' Brief facts out of which present writ petition arises are that the consolidation scheme was initiated in the village in question. The Consolidation Officer approved the scheme of consolidations vide order dated 9-2-1988. The petitioner filed time-barred appeal before the Collector, Gujrat alongwith an application for condonation of delay under section 5 of the Limitation Act on 2-10- 2002. The Collector accepted the appeal of the petitioner vide order dated 8-5-2001 and the respondents being aggrieved filed an appeal before the Executive District Officer on 2-6-2001, who accepted the same vide order dated 19-8-2002. The petitioner being aggrieved filed revision petition before the Member, Judicial Board of Revenue, who dismissed the same vide order dated 10-12-2002. Thereafter, the petitioner filed review petition before the Member, Board of Revenue, who also dismissed the same vide order dated 25-4-2003. Hence, the present writ petition.
2. The learned counsel of the petitioner submits that the Collector was justified to condone the delay as the petitioner had filed appeal before the Collector after the knowledge of aforesaid order dated 9-2-1988. He further submits that the land of the petitioner was superior; whereas Consolidation Officer had granted inferior land to the petitioner, therefore, Collector was justified to accept the appeal of the petitioner on merit. He further submits that E.D.O. And Member, Board of Revenue were erred in law to reverse the order of Collector. He further submits that orders of E.D.O.
And the Member, Board of Revenue are without lawful authority and are not in accordance with law. He further submits that Collector had exercised his discretion while condoning of delay with reasons; whereas the E.D.O. And Member, Board of Revenue reversed the same without any justification.
3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
4. It is admitted fact that the petitioner filed time-barred appeal after 11 years, 5 months and 11 days. The Collector was convinced by the contents of the application, wherein the petitioner had taken stand that "Parchi-Ishtimal" was not issued, demarcation was also not carried out and the consolidation proceedings were kept secret, which was reversed by the higher authority after perusing the original record and ground realities which reveals that the petitioner is also resident of the said village, therefore the petitioner could not have remained unaware of his allotment for over 12 years, a long period. Coupled with the facts that the petitioner was complained to deprive of his pre-consolidation purchased land and the allotment of Rivera-in land in lieu thereof. Such a major injustice could not have remained hidden from the petitioner for so long. On merits both the Courts below have given concurrent findings of fact against the petitioner after perusing the original record and Square No,72/3 was his purchased land which is evident from the record that Square No,72/3 was, in fact, not the pre-consolidation ownership of either party. The Collector had allotted the land in question to the petitioner, which was not his pre-consolidation land and is also located far away from his other consolidation blocks. It is settled principle of law that this Court has no jurisdiction to substitute its own findings in place of findings of the Tribunals below while exercising powers under Article 199 of the that petitioner has six children. It is in evidence that Mazhar Hussain, respondent has a young sister who can look after the minor properly. The respondent has clearly mentioned in his reply that Mst. Fatima Bibi, petitioner has contracted second marriage and that her husband is not father of Kausar Parveen. So in the circumstances of the case, learned trial Court had rightly rejected the application brought by petitioner and accepted the application brought by respondent and directed the petitioner to hand over the minor to respondent. The perusal of judgment dated 25-9-2003 shows that learned District Judge decided the appeal brought by petitioner after appraisal of entire material available on record. Para. No,12 of the said judgment reads as under:-- "Admittedly the appellant is mother's mother of the minor whereas the respondent is his real father.
In her cross-examination the appellant had admitted that she has six children from her two marriages. It is, therefore, clear that she has six children of her own and I cannot believe that she can afford proper attention to the minor who is her daughter's son and she naturally would prefer her own children so far as their maintenance is concerned. The record shows that the respondent has not contracted second marriage so for which shows that he is very much interested in the well being of the minor. His statement further shows that his younger sister has been living with him who can look after the minor. As I have said earlier the respondent is real father of the minor and I find no justification to appoint any other person as guardian of person of the minor when his father is alive and the record does not make out any justification of his disqualification. So after going through the record I have come to the conclusion that it would be in the welfare of the minor to return him to the custody of his father/respondent and it would not be in his welfare to appoint the appellant as guardian of his person."
5. It is well-settled that paramount consideration in determining custody of minor would be the welfare of the minor. Learned District Judge too has given cogent reasons for giving custody to father. The respondent is capable of maintaining the minor in a better manner and thus being real father of the minor and natural guardian cannot be deprived of the custody of his minor son. The analysis of the material available on record brings to the irresistible conclusion that it would not be in the interest and welfare of the minor to allow the petitioner keep the child in her custody. So minor should be given to the custody of respondent (Mazhar Hussain, respondent No,3). As such in the circumstances of the case I find that learned District Judge has rightly dismissed the appeal brought by the petitioner. The petitioner has failed to point out any misreading of record. There is no illegality or infirmity in the impugned judgments, so as to warrant interference by this Court.
6. The upshot of the above discussion is that this writ petition has no force and the same is accordingly dismissed in limine.