C. M. LODHA, C. J. - (1.) THESE are five writ petitions under Art. 226 of the Constitution and since common questions of fact and law arise therein, we consider it proper to dispose them of by a common order.
(2.) RESPONDENT No. 4 Pushpendra Singh filed five suits in the court of Sub-Divisional Officer, Kapasan, District Chittorgarh, against the petitioners separately alleging that different parcels of land had been sold to them by five separate sale-deeds dated July 2, 1965 for the price mentioned therein. It was alleged by him that all the sales were fictitious and without consideration and, as a matter of fact, no amount had been paid to him in lieu of these sales. His case is that he was in possession of land in excess of the limit prescribed by the Ceiling Law and, therefore, in order to save the land from being resumed by the State, he executed these fictitious sale-deeds, even though he was a minor at that time. His allegation is that he was born on July 6, 1947 and thus was less than 18 years of age at the time of the execution of the sale-deeds. He, therefore, prayed that since the sales were void on account of his being minor at the time of the execution of the sale-deeds, a decree for possession of the lands may be granted in his favour. The suits were resisted by the defendants on identical grounds. They pleaded, inter-alia, that the plaintiff-respondent was 21 years of age at the time of execution and registration of the sale-deeds. They also pleaded that the sale-deeds were got registered by the plaintiff on July 7, 1965, on which date the plaintiff had admittedly become major and had received full consideration for the sales. After recording the evidence produced by the parties, the learned trial court decreed the plaintiff's suits holding that the plaintiff was proved to be a minor at the time of execution of the sale-deeds and that the crucial date for judging the validity of the sales was the date on which the sale-deeds were executed and not the date on which they were registered. Aggrieved by the decree of the trial court the petitioners preferred appeals before the Revenue Appellate Authority, Udaipur, who by his judgment dated January 28, 1974, allowed all the five appeals, set aside the judgment and decree of the trial court and dismissed the plaintiff's suits on the ground that the crucial date for judging the validity of the sale-deeds, was the date of their registration. Thereupon, the plaintiff filed second appeals before the Board of Revenue, all of which were disposed of by a common judgment dated November 9,1978. The Board of Revenue reversed the finding of the Revenue Appellate Authority and came to the conclusion that since the sale-deeds became effective from the date of their execution and the plaintiff was a minor on that date, the sales were void. In this view of the matter, the Board set aside the decrees by the Revenue Appellate Authority and restored those of the trial court. In these circumstances, the petitioner-defendants have filed these writ petitions. The learned counsel for the petitioners has urged that the trial court as well as the Board of Revenue have based their findings regarding the age of the plaintiff solely on the basis of the High School Certificate produced by the plaintiff It has also been urged that admittedly the plaintiff had become major on the date of the registration of the sale-deeds and, therefore, the sales cannot be considered as void.
(3.) WE have gone through the judgments of the trial court, the Revenue Appellate Authority and the Board. Neither the Revenue Appellate Authority, nor the Board have referred, muchless discussed, the evidence produced by the parties on the question of the age of the plaintiff. It appears to us that the Revenue Appellate Authority, as well as the Board, have proceeded on the assumption that the age entered in the High School Certificate by itself is sufficient for holding that the plaintiff was born on July 6, 1947. WE, however, wish to point out that an entry regarding the age of the plaintiff contained in the High School Certificate is only a piece of evidence, which may be considered, but that is not the final word in the matter. It may be pointed out that the plaintiff examined as many as five witnesses, namely Pushpendra Singh (Plaintiff), Karan Singh, Jeewan Singh, Radha Kishan and Vijay Singh in support of his case. He also produced his High School Certificate. On the other hand, the petitioner-defendants examined in their evidence D. Ws. Nathu Lal, Amba Lal, Deep Chand, Ram Lal. Ganga Ram and Heera Lal. They also relied upon the statement of the plaintiff made by him before the Registrar, wherein he had mentioned that he was 21 years old. Even the trial court has not discussed the evidence of the witnesses produced by the parties. Thus, none of the three courts has discussed the evidence led by the parties on the question of the age of the plaintiff at the time of execution of the sale-deeds and all the three courts seem to have proceeded on the assumption that the age mentioned in the High School Certificate is a conclusive proof. In our opinion, as observed earlier, it is not so. The Revenue Appellate Authority, as well as the Board, have concentrated on the point as to whether the age of the executant at the time of the registration of the sale-deeds should be taken into consideration or the age at the time of execution of the deed. The Board has recorded finding that it is the age of the executant of the document at the time of its execution, that is relevant for judging the validity of the documents and not the age at the time of its registration. However, we do not consider it proper to examine the correctness of this proposition at this stage, as, in our opinion, it would be superfluous and academic to do so in absence of a positive finding on the question of fact whether the plaintiff has succeeded in proving that he was a minor at the time of the execution of the sale-deeds. The point assumes cousiderable importance in view of the fact that the difference is very narrow He has given his date of birth as July 6, 1947 and the sale-deeds had been executed on July 2. 1965. Thus, there is only a difference of three days in asmuch as if the plaintiff is proved to be born three days earlier, than the date alleged by him he would be a major on the date of execution of the sale-deeds. At this stage, we may observe that we do not find much force in the contention raised before us on behalf of the non petitioners that the plaintiff had given up this point before the Board of Revenue. Accordingly, we allow all the five writ petitions in part, set aside the order of the Board of Revenue dated November 9, 1978 and send the cases back to the Board for deciding them afresh on the lines indicated above. We wish to make it clear that both the parties have led evidence on the point of age of the plaintiff and none of them has prayed before us to adduce additional evidence. In these circumstances, the Board of Revenue is directed to restore the appeals to their original numbers and decide them afresh. Since the second appellate court is also competent to decide question of fact even though the same may not have been properly dealt with by the first appellate court, the cases need not be remanded to the Revenue Appellate Authority or the trial court and the Board of Revenue may itself dispose of the cases finally by giving its findings on all questions of fact and law afresh. In the circumstances of the case, we leave the parties to bear their own costs. Since it is an old matter it is expected that the Board will dispose of the appeals expeditiously. . ;