JUDGMENT : Saurabh Shyam Shamshery, J. 1. The original plaintiffs (Hridya Prakash and Prabal Prakash sons of Ram Bharose Lal), have filed a suit under Section 176 of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as “Act, 1950”) for division of holdings against original defendants (Vendees), whereas Vendors were Anand Prakash, Ved Prakash and Shree Prakash all sons of Ram Bharose and their father Ram Bharose, who sold their share to original defendants. 2. The original plaintiffs claimed that they have equal rights as their 3 brothers (4 th already died) since they were also co-opted by their mother with consent of the Zamindar probably at later period. 3. An attempt was made by original defendants that plaintiffs were not born during 1352 Fasli i.e. 1945, but it failed since mother of original plaintiffs and original defendants (vendors), died in 1943 and in 1944 their one brother (Vinay Prakash) also died issueless and since parentage of original plaintiff is not under much dispute, therefore, they were born before 1943, when their mother died. 4. It remain undisputed that in the khatauni 1376 Fasli to 1378 Fasli, names of Anand Prakash, Shree Prakash and Ved Prakash sons of Ram Bharose and Ram Bharose (since his other son Vinay died issueless) were recorded on land in dispute by an order dated 15.05.1970 and ‘Amal Daramad’ was later on passed by Parganadhikari and their names were expunged and names of original defendants were recorded on basis of Bainama. 5. Original plaintiffs have claimed that their names were also recorded in Punahnirikshan ¼iqfufj{k.k½ khatauni as co-tenure holders and accordingly CH Forms 23 and 24 were also prepared during consolidation, however, their names were not recorded in CH Form 45 due to some error and, therefore, their share were also sold to original defendants. 6. It is also not much under dispute that property in dispute was of their Nana through their mother and when she died, it appears all were minor. Shares of all brothers except of original plaintiffs were not recorded in khatauni and bainama made in favour of original defendants and for that a suit for partition was filed. 7. The suit was decreed by the Assistant Collector by an order dated 30.06.1973 and original plaintiffs were granted 7/30 and 1/30 share respectively, whereas defendants (vendees) were granted in total 22/30th share of land in dispute. 7. The suit was decreed by the Assistant Collector by an order dated 30.06.1973 and original plaintiffs were granted 7/30 and 1/30 share respectively, whereas defendants (vendees) were granted in total 22/30th share of land in dispute. Relevant part of the order dated 30.06.1973 is reproduced hereinafter: 8. The original defendants being aggrieved by above referred judgment and decree filed a first appeal before Additional Commissioner, Agra Division, Agra which was allowed in part by an order dated 01.05.1975 and shares were re-determined i.e. 1/7 each was granted to both original plaintiffs and remaining 5/7 share to original two defendants and it was directed that preliminary decree be accordingly modified. Relevant part of the order dated 01.05.1975 is reproduced hereinafter: 9. The original defendants thereafter filed a second appeal bearing No.271 of 1974-75 before Board of Revenue, which was allowed in its entirety that judgments and decree passed by both the Courts below were set aside and suit was dismissed by an order dated 28.09.1983. Relevant part thereof is reproduced hereinfter: “6. I have heard the learned counsel for the parties and have perused the record. 7. It has been argued that in C.H. Form 45 only vendors were recorded that the suit in barred by Section 49 of the U.P. Consolidation of Holdings Act that Bhumidhari Sanad wan obtained on 31.7.1950; that the vendors have not been impleaded, that the suit was time barred that both the courts below have erred in law and on fact and had wrongly decreed the plaintiff's suit. 8. It has been argued in reply that the suit was no barred by Section 49 of the U.P. Consolidation of Holding Act as on 11.3.1961 plaintiffs were recorded by A.C.O. and they were recorded in C. H. Form 23 and 25: that although the plaintiffs did not file appeal or cross objection the lower appellate court had erred in determining the share of the plaintiffs and defendants. 