N.D. Ojha, J. - (1.) HARI Shanker, a Respondent in the special appeals as also in the writ petitions, filed a suit Under Section 171 of the U.P. Tenancy Act, hereinafter referred to as the Act, on 1 -2 -1961 against Habib Ahmad and Ida on the allegation that Habib Ahmad, who was his tenant of the land in dispute, had sublet the same to Ida in the year 1351 -F (corresponding to 1943 A.D.) and that since the sub -lease was for more than five years, it was illegal being in contravention of Section 40 of the Act. The suit was contested, but was decreed on 18 -11 -1961. Habib Ahmad was given the option to apply for ejectment of Ida within one month and resume occupation of the land in dispute in terms of the proviso to Section 171 of the Act. On an appeal filed by Ida the aforesaid decree was set aside by the Addl. Commr. on 18 -4 -1962 and the suit was dismissed. Hari Shanker filed second appeal which was allowed by the Board of Revenue on 13 -8 -1963/17 -4 -1964, whereby the decree of the Addl. Commr. was set aside and that of the trial court was restored. Ida challenged the aforesaid order of the Board of Revenue by way of CMW No. 2386/64. That petition was dismissed on 26 -3 -1970. Special Appeals Nos. 394 and 418 of 1970 have been filed against this judgment by Ida and Habib Ahmad respectively.
(2.) AFTER his suit had been decreed by the Board of Revenue Hari Shanker filed an application for execution of the decree in which an objection was filed by Ida which was dismissed by the Revenue authorities. Habib Ahmad also on 16 -5 -1964 filed an application as contemplated by the proviso to Section 171 of the Act. According to him that application has so far not been decided on merits. Writ petitions Nos. 613 of 1970 and 910 of 1971 have been filed by Habib Ahmad and Ida respectively against the orders passed by the Revenue authorities on the execution side. The Special appeals and the writ petitions have been heard together and are being decided by this common judgment. Learned Counsel for Hari Shanker raised a preliminary objection that the special appeal flied by Habib Ahmad was not maintainable, inasmuch as he had not filed a writ petition against the order of the Board of Revenue decreeing the suit and further that even his writ petition was not maintainable, because he had not filed any objection in execution proceedings too; nor had he challenged the order of the trial court in these proceedings by filing either an appeal or a revision before the Board of Revenue.
(3.) AFTER having heard the learned Counsel for the parties, we are of the opinion that the Board of Revenue in passing the decree in the suit Under Section 171 committed a manifest error of law and its order deserves to be quashed. Since the said order and challenged at any rate by Ida by filing a writ petition and he has also filed a special appeal, the controversy has to be decided on merits. After the decree itself passed in the suit Under Section 171 of the Act is quashed by this Court, the proceedings taken in execution of that decree will automatically fall and in this view of the matter we have found it unnecessary to record any finding on the merits of the preliminary objection.;