JUDGMENT S.N. Srivastava, J.
1. This writ petition is directed against the judgments dated 15th September, 2000 passed by the Board of Revenue in Second Appeal No. 590 of 99-2000 and 14th July, 2000 passed by the Commissioner, Kanpur Division, Kanpur in Appeal No. 33/99 arising out of Suit No. 24 of 1998 under Section 229-B of the U.P.Z.A. & L.R. Act.
2. The brief facts giving rise to the present petition are that petitioners are daughters of Garibe, who died 20 years back from the date of filing of the Suit by the Plaintiffs (Petitioners herein). After about 20 years of the death of Garibe, plaintiffs filed the Suit under Section 229-B of the U.P.Z.A. & L.R. Act for declaration of their Bhumidhari rights of land in dispute, i.e., Plot No. 801 area 157 hectare and Plot No. 852 area 1.486 hectare, total area 1.643 hectare situated in Village Mahuagaon, Teshil, Pargana and District Kanpur on the ground that they inherited property of Garibe after his death. Name of Harish Chandra-Defendant in the suit was wrongly recorded as he was not born from the wedlock of Garibe with their mother and he is son of Dwarika, Resident of Bhatankhera, Post Masandi, Tehsil Purva, District Unnao. Name of Harish Chandra be expunged and names of plaintiffs be recorded as Bhumidhars of the land in dispute.
3. Defendant-Harish Chandra denied plaint allegations and claimed himself to be the son of Garibe who inherited the property in dispute after his death. Defendant also denied any right of plaintiffs on the basis of inheritance. Trial Court decreed the suit by the judgment and decree dated 23rd February, 1999. The First Appellate court reversed the judgment and decree of the Trial court and dismissed the suit. The decree of the First Appellate court was affirmed by the Board of Revenue in the Second Appeal.
4. Heard learned counsel for the parties.
5. Learned counsel for the petitioners urged that the judgment and decree of the lower appellate Court affirmed by the Second Appellate court suffers from error of law apparent on the face of the record as all the oral evidence of the plaintiffs were not considered by the lower appellate Court while reversing the judgment and decree of the Trial court. He further urged that being unmarried and minor daughters on the date of death of Garibe, plaintiffs will inherit the property of Garibe and name of Defendant-Harish Chandra, who is not son of Garibe, was wrongly and illegally recorded in the revenue record. The further argument of learned counsel for the petitioners is that the lower appellate court did not consider findings as well as materials considered by the Trial court while reversing the judgment and decree of the Trial court.
6. Learned counsel for the petitioners relied upon the judgment of the Apex Court , Ishwar Das Jain v. Sohan Lal and referred Paragraphs- 11 and 12 in support of his contention and urged that the statement of a number of witnesses were not considered by the lower appellate Court in First Appeal or the Board of Revenue in Second Appeal and as such the judgment is vitiated in law.
7. While relying upon Apex Court's judgment in Dilbagrai Pujabi v. Sharad Chandra, , learned counsel for the petitioner urged that the first appellate Court was under a duty to examine the entire relevant evidence on record and if it refuses to consider important piece of evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside those finding.
8. In reply to the same, Sri Sankatha Rai, learned counsel for the contesting-Opp. Party, urged that on the own statement of plaintiffs, they could not inherit property of Garibe and the appellate Court clearly recorded a finding to that effect. He further urged that Defendant-Harish Chandra is the son of Garibe born from the wedlock of Garibe with plaintiffs' mother and was rightly recorded Bhumidhar of the land in dispute after the death of Garibe. It was further urged that all the relevant oral as well as documentary evidence were considered by the lower appellate Court and the Second Appeal was concluded by the findings of fact.
9. Learned counsel for the contesting-Opp. Party relied upon a Constitution Bench judgment , V. Rama Chandran Ayyar and Anr. v. Rama Lingam Chettiar and Anr.. He also relied upon another judgment of the Apex Court , Swarn Sing and Anr. v. State of Punjab and Ors..
10. He further relied upon yet another Constitution Bench judgment of the Apex Court Syed Yakoob v. K.S. Radha Krishnan and Ors.. Duly considered arguments of learned counsel for the parties and materials on record and also carefully gone through the case laws relied upon by the learned counsel for the parties.
11. First Appellate court has considered plaintiffs' own statement, who have stated in cross-examination that on the death of Garibe their mother was alive, who died after 5-6 years. During this period plaintiffs were married by Palhar, real brother of Garibe. In view of this admitted fact, plaintiffs cannot inherit property and suit of plaintiffs on their own statement cannot be decreed.