9. In the Khatauni of 1376 to 1378 Fasli on the disputed land Anand Prakash, Sri Prakash, Ved Prakash so of Ram Bharosey Lal and Ram Bharosey Lal son of Jwala Prasad are recorded and by order of mutation Sub Divisional Officer dated 16.05.1970 is recorded in the name of the defendants appellants on the basis of sale deed. 9. In the Khatauni of 1376 to 1378 Fasli on the disputed land Anand Prakash, Sri Prakash, Ved Prakash so of Ram Bharosey Lal and Ram Bharosey Lal son of Jwala Prasad are recorded and by order of mutation Sub Divisional Officer dated 16.05.1970 is recorded in the name of the defendants appellants on the basis of sale deed. On behalf of the plaintiff great reliance has been placed on 'punrikshan Khatauni: that the names of the plaintiff was ordered to be recorded by the Assistant Consolidation Officer. On perusal of copy of that Khatauni I have found that there is no specific orders for recording the names of the plaintiffs. The only order was to include the names but the names were not specified that the order was on the A.C.O. file dated 11.3.1961, therefore, in view of the matter the very basis of the claim of the plaintiffs that their name was included on the basis of reconciliation and compromise falls to the ground. There is no proof of any such reconciliation and compromise and procedure for such cases provided in C.H. Rules that it shall be done in the presence of the two members of the Land Management Committee etc. was also not complied with. This fact was not at all considered by both the courts below and they wrongly held that the names of the plaintiff was also included in the punrikshan khatauni by the Assistant Consolidation Officer. 10. In C.H. Form 11(2) the names of the plaintiffs was not recorded and the remaining 4 brothers were recorded except Anand Prakash, the rest were recorded to be minors under guardianship of their mother. It appears that Vimal Prakash died and his share was inherited by his father Ram Bharosey, therefore, Ram Bharosey began to be recorded in place of Vinai Prakash with Anand Prakash, Sri Prakash and Ved Prakash. 11. That Vinai Prakash, Anand Prakash, Sri Prakash and Ved Prakash were co-opted an co-tenants by Smt. Saraswati who died on 15.06.1958 i.e. in 1363 Fasli. 11. That Vinai Prakash, Anand Prakash, Sri Prakash and Ved Prakash were co-opted an co-tenants by Smt. Saraswati who died on 15.06.1958 i.e. in 1363 Fasli. It appears that till then the plaintiffs were not born and this fact has been stated by D.W. 1 and it was the reason that they were not co-opted by Saraswati Devi and the plaintiffs were not recorded in the Khatauni prior to 1365 Fasli or after it and in the punrikshan Khatauni after the death of Binai Prakash father being the preferential heirs to the brothers Ram Bharosey Lal being father inherited Vinai Prakash, therefore, his name was recorded alongwith three co-opted brothers after the death of Vinai Prakash. 12. The names of the plaintiff were also not recorded in C.H. Form 42 but it appears that in Carbon copy of C.H. Form 25 their names were included that copies is not admissible in evidence because it does not appear the seal and the signature of the officer issuing it. Sanad Bhumidhari was issued in the names of three brothers and father of the plaintiffs who had sold the plots to the defendants-appellants on 26.8.1969. Thus it is proved that the plaintiffs had no concern with the disputed plots and had no share in the disputed plots and both the courts below were mislead with the plaintiffs two were recorded during consolidation proceedings by the order of the Assistant Consolidation Officer therefore determine the share of the plaintiff to which in no case the plaintiffs were entitled whose case was barred by Section 48 of the Consolidation of Holdings Act. The plaintiff were rightly not recorded in C.H. form 45 and onwards. Per Khatauni of 1382 to 1384 Fasli and copy of C.H. Form 45 filed in this court per order of Mr. Hohra learned Member dated 24.7.1975. 13. Plaintiff Prabal Prakash who was aged 17 years only was examined as P.W. 1 but does not know about the disputed plots, their area and does not know her maternal grand mother died and who were then alive and also admitted that he lives with his brother Hriday Prakash and Hriday Prakash lives in Rajasthan. Thus it is clear that the plaintiffs are not in possession over the disputed plots and were never in possession over it as co-tenants who never paddany rent etc. Thus it is clear that the plaintiffs are not in possession over the disputed plots and were never in possession over it as co-tenants who never paddany rent etc. Hridai Prakash plaintiff did not dare to enter into the witnesses box who might have been major, therefore, the statement of defendant Hukum Singh who is corroborated by paper entries is believed and not of P.W. 1, and not of plaintiff Prabal Prakash who does not know about the disputed land. 14. In view of the matter this appeal is liable to be allowed and the Judgments and decree passed by both the Courts below are liable to be set aside and the plaintiff’s suit is liable to be dismissed with costs. 