JUDGMENT Brijesh Kumar, Member - This second appeal arises out of a judgment an decree dated February 13, 1975 passed by the Additional Commissioner, Varanasi Division, Varanasi in appeal No. 106 of 1974, Jaunpur. 2. Briefly stated, the facts of the case are that the plaintiff Jethoo filed a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act on the basis of a sale deed claiming co-tenancy along with the defendant No. 1 and 2. His case is that he was declared co-tenant by the consolidation authorities but owing to some inadvertence, his name was not recorded in form CH-45. The defendant respondents contested the suit and alleged that the sale deed is void. They have also denied that the appellant is the co-tenant and that the suit is barred under Section 49 of the U.P.C.H. Act. Their case is that the defendant No. 4 executed a sale-deed in their favour of June 26, 1969 and they came in possession on the basis of the sale dded. The learned trial court dismissed the suit on the ground that no permission from the District Judge was obtained is respect of the guardian ship, holding the sale deed as void and that the suit is barred under Section 34(5) of the Land Revenue Act and Section 49 of the U.P.C.H. Act. Against this order, an appeal was preferred before the Divisional Commissioner. The learned Additional Commissioner partly allowed the appeal holding that the appellant Smt. Subhraji is the co-tenant along with the respondents. Aggrieved by this order, this second appeal has been field by Mst. Subhraji. 3. I have heard the learned counsel for the parties. Sri S.L. Yadav, learned counsel for the appellant has submitted that the alleged sale deed executed in favour of Jagnandan, father of the plaintiff Jethu, is void because no permission was obtained form the District Judge. Reliance has been placed on 1987 A.W.C. 109. His second submission is the suit is barred under Section 49 of the U.P.C.H. Act. Assailing the judgment of the learned Additional Commissioner, he has contended that consideration of oral evidence is must. In support of his argument, he has placed reliance on Shiv Nandan v. Board of Revenue, 1980 R.D. 73. He has further submitted that the first appellate court did not even set aside, the findings of the learned trial court. Assailing the judgment of the learned Additional Commissioner, he has contended that consideration of oral evidence is must. In support of his argument, he has placed reliance on Shiv Nandan v. Board of Revenue, 1980 R.D. 73. He has further submitted that the first appellate court did not even set aside, the findings of the learned trial court. In support , he has placed reliance on 1986 R.D. 155. Another submission made by him is that since the plaintiffs names are not recorded in form CH-45, the plaintiff respondent Jethu had to move to the competent court under Sections 33 and 39 of the U.P. Land Revenue Act. Reliance has been placed on Naudhu v. Ram Jatan, 1987 R.D. 274. 4. Sri Triveni, learned counsel for the respondent has also maintained that even the trail court did not discus all aspect of the oral evidence. As regards the sale deed, his contention is that if no permission is taken from the District Judge, the sale deed in voidable. He has referred to Section 8(3) of the Hindu minority and Guardian ship Act, 1956 and Section 21 of the Guardian and Wards Act 1890. The next submission made by the learned counsel is that forgery was committed in this case and the records were got misplaced. If fraud is played, the suit will not be barred under Section 49 of the U.P.C.H. Act. Reliance has been placed on 1983 R.D. 215, 1983 A.C.J. 556, 1984 A.L.R. 32 and 49 and 1970 R.D. 282. The next submission made by the learned counsel is that there is no evidence to show that Vashwanath continued in possession after the sale deed was executed on June 26, 1969. His contention is that the suit was filed on April 23, 1973 and if the suit is filed within 12 years from the date of execution of the sale deed, the rights of the vendee cannot mature. He has further argued that the respondent was recorded in from CH-23 and so the question arised as to haw was Vishwanath in possession. In reply, the learned counsel for the appellant has contended that the first appellant court has not given by finding on the point of possession. He has placed reliance on Banshi v. D.D.C., 1982 R.D. 5. Another contention made by him is there is no finding on the allegation that the files were missing. In reply, the learned counsel for the appellant has contended that the first appellant court has not given by finding on the point of possession. He has placed reliance on Banshi v. D.D.C., 1982 R.D. 5. Another contention made by him is there is no finding on the allegation that the files were missing. He has further argued that no objection was made by the respondent when Vishwanath was recorded in form CH-23 and Ch-45. He has maintained that the suit is barred under Section 34 of the Land Revenue Act and under Section of the Specific Relief Act. 5. I have carefully considered the argument made before me and have also perused the record. The crux of this case is whether the sale deed executed by the mother is void or voidable. It has been held by Hon'ble B.L. Yadav, J. in Banshi v. D.D.C. Kanpur (supra) that the permission of the District judge is must in a case where the property is transferred by the guardian of a minor. If no such permission is obtained, the sale deed cannot be said to have been legally executed. In the instant case, Smt. Manraji who was the mother of the minor Vishwanath, executed the sale deed in respect of the share of her son Vishwanath (minor) without taking the permission of the District judge. Therefore, the sale deed cannot be said to have been executed according to law. The contention of the learned counsel for the appellant is that the sale deed is voidable under Section 8 of the Hindu Minority and Guardianship Act, 1956, is not acceptable because this Act cam in force on August 27, 1956 and that it is not retrospective in operation. The sale deed in question was executed in 1951. 6. The next question for determination is whether the vendee Jagnandan or his words continued to be in possession on the strength of this sale deed. No clear cut finding has been given on this point by both the courts below. If the vendee or his successors continued in possession for more that 12 years they are well within their right to own the land. But there must be positive evidence on this point. The learned counsel of the parties have agreed that the courts below have not appreciated the oral evidence. I therefore, finding it a fit case for remand.