K.P. Singh, J.
1. In this writ petition the petitioner Baj Rangi had claimed cotenancy right with his alleged brother Ram Narain on the allegations that both were sons of Daulat in the pedigree given in the judgment of the Settlement Officer (Consolidation). The consolidationauthorities have negatived the claim of the petitioner on the ground that he has failed to establish that he was the legitimate son of Daulat. Aggrieved by the judgments of the consolidation authorities the petitioner has approached this Court under Article 226 of the Constitution and has challenged the judgments of the consolidation authorities.
2. The learned counsel for the petitioner has contended before me that it has been established beyond shadow of doubt that the petitioner was born during the valid wedlock between his mother and Daulat, hence it was conclusively proved that the petitioner was son of Daulat. In this connection the learned counsel for the petitioner has drawn my attention to the provisions of Section 112 of the Evidence Act and has placed reliance upon a large number of rulings reported in AIR 1927 Mad 361 Narayana Nair v. Bhargavi Amma : AIR1930Mad194 , M. Kanniappan v. Kullammal AIR 1937 Lah 266 Hidayat Ullah v. Mohammad Ali : 1SCR424 , Venka-teswarlu v. Venkatanarayana : 1SCR49 Perumal v. Ponnu swami and AIR 1942 Oudh 143 Mt. Massorma Begum v. Mohammad Raza,
3. The learned counsel for the contesting opposite party has submitted in reply that all the consolidation authorities have recorded categorical findings of fact that the petitioner has failed to prove that he was legitimate son of Daulat, hence his claim about co-tenancy with contesting opposite party No. 4 in the present writ petition has rightly been negatived. It has been stressed by the learned counsel for the contesting opposite party that in the circumstances of the present case it has been established that the petitioner's father Daulat had no access with the petitioner's mother when the petitioner was conceived, hence the findings recorded by the consolidation authorities cannot be characterised as perverse Or without any basis in evidence. Thus it is not a fit case where interference should be made with the impugned judgments in the exercise of powers under Article 226 of the Constitution by this Court.
4. I have considered the contentions raised on behalf of the parties. Section 112 of the Evidence Act reads as below -
'The fact that any person was born during the continuance of a valid mar-riage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
5. In the present case there is no doubt that the petitioner was born during the continuance of a valid marriage between his mother and Daulat, but the bone of contention is that when the petitioner was born Daulat had no access to the petitioner's mother. From the facts involved in the present case it is evident that the petitioner's mother did not come with Daulat at the time of marriage and she was detained by her parents for Gauna ceremony. Before Gauna ceremony the petitioner was born, hence the relationship between Daulat and petitioner's mother was broken and Daulat had to marry second time. In eastern U. P. it is well known that when a girl remains for the purposes of Gauna ceremony and no Bidai had taken place at the time of marriage, she had no access with her husband during the marriage as contemplated by the word 'access' in the above mentioned section and because of the birth of the petitioner the relationship between the petitioner's mother and Daulat was broken and this fact has been emphasised by the Consolidation Officer as well as the revisional court. I think that there is implied finding that there was no access between the petitioner's mother and Daulat. In this view of the matter it is clear that the petitioner cannot be held as legitimate son of Daulat.
6. The contention of the learned counsel for the petitioner that due to conclusive proof under Section 112 of the Evidence Act it should have been held that the petitioner was legitimate son of Daulat in the present case, I am not agreeable to accept the contention in view of the circumstance that the petitioner's mother had remained for the purposes of Gauna ceremony and she gave birth to the petitioner before Gauna ceremony, hence it has been shown that the parties to the marriage had no access to each other at the time when the petitioner could have been begotten. On the materials on record I am not prepared to hold that the consolidation authori-ties have at least patently erred in giving judgments against the petitioner.
7. I have no quibble to the rulings cited by the learned counsel for the petitioner and it is well established that if a child is born during the continuance of a valid marriage, there is a conclusive presumption that the child is legitimate issue of the married couple, but if it is shown that the couple had no access to each other at a time when the child could be begotten, the legitimacy of the child cannot be presumed. In the present case. I have a feeling that the petitioner's parents had no access with each other when the petitioner could be begotten.
8. The learned counsel for the petitioner has emphasised the ruling reported in AIR 1942 Oudh 143 Mt. Masooma Begum v. Mohammad Raza. The aforesaid ruling is distinguishable and inapplicable to the facts and circumstances involved in the present case. In the present case the parties are Hindus and it has been indicated by evidence on record that the girl had been detained by her parents for the purposes of Gauna ceremony and there is nothing to indicate that the petitioner's parents had access with each other before their marriage in any manner. In this view of the matter the petitioner's counsel cannot derive any benefit out of the ruling reported in AIR 1942 Oudh 143 Mst. Masooma Begum v. Mohammad Raza. Though in the aforesaid ruling it has been emphasised that Rukhsati ceremony is legally no part of Mohammedan marriage, but amongst Hindus in eastern U. P. before Bidai or Gauna the parties do not have any access to each other unless there is evidence to the contrary. In the present case there is no such evidence that the petitioner's parents had access between them before their marriage, hence I am not prepared to hold that the findings of fact recorded by the consolidation authorities are either perverse or suffer from any patent error of law.
9. It is well known that 'non-excess could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence either direct or circumstantial which is relevant to the issus under the provisions of the Evidence Act, and in the present case by the fact that the petitioner's mother was detained by her parents for the purposes of Gaunaceremony and hence she had no access with her married husband named Daulat before the petitioner was born.
10. In my opinion the impugned judgments of the consolidation authorities do not suffer from any error of law or perversity much less an error apparent on the face of the record.
11. In the result the writ petition fails and is dismissed. Parties are directed to bear their own costs.