JUDGMENT : Chandra Kumar Rai, J. 1. Rejoinder affidavit filed by learned counsel for the petitioner in Writ-B No.13084 of 1983 as well as Misilband Register placed before the Court by learned counsel for the petitioner are taken on record. 2. Heard Mr. Ram Chandra Yadav, learned counsel for the petitioners, Mr. Abhishek Kumar Srivastava, learned Additional Chief Standing Counsel for the State-respondents and Mr. Rameshwar Prasad Shukla, learned counsel for the respondent-Gaon Sabha. 3. Since common issues are involved in both the petition hence both the writ petition are heard together and are being decided by a common order. 4. Brief facts of the cases are that the suit under Section 229-B of U.P. Zamindari Abolition & Land Reforms Act, 1950 (hereinafter referred to as "U.P.Z.A. & L.R. Act") was filed by Purshottami as well as Chauthi impleading the State and Gaon Sabha as defendants. The suit filed by Purshottami was registered as Suit No.150/235/75 and the suit filed by Chauthi was registered as Suit No.151/1977 pleading that plaintiffs are Sirdar of the plot in question and they are in possession of the plot in question for last 30 years. They further pleaded that in the proceeding under Section 9 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "U.P.C.H. Act") an order dated 23.2.1967 was passed by the Consolidation Officer declaring the Purshottami and Chauthi as Sirdar of the plot in question but the entries were not corrected accordingly, hence the suit. Written statement was filed by the State as well as Gaon Sabha denying the plaint allegations. Seven issues were framed before the trial Court and parties have adduced oral and documentary evidence in support of their case. Trial Court vide judgement and decree dated 28.1.1978 decreed the aforementioned suit filed by the petitioners (Purshottami and Chauthi). Against the judgement and decree of trial Court dated 28.1.1978, two appeals were filed before the Commissioner by State of U.P. only. The appeal filed by State was registered as Appeal No.669-A-1978 and 668-A-1978. Additional Commissioner, Gorakhpur Division, Gorakhpur clubbed as well as heard the aforementioned appeal together and vide judgement dated 26.10.1979 dismissed the appeal filed by State of U.P. recording finding of fact that the plea raised by the State is bared by Section 49 of U.P.C.H. Act. The appeal filed by State was registered as Appeal No.669-A-1978 and 668-A-1978. Additional Commissioner, Gorakhpur Division, Gorakhpur clubbed as well as heard the aforementioned appeal together and vide judgement dated 26.10.1979 dismissed the appeal filed by State of U.P. recording finding of fact that the plea raised by the State is bared by Section 49 of U.P.C.H. Act. Against the judgment and decree of first appellate Court/Additional Commissioner dated 26.10.1979, two second appeals were filed before the Board of Revenue, U.P., Allahabad, which were registered as Appeal Nos.36 & 37 of 1979-1980. The aforementioned appeals were clubbed and heard together by learned Member of Board of Revenue and vide judgment dated 14.9.1983, the aforementioned second appeals were allowed and the judgement and decree passed by trial Court and first appellate Court have been set aside as well as the plaintiff suit were dismissed, hence Writ Petition No.13084 of 1983 & 13085 of 1983 for the following reliefs: Writ-B No.13084 of 1983 (A) to issue a writ, order or direction in the nature of certiorari calling for the record of the case for the purpose of quashing the impugned order dated September 14, 1983 (Annexure 3) and to quash the same; (B) to issue a writ, order or direction in the nature of Mandamus commanding the respondents not to give effect to the impugned order during the pendency of the writ petition; Writ-B No.13085 of 1983 "(A) to issue a writ, order or direction in the nature of certiorari calling for the record of the case for the purpose of quashing the impugned order dated September 14, 1983 (Annexure 3) and to quash the same; (B) to issue a writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the impugned order during the pendency of the writ petition;" 5. The aforementioned writ petitions were admitted on 25.10.1983 and operation of the order passed by the Board of Revenue was stayed. In pursuance of the aforementioned order dated 25.10.1983, Gaon Sabha has filed counter affidavit but no counter affidavit has been filed on behalf of the State. 6. The aforementioned writ petitions were admitted on 25.10.1983 and operation of the order passed by the Board of Revenue was stayed. In pursuance of the aforementioned order dated 25.10.1983, Gaon Sabha has filed counter affidavit but no counter affidavit has been filed on behalf of the State. 