Mahavir Singh, J. - (1.) THIS is a second appeal by the defendants against the judgment and decree of the Civil Judge, Ghazipur, by which he confirmed the decree passed by the Munsif in favour of the plaintiff-respondent No. 1.
(2.) THE allegations of the plaintiff-respondent were that he was an occupancy tenant of the plots in question prior to the abolition of Zamindari and had become Sirdar afterwards, that the defendants-appellants and defendant-respondent No. 2 had no connection with the land in question, that in 1358 Fasli, their father had forcibly taken possession of a part of plot in question but he had been dispossessed in a suit filed by him under section 180 of the U. P. Tenancy Act by a decree passed on 16-7-1941, that later these appellants somehow manipulated their names in the Patwari papers, that on knowing about the same he moved an application for correction but the same was dismissed and so he had to file the suit. He prayed for an injunction to restrain the apoellants from interfering with his possession or in the alternative for possession if the court found that he was not in possession. The defendant-appellants and the respondent No. 2 contested the suit. They alleged that their father was a subtenant of the plots in question and after his death they inherited the same and remained in possession, that they acquired Adhivasi rights under the ZA & LR Act and later they became Sirdars. It was also alleged by one of the defendant-appellants that compensation proceedings were finalised before the Assistant Collector under section 240-A of the ZA. & LR Act and so also the plaintiff respondent no longer had any right left in the property in question. As regards the decree under section 180 of the U. P. Tenancy Act it was alleged that it was not acted upon and the appellants continued to remain in possession. The learned Munsif held that the father of the appellants and respondent No. 2 was not a sub-tenant and so they had not acquired any Adhivasi rights or Sirdari rights and that the plaintiff-respondent was the Sirdar of the land in question and in possession as such. He also held that the plaintiff-respondent had not lost any of the rights by the proceedings under section 240-A of the UP ZA & LR Act because they had been proceeded with inspite of the stay order passed on his application to that effect. Accordingly he decreed the suit with costs.
(3.) ON appeal the learned lower appellate Court affirmed the findings of the learned Munsif on all the points and so dismissed the same. Thereafter, the defendants filed this second appeal in this Court. They challenged the findings of the courts below and contended that they have taken an erroneous view of the facts and law. During the pendency of the appeal, one of the appellants, then appellant No. 1, Shyam Narain Ahir died in 1970. In 1974, when the matter was brought to the notice of this Court, on this appeal having come up" for hearing, a statement was made by the plaintiff-respondent's counsel that Shyam Narain, who was then appellant No. 1 had died in 1970. The counsel for the respondent then took time and later moved an application admitting this fact that Shyam Narain had died on 13-3-1970 but it was alleged that even after his death the right to sue survived to the remaining defendant-appellants who were his legal representatives.;