JUDGMENT R.P. Singh, J. - By means of this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order passed by the Board of Revenue dated 30-1-1985. 2. This writ petition arises out of a suit filed by the petitioner under Section 229-B/176 of U.P.Z.A. & L.R. Act claiming th share in the land in dispute with the allegation that Pirthi had four sons, namely, Daroga and respondents No. 2, 3 and 4. The petitioner's case is that she is widow of Dargoa and entitled to l/4th share in the property in dispute and that after the death of her husband Daroga, the other brothers of Daroga, namely, respondents No. 2, 3 and 4, had been giving assurance to the petitioner that her name would also be recorded in the revenue papers, but when ultimately her name was not recorded and the respondents No. 2, 3 and 4 started ill treating and harassing her then she filed the present suit for claiming th share in the land in dispute. 3. The contesting respondents No. 2, 3 and 4 contested the suit filed by the petitioner with the allegation that after the death of her husband Daroga, the petitioner, Smt. Barfi, entered into a 'karav' marriage with Ziley, respondent No. 4, and hence she lost her right as widow of Daroga and was not entitled to any share in the land in dispute. It was also contested that the present suit was not maintainable and claim of the petitioner was barred by estoppel. 4. The trial court after perusing the evidence on record, held that the case set up by the defendants that the petitioner has remarried after the death of Daroga is not proved, and it recorded a categorical finding of fact that from the perusal of the evidence on record it is clear that the petitioner has not entered into any 'karav' marriage with Ziley. The trial court further held that the claim of the petitioner was not barred by principles of estoppel and simply because her name was not recorded in the revenue papers along with the respondents No. 2, 3 and 4, the present suit filed by the petitioner for partition of her share, under Section 176 of the U.P.Z.A. & L.R. Act, was not barred and thus decreed the suit. 5. 5. Feeling aggrieved against the order passed by the learned S.D.O. the contesting respondents went up in appeal before the Additional Commissioner, Meerut who also on a perusal of the evidence on record held that the trial courts have rightly recorded a finding of fact that the re-marriage as set up by the contesting respondents is not proved and hence the petitioner has not lost her right in the land in dispute and is entitled to her th share and dismissed the appeal. Feeling aggrieved against the same, the contesting respondents went up in second appeal before the Board of Revenue and the Board of Revenue on re-appraisal of the evidence has up set the finding of fact recorded by the two courts below on the question of re-marriage and held that the courts below have not properly assessed the evidence and in his view, from the evidence on record it is proved that the petitioner remarried Ziley, respondent No. 4, after the death of her husband Daroga and hence she lost her rights in the land in dispute. The second appellate court further held that it appears that earlier there were some consolidation proceedings and since the name of the petitioner was not recorded in the revenue papers, the claim of the petitioner was barred by Section 49 of the U.P. Consolidation of Holdings Act and on these two grounds allowed the appeal vide his order dated 30-1-1985, against which the petitioner has filed the present writ petition before this Court. 6. Mainly two questions are involved in the present case, firstly, whether the petitioner has remarried Ziley after the death of her husband Daroga and secondly, whether the suit filed by the petitioner is barred by Section 49 of the U.P. Consolidation of Holdings Act. 6. Mainly two questions are involved in the present case, firstly, whether the petitioner has remarried Ziley after the death of her husband Daroga and secondly, whether the suit filed by the petitioner is barred by Section 49 of the U.P. Consolidation of Holdings Act. The learned counsel for the petitioner has strenuously argued that the trial court as well as the learned Commissioner, after the perusal of the entire evidence on record, recorded a concurrent finding of fact that the petitioner has not remarried Ziley after the death of her husband Daroga and this concurrent finding of fact, specially when the same is arrived at after assessment of the evidence on record, cannot be interfered with and set aside by second appellate court, namely the Board of Revenue in second appeal and the Board of Revenue has exceeded its jurisdiction in interfering with the questions of fact, about which there was a concurrent finding recorded by the two courts below. There is considerable force in this submission made by the learned counsel for the petitioner. From a perusal of the judgment of the trial court and the learned Commissioner, I find that the two courts have perused the evidence on record and after the proper assessment of the evidence on record, arrived at a concurrent finding of fact that re-marriage of the petitioner with Ziley is not proved. The learned commissioner has observed that the petitioner herself appeared in