K. P. Singh, J. - (1.) THE petitioner no. 1 Halke had filed a suit under section 209 of the U. P. Zamindari Abolition and Land Reforms Act against Ram Chandra, opposite-party no. 5. THE petitioner no. 2 and opposite party no. 3 were defendants in the suit.
(2.) BRIEF allegations by the plaintiff were that the defendant Ram Chandra had no concern with the disputed land and that he had illegally occupied the disputed land since the year 1371 F. hence he was liable to ejectment and to pay damages. The defence in the suit was that the defendant Ram Chandra had acquired Sirdari right in the disputed land on the basis of adverse and continuous possession for more than statutory period and alternatively that the defendant was in possession over the disputed land with the consent of the tenure holder ; hence the suit was not maintainable. The trial court through its judgment dated 18-3-1967 decreed the plaintiff's suit for ejectment and damages as is evident from Annexure '2' attached to the writ petition. In appeal, the judgment of the trial court was confirmed. But in second appeal the plaintiff's suit has been dismissed as is evident from the certified copy of the judgment dated 30th July, 1976. Aggrieved by the judgment of the second appellate court, the plaintiff-petitioner no. 1, alongwith other co-tenure holder Smt. Dhuma, has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioners has contended before me that the second appellate court has patently erred in dismissing the plaintiff's suit as not maintainable. According to him, on the findings of fact recorded by the revenue courts the possession of the defendant-opposite party, Ram Chandra, was without the consent of all the tenure holders ; hence the suit was rightly decreed by the first two courts, but the Board of Revenue has patently erred in dismissing the suit as not maintainable. The learned counsel for the petitioners has placed reliance upon the rulings reported in Hira v. Gopal, 1956 R. D. page 428 and Surendra v. Deputy Director of Consolidation, 1976 AWC page 318.
(3.) NONE has appeared on behalf of the contesting opposite party. I have examined the contentions raised on behalf of the petitioners, but I am unable to accept the contention. The ruling relied upon by the learned counsel for the petitioners reported in 1956 R. D. page 428 is inapplicable to the facts and circumstances of the present case because it considered the provisions of U. P. Tenancy Act and according to section 246 of the U. P. Tenancy Act it was necessary that letting to a person must be done by the tenants jointly. There is no provision similar to section 246 of the U. P. Tenancy Act in the U. P. Zamindari Abolition Act ; hence that case could not be relevant for determining the claim of the parties under the provision of U. P. Act 1 of 1951.;