Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No.639 of 2008 Radhey Shyam and others. …… Petitioners Versus The Additional Chief Revenue Commissioner, Dehradun, Garhwal Mandal and others. ……… Respondents ……………….. Sri U.P.S. Negi, learned counsel for the petitioners. Sri H.M.Raturi, learned Standing Counsel for the respondent Nos. 1 & 9. Date: Aug. 26,2008. Hon’ble P.C.Verma,J. This writ petition is directed against the judgment and order dated 28.12.2007 passed by the Additional Chief Revenue Commissioner, Dehradun, Garhwal Division in Second appeal No.14/2002-03 exercising the power of Board of Revenue under the U.P. Zamindari Abolition and Land Reforms Act. 2. Brief facts of the case are that Smt.Laxmi Devi- wife of petitioner No.1 filed a suit for declaration of Bhumidhari rights under Section 229-B of U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) over one Bigha of land comprised in Khata No.7 of Village-Paniyali Talli, Tehsil Kotdwara, District Pauri Garhwal. The respondent No.2-Daulat Ram also filed a suit for eviction under Section 209 of the Act against 2 Smt.Laxmi Devi from the same land. The Assistant Collector, Kotdwara (District-Pauri Garhwal) consolidated both the suits and after hearing the parties dismissed the suit filed by Smt.Laxmi Devi and decreed the suit for eviction filed by the respondent No.2. Smt.Laxmi Devi filed separate appeals against the order passed by trial court before Additional Commissioner, Garhwal Division, Pauri. He allowed both the appeals, decreed the suit for declaration of Bhumidhari right filed by Smt.LaxmiDevi and dismissed the suit of the respondent under Section 209 of the Act by the judgment dated 26.06.1989. 3. The respondent No.2 preferred appeal against the judgment of Additional Commissioner before the Additional Chief Revenue Commissioner, Garhwal Division and only pressed the appeal relating to declaration of Bhumidhari right. The Additional Chief Revenue Commissioner allowed the appeal and set aside the judgment of 1st appellate court relating to declaration of Bhumidhari right to Smt.Laxmi Devi over the disputed land. Feeling aggrieved, the petitioners have come up with this petition. 4. I have heard Sri U.P.S. Negi, learned counsel for the petitioners as well as Sri H.M.Raturi, learned Standing Counsel. 5. In the second appeal only the question of law is to be determined while setting aside the judgment of appellate court, based on finding of fact, the second appellate court has re-appreciated the evidence and has confirmed the order of the trial court setting aside the order of 1st appellate court. Had there been any 3 substantial question of law which was required to be answered by the second appellate court and that warranted the setting aside the 1st appellate court’s order, the finding of fact could not have been appreciated rather the matter ought to have been remanded to 1st appellate court to re-consider the matter. Thus, the impugned order is liable to be set aside. 6. The writ petition is allowed. The matter is remitted to 1st appellate court to decide the appeal, relating to Section 229-B of U.P.Z.A. & L.R. Act, afresh in the light of observation made by the Additional Chief Revenue Commissioner, Dehradun. (P.C.Verma,J.) 26.08.2008 P.Singh