6. Learned counsel or the petitioners submitted that during consolidation proceeding under Section 9A (2) of U.P.C.H. Act, an order dated 23.2.1967 was passed for recording the name of petitioners of both the writ petitions as Sirdar over the plot in question but the order was not given effect in the revenue records and village has been de-notified under Section 52 of U.P.C.H. Act. He further submitted that the suit under Section 229-B of U.P.Z.A. & L.R. Act was filed on behalf of the petitioners declaring them as Sirdar of the plot in question considering the orders passed during consolidation proceeding. He further placed the certified copy of the Misilband Register of 1967-1968 in order to demonstrate that the order dated 23.2.1967 was passed by the Consolidation Officer in the proceeding under Section 9- A (2) of U.P.C.H. Act. He further submitted that the trial Court has framed the issues in the suit under Section 229-B of U.P.Z.A. & L.R. Act and afforded full opportunity to State as well as Gaon Sabha to lead evidence in accordance with law. He next submitted that both parties have lead evidence and trial Court has decided the issues relating to Section 49 of U.P.C.H. Act as well as other issues in proper manner declaring the petitioners-plaintiff as Sirdar of the plot in question. He further submitted that the first appeal filed by State of U.P. only was dismissed considering the case of both parties in accordance with law. He further submitted that the second appeal filed by the State of U.P. has been allowed in arbitrary manner without considering the finding of fact recorded by the trial Court as well as first appellate Court in proper manner. He further submitted that the second appeal has been allowed without framing any subsequent question of law / point of determination and by the impugned order the decree of the trial Court as well as of first appellate Court have been set aside and the suit has been dismissed in arbitrary manner. He further submitted that the second appeal has been allowed without framing any subsequent question of law / point of determination and by the impugned order the decree of the trial Court as well as of first appellate Court have been set aside and the suit has been dismissed in arbitrary manner. He further submitted that judgment and decree passed by the Board of Revenue is liable to be set aside and the judgment of the trial Court should be maintained. 7. Mr. Abhishek Kumar Srivastava, learned Additional Chief Standing Counsel for the State-respondents and Mr. Rameshwar Prasad Shukla, learned counsel for the respondent-Gaon Sabha submitted that the copy of the order of Consolidation Officer has not been filed along with writ petition, as such, argument advanced by learned counsel for the petitioners about the order dated 23.2.1967 passed by the Consolidation Officer cannot be entertained. They further submitted that the name of the petitioners were not recorded in C.H. Form 23 and 45, as such, petitioners should initiate proper proceedings during consolidation operation by filing objection / appeal / revision. They further submitted that the second appeal filed by the State before the Board of Revenue has rightly been allowed setting aside the judgement / decree passed by the trial Court and first appellate Court. They further submitted that in view of the finding recorded by the Board of Revenue no interference is required against the order passed by the Board of Revenue in second appeal. They further submitted that the suit under Section 229-B of U.P.Z.A. & L.R. Act filed by the petitioners is barred in view of the provisions contained under Section 49 of U.P.C.H. Act. He further submitted that the land comes under the category 132 of U.P.Z.A. & L.R. Act, as such, no right will accrue in favour of the petitioner / defendant and the Board of Revenue has rightly allowed the second appeal filed by the State. 8. I have considered the argument advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that two suit under Section 229-B of U.P.Z.A. & L.R. Act filed by the petitioners were decreed by the trial Court holding that the petitioners are Sirdar of the plot in question. 8. I have considered the argument advanced by learned counsel for the parties and perused the records. 9. There is no dispute about the fact that two suit under Section 229-B of U.P.Z.A. & L.R. Act filed by the petitioners were decreed by the trial Court holding that the petitioners are Sirdar of the plot in question. There is also no dispute about the fact that the first appeal filed by State of U.P. was dismissed by the Additional Commissioner but second appeal filed by the State has been allowed setting aside the judgement/decree of trial Court as well as first appellate Court and the plaintiff's suit have been dismissed. 