H.N. Seth, J. - (1.) This is a defendants second appeal. Plaintiffs Babu Lal and others filed a suit for ejectment u/S. 202 of the UP ZA and LR Act, 1951. According to them, one Panna Lal was originally the tenant of the plot in suit. In the year 1945 the Zamindars obtained a decree for his ejectment u/S. 171 of the UP Tenancy Act. Subsequently, Panna Lal made an application for his reinstatement u/S. 27 of the UP Act X of 1947. In the mean time, the present defendants had been admitted as tenants on the plot by the Zamindar. By an order dated 18th June, 1948, the application of Panna Lal was allowed but it was held that the defendants were entitled to remain in possession of the plot as sub -tenant for three years on payment of rent to Panna Lal, and, therefore, the present suit was filed by the plaintiffs as heirs of Panna Lal. The defendants contested the suit and alleged that the plaintiffs were not the heirs of Panna Lal. According to them, the present suit was not maintainable as the plaintiffs had not obtained actual delivery of possession over the plots in proceedings under UP Act X of 1947. It appears that in the mean time the defendants obtained a certificate from the Assistant Collector declaring them to be Bhumidhars of the holding. The trial court decreed the suit for ejectment. It, however, directed that the decree was not to be executed till the plaintiff got the Bhumidhari Sanad issued to the defendants cancelled. The defendants went up in appeal which was allowed by the lower appellate court on the ground that so long as plaintiffs did not obtain actual possession in execution of the proceedings initiated under Act X of 1947, they were not entitled to maintain the suit. The plaintiffs came up in second appeal before this Court. This Court, reversed the decision of the lower appellate court on the question of maintainability of the suit and remanded it for determination of other points involved in the case.
(2.) After remand the lower appellate court affirmed the finding recorded by the trial court that the plaintiffs were the heirs of Panna Lal. According to the plaintiffs they were the Sirdars & defendants were Asamis of land in dispute. It repelled the argument raised on behalf of the defendants that as it was open to the plaintiffs to obtain delivery of possession over the plot in dispute in proceedings under Act X of 1947, the present suit, u/S. 202 of the UP ZA and LR Act, was not maintainable. It held that the existence of Bhumidhari Sanad in favour of the defendants did not confer any immunity on the defendants from being ejected from the land in dispute and the relief could not be refused on the ground that plaintiffs had not got the Bhumidhari Sanad cancelled before filing the suit.
(3.) The plaintiff -respondent contended before the lower appellate court that even though they had not filed an appeal against the decree passed by the trial court, the observation made by the trial court to the effect that the decree was not to be executed till the plaintiffs got the Bhumidhari Sanad cancelled, should be modified. On this contention the lower appellate court made the following observation: However the respondents have not filed cross -objection nor they have filed any appeal. So they have got no right to question the decree and there is no such extraordinary circumstance that this court should exercise this power in favour of a party who has not disputed the correctness of the decree. I therefore refuse to grant the prayer of the respondents.;