JUDGMENT S.C. Manchanda, J. - This is a writ petition under Article 226 of the Constitution by the plaintiff-petitioners directed against the order of the Board of Revenue dated the 11th of August 1956 on the ground that the Board of Revenue had no jurisdiction to decide whether the petitioners were majors on the relevant date 9-4-1956 and in any event could not have come to any such conclusion without framing an issue as to the age of the petitioner and giving him an opportunity of being heard. 2. The facts leading up to this petition are these:- 3. The petitioners were the hereditary tenants of certain plots. Azimullah Khan died in 1344 F. at the time when the petitioners were minors and their mother Asghari Begum was managing the holdings as their guardian. The mother had entrusted the management of the plots to one Mohammad Sadiq who was her khandani uncle. The said Mohammad Sadiq was also the real brother of the zamindar Hashmat Ali Khan opposite party No. 14 to this petition. When the petitioners attained majority and wanted to realise the rent from the said tenants cultivating the plots it was discovered that Mohammad Sadiq got the names of the petitioners removed from the village papers and got his name entered as the tenant-in-chief over the plots. A suit was, therefore, filed under Section 59 read with Section 183 of the U.P. Tenancy Act by the petitioners against the opposite parties alleging that Azimullah Khan, father of the petitioner was the hereditary tenant of the land in dispute; that Mukhtar Ahmad petitioner No. 1 had become a major about 8 months prior to the filing of the suit. On demanding rent from sub-tenants they had denied the tenancy rights of the petitioners, it was then discovered that Mohammad Sadiq had fraudulently got the names of the petitioners removed from the village papers and had got his own name recorded as tenant-in-chief. The relief claimed was that they were the hereditary tenants and that the defendants , were liable to be ejected under Section 183 of the U.P. Tenancy Act. The relief claimed was that they were the hereditary tenants and that the defendants , were liable to be ejected under Section 183 of the U.P. Tenancy Act. The suit was contested by the main defendants who claimed that they were in possession of the land in dispute as tenants-in-chief and that the tenancy rights of the plaintiffs in the suit plots was extinguished as a result of Smt. Asghari Begum having surrendered the plaintiffs tenancy rights on 24th June 1957 and the land had been let out thereafter to Mohammad Sadiq who was the hereditary tenant of the land. 4. The Revenue Officer by his order dated 26-9-1951 decreed the suit of the petitioners under Section 59/183, U.P. Tenancy Act holding that Asghari Begum had not surrendered her tenancy rights and the plaintiffs were entitled to the reliefs claimed by them. 5. The contesting opposite parties filed an appeal to the additional Commissioner who upheld the order of the trial court and held that the petitioners were the hereditary tenants and that Smt. Asghari Begum had not surrendered the tenancy rights of the plaintiffs; but he modified the decree of the trial court by holding that the defendants were sub-tenants with the plaintiffs and as such they were not liable to ejectment because the suit for ejectment of sub-tenants had been stayed under the orders of Government. The result was that the decree of the trial court under Section 183 of the U.P. Tenancy Act for recovery of possession was set aside. 6. Both parties being dissatisfied went up in appeal to the Board of Revenue. The opposite party filed second appeal No. 359 of 1951-52 challenging the decree passed in favour of the plaintiffs for a declaration that they were the hereditary tenants. The petitioners, on the other hand, filed second appeal No. 455 of 1951-52 whereby the plaintiffs claimed recovery of possession over the plots in dispute. 7. The Judicial Member Mr. S. N. Mitra before whom both appeals came up for hearing dismissed the plaintiffs appeal No. 455 of 1951-52 and allowed the second appeal No. 359 of 1951-52 holding that the findings of fact recorded by the two courts below that Smt. Asghari Begum had not surrendered the plaintiffs' tenancy was incorrect, that she had surrendered the tenancy rights on 24-6-1937 and that Mohammad Saddiq had not committed any fraud as alleged by the plaintiffs. 8. As the order of the Judicial Member was a consolidated one in both the appeals by which one was dismissed and the other was allowed, it was sent up for concurrence to the other member who was Mr. V.C. Sharma. Mr. V.C. Sharma also by a consolidated order held, that the Board of Revenue could not set aside the findings of fact recorded by the two courts below and he could not, therefore, concur with Mr. Mitra, inasmuch as he had disturbed the concurrent findings of the two courts and, therefore, he was of the view that the petitioners must be held to have continued to be the hereditary tenants and the plea of surrender was rightly rejected by the two courts below. Having so held the next question was whether the defendant opposite parties were entitled to be ejected. He went on to determine this question as it had become relevant under the provisions of Section 21, sub-Cl. (h) read with Section 157 of the U.P. Zamindari Abolition and Land Reforms Act. He, relying on a birth certificate of a son born to one Azizullah Khan, came to the conclusion that the opposite parties could not be ejected as they had acquired the adhivasi rights. The other member with this order concurred. 