15. In view of the above, this appeal is hereby allowed. The judgments and decree passed by both the Courts below are set aside and the plaintiff’s suit stands dismissed with costs.” 10. The above order is an order of reversal and has caused interference in concurrent findings, therefore, it was challenged before this Court by present writ petition, wherein this Court has passed an interim order dated 24.11.1983, whereby impugned order was stayed. 11. Sri Suyash Bhargava and Sri Vinayak Verma, learned counsel for petitioners have submitted that it is wrongly held by Borad of Revenue that petitioners’ names were not recorded under a due procedure but in fact name of Hirdaya Prakash was recorded in CH Form II, Khatauni Fasali year 1396 to 1365, Bhumidhari Sanad, CH Forms 23 and 25. Every co-tenant is a necessary party but Borad of Revenue in declaring Badri Prasad as proforma respondent has committed an error. In this regard they placed reliance on a judgment passed by Supreme Court in Kenchegowda (Since Deceased) By Legal Rep. vs. Siddegowda alias Motegowda, 1994(4) JT 125 . 12. Learned counsels further submitted that the order of Assistant Consolidation Officer dated 11.03.1961 passed during consolidation proceedings was wrongly discarded by Board of Revenue since it could have only discarded the document only after calling original records. There is clear finding of facts by Trial Court as well as First Appellate Court that names of writ petitioners were recorded in CH Forms 23 and 25 and there was no adverse material to above mentioned findings. There is clear finding of facts by Trial Court as well as First Appellate Court that names of writ petitioners were recorded in CH Forms 23 and 25 and there was no adverse material to above mentioned findings. Board of Revenue has wrongly discarded CH Form 25 on a frivolous ground that form was without complete signature and seal of issuing officer. Board of Revenue was wrong in dismissing suit in toto as the name of Haridaya Prakash was mentioned in documents annexed. 13. Learned counsels further submitted that it is settled law that possession of one co-tenant is deemed to be possession of all co-tenants as held by the Supreme Court in Jai Singh and others Vs. Gurmej Singh, 2009(15) SCC 747 hence Board of Revenue was wrong in rejecting the testimony of Prabal Prakash and wrongly interpreting that he was not in possession of land in dispute. It is settled law that entries in CH Form 25 can not make a departure from the entries in CH Form 23 as held in Gaon Sabha vs. Mohan , 1975 RD 173 and Dalel Singh vs. Board of Revenue and others , 1968 RD 182. 14. Learned counsel lastly submitted that even if the argument of co- option is not accepted still the petitioner no. 2, Prabal Prakash would inherit his share by succession since he was born before execution of sale deed. The Board of Revenue had not framed any question of law, therefore, this itself is a ground for setting aside the impugned order, i.e., an order passed in second appeal. 15. Per contra, Sri Satya Prakash, learned counsel for contesting- respondents has supported the impugned order that the best evidence available with original plaintiff was “punarikshan khatauni” but it was rightly rejected by Board of Revenue since it was not based on any order so much as how names of plaintiffs were recorded without any basis. Original plaintiffs have not brought on record any recorded reconciliation or compromise i.e. the very basis of entries in “punnarikshan khatauni”, which, therefore, remained doubtful. 16. Learned counsel also submitted that Trial Court as well as First Appellate Court have not considered about procedure of making entry on basis of compromise, i.e. requirement of signature to be put in presence of two members of Land Management Committee was not followed, therefore, the Board of Revenue has rightly interfered. 16. Learned counsel also submitted that Trial Court as well as First Appellate Court have not considered about procedure of making entry on basis of compromise, i.e. requirement of signature to be put in presence of two members of Land Management Committee was not followed, therefore, the Board of Revenue has rightly interfered. The original plaintiffs’ names were not recorded in C.H. Form 42, and a carbon copy of C.H. Form 25, was not admissible in evidence, being without seal of the Officer. One of the plaintiff has not entered in the witness box during trial, whereas other plaintiff Prabal Prakash was unaware about disputed plots, therefore, his evidence was not sufficient. 17. Heard counsel for parties and perused the record. 