SRI PAL Vs. SWAMI NATH

JUDGEMENT

(1.) THIS is a defendants second appeal. One of the defendants-appellants died during the pendency of the appeal and has been substituted by his heirs. Likewise the plaintiff-respondent died during the pendency of the appeal and has been substituted by his heir Swami Nath.

(2.) THE dispute in this case relates to a portion of plot No. 34, 2 bighas 4 biswas and 10 dhurs in area. Relying on a registered patta dated the 10th of October, 1948, executed in his favour by the then zamindar the plaintiff-respondent filed a suit in respect of the disputed piece of land against the defendants-appellants in the year 1950 purporting to be one under Section 180 of the U. P. Tenancy Act on the allegation that the plaintiff-respondent was a tenant of the disputed land whereas the defendants-appellants had trespassed on it only a few days before the suit. In defence the detendants-appellants plead ed that they were in possession with the permis sion of the zamindar ever since December, 1929, in accordance with a deed of licence executed in their favour on the 17th of December, 1929. The trial Court in that suit held that the Ijazat-nama dated the 17th of December, 1929, resulted in creating hereditary rights in favour of the defendants-appellants and accordingly dismissed the suit. The plaintiff-respondent went in appeal which was dismissed by an Additional Commissioner. He then preferred a second appeal before the Board of Revenue The Board of Revenue held that even though the document relied on by the defendants-appellants did not make them hereditary tenants still the allegation of the paintiff-respondent on the basis of which he founded his claim under Section 180 of the U. P. Tenancy Act was incorrect and as such his suit must fail notwithstanding the fact that the status of the defendants-appellants with reference to the disputed land was only that of a non-occupancy tenant as provided in Section 30 of the U. P. Tenancy Act. Thus the Board of Re- venue dismissed the appeal. It is thereafter that the suit giving rise to this appeal was instituted seeking the ejectment of the defendants-appellants under the provisions of Section 202 of the U. P, Zamindari Abolition and Land Reforms Act. The appellants pleaded that they were not non- occupancy tenants but were hereditary tenants under the provisions of the U. P. Tenancy Act and became sirdars under the provisions of the U. P. Zamindari Abolition and Land Reforms Act.

(3.) I have heard learned counsel for the parties.