- (1.) S. U. Khan, J. Heard learned counsel for the parties.
(2.) THIS is defendants' writ petition arising out of a suit filed by original respondents 4 to 8 Kripa Narayan and others and one Sri Prakash Rai against Ganga Mali and State of U. P. through Collector Jaunpur, Ganga Mali died during proceedings the Courts below and was survived and substituted by the original petitioners. The suit was filed under Section 202 of U. P. Zamindari Abolition and Land Reforms Act, 1950 read with Section 64 of U. P. Urban Area Zamindari Abolition and Land Reforms Act, 1957. In the plaint, copy of which is Annexuret to the writ petition, it was stated that prior to Zamindari abolition plaintiffs were fixed rate tenants of the property in dispute and after Zamindari abolition they became Bhumidhars. It was further pleaded that the plaintiffs had planted a guava grove in the land in dispute and defendants were sub-tenants of grove land on behalf of the plaintiffs. Suit was filed on 3. 1. 1966. Plaintiffs granted sub lease/ Patta to the defendants through registered deed dated 21. 4. 1931 registered on 1. 5. 1931, copy of which is Annexure '2' to the writ petition. In the said deed it was mentioned that property in dispute was Khudkasht of plaintiffs and it was being given to the defendants as an occupancy tenant for life (KASHTKAR DAKHILKAR HIN HIYATI ). It was also mentioned that apart from carrying on agricultural activity, lessees would not be entitled to do any thing else over the land in dispute. Defendants pleaded that the Zamindari of the area in question, which was situate within the municipal limits of Jaunpur, stood abolished on 1. 7. 1965 and thereafter defendants became sirdar. Defendants denied that on the eve of Zamindari Abolition plaintiffs became Bhumidhars, Trial Court/assistant Collector First Class Jaunpur, whom the suit was registered as Revenue Suit No. 3, decided the same on 11. 1. 1967. In the judgment it was mentioned that as per Khatauni extract of 1365 Fasli plaintiffs were recorded as fixed rate tenants and that in the Khasra extract of 1372-73 Fasli, property in dispute is recorded as grove and plaintiffs are recorded in the tenant's column. The trial Court held that on the date of vesting character of the land was grove, hence plaintiffs became Bhumidhar and defendant No. 1 as sirdar and hence defendant was not liable to ejectment. The contention of the plaintiffs that the defendant No. 1 became Asami was rejected. The trial Court further held that it was un-necessary to decide as to whether grove was planted by the plaintiffs or the defendant No. 1. The suit was ultimately dismissed. Against the said judgment and decree appeal No. 827 of 1967 was filed by the plaintiffs. Additional Commissioner 11, Varanasi allowed the appeal on 7. 11. 1968 and decreed the suit. The judgment of the appellate Court is very sketchy. The appellate Court held that the land in dispute was grove, hence Section 18 of Act No. IX of 1957 (U. P. Urban Area Zamindari Abotition Land Reforms Act) had no application and the position was covered by Section 19 (b) of the Act and hence defendant No. 1 became Asami and liable to eviction. Against the said judgment and order defendants petitioners filed second appeal the Board of Revenue being Second Appeal No. 137 of 1968-69. Board of Revenue dismissed the second appeal on 4. 9. 1975, hence this writ petition.
(3.) THE Board of Revenue some documents were filed as additional evidence. In this writ petition it has vehemently been argued by THE learned counsel for THE petitioner that THE additional evidence, which had been taken on record by THE Board of Revenue, was not considered by it while deciding THE second appeal. Learned counsel for both the parties have categorically stated that if plaintiffs are held to be fixed rate tenants then the suit is to be decreed, however, if the plaintiffs are held to be Zamindars then the suit is to be dismissed. This statement of law is perfectly in accordance with the Full Bench authority of this Court reported in Paras Nath v. Board of Revenue, 1986 A. L. J. 21. In the said Full Bench authority also the matter related to Urban Area Zamindari Abolition Act.;