Preliminary issues involving mixed questions of law and fact must be decided alongside all issues, not in isolation, as per established legal principles.

JUDGMENT :

Saurabh Shyam Shamshery, J.

1. Heard Sri Lalji Chaudhary, learned counsel for petitioners, Ms. Rekha Singh, learned counsel for respondent Nos. 4 to 6 and Sri Durga Charan Singh Yadav, learned counsel for respondent Nos. 7 and 8.

2. Petitioners have set up a case that contesting respondent Jeet Narayan Singh has filed a suit under Section 229 of U.P. Z.A. and L.R. Act on 1.1.1976 for declaration of his title over the disputed land. The suit was contested by mother of petitioner and has filed her written statement. The other written statement was filed by Smt.Mahdei and Smt. Amar Dei and according to petitioners, the said documents are not available in the records.

3. It appears that in aforesaid suit 9 issues were framed (details of same are not on record) and it further appears that issue No. 5 was whether the suit was barred by Section 49 of U.P. Consolidation of Holdings Act. The said issue was considered as a preliminary issue and learned Trial Court by an order dated 29.9.1981, decided the said issue and held that suit was barred by Section 49 of the said Act. Relevant part of the order is reproduced hereinafter:

4. The said order was challenged at the behest of contesting respondent i.e. plaintiff, wherein following specific grounds were taken:

“Grounds of Appeal

1. Because the plff. appellant was the Bhumidhar of the land in suit was in possession as such. Consequential, he was entitled to the declaration claimed.

2. Because the issue of Sec. 49 U.P.C.H Act since a mixed question of law and fact, it could not be treated to be the preliminary point. The assumption of the learned lower Court to the contrary is manifestly wrong.

3. Because since the appellant was a minor on the relevant dates and the relevant litigation during the consolidation operation was concluded without impleading him as a party and without appointment of a guardian therefore, sec. 49 U.P.C.H Act can have no hearing in the facts and circumstances of the case. The learned lower Court has acted illegally in as much as it has held the suit to be barred by Sec. 49 U.P.C.H Act.

4. Because the learned lower Court has misappreciated the order of the consolidation authorities and has not drawn correct inferences therefrom.

5. Because the procedure adopted by the learned lower Court has been grossly irregular and it has acted illegally in not framing groper issue in the case and in improperly shutting out the appellant's evidence and in not affording him reasonable opportunity to produce the same. All this has seriously prejudiced the appellant's case.

6. Because the order of the learned lower Court being otherwise bad in law and unwarranted by the evidence on the record is liable to be set aside.”

5. The Commissioner, Varanasi decided the said appeal by an order dated 27.5.1983 and dismissed the same. The relevant part thereof is mentioned hereinafter:

6. The aforesaid referred two orders were thereafter challenged by way of filing a Second Appeal before the Board of Revenue. In the Second Appeal following three substantial questions of law were framed:

7. The Board of Revenue considered the above referred questions of law and set aside the order dated 27.5.1983 and 25.9.1981 and remitted the matter back to Trial Court to decide the suit after framing issues and returned finding on all the issues. The relevant part thereof is mentioned hereinafter:

8. Learned counsel for petitioner has submitted that there are material on record that mother of plaintiff/contesting respondent has contested the objections during the consolidation proceeding and his interest was also protected. A primary issue was decided correctly and suit was barred by Section 49 of U.P. Consolidation of Holdings Act. Learned counsel also submits that relevant documents are missing from the record and matter is if remitted back, it may not be decided in many years.

9. Learned counsel also submits that Board of Revenue has erroneously interfered with the concurrent findings of two Courts as well as