JANARDAN SAHAI, J. - (1.) A suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act was filed by the plaintiffs/respondents Kailash Nath Tewari, Surya Mani Tewari and Chandra Mani Tewari against the Gaon Sabha. The petitioner Pan Kumari was also impleaded in the suit on an application filed by her. The case of the petitioner is that the ancestors of the petitioner were recorded in 1281-F and from 1320 fasali to 1359 fasali and the petitioners are in possession over the disputed land of which they were grove-holders on the date of vesting and consequently they became Bhumidhar under Section 18 of the U.P. Zamindari Abolition and Land Reforms Act. The suit was contested by the Gaon Sabha and by the petitioner. The trial court decreed the suit. Against the decree two appeals were filed one by the Gaon Sabha and the other by the petitioner. Both the appeals were dismissed by the Commissioner. Two second appeals were filed. The Board of Revenue dismissed both the appeals. Against the order of the Board of Revenue a writ petition was filed by the Gaon Sabha numbered as Civil Misc. Writ Petition No. 50461 of 2000, which was also dismissed as withdrawn. The present writ petition has been filed by Pan Kumari.
(2.) I have heard Sri R.C. Singh, learned counsel for the petitioner and Sri Radhey Shyam, learned counsel for the respondents. It is submitted by Sri R.C. Singh that the suit filed by the plaintiffs/respondents was barred by Section 49 of the Consolidation of holding Act in as much as no objection was raised in consolidation proceedings by the plaintiffs/respondents. The other submission is that the suit is barred by limitation. On the question that the suit was barred by Section 49 of Consolidation of Holdings Act the finding recorded by the trial court is that on the date of the publication of the notice under Section 9 of the Consolidation of Holdings Act the plaintiffs/respondents were minors. The appellate court also affirmed the said finding. Sri R.C. Singh submitted that from the reading of the orders passed by the trial court and the appellate court it is clear that there is no specific finding upon the point of minority of the plaintiffs/respondents, which they were required to record in view of the directions in an earlier writ petition No.41280 of 1996. I have examined the judgement of the trial court. It appears that before the trial court the plaintiffs/respondents had filed evidence showing the age of the plaintiffs. In the passport the date of birth of Chandra Mani Tewari is 25.9.1963 and in the High School Certificate of Kailash Nath Tewari his date of birth is 13.9.1958 and of Sruya Mani Tewari in his High School certificate is 25.8.1948. Oral evidence on behalf of the plaintiffs/respondents was also adduced. The Trial court found that the documentary evidence filed by the plaintiffs/respondents was unrebutted. In effect this is a finding of minority as the trial court found that the plaintiff 's evidence of minority was unrebutted. The appellate court has affirmed the finding that the plaintiffs/respondents were minors and consequently they could not file the objections within the time permissible under Section 9 of the Consolidation of Holdings Act. Sri R.C. Singh was unable to refer to any document filed by the defendant/petitioner in the trial court or in the Ist Appellate Court regarding the age of the plaintiffs/respondents. He however submitted that in the Board of Revenue an application for additional evidence was filed by the petitioner in which certain documents including C.H. Form 11 showing Surya Mani as major and guardian of the other plaintiffs were sought to be filed but the Board of Revenue did not pass any order on that application. In reply it has been stated in para 19 of the counter affidavit that the appeal was heard by the Board on6.9.2000 and no such application was passed or filed until the judgment on21.9.2000. According to the respondents even the court fee stamps on the application have not been cancelled, which would indicate that the application was never filed. In rejoinder affidavit the averments made in the counter affidavit have been denied. In C.H. Form 11 copy of which has been filed in this petition there is an entry showing Kailash Nath Tewari the plaintiff as aged 6 years (minor) and Chandra Mani Tewari as aged 5 years (minor) whereas Surya Mani Tewari is shown as major and guardian of the minors.
(3.) SRI Radhey Shyam, learned counsel for the respondents submitted that the Board of Revenue had no occasion to pass any order on the application under Order 41 Rule 27 because the same was never pressed and it was filed subsequently after the arguments were over. There is a dispute upon this fact. The point does not find mention in the order of the Board of Revenue. Ordinarily it would be treated that all the points that were raised before the Board of Revenue were considered by it. There is no affidavit of the counsel who argued the case before the Board of Revenue that the application under Order 41 Rule 27 was pressed. That apart in the face of the direct evidence in the nature of the High School Certificate that was available on the record not much weight can be attached to the entry in C.H. Form 11. The finding on the question of minority recorded by the authorities below is a finding of fact. No ground for interference has been made out.;