18. In present case, a second appeal was filed in 1974-1975, therefore, it was prior to amendments carried out in 1976 and being saved by Repeal Act, said second appeal need not to be decided in accordance with amended provision i.e. could be decided even without framing any question of law, however, even in that time law was crystallized and being referred by Supreme Court in Narayanan Rajendran and another Vs. Lekshmy Sarojini and others , (2009) 5 SCC 264 and relevant part thereof is reproduced hereinafter :- “Cases decided prior to the 1976 Amendment both by the Privy Council and the Supreme Court dealing with the scope of Section 100 CPC 23. “35. The Privy Council, in Luchman v. Puna (1889) 16 Calcutta 753 (P.C.), observed that a second appeal can lie only on one or the other grounds specified in the present section. 36. The Privy Council, in Pratap Chunder v. Mohandranath (1890) ILR 17 Calcutta 291 (P.C.), observed that the limitation as to the power of the court imposed by Sections 100 and 101 in a second appeal ought to be attended to, and an appellant ought not to be allowed to question the finding of the first appellate court upon a matter of fact. 37. In Durga Chowdharani v. Jawahar Singh (1891) 18 Cal 23 (PC), the Privy Council held that the High Court had no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross or inexcusable the error may seem to be. The clear declaration of law was made in the said judgment as early as in 1891. The clear declaration of law was made in the said judgment as early as in 1891. This judgment was followed in the case of Ramratan Shukul v. Mussumat Nandu (1892) 19 Cal 249 (252) (PC) and many others. The court observed: "It has now been conclusively settled that the third court...cannot entertain an appeal upon question as to the soundness of findings of fact by the second court, if there is evidence to be considered, the decision of the second court, however unsatisfactory it might be if examined, must stand final." 38. In the case of Ram Gopal v. Shakshaton (1893) ILR 20 Calcutta 93 (P.C.), the court emphasized that a court of second appeal is not competent to entertain questions as to the soundness of a finding of facts by the courts below. 39. The same principle has been reiterated in Rudr Prasad v. Baij Nath (1893) ILR 15 Allahabad 367. The Court observed that a judge to whom a memorandum of second appeal is presented for admission is entitled to consider whether any of the grounds specified in this section exist and apply to the case, and if they do not, to reject the appeal summarily. 40. Similarly, before amendment in 1976, this court also had an occasion to examine the scope of Section 100 C.P.C. In Deity Pattabhiramaswamy v. S. Hanymayya and Others AIR 1959 SC 57 , the High Court of Madras set aside the findings of the District Judge, Guntur, while deciding the second appeal. This Court observed that notwithstanding the clear and authoritative pronouncement of the Privy Council on the limits and the scope of the High Court's jurisdiction under Section 100, Civil Procedure Code, some learned Judges of the High Courts are disposing of Second Appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100, Civil Procedure Code. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100, Civil Procedure Code. We have, therefore, no alternative but to set aside the judgment of the High Court which had no jurisdiction to interfere in second appeal with the findings of fact arrived at by the first appellate court based upon an appreciation of the relevant evidence. 41. In M. Ramappa v. M. Bojjappa (1963) SCR 673, the Andhra Pradesh High Court interfered with the finding recorded by the Appellate Court which, in turn, had itself reversed the trial court's finding on the same question of fact. While setting aside the decree of the second Appellate Court, this court observed: "12. …. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be justice or equity of the case has not been served by the findings of fact recorded by courts of fact, but on such occasions it is necessary to remember that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section 100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly and scrupulously endeavour to avoid." 42. It may be pertinent to mention that as early as in 1890 the Judicial Committee of the Privy Council stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add, or enlarge, the grounds specified in Section 100 of the Code of Civil Procedure. 43. Even before the amendment, interference under Section 100 C.P.C. was limited, which has now been further curtailed, which we would be dealing in cases decided by this court after the amendment. 44. 43. Even before the amendment, interference under Section 100 C.P.C. was limited, which has now been further curtailed, which we would be dealing in cases decided by this court after the amendment. 