Court No. - 3 Case :- MISC. SINGLE No. - 22 of 2010 Petitioner :- Rajendra Pratap Singh Respondent :- Board Of Revenue U.P.Lko.Through Its Chairman And Ors. Petitioner Counsel :- Mahendra Singh Rathore Respondent Counsel :- C.S.C.,Ajay Kumar Chaturvedi Hon'ble Shri Narayan Shukla,J.
Notices on behalf of opposite party Nos. 1, 2 and 3 have been accepted
by leaned Chief Standing Counsel and for opposite party No.4 by Mr.
Ajay Kumar Chaturvedi, learned Advocate.
Heard Mr. Mahendra Singh Rathore, learned counsel for the petitioners
and Mr. Ajay Kumar Chaturvedi, learned counsel for opposite party
no.4.
The petitioners have challenged the order dated 30.11.2009 passed by
opposite party No.1 i.e. Board of Revenue, Lucknow on the ground that
though the court has recorded the finding that the trial court has failed
to record the statements of witnesses of Will-deed, which requires
reconsideration by the trial court, but without sending the matter for
reconsideration it has discussed that the petitioners have failed to
establish their right of succession under section 171 of the U.P. Z.A. &
L.R. Act. He further submits that the finding that the petitioners have
failed to establish their right of succession has been given without any
evidence as it has not been discussed in the order as to how they do not
come under the category of succession under section 174 of the Act.
Thus, upon perusal of the order impugned I find that on both counts the
case requires retrial. Therefore, I hereby interfere in the order passed by
the Board of Revenue to the extent that the petitioners have failed to
establish their right of succession and remit the matter to the trial court
for retrial where both the parties shall be given liberty to adduce their
evidence in their favour to establish their right either under the right of
succession or under the Will. Accordingly the trial court shall decide the
matter afresh after providing opportunity of hearing to the parties
concerned. Till decision of the trial court the parties shall maintain
status quo over the land in dispute.
With the aforesaid observation/direction, the writ petition is disposed of
finally.
Order Date :- 8.1.2010
GSY