Sub Divisional Magistrate dated 07.07.1980, a revision was preferred before the Commissioner. Against the order of the Commissioner, an appeal was preferred before the Board of Revenue which too was dismissed. Thereafter a Writ Petition No.200 of 1990 was preferred before this Court at Lucknow Bench which is alleged to be pending. The petitioners filed a suit under Section 229-B of the U.P. Z.A. and L.R. Act (for short "the Z.A. Act") for declaration of their rights. The suit was decreed in favour of the petitioners. An appeal was filed against the judgement of the Sub Divisional Magistrate before the Additional Commissioner, who allowed the appeal. Against the order of the Additional Commissioner, a second appeal was filed before the Board of Revenue and the Board of Revenue proceeded to reject the appeal by its judgement and order dated 31.08.1993. Hence this writ petition.
(3.) SUBMISSION of learned counsel for the petitioners is that the evidence on record has not been evaluated and considered as required under law but the court of Additional Commissioner as well as Board of Revenue has misdirected themselves in relying upon the finding recorded during the proceedings under Section 34 of the Act. The findings recorded under Section 34 of the Act are not conclusive and final but in fact these proceedings are summary in nature and so any evidence adduced in these proceedings cannot be made a basis for allowing the appeal. Learned counsel has further submitted that by relying upon the evidence of the mutation courts, the rights of the petitioners have been adjudicated in an illegal and arbitrary manner and such finding cannot be said to be binding and neither any finding can be based on such evidence. The first appellate court as well as the second appellate court was required to consider the evidence lead before the Sub Divisional Magistrate in the suit filed under Section 229-B of the Z.A. Act.;