9. The present writ petition is directed against the said order and in particular the finding that the petitioners were majors and therefore by virtue of Section 20 read with Section 157 of the U.P. Zamindari Abolition and Land Reforms Act the opposite parties had acquired the adhivasi rights and in no event could have been ejected. 10. The learned counsel for the petitioners contends that there is an error on the face of the record, inasmuch as the finding as to the majority of the petitioners was never in issue nor were the petitioners given any opportunity of producing evidence. It was also contended that the petition having been dismissed by Mr. Mittra no question of concurrence therewith arose in view of para. 17 of the Manual and the question of adhivasi rights could not have been gone into in the appeal filed by the opposite parties which was appeal No. 359 and which was the only appeal on which concurrence could not have been sought or given by other Member. Mittra no question of concurrence therewith arose in view of para. 17 of the Manual and the question of adhivasi rights could not have been gone into in the appeal filed by the opposite parties which was appeal No. 359 and which was the only appeal on which concurrence could not have been sought or given by other Member. The latter contention has not much force as both the appeals were before the Members and the order was a consolidated one. 11. As regards the other question, the objection of the petitioner has force. The first member who decided the case did not go into the question of adhivasi rights. But when his order was sent to the second member it was at this stage that this question was raised for the first time. The question undoubtedly could have been decided but only after an issue was framed thereon and the parties had been given an opportunity of letting in evidence as to the real age of the petitioners at the relevant time. The second member merely relied on the copy of the birth entry which was produced before him in respect of Mukhtar Ahmad son of Azimullah petitioner No. 1 according to which the date of birth of a son born to one Azimullah Khan was the 25th of July 1925. The learned member went on to assume that this entry related to Mukhtar Ahmad Khan petitioner No. 1. There is no warrant in law for such an assumption. The entry in a birth register is no doubt admissible in evidence under the provisions of Section 35 of the Indian Evidence Act, but what is further required to be proved is that the entry relates only to the relevant person and none other. The possibility of there being more persons than one of the same village to whom a son might have been born and his birth recorded must be ruled out. Mere filing of a birth certificate by the opposite party may be sufficient to prove that a son was born in the village to the person named therein but that will not per se prove that the birth entry relates to a particular person. In the present case, the petitioners in para. Mere filing of a birth certificate by the opposite party may be sufficient to prove that a son was born in the village to the person named therein but that will not per se prove that the birth entry relates to a particular person. In the present case, the petitioners in para. 24 of the petition have specifically stated that there were at least two persons by the name of Azimullah Khan in that hamlet and this assertion the opposite party has not cared to deny in the counter-affidavit. In these circumstances, the assumption of the learned Member was manifestly unwarranted in the absence of any other evidence to prove that the impugned entry in all probability related to the petitioner and to no one else. The mere possibility of the entry relating to the petitioner will not be enough. The connection between the birth entry to be relied upon with the particular person to whom it is sought to apply must be established by evidence aliundi. This not having been done, no issue having been framed, and no opportunity having been given to the parties to lead any evidence, the assumption becomes wholly unsustainable in law. 12. For these reasons, I would direct that a writ of certiorari will issue quashing that part of the order of the Board of Revenue dated 23rd June 1956 and 30th November 1956 which declared that the opposite parties had acquired the adhivasi rights. 13. In the result, the petition is allowed, but in the circumstances of the case, no order is made as to costs.