Satish Chandra, J. - (1.) This special appeal has come up for hearing after remand of the case by the Supreme Court. It arises out of consolidation proceedings.
(2.) The Appellants were the zamindars of the plots in dispute. They let them out to one Tameshar, who became an occupancy tenant of the plots. He died in August, 1945. Lalai, Respondent No. 4, claiming to be the daughter's son of Tameshar entered into possession of the plots. One of the Appellants filed a suit for Lalai's ejectment Under Sec. 180 of the U.P. Tenancy Act, 1939. It was alleged that Lalai was a trespasser. The suit was, however, dismissed on the ground that one co -sharer had no right to institute such a suit. Soon thereafter, all the co -sharers together instituted a fresh suit Under Sec. 180 for Lalai's ejectment. They based their suit on their proprietary title. In the suit it was not claimed that the plots constituted the Plaintiffs' Sir or khudkasht. The trial Court held that Lalai was not the daughter's son of Tameshar. He was a trespasser. The suit was decreed. Lalai preferred an appeal. The same was dismissed in July, 1951. Lalai then filed a second appeal before the Board of Revenue and obtained an order staying the execution of the decree. Due to the stay order he continued to remain in possession of the plots. While the second appeal was pending, the UP ZA and LR Act, 1951, came into force on July 1, 1952. The hearing of the appeal was stayed in view of Rule 4 of the ZA Rules. On 9th August, 1954, one of the Plaintiff -Respondents died. His heirs were not substituted. The appeal was dismissed on September 20, 1956.
(3.) Lalai filed a writ petition in this Court which was dismissed by a learned single Judge on 7th February, 1982. The learned Judge held that for non -substitution of the heirs of the deceased Plaintiff, the second appeal had abated.;