Appellate courts must adhere to procedural correctness and cannot arbitrarily overturn lower court findings; due process is essential in adjudicating land rights based on historical claims.

JUDGMENT :

CHANDRA KUMAR RAI, J.

1. Heard Mr. Shamim Ahmad, learned Counsel for the petitioner, Mr. Tarun Gaur, learned Standing Counsel for the State-respondent and Mr. Arun Kumar Pandey, learned counsel for respondent No.4-Gaon Sabha.

2. Nobody has put in appearance on behalf of respondent No.5 after issuance of notice to engage another counsel due to death of earlier counsel of respondent No.5.

3. Brief facts of the case are that suit under Section 229 -B of Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred as to the U.P.Z.A.& L.R. Act) has been filed by petitioner in respect to the plot No.143 (New No.52) area 2.73 acres situated in village-Burhpur, Pargana- Amroha, District-Moradabad with the allegation that land in dispute was recorded in the name of Ehsanul Haq and Ziaul Haq. It is further stated in the plaint that after partition between India and Pakistan Ziaul Haq went to Pakistan and his half share in the plot in dispute became Evacuee property. Petitioner's father Ehsanul Haq continued to be recorded over plot in dispute and after death of Ehsanul Haq petitioner remained recorded over the plot in question. The share of the Ziaul Haq was put to auction by the custodian on 11.09.2006 and respondent No.5 Naseem Ahmad claimed right on the basis of the auction held by the custodian in respect to the share of Ziaul Haq. In the aforementioned suit under Section 229 -B of U.P.Z.A. & L.R. Act 12 issues were framed before the trial court and trial court after considering the evidence adduced by the parties on the basis of issues framed in the suit recorded finding of fact that plaintiff/ petitioner Mannanul Haq son of Ehsanul Haq will be entitled to be recorded over 1/2 share over plot No.143 area 2.73 acrers, accordingly, the trial court has decreed the suit vide judgment and decree dated 01.10.1991 for 1/2 share of plot No.143. Against the judgment and decree of trial court dated 01.10.1991 appeal was filed by respondent no.5- Naseem Ahmad before Commissioner, which was registered as Appeal No.3/1992- 93. The aforementioned appeal was allowed vide judgement and decree dated 26.11.1992 setting aside the judgment and decree passed by trial court. Against the judgment and decree of Additional Commissioner dated 26.11.1992 second appeal was filed on behalf of petitioner which was registered as Second Appeal No.15 of 1992-93. The aforementioned appeal was also dismissed by learned Board of Revenue by judgment dated 12.06.1995. Review application filed on behalf of the petitioner has also been dismissed by Board of Revenue vide order dated 21.03.1997 hence this writ petition for the following relief:

"It is therefore, most respectfully prayed that a suitable writ, order or direction be issued in the nature of certiorari quashing the impugned judgments dated 21.03.1997 and 12.08.1995 passed by respondent No. 1 (Annexure No.1 and 2) and the judgment dated 11.06.1992 passed by respondent no.2 (Annexure No.3) and any other or further order which the Court may deem fit and proper in the interest of justice be passed in favour of the petitioner."

4. Respondent No.5 has filed his counter affidavit. Petitioner has also filed his rejoinder affidavit.

5. Learned counsel for the petitioner submitted that trial court has considered the issue relating to the evacuee property as well as bar of section 49 of U.P.C.H. Act and and recorded finding of fact that petitioner is entitled to be recorded over the plot in question in respect to 1/2 share but Additional Commissioner has set aside the judgment and decree passed by trial court in arbitrar