10. In order to appreciate the controversy involved in the matter, perusal of the provisions contained under Section 229-B of U.P.Z.A. & L.R. Act & Section 49 of U.P.C.H. Act will be relevant, which are as follows: Section 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 229B. Declaratory suit by person claiming to be an asami of a holding or part thereof. [(1) Any person claiming to be an asami of a holding or any part thereof, whether exclusively or jointly with any other person, may sue the landholder for a declaration of his rights as asami in such holding or part, as the case may be]. (2) In any suit under sub-section (1) any other person claiming to hold as asami under the land-holder shall be impleaded as defendant. (3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a [bhumidhar] with the amendment that for the word "landholder" the words "the State Government and the [Gaon Sabha] are substituted therein. Section 49 of the U.P. Consolidation of Holdings Act, 1953 "Section 49. (3) The provisions of sub-sections (1) and (2) shall mutatis mutandis apply to a suit by a person claiming to be a [bhumidhar] with the amendment that for the word "landholder" the words "the State Government and the [Gaon Sabha] are substituted therein. Section 49 of the U.P. Consolidation of Holdings Act, 1953 "Section 49. Bar to Civil Court jurisdiction- Notwithstanding anything contained in any other law f or the time being in force, the declaration and adjudication of rights of tenure- holders in respect of land by the lying in an area, for which a notification has been issued [under sub-section (2) or Section 4], or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could or ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no Civil or Revenue Court shall entertain any suit or proceeding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act: Provided that nothing in this section shall preclude that Assistant Collector from initiating proceedings under section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 in respect of any land, possession over which has been delivered or deemed to be delivered to a Gaon Sabha under or in accordance with the provisions of this Act." 11. Perusal of the Misilband Register of 1967 & 1968 in respect to Case No.1621/ 162, under Section 9-A (2) of U.P.C.H. Act will also be relevant, which is as under: 12. Perusal of the certified copy of the Misilband Register,which is taken on record as well as quoted above fully demonstrate that the case were filed during consolidation operation and the same were decided vide order dated 23.2.1967 in Case No.1621 / 162 declaring the petitionersas Sirdar of the plot in question. 13. This Court in the case reported in 2016 (133) RD 800 , Adalat Yadav vs. D.M./ D.D.C. & Others has held that if question relating to genuineness of any record has to be decided then its entry in misilband has to be examined. Paragraph no.8 of the judgement rendered in Adalat Yadav (supra) will be relevant for perusal, which is as under: “8. Paragraph no.8 of the judgement rendered in Adalat Yadav (supra) will be relevant for perusal, which is as under: “8. So far as allowing the appeal and setting aside order of Consolidation Officer dated 31.03.1981, is concerned, there is serious dispute between the parties, relating to genuineness of order dated 31.03.1981 passed by Consolidation Officer in Case No. 139 of 1980. This order was not given effect to in consolidation/revenue record for about 12 years, due to which, predecessors of the petitioner has to file another suit i.e. Suit No. 193 of 1993, in 1993 and during this period, name of Jager Nath and thereafter Bunela Yadav and Pataroo Yadav remained recorded in revenue record. The genuineness of the order dated 31.03.1981 has been challenged by the respondents. Thus heavy burden of proof was upon the petitioner to prove its genuineness. The petitioner has filed photostat copy of certified copy of the order dated 31.03.1981 (issued on 06.08.1981) and certified copy of goswara register issued on 04.04.2002. Under Rule 25 (e) (ii) and (f) Assistant Consolidation Officer has been required to register Cases of two categories (Section 9-A and Section 9-B) in separate misilband register. In view of Rule 30, the Cases under Section 12 are also required to be registered. Now a days it has become very easy to make forgery in goswara register (a register maintained by Revenue Record Room, Collectorate to register the papers consigned to it). If question relating to genuineness of any record has to be decided then, its entry in misilband register has to be examined. In the present case, from the court of Deputy Director of Consolidation, requisitions were sent for producing misilband register to concerned Consolidation Officer and Incharge Revenue Record Room, Collectorate Deoria. Reader of Consolidation Officer informed that there is nothing to show that misilband register of the year 1980-1981 was consigned to record room. Incharge Revenue Record Room, Collectorate Deoria informed that misilband register is not endorsed in goswara register. The petitioner also in his application dated 14.9.2013 has mentioned that misilband register is not traceable. Before this Court, certified copy of misilband register relating to cases under Section 12 of the Act, from 19.12.1979 to 27.10.1980 was filed by the respondents, in which at serial number 139, Case of Om Prakash Vs. Ram Shree and others was registered. The petitioner also in his application dated 14.9.2013 has mentioned that misilband register is not traceable. Before this Court, certified copy of misilband register relating to cases under Section 12 of the Act, from 19.12.1979 to 27.10.1980 was filed by the respondents, in which at serial number 139, Case of Om Prakash Vs. Ram Shree and others was registered. As such it was fully proved that there was no misilband register of the year 1980-1981. Findings of respondent-1 that order dated 31.03.1981 passed in Case No. 139 of 1980 was suspicious/fabricated order does not suffer from any illegality. If the case is not duly registered in misilband register, then trail of fabricated case will not be permitted to be conducted by consolidation officer, particularly after notification under Section 52 of the Act. However, due to the remand order, the petitioner has still an opportunity to satisfy Consolidation Officer regarding registration of his case in misilband register. As such no interference is required by this Court. However Consolidation Officer shall decide this issue afrsh without being influenced by any of the observation of this Court.” 14. Since, the order passed during consolidation operation could not be incorporated in the revenue record, accordingly, suit under Section 229-B of U.P.Z.A. & L.R. Act was filed on behalf of the petitioners to declare them as Sirdar of the plot in question and trial Court has not decreed the plaintiff's suit only on the basis of order passed by the Consolidation Court rather on the basis of oral and documentary evidence adduced by the plaintiffs as well as defendants. On behalf of the State Lekhpal concern was examined and on behalf of gaon sabha Pradhan was examined. The entry in C.H. Form 2A, 41 & 45 were taken into consideration by trial Court in holding that plaintiffs are Sirdar of the plot in suit. The finding of fact has also been recorded by trial Court that suit is not barred by Section 49 of U.P.C.H. Act as there was adjudication by consolidation Court in favour of petitioners/ plaintiffs. The first appellate Court has maintained the judgement and decree of the trial Court by dismissing the first appeal filed by the State. The finding of fact has also been recorded by trial Court that suit is not barred by Section 49 of U.P.C.H. Act as there was adjudication by consolidation Court in favour of petitioners/ plaintiffs. The first appellate Court has maintained the judgement and decree of the trial Court by dismissing the first appeal filed by the State. Board of Revenue while allowing the second appeal filed by the State has set aside the judgement and decree of trial Court as well as appellate Court without reversing the finding of fact recorded by the trial Court in proper manner. It is also material to mention that no substantial question of law / point of determination have been framed by the Board of Revenue while passing the judgment allowing the second appeal setting aside the judgement and decreed passed by the trial Court as well as first appellate Court and dismissing the plaintiff's suit. 15. No counter affidavit has been filed on behalf of the State before this Court since 1983 although gaon sabha has filed counter affidavit without annexing any document in support of the allegation made in the counter affidavit. 16. The instant writ petitions are pending before this Court for last more than 41 years, as such, the dispute is to be adjudicated on merit rather to remand the matter for fresh adjudication which will prolong the dispute for another 50 years. 