S.R.Singh - (1.) THE suit giving rise to this writ petition was filed by the plaintiff respondent Mohd. Shafraz under section 202 of the UP ZA LR Act, 1950 (U. P. Act No. 1 of 1951) for ejectment of the petitioner from the land in suit. THE case of the plaintiff was that his father Sri Mohd. Ismile, who was the tenant of the land in suit died in 1965, when the plaintiff was minor and prosecuting his studies out side the village and that the land in suit was let out to the defendant petitioner Ram Sanehi during the plaintiff's minority. It was further alleged in the plaint that the plaintiff attained majority in 1971 after passing his Intermediate Examination in 1975 be joined B. A. classes and wanted to bring the land in his cultivation, hence he sued against the defendant, who was only an asami liable to ejectment under section 202 of the U. P. Act No. 1 of 1951.
(2.) THE suit was contested by the defendant petitioner, inter alia, on the ground that the land in suit was not let out to htm during the minority of the plaintiff and that he had been in possession of the suit land in his own right in 1356 -F and 1359 -F and on that account he acquired adhivasi and later firdari right under the provisions of the U. P. Act No. 1 of 1951. He also claimed to have acquired right under section 210 of the said Act by virtue of his continuous possession over the land in suit for mote than twelve years. The trial court In the judgment dated 30-8-1978 held that the plaintiff's father Mohd. Ismile died on 14-8-1956 and that the plaintiff was minor aged about 3 years at that time and farther that the defendant could not prove his possession over the land in suit from the life time of the plaintiff's father. The trial court further recorded a finding that although the defendant was recorded as 'Qabiz' in the khasra of 1362-F but it could not be proved that P. A. 10 was issued to the recorded tenure holder on the basis of khasra entires of 1367-F and on wards filed by the defendant. The trial court held that the defendant acquired possession of the suit land during the minority of the plaintiff and after the death of his father. The trial also recorded a finding that from the certificate issued by the Pradhancharya of D. A. V. Inter College. Varanasi it was proved that the plaintiff was prosecuting his studies in 1975 and it was on this finding that the trial court gave the benefiit of section 157 (1) (s) of the U. P. Act No, 1 of 1951 and accordingly it held that the provisions of section 202 (f) read with section 21 (1) (h) of the U. P. Act No. 1 of 1951 were attracted and the defendant was liable to ejectment. The suit was accordingly decreed vide judgment and decree 30-8-1978. Aggrieved against the judgment and decree of the trial court the defendant went up in appeal. The Additional Commissioner 1st Varanasi Division Varanasi dismissed the appeal vide judgment and decree dated 2-6-1981 and maintained the decree pissed by the trial court. The second appeal preferred by the defendant having been dismissed by the Board of Revenue vide judgment dated 26-4-1982 the defendant petitioner has now come up to this Court under Article 226 of the Constitution.
(3.) I have heard the learned counsel appearing for the parties. A perusal of the impugned judgments goes to indicate that the plaintiff respondent has been given benefit of section 157 (1) (a) of U. P. Act No. 1 of 1951 without recording a categorical finding on the basic fact attracting the said provision of law. It is evident from section 157 (1) (a) that what it visualises, inter alia, is that a bhumidhar or an asami holding the land in lieu of maintenance allowance under section 11 who is- (a)......... (b) a minor, whose father suffers from any of the disqualifications mentioned in CI. (c) or (d) or has died ; (c) ............ (d) ............ (e) prosecuting studies in a (recognised educational institution) and does not exceed 25 years in age and whose father suffers from any of the disqualifications mentioned in cl. (c) or (d) or has died. May let the whole or any part of his holding.;