VIKRAM NATH,J. - (1.) HEARD Sri Sankatha Rai, learned Counsel for the pe­titioner and Sri Triveni Shankar, learned Counsel for the respondents.
(2.) THIS petition has been filed assail­ing the correctness of the orders dated 2-4-1983 and 25-10-1978 passed by the Board of Revenue and the Additional Com­missioner whereby the suit of the peti­tioner has been dismissed. The petitioner filed a suit under Sec­tion 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short re­ferred to as the Act) for declaration of his rights with regard to Plot No. 2413/2, area 4 Biswa on the. ground that he was in ad­verse possession of the same for the last 14 years and that the defendant-respon­dents have failed to file suit against him under Section 209 of the Act and as such he has perfected his rights under Section 210 of the Act. The defendant- respon­dents contested the suit and filed written statement. Both the parties led evidence both documentary and oral. The trial Court vide judgment and order dated 31-1-1976 after considering the material on record decreed the suit of the petitioner holding that he had perfected his rights under Sec­tion 210 of the Act. The respondents filed an appeal, which was allowed by the Ad­ditional Commissioner vide judgment and order dated 25-10-1978. The Additional Commissioner recorded a finding that the land in, suit was not land as defined under the Act and therefore no Sirdari rights could be conferred on the petitioner. The second filed by the petitioner has also been dismissed by the Board of Revenue vide judgment and order dated 2-4-1983. The Board of Revenue also recorded similar finding.
(3.) FROM a perusal of the judgments of the Additional Commissioner and the Board of Revenue, I find that the oral evidence led by the plaintiff as also the defendant-respondents has not been taken into consideration. Reliance has been placed only upon the Khasra entries for the period from 1367-F to 1380-F whereas from a perusal of the judgment of the trial Court as also the oral evidence, which has been filed alongwith this petition, both led by the plaintiff as also the defendants, it appears that the plaintiffs witnesses have specifically stated that the plaintiff was carrying on agricultural activities over the land in dispute. In the cross-examination no suggestion was made by the defen­dants that no agricultural activities was being carried out by the plaintiff. Even in the statements of the witnesses produced by the defendants no such averment has come forward. It is well- settled that docu­mentary evidence can be rebutted by means of oral evidence. What credence can be given to such oral evidence in re­buttal would be a consideration for the Court. However, where such oral evidence is not taken into consideration at all by the First Appellate Court which is the last Court of fact, the judgment of such Ap­pellate Court would suffer from an error of law and would stand vitiated. Even the Second Appellate Court also did not ex­amine this aspect.;