JUDGMENT :

1. Heard Mr. Vishnu Singh, Counsel for the petitioner. Nobody appeared for the contesting respondents.

2. Brief facts of the case are that petitioner filed a suit under Section 229B of the UP Z.A. & L.R. Act claiming co-tenancy right in respect to the plot in suit situated in village Bharlai, Paragna Sheopur, District Varanasi with the allegation that plot in dispute is ancestral and after death of common ancestor plaintiff and defendant no. 1 become owner in possession of the plot in dispute. It is also alleged in the plaint that plaintiff's father deposited the amount and obtained bhumidhari sanad on 10.01.1950 but after death of plaintiff's father the name of defendant no. 1 was only recorded in the revenue records hence the suit. Defendant-respondents filed written statement in the aforementioned suit denying the plaint allegations and in the additional statement it has been alleged that plaintiff has surrendered the land in question in 1912 and since then respondents have been in continuous possession of the plot in question. It is further alleged that on the basis of surrender of the land plaintiff's rights has been extinguished. Trial Court vide judgment and decree dated 16.02.1976 dismissed the plaintiff's suit. Against the decree of the Trial Court dated 16.02.1976 petitioner filed an appeal before the Commissioner which was allowed vide judgment dated 14.10.1977. Against the judgment of the First Appellate Court dated 14.10.1977 second appeal No. 15 of 1977-78 was filed before the Board of Revenue by the defendants, the second appeal No. 15 of 1977-78 was heard by Board of Revenue and vide order dated 31.07.1978 allowed the second appeal setting aside the judgment and decree of First Appellate Court and the judgment of the Trial Court was affirmed. Against the judgment of Second Appellate Court dated 31.07.1978 petitioner filed Writ Petition No. 9421 of 1978 which was allowed by this Court vide judgment dated 25.09.1985 and remanded the matter before the Board of Revenue to decide the second appeal afresh in accordance with law. After remand order dated 25.09.1985 passed by this Court second appeal was heard by Board of Revenue afresh and vide judgment dated 28.12.1988 the second appeal was allowed again setting aside the judgment and decree of First Appellate Court date 14.10.1977 hence this writ petition. This Court while entertaining the writ petition on 28.03.1989 passed the following interim order :

"Issue notice.

Till further orders of this Court, the operation of the order dated 28.12.1988 passed by respondent no.1 shall remain stayed."

3. In pursuance of the order dated 28.03.1989 contesting respondents put in appearance through Counsel and filed counter-affidavit. Petitioner has filed his rejoinder-affidavit also to the counter-affidavit filed by respondent no. 4.

4. Counsel for the petitioner submitted that plot in dispute is ancestral and placed the following pedigree in order to demonstrate that plaintiff Ram Naresh was co-sharer/co-tenant of the plot in dispute:-

5. Counsel for the petitioner further submitted that Board of Revenue has committed manifest error of law in accepting the case of surrender when all the courts had held that property is joint and comes down from a common ancestor and the case of surrender had been rejected by this Hon'ble Court. He further submitted that Second Appellate Court has no jurisdiction to reappraise the evidence and interfered with the finding of fact recorded by First Appellate Court. He further submitted that First Appellate Court after considering the evidence on record has recorded finding of fact that merely because the petitioner's father started living in his Sasural his valuable right will not be extinguished but the Board of Re