Sapru. J. - (1.) THIS writ petition arises out of a suit under section 229-B read with section 209 of the U. P. Zaraindari Abolition and Land Reforms Act filed by the petitioners against one Babu Lal respondent, the State of U. P. and the Gaon Samaj. One Madhua was subsequently impleaded as defendant no. 4. The plaint allegations were that the plaintiffs along with Madhua were hereditary tenants of the plots in suit prior to the abolition of zamindari and they became sirdars on the coming into force of U. P. Act I of 1951, The holding was joint. The plaintiff's case further that is they deposited the necessary amount of money and acquired bhumidhari sanad in respect of the half share on 11-11-1949 and became bhumidhars of their half share in thetholding which, however, was not partitioned.
(2.) ACCORDING to the plaintiff's case Madhua went away and they continued in possession over his share and as such, by adverse possession, they became sirdars in respect of the share of Madhua. According to the plaintiffs, Babu Lal got a wrong entry made as being in possession of the land and, hence, they sought a declaration that they were sirdars of the share of Madhua and also eviction of the defendant, Babulal. The suit was contested by Babulal who denied the plaintiff's case and alleged that the plot in suit was the exclusive holding of Madhua -and the contesting respondent Babu Lal claimed that he entered into possession over the portion belonging to Madhua even prior to the date of vesting. It was further pleaded by him that a suit had been filed against him by Madhua under section 209/229 of the U. P. Z. A. and L. R. Act in which there was a compromise and the case was decided in his favour. Babu Lal also pleaded estoppel and limitation. The State of Uttar Pradesh filed a written statement and alleged that the share of Madhua had vested in the Gaon Samaj and the name of Babu Lal was wrongly recorded as sirdar. The trial court dismissed the plaintiff's suit holding that the plaintiffs had not acquired sirdari rights over the share of Madhua and Babuial defendant no. 1 was the sirdar of the land in dispute. The petitioners filed an appeal. The learned Additional Commissioner, who heard the appeal, came to the conclusion that the plaintiff petitioners never acquired sirdari rights by adverse possession over the half share of Madhua. The finding was that as the plaintiffs and Madhua were admittedly joint tenants of the land and as there was no evidence of the ouster of Madhua, the plea of adverse possession advanced by the plaintiff-petitioners could not succeed. The learned Additional Commissioner, however, held that Babu Lal was not in actual possession up to 1370 F. He, however, found that Babulal entered into possession of plot no. 1682/2 in 1371 F. and plot no. 1682/1 in 1972 F. Having found this, the learned Additional Commissioner recorded a finding that Babulal did not acquire any rights over the share of the holding belonging to Madhua by adverse possession. The khatauni entry as sirdar made in favour of Babu Lal was, according to the Additional Commissioner made under the orders and decrees which were without jurisdiction and had no legal basis and, therefore, had to be ignored. As regards the consent decree against Madhua which had been obtained by Babu Lai, the Additional Commissioner found that the decree was collusive and, in any case, was not binding on the plaintiff petitioner. Having regard to this finding the Additional Commissioner has come to the conlcusion that the plaintiffs are bhumidhars of their half share in the land and were not bound by the decree between Madhua and Babu Lal as they were not parties to the suit, and that the plaintiff-appellant and Madhua were still co-tenure holders. Madhua continued as such unless there was a partition of the holdings under section 138 of the U. P. Zamindari Abolition and Land Reforms Act. The Additional Commissioner, therefore, directed that the plaintiff-petitioners were not entitled to get a decree for ejectment of the trespassers from their undivided holding. The Additional Commissioner, however, recorded a finding that his decision will not affect the rights of the Gaon Samaj in any way and will not debar it from bringing a suit if so advised.
(3.) A second appeal was filed by Babu Lal before the Board of Revenue. The Board of Revenue after reciting the various contentions on behalf of the different parties to the appeal, observed in paragraph 6 of its judgment as follows:- "I have considered the contentions of the learned counsel for the parties and perused the record of the case. In ihis case there was an earlier suit between Madhua and the defendant-appellant and it, therefore, acts as an estoppel between Madhua and the defendants and the defendant has become sirdar in place of Madhua. It does not act as an estoppel against the plaintiffs. But.the plaintiffs are consulted as they are bhumidhars of 1/2 the share which is separately recorded in their names. Half the area is recorded as sirdan of Madhua and the plaintiff can have no claim over this area. It is entirely a matter between Madhua and the defendant The plaintiffs are not co-tenants of this area. Section 138 is intended for a suit of partition. It is not a partition case It is a case u/s. 229-T/209. The plaintiffs' case for adverse possession has been disbelieved by the courts below. They have, therefore, no claim on the basis of adverse possession. The finding of the lower appellate court is, therefore, wholly erroneous. The plaintiffs are nonsuited and I agree with the learned counsel for the appellant and affirm the finding of the tiial court." ;