44. We have given reference of a large number of cases decided by the Privy Council and this court to clearly understand the ambit and scope of Section 100 before amendment. 45. The Amendment Act of 1976 has introduced drastic changes in the scope and ambit of Section 100 C.P.C. A second appeal under Section 100 C.P.C. is now confined to cases where a question of law is involved and such question must be a substantial one. Section 100, as amended, reads as under: "100. Second appeal: (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question." 19. Now the Court proceed to analyse rival submissions, whether in facts and circumstances of present case, the impugned order whereby in a second appeal an order of reversal was passed and concurrent findings were disturbed, could legally be survived or not? 20. In the suit following 8 issues were framed: 21. Issues 1, 2, 3, 4 and 8 were decided together and after considering evidence it was held by the Trial Court that:- 22. 20. In the suit following 8 issues were framed: 21. Issues 1, 2, 3, 4 and 8 were decided together and after considering evidence it was held by the Trial Court that:- 22. Issues 5, 6 and 7 were decided in following terms:- 23. The First Appellate Court upheld above findings, however, redetermined the shares and it was held that :- 24. As referred above the First Appellate Court has accepted the submissions of appellants and upheld the findings of lower Court with reasons on validity of “punnarikshan khatauni” also. 25. The Second Appellate Court has interfered with the concurrent findings and placed doubt on “punnarikshan khatauni” and order dated 11.03.1961 as well as that carbon copy of C.H. Form 25 was not admissible. 26. In Narayanan Rajendran (supra), it was specifically held that a finding of fact could not be interfered in a second appeal (even before amendment) even though it was gross or inexcusable. 27. The order dated 11.03.1961 was not much under dispute before Trial Court or First Appellate Court since it was disputed during said proceedings and in case Board of Revenue has any doubt on said order, original record could have been summoned or matter be remanded to First Appellate Court being Trial Court of fact, therefore, to put doubt on such document on a very weak ground by the Board of Revenue would not be sustainable and such findings returned on said issue was beyond the jurisdiction of Second Appellate Court in terms of settled position of law before the amendments. 28. First Appellate Court, which was the final Court so far as facts are concerned, has observed that it was not denied by appellant therein that since original plaintiffs were brother of their vendors and were alive, therefore, there names ought to have been recorded in Khatauni. It was the case of original plaintiffs that they were coopted alongwith their brothers which was a natural phenomena. It could not be denied that original plaintiffs were alive, when their mother died, therefore, it would become relevant that on basis of Punahnirikshan Khatauni as well as CH Form 24 and 25 where their names were also recorded, the only consequence would be that their names ought to have been recorded in CH Form 45 also but since there was an error in not recording their names, therefore, they have approached by way of filing suit. 29. The Second Appellate Court has not returned any finding that suit was barred by Section 49 of U.P. Consolidation of Holdings Act, 1953 though rival submissions were noted. The only reason to allow second appeal was that order dated 11.03.1961 was put under doubt as well as that one of the plaintiff has not entered into witness box and other plaintiff has denied about disputed plots. However, it cannot be ignored that said plaintiff was also a minor as well as defence witnesses were only vendees since other brothers were not parties as they have already sold their shares including of plaintiffs. The documents could not be doubted only on basis of oral evidence, if otherwise there was no material to put any doubt. 30. The copy of CH Form 25 was on record of Courts and since it was not disputed either before Trial Court or before First Appellate Court, therefore, without summoning original record, an incorrect approach was adopted by Second Appellate Court, i.e., Board of Revenue, to put doubt on it. Therefore, all the reasons assigned by it were erroneous and as referred in Narayanan Rajendran (supra) concurrent finding of facts were disturbed in a very cursory manner and, therefore, Board of Revenue has acted beyond its jurisdiction by interfering with concurrent findings. 31. In the result, writ petition is allowed. Impugned order dated 28.09.1983 is hereby set aside and judgment and decree as modified by First Appellate Court is confirmed.