V. Bhargava, J. - (1.) By this petition under Article 226 of the Constitution the petitioners have sought issue of writs of certiorari to quash the judgments of the Trial Court, (Additional Collector (Judicial), Jalaun), the first appellate court (Additional Commissioner, Jhansi), and the second appellate court (Board of Revenue U.P. at Allahabad) passed in proceedings arising out of a suit brought against the petitioners by opposite parties nos. 4 and 5. The opposite parties brought a suit principally under Sec. 320-B of the U.P. Zamindari Abolition and Land Reforms Act seeking a declaration that they were the sirdars and in possession of the land in suit, whereas the petitioners were wrongly laying claim to that land. In the alternative, the prayer was that, if it be held that the opposite parties plaintiffs were not in possession, a decree for ejectment may be granted against the petitioners after recording a finding that the petitioners were asamis liable to ejectment under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act. The trial court recorded a finding that the opposite parties plaintiffs were not in possession but held that they were sirdars while the petitioners were in possession as asamis. It was held that the petitioners had become asamis because the opposite parties had been ejected by the landholder in such circumstances that the provisions of Section 27 of the U.P. Tenancy (Amendment) Act, Act X of 1947, had become applicable so that the opposite parties were entitled to re-instatement. The opposite parties had in fact obtained an order for reinstatement though no execution of that order was sought. That order had been obtained on 4th of May 1948. By the same order, the petitioners were declared sub-tenants of the land with the further declaration that they were not to be ejected for a period of three years. The suit was decreed by the trial court on the view that it was immaterial that that order was not executed and the suit was not time-barred. When the matter came up in appeal before the Additional Commissioner the Additional Commissioner in his judgment wrote that only one single point had been argued in appeal before him on behalf of the petitioners. That point, according to the Additional Commissioner, was whether the issue relating to the rights claimed by the opposite parties should have been referred to a Civil Court. Holding that that issue did not require any reference, the Additional Commissioner dismissed the appeal. The petitioners went up in second appeal before the Board of Revenue and there in the course of appeal they contended that, even if the Additional Commissioner held against the petitioners on that one point about reference of issue to the civil court, the Additional Commissioner should have decided all other points raised by the petitioners including the point that the suit was time barred, that the Additional Commissioner was incorrect in saying that only one point had been argued before him, that in fact that point was argued as a preliminary, point only, and that the expectation was that, on the remaining points, the appeal would have to be heard later, on merits, in case the decision of the preliminary point went against the petitioners. The Board of Revenue did not go into the question at all as to whether, before the Additional Commissioner, the point that was argued was only a preliminary point or whether the entire appeal had been confined to that one single question. All that the Board of Revenue did was to dismiss the appeal summarily on the view that the question of limitation had not been argued before the Additional Commissioner and, in any case, there was no force in this ground because a suit for ejectment by the tenant-in-chief under Section 27 was not barred by limitation.
(2.) It appears to us that the Board of Revenue in giving the decision did not properly appreciate the grounds of appeal and consequently the appeal was not at all properly decided. The Board of Revenue should have first gone into the question, clearly raised, as to whether the petitioners were right in their contention that the point which was decided by the Additional Commissioner had been argued merely as a preliminary point. That aspect of the case was never examined by the Board of Revenue at all. Further, even if the question of limitation barring the suit had not been argued before the Additional Commissioner, it was necessary for the Board to consider whether such a question could be allowed to be raised in the second appeal, having been raised in the trial court, if it was a pure question of law which required no findings of fact to be recorded by the lower courts. That aspect of the case was also not examined by the Board of Revenue. The Board of Revenue appears to have dealt with the appeal without paying attention to the grounds which required consideration. In these circumstances, we have had to go into the question whether in this case the Additional Commissioner was right in dismissing the appeal of the petitioners without recording a decision on the question of limitation which had been raised on behalf of the petitioners, and, as a consequence, we have also had to see whether the decision of the Board of Revenue that the suit was not barred by limitation was correct.
(3.) In the affidavit filed in support of the petition, there is the clear averment that the point decided by the Additional Commissioner had been argued merely as a preliminary point and that the petitioners wanted to be heard on other points before the appeal could be decided on merits. This averment is verified from personal knowledge. There is on the other side, in the counter-affidavit, an assertion that this was the only point argued in the appeal and that the point was not argued as a preliminary point. Ordinarily, in exercise of its writ jurisdiction, the Court does not investigate such questions of fact, but in this case we cannot fail to take notice of the circumstance that this point was raised on behalf of the petitioners at the very first stage possible when they filed the second appeal before the Board of Revenue. The Board of Revenue should have gone into this question, but the Board failed to do its duty properly and summarily dismissed the appeal. In the circumstances, it has become necessary for us to examine this question. The averment in the counter affidavit is sworn by the deponent, not on personal knowledge, but on the basis of the record, which means that in the counter-affidavit the information given goes no further than the recitation in the judgment of the Additional Commissioner, and is merely based on the facts as recorded in that judgment. There is no reason why, if the remark of the Additional Commissioner was perfectly correct, somebody on behalf of the opposite parties could not swear from personal knowledge that the appeal had been fully heard by the Additional Commissioner and only one point was urged before him, and that it was not a hearing on a preliminary point only. We are in these circumstances holding that the question of limitation had not been given up and should have been decided by the Additional Commissioner and thereafter considered by the Board of Revenue.;