The longstanding possession of defendants as bhumidhars cannot be disregarded, and the Board of Revenue must adhere to factual findings of lower courts in its second appellate jurisdiction.

JUDGMENT :

(Chandra Kumar Rai, J.)

1. Heard Mr. Ramendra Asthana, Mr. Pradeep Kumar Rai, Mr. Prajyot Rai, learned counsels for the petitioners, Mr. Anshul Nigam, learned Standing Counsel for the State respondents and Mr. M.C. Chaturvedi, learned Senior Counsel assisted by Mr. Abhinava Krishna Srivastava, learned counsel for respondent no.3/ Kanpur Development Authority.

2. Brief facts of the case are that respondent no.3/ Kanpur Development Authority filed a suit under Section 229-B/ 209 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 hereinafter referred to as U.P.Z.A. and L.R. Act in respect to plot Nos. 196, 197, 199 total area 15 bigha 19 biswa situated in Village Chakeri Tehsil and District Kanpur Nagar for declaration that entries of defendant nos. 1 to 9 over the plot in question be expunged and if defendants are found in possession over the same, they may be ejected from the plot in question. The aforementioned suit was registered as suit No. 52/85/46/87 and State of U.P. was impleaded as defendant no.10. Defendants have put in appearance in the aforementioned suit and filed their written statement. Nine issues were framed before the Trial Court in the aforementioned suit and parties have adduced oral and documentary evidences in support of their cases. Trial Court while deciding the issue Nos. 1 to 4 and 6 has recording finding of fact that defendants are in possession over the plot in question since before the date of vesting accordingly they became adivasi and later on bhumidhar, as such, the entry in respect to the plot in question in the name of defendants cannot be expunged. The Trial Court ultimately dismissed the aforementioned suit vide judgement and decree dated 5.12.1987. Against the judgement and decree of Trial Court dated 5.12.1987, appeal under Section 331 of the U.P.Z.A. and L.R. Act was filed on behalf of respondent no.3/ Kanpur Development Authority before the Commissioner which was registered as appeal No. 8/1987. The aforementioned appeal was heard and dismissed by Additional Commissioner vide judgement and decree dated 1.8.1988. Against the judgement and decree of Additional Commissioner dated 1.8.1988, respondent no.3/ Kanpur Development Authority filed a second appeal before Board of Revenue which was registered as second appeal No. 13 of 1988-89. The Board of Revenue vide judgement dated 23.4.1997 allowed the second appeal setting aside the judgement of Trial Court as well as the First Appellate Court and decreed the plaintiff suit. Hence this writ petition filed for the following relief:-

"Issue a writ, order or direction in the nature of certiorari to quash the order dated 23.4.1997 of opposite party No.1 and restore that of the Courts below."

3. This Court entertained the matter on 12.8.1997 and stayed the operation of the order dated 24.3.1997 passed by Board of Revenue.

4. In pursuance of the order dated 12.8.1997 passed by this Court, the parties have exchanged their pleadings.

5. Mr. Ramendra Asthana, Mr. Pradeep Kumar Rai and Mr. Prajyot Rai, learned counsels for the petitioners submitted that lease deed was executed by Zamindar on 30.6.1949 in favour of Dwarika Prasad, wife of Dwarika Prasad, Vishwa Nath in respect to disputed plot along with certain other plots. They further submitted that in a suit under Section 59 of the U.P. Tenancy Act a decree was passed on 22.11.1952 in favour of defendants in respect to the plot in question. They further submitte