Satish Chandra, J. - (1.) THIS special appeal arises out of consolidation proceedings.
(2.) THE land in dispute has had a chequered litigation. One Nathumal was the land holder. Habib was a tenant of the plots in dispute. Nathhu Mal obtained a decree for the ejectment of Habib Under Section 171 of the UP Tenancy Act on 28th May, 1943. In execution of the decree Habib was dispossessed by the land holder on 20th June, 1943. Soon thereafter Natthu Mal executed a lease of the plots in favour of Banarsi Das, Respondent No. 6. Then, on 6th September, 1943, Nathu Mal sold his proprietory right to Kanched Mai, Nathumal the father and uncle of Banarsi Das. Ata Ullah, the present Appellant, was a co -sharer in the khewat. He filed a suit for pre -emption against Natthu Mai, the transferee and also Banarsi Das. Banarsi Das was impleaded as a party on the allegation that the lease in his favour was fictitious. The pre -emption suit was decreed on 4th February, 1946. The appeal etc. were also dismissed and ultimately the decree was affirmed by this Court on 19th September, 1948.
(3.) MEANWHILE Habib, the erstwhile tenant, having died, his son Mohammad Umar filed an application for his reinstatement Under Section 27 UP Tenancy (Amendment) Act, 1947. This application was allowed on 18th April, 1948. Banarsi Das who had taken the plots on lease from the erstwhile landlord, Nathhu Mai, filed an appeal. During the pendency of the appeal Banarsi Das obtained a fresh lease from Ata Ullah on 3rd January, 1949. It will be remembered that by this time Ata Ullah's pre -emption suit had been decreed. The earlier lease executed by Nathhu Mal in favour of Banarsi Das was held to be invalid. In order to substantiate his title Banarsi Das obtained a fresh lease from Ata Ullah. On the basis of this transaction, the appeal filed by Banarsi Das was allowed on 18th April, 1949 and the order of Mohammad Umar's re -instatement was set aside. Mohammad Umar had, however, taken possession of the plots on 23rd June, 1948 in pursuance of the re -instatement order in his favour. After the appeal was allowed, Banarsi Das obtained restitution of possession from Mohammad Umar in June, 1949.;