the witness box and stated that she treats Ziley as her son and Ziley had no courage to appear in the witness box to controvert this and state that the petitioner entered into a karav marriage with him. The Commissioner also observed in his order that there is no custom of 'karav' marriage amongst the Tyagis and hence the finding of fact recorded by the two courts could not be set aside in second appeal by the Board of Revenue on re-assessment of evidence. The Board of revenue has assessed the evidence as if it was the first appellate court and forgot the limitations of the second appellate court in interfering on questions of fact and upset the concurrent finding of fact recorded by the two courts below. In doing so the Board of Revenue has clearly exceeded the jurisdiction vested in it and hence the order of the Board of Revenue is liable to be quashed on that ground. In doing so the Board of Revenue has clearly exceeded the jurisdiction vested in it and hence the order of the Board of Revenue is liable to be quashed on that ground. 7. Now coming to the second submission made by the learned counsel for the petitioner that the Board of Revenue has wrongly held that the suit is baned by Section 49 of the Consolidation of Holdings Act, I find considerable force in the submission made by the learned counsel for the petitioner here also. The learned counsel for the petitioner has drawn my attention to the fact that no specific issue has been raised by the contesting respondents even in the trial court that the present suit is barred of Section 49 of Consolidation of Holdings Act. The only issue that has been referred to by the learned counsel for the respondents is issue No. 7 which is to the effect whether the present suit for partition is maintainable in the present situation. On perusal of the judgment of the trial court 1 find that the plea mainly taken by the contesting respondents is that since the names of three brothers alone are recorded in the Revenue paper and the petitioner did not file any claim earlier for recording her name, she is barred by principles of estoppel and further that since the consolidation proceedings were carried on sometime in the past and it appears that the petitioner did not file any objection and hence her claim is barred now. The learned counsel for the petitioner has submitted in reply that the very case of the petitioner is that the contesting respondents have always been assuring her that they will get her name recorded in the Revenue papers subsequently and she in fact is an old pardanasin widow not conversant with the complications of the litigation and she had been always under the impression that her name will be subsequently mutated in the Revenue papers, but when later on the contesting respondents started ill-treating the petitioner and harassing her, then she was compelled to file the suit claiming her l/4th share in the land in dispute. 8. 8. Firstly no specific plea of Section 49 of the Consolidation of Holdings Act has been raised in the present case, Secondly, I find that for successfully raising the bar of Section 49 it was necessary for the contesting respondents to produce some documentary evidence is also as to what orders were passed in the consolidation proceedings in the past and to produce at least some documentary evidence to show how the claim of the petitioner would be barred by Section 49. I find that no documentary evidence regarding any orders passed in the consolidation proceedings earlier have been filed in the present case, nor successfully set up the bar of Section 49 of Consolidation of Holdings Act and in absence of such documents or papers the suit cannot be said to be barred by Section 49 of Consolidation of Holdings Act. The learned counsel for the petitioner also invited my attention to a case reported in ALJ 1980 page 902 (Karbalai Begum v. Mohd Sayeed and another). When the Supreme Court has observed that it was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and publication of the scheme under section 23 is not matter in regard to which an application could be filed 'under the provisions of this Act' within the meaning of Clause II of Section 49... ... ...the result is that the plea of bar of civil court's jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance". In the present case also the petitioner has taken the plea that she being an old widow had been under impression on the assurance given by the contesting respondents that her name will be subsequently mutated in the Revenue papers but when subsequently she was being ill treated and deprived of her share by the contesting respondents, she was compelled to file the suit claiming her share in the land in dispute and in absence of any specific plea of Section 49 or in absence of relevant materials, the suit cannot be said to be barred by Section 49 of the Consolidation of Holdings Act and hence also the Board of Revenue committed a manifest error of law in holding to the contrary. 9. For the reasons stated above the writ petition is allowed. 9. For the reasons stated above the writ petition is allowed. The impugned order passed by the Board of Revenue dated 30th January, 1985 is quashed. In the circumstances of the case, however, I make no orders as to costs.