K. P. Singh, J. - (1.) THIS is a plaintiffs' writ petition arising out of a suit under section 209 of the U. P. Urban Areas Zamindari Abolition and Land Reforms Act. The plaintiffs had claimed Bhumidhari right in the disputed land and had asserted that the defendant had no concern with the disputed land and was liable to ejectment. The defendant opposite party in the present writ petition had claimed Sirdari right in the disputed land and had asserted that the plaintiffs' suit should be dismissed.
(2.) THE trial court through its judgment dated 23-9-1971 accepted the claim of the defendant and dismissed the suit. Against the judgment of the trial court the plaintiffs petitioners had preferred an appeal which was allowed and their suit was decreed. THE defendant opposite party had preferred a second appeal which was allowed by the Second Appellate Court and the plaintiffs' suit stands dismissed. Aggrieved by the judgment of the second appellate court the plaintiffs petitioners have approached this Court under Article 226 of the Constitution. The learned counsel for the petitioners contends before me that the trial court and the second appellate court have patently erred in treating the document in favour of the defendant opposite party as a lease whereas according to the learned counsel for the petitioners it was only a mortgage and, therefore, the impugned judgment of the trial court and that of the second appellate court suffer from patent error of law and deserve to be quashed. None appears on behalf of the contesting opposite parties.
(3.) THE terms of the document have been quoted in the judgment of the first appellate court which was in favour of the plaintiff petitioners. In my opinion the trial court and the second appellate court have correctly construed the document in favour of the defendant opposite party as a lease and the contention of the learned counsel for the petitioners that it should be treated as mortgage is not acceptable to me. According to section 18 of the U. P. Urban Areas ZA and LR Act, 1956, the plaintiff being occupancy tenant may be covered by (iii) of Section 18 of the aforesaid Act, whereas the defendant opposite party would be covered by Section 18 (2) (b) of the above mentioned Act. The trial court and the second appellate court have recognized the claim of the defendant opposite party as sirdar of the disputed land because of the provisions of Section 18 (2) (b) of the aforesaid Act. At this stage it would be better to quote the provisions of Section 18 of the aforesaid Act which reads as below ;- "18. Land in the holding to be settled with the tenants thereof as sirdar-(1) subject to provisions of section 19, all land in an agricultural area held or deemed to have been held on the date immediately preceding the date of vesting by any person as- (i).........(ii)...... (iii) an occupancy tenant ; (iv)......(vi)......(vii)...... (2) every person, who on the date immediately preceding the date of vesting, was or has been deemed to be in accordance with the provisions of this Act- (a) a tenant of sir, or (b) a sub tenant other than a sub tenant referred to in the proviso to sub section (3) of Section 27 of the U. P. Tenancy (Amendment) Act, 1947, of any land other than grove land ; shall, unless he has become an asami under clause (h) of Section 19, shall be entitled to take or retain possession as sirdar thereof and the land shall be deemed to be settled with him by the State Government." ;