17. On the point of Section 49 of U.P.C.H. Act, Hon'ble Supreme Court in the case reported in 2024 (163) RD 691 , Prashant Singh & Others Vs. Meena and Others has considered the scope of Section 49 of U.P.C.H. Act. In the aforementioned case, Hon'ble Supreme Court has considered the judgement of Karbalai Begum Vs. Mohd.Sayeed (1980) 4 SCC 396 as well as judgment of Sita Ram vs. Chhota Bondey & Others 1991 Supplement (1) 556. 18. Considering the ratio of law laid down by Hon'ble Supreme Court from the case of Karbalai Begum (supra) up to Prashant Singh (supra), it is very much clear that claim of co-tenancy will not barred under Section 49 of U.P.C.H. Act but other claim will be barred under Section 49 of U.P.C.H.Act. 19. There is no proper exercise by the Board of Revenue while deciding the second appeal. This Court in the case reported in 1985 R.D. 93 , Sharda Devi Vs. 19. There is no proper exercise by the Board of Revenue while deciding the second appeal. This Court in the case reported in 1985 R.D. 93 , Sharda Devi Vs. Board of Revenue Allahabad & Others on the point of second appellate jurisdiction of Board of Revenue has held as under: "24. In the aforesaid provision the emphasis by the Legislature is on all the interest which the transferor is then capable of passing in the property. In other words it is only the interest of the transferor which he is capable of conveying in the property that would pass to* the vendee and in case he is not capable of passing any interest in the property, nothing would pass to the vendee. In the instant case the vendors were left with no rights as they lost all rights, title and interest in the plots in dispute in the aforesaid compromise and these plots were given in favour of the petitioner and in lieu thereof some corresponding plots were given to the vendors. Hence the vendors had no interest left so as to convey the same to the transferors. It is thus crystal clear that the vendees had not derived any right, title or interest in the sale deed executed by the vendors in their favour. In view of the discussion hereinbefore, I am of the view that the Board of Revenue has clearly exceeded jurisdiction under Section 100 C.P.C. read with Section 331(4) of the Act. There was no scope of the second appellate Court to set aside the findings of fact recorded by the Additional Commissioner about the fraudulent or collusive nature of the decree. The findings of fact were also based on evidence and howsoever grossly erroneous they may appear to be, when in fact they were not erroneous, much less grossly erroneous, the second appellate Court had no jurisdiction to interfere with the same. The vendors, respondent Nos. 7 and 8 had no right, title or interest left in the plots in dispute after admitting the claim of the petitioner in the compromise decree, so as to be able to transfer any interest by the sale deed dated 11.7.1966 in favour of vendees. Hence the vendees did not derive any title out of the sale deed. 25. 7 and 8 had no right, title or interest left in the plots in dispute after admitting the claim of the petitioner in the compromise decree, so as to be able to transfer any interest by the sale deed dated 11.7.1966 in favour of vendees. Hence the vendees did not derive any title out of the sale deed. 25. In the result the writ petition succeeds and is allowed and the judgment and order of the Board of Revenue dated 30.7.1976 is hereby quashed. The petitioner would also be entitled to her cost." 20. The order passed by the Board of Revenue allowing the second appeal and dismissing the plaintiff suit for declaration by passing cryptic judgment cannot be sustained in the eye of law. The manner in which impugned judgment has been passed by the Board of Revenue, can be a judgment of dismissal of second appeal, affirming judgment of courts below but this cannot be a judgment of reversal by which the second appeal has been allowed and the suit under Section 229 B of U.P.Z.A. & L.R. Act has been dismissed in the exercise of second appellate jurisdiction. 21. Considering the entire facts and circumstances of the case as well as ratio of law laid down by Hon'ble Apex Court on Section 49 of U.P.C.H. Act, finding of fact recorded by trial Court, entry in misilband register, the impugned judgment passed by the Board of Revenue dated 14.9.1983 in Second Appeal No.36 & 37 of 1979-80 cannot be sustained in the eye of law and the same are hereby set aside. 22. The writ petitions are allowed and the judgement and decree passed by trial Court dated 28.1.1978 in both the suit under Section 229-B of U.P.Z.A. & L.R. Act are affirmed. 23. No order as to costs.