12. As in the present case, plaintiffs own statement was very relevant which conclusively established that they could not have inherited property under Section 171 of the U.P.Z.A. & L.R. Act or any other provision of law and that relevant evidence was duly considered by the lower appellate court, the question of going into the weaknesses of the defence of Defendant's claim, once it was established that plaintiffs' suit could not be decreed is not relevant.
13. In case statement of plaintiffs is accepted as it is, then after the death of Garibe his widow, who was alive at that time, would have inherited the land after the death of Garibe and after her death, Palhar-real brother of Garibe would inherit the land in dispute. After the death of Palhar, the land in dispute shall vest in favour of heir of Palhar according to Section 171 of the U.P.Z.A. & L.R. Act and plaintiffs do not come as heirs being brother's married daughters and, therefore, on the own evidence of the plaintiffs, suit of the plaintiffs could not be decreed.
14. Besides, the courts below have recorded a finding of fact that Harish Chandra is son of Garibe and this fact is also borne out from other evidence on record as in the copy of the will executed by Palhar, real brother of Garibe, Harish Chandra-Defendant was mentioned as son of Garibe. While recording the finding of fact all relevant evidence were considered by the lower appellate Court which was also affirmed by the Second Appellate court (Board of Revenue) in Second Appeal. This Court in writ jurisdiction cannot interfere with the findings of fact recorded by the lower appellate Court. Whether Harish Chandra is son of Garibe, is a question of fact and finding recorded by the lower appellate Court, which is the final court of fact is a finding on question of fact, now it is not open in writ jurisdiction to re-open the finding of fact recorded by the last Court of fact affirmed in Second Appeal.
15. It is well settled in law that in case a finding of the trial Court is based on a number of evidence which was reversed by the lower appellate Court and if such finding of fact of the lower appellate Court could be sustained on the basis of the relevant evidence/material relied upon by the lower appellate Court, that finding cannot be set aside merely on the ground that certain other statements were not taken into consideration in the writ petition. Accordingly, this Court is of the firm view that on the admitted fact in the plaintiffs' own statement they could not inherit property of Garibe, evidence referred by the plaintiffs, i.e., witnesses examined by them to disbelieve Defendant's case is not relevant. The findings of the lower appellate Court recorded in the judgment was based on own statement of plaintiffs which could not be disbelieved in the writ proceeding. My this view is supported by the Constitution Bench judgment of the Apex Court , V. Rama Chandran Ayyar and Anr. v. Rama Lingam Chettiar and Anr. (supra) and another judgment of the Apex Court , Swarn Sing and Anr. v. State of Punjab and Ors. (supra) relied upon by learned counsel for the contesting-Opp. Party.
16. In Paragraph 17 of judgment of the Apex Court , V. Rama Chandran Ayyar and Anr. v. Rama Lingam Chettiar and Anr. (Supra), which also supports my view, it has been held that "In other words, what the Courts of fact were called upon to consider and decide were questions of fact in the light of all relevant evidence. That being so, we do not think the High Court was justified in interfering with the finding of fact recorded by the lower appellate Court in favour of the appellants." In this very judgment the Constitution Bench of the Apex Court also held that "the High Court was not justified in interfering with the finding of fact recorded by the lower appellate Court merely because the judgment of the lower appellate Court was not as elaborate as that of the trial Judge, or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate Court. The finding of the lower appellate Court could not be said to be perverse or not supported by any evidence."
17. Paragraph-12 of the judgment of the Apex Court , Swarn Sing and Anr. v. State of Punjab and Ors. (supra) also supports my view, which is being reproduced below: -
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the High Court in writ proceedings under Article 226. It is well settled that Certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of Certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra) "this limitation necessarily means that findings of fact reached by the inferior court or Tribunal as a result of the appreciation of evidence cannot be re-opened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be."
18. Relevant part of Paragraph-7 of the Constitution Bench judgment of the Apex Court Syed Yakoob v. K.S. Radha Krishnan and others (supra) which also supports my view is being reproduced below:-
"A finding of fact recorded by the Tribunal cannot, however, be challenged in proceedings for a writ of Certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal, the points cannot be agitated before a writ Court."
19. In the facts and circumstances as above, statement of the plaintiffs itself makes it clear that they could not have inherited property on the death of Garibe and their suit could not have been decreed.
20. In view of the above, plaintiffs' suit was rightly dismissed by the lower appellate Court which was rightly affirmed by the Second Appellate Court (Board of Revenue) in Second Appeal.
21. Petition lacks merit and is dismissed. No order as to cost.