Agarwala, J. - (1.) THIS is an application under Article 226 of the Constitution praying that the order of the Board of Revenue dismissing the applicant's appeal be quashed by the issue of a writ of certiorari or any other suitable direction or order. The facts briefly stated are as follows: The dispute is about plots Nos. 2473, 2474, 2476, 2480/1, 2480/2, 2481, 2520 and 2521 having a total area of 16 Bighas, 12 Biswas and 5 Biswansis. One Shanker Lal was the proprietor of the aforesaid plots which were his sir. He transferred them to one Bhondu Mal, opposite party No. 2, by means of a sale deed dated the 7th July 1942. Three days before that date, namely, on the 4th July, 1942 Shanker Lal had executed a lease of the very same plots in favour of the applicant Nanak Chand. In view of the lease, the name of Nanak Chand came to be recorded in the Khatauni as a tenant of the plots in dispute. Sometime in the year 1947 Bhondu Mal field a suit against Nanak Chand in the revenue court under Section 63 of the U.P. Tenancy Act for a declaration that the plots in dispute were his khudkisht and were not the tenancy holding of the applicant. The allegations of Bhondu Mal were that the lease was executed to ward off a preemption suit on account of the sale and was fictitious and that he was actually in possession and was cultivating the land. The defence of the applicant was that the lease was valid and that he himself was in possession as a hereditary tenant and that the land was not khudkasht of Bhondu Mal.
(2.) DURING the pendency of the suit, Bhondu Mal made an application that if he be found not to be in possession, possession may also be awarded to him and the Defendant may be ejected under Section 180 of the U.P. Tenancy Act. No amendment was, however, actually carried out in the plaint. The Revenue Officer ultimately held that the lease was fictitious and did not confer any rights of tenancy on the applicant. He also held that the land in dispute had come in the possession of Bhondu Mal and was his khudkasht for sometime, but that the Defendant had entered into possession at some later date, and was liable to be ejected under Section 180, U.P. Tenancy Act. He, therefore, passed a decree for the ejectment of the applicant under Section 180 of the aforesaid Act. This decree of the Revenue Officer was confirmed in appeal by the Additional Commissioner. The applicant went up in second appeal to the Board of Revenue. While the appeal was pending in the Board of Revenue, the Zamindari Abolition and Land Reforms Act came into force and, under Rule 4 of the Rules made under that Act, certain suits were liable to be stayed. Suits under Section 180 were included in the list of suits which were liable to be stayed, but with a proviso that where the Plaintiff is a tenant or where the land was the sir, khudkasht or grove of an intermediary and in which rights have not accrued to the Defendant under Section 16 or any other section of the U.P. Zamindari Abolition and land Reforms Act. the suits were not to be stayed.
(3.) RULE 5 provided that every suit or proceeding, whether pending in the court of first instance or in appeal or in revision, stayed under Clauses (i) to (iii) and (v) of Rule 4 (suits under Section 180 fell under Clause (v)) shall together with the appeal or revision be abated by the court.;