JUDGMENT K.B. Asthana, J. - This is a petition under Article 226 of the Constitution for quashing of the judgment and order of the Board of Revenue passed in a second appeal by a writ of certiorari. 2. This case has somewhat a chequered history. The petitioner Shabbir Ahmad as plaintiff brought a suit in the court of the Judicial Officer on December 22, 1964 for a declaration that he was Bhumidhar of the land in dispute and also prayed for possession, if found out of possession. The defendants to the suit were one Onkar Nath, the two sons of the Zamindaria and the State of Uttar Pradesh. It was alleged in the plaint that the plaintiff's grand-mother Mohammadi Begum was the zamindaria of the land in dispute. One Ummed Ali was the tenant. He surrendered his tenancy rights to the zamindaria. The land was then settled with the plaintiff by the zamindaria for painting a grove. The plaintiff was put in possession and he planted a grove on the land. It was also alleged that the plaintiff as grandson lived in the house of his grand-mother, who looked after him and managed the grove. On May 19, 1954 the zamindaria executed a Thekanama jointly in favour of three persons, one of whom the Govind Prasad. The The-ka related to all the zamindari properties including the grove of the plaintiff. The period of the Theka was for ten years. Before the expiry of the Theka Onkarnath, son of Govind Prasad, got his name mutated on the land in dispute. The Theka expired on May 19, 1964. The plaintiff then instituted the suit for declaration and possession. The heirs of the zamindaria admitted the claim of the plaintiff. The State of Uttar Pradesh did not contest and the main contest was raised by Onkarnath, who pleaded that the plaintiff had no right or title in the land in suit, he having lost his rights on being dispossessed after the Thekanama was executed and the contesting defendant was in adverse possession. 3. The learned Judicial Officer having found that the contesting defendant Onkarnath admitted to have come into possession on behalf of his father Govind Prasad, the Thekedar could not prescribe against the title of the Zamindar before the expiry of the Theka. 3. The learned Judicial Officer having found that the contesting defendant Onkarnath admitted to have come into possession on behalf of his father Govind Prasad, the Thekedar could not prescribe against the title of the Zamindar before the expiry of the Theka. He also found that the land in dispute was settled with the plaintiff by the zamindaria and he was its grove-holder. As the heirs of the zamindaria, namely her sons did not contest the claim of the plaintiff and admitted that he was the grove-holder, the suit was decreed. On appeal by Onkarnath, the contesting defendant, the decree of the trial court was reversed and the suit of the plaintiff stood dismissed on the main finding that the plaintiff had lost his rights as he did not file any suit to recover possession of the land in dispute after the Thekanama had been executed and the Thekanama were put in possession by the zamindaria. The learned Additional Commissioner, however, affirmed the finding of the trial court that the defendant had not established adverse possession, he being in possession, on behalf of his father, the Thekadar. The plaintiff then filed a second appeal before the Board of Revenue. It was heard by a single member of the Board, Sri R.K. Singh, who by his judgment dated May 31, 1966 allowed the appeal and as rules of the procedure of the Board of Revenue stood, then sent the matter for concurrence of another member. When the case was put up for concurrence before Sri Ashwani Kumar, a member of the Board, he on May b, 1967 refused to concur. Sri R.K. Singh having retired by then, the case was then put up before another member Sri J.B. Tandon, who by his judgment dated May 18, 1967 dismissed the second appeal. The plaintiff then filed a writ petition under Article 226 of the Constitution] in the High Court impugning the fin all order of the Board of Revenue dismissing the second appeal on the ground that Sri Ashwani Kumars in not concurring with the order proposed by Sri R.K. Singh for allowing the appeal having not disclosed any reasons, his order was vitiated. This petition of the plaintiff after hearing On karnath, who contested it, was accepted by the High Court, who by its order dated September 1, 1968 set aside them two orders of the Board of Revenue namely that of May 18, 1967 dismissing the second appeal and that of May 8, 1967 refusing to record concurrence and directed that the case be again put up before another single member of the Board for the purpose of recording concurrence. It appears that by the time the case went back to the Board of Revenue after the decision of the writ of petition, the law stood amended and the concurrence of another member to a proposed order of allowing a second appeal was no longer required. The second appeal then was heard by Sri Y.N. Varma, a single member of the Board of Revenue, who by his order dated Aug. 30, 1970 dismissed the appeal affirming the view of the Additional Commissioner. This writ petition is now directed against the judgment and decree of Sri Y.N. Varma. 4. Two points have been raised in support of this petition. The first point was of a technical nature. It was submitted that Sri Y.N. Varma had no jurisdiction to rehear the appeal and dismiss it as Sri R.K. Singh, a single member of the Board, had already lowed it and his judgment and decree was never set aside by the High Court in its writ jurisdiction. It was further submitted that the effect of the amendment of the rules of procedure of the Board was that the judgment and decree of Sri R.K. Singh became final. It was also suggested that in any view of the matter the Board of Revenue was bound by the writ issued by the High Court on September 1, 1968 and Sri Y.N. Varma was not free to decide the appeal under the new rules as a single member and he had to follow the old procedure for recording concurrence. At one stage during the hearing I gave notice to the learned Standing Counsel to obtain instructions from the Board of Revenue as to what procedure was adopted by the Board in those cases where a single member of the Board had proposed to allow a second appeal, but before it could be put up for concurrence under the old rules the amended rules came into force. Despite time having been taken by the learned Standing Counsel he could not throw any light on this point. The learned Standing Counsel stated that the Board is not clear about the matter and it has not framed any rules. The first limb of this contention, as mentioned above, raises a question which merits consideration. But I having been deprived of proper assistance at the bar, I refrain from expressing any opinion. The learned counsel for the petitioner stated before me that he would not press the technicalities to a final decision and would be content if this court considers the case on the merits assuming that Sri Y.N. Varma had jurisdiction to hear the appeal independently under the new rules as a single member of the Board. 5. The second point which has been raised relates to the merits. It has been urged on behalf of the petitioner that there is an error apparent on the face of record in the impugned judgment of the Board of Revenue as it has failed to appreciate the law applicable on the facts established. The submission was that the plaintiff's rights as a tenant of the land in dispute having not been disputed and having been admitted by the Zamindaria and her sons, he would not be deemed to have been ejected within the meaning of Section 183 of the U.P. Tenancy Act, therefore, he was not required to file a suit for recovery of possession of the land in suit when the Zamindaria executed the Thekanama and put the Thekadar in possession. Reliance was placed on the case of Vijai Bahadur v. Parmeshwari Ram, A.I.R. 1924, Alld. 834., wherein it was held interpreting Section 79 of the Agra Tenancy Act, the precursor of Section 183 of the U.P. Tenancy Act, that it applies only to forcible ejectment and not to ejectment by mutual consent, and Bheekam Singh v. Misal, 1944 R.D. 558. There appears to be great tenability in this argument. The plaintiff will not lose his rights as land-holder if he was a consenting party to the arrangement made by the Zamindaria, his grand-mother, when giving the land in dispute on Theka and putting the Thekadar in possession thereof. 6. There appears to be great tenability in this argument. The plaintiff will not lose his rights as land-holder if he was a consenting party to the arrangement made by the Zamindaria, his grand-mother, when giving the land in dispute on Theka and putting the Thekadar in possession thereof. 6. On behalf of Onkarnath it was contended by his learned counsel that the plaintiff not having pleaded in his plaint that Zamindaria Mohammadi Begum put the Thekedar in possession of the land in dispute with his consent, he was not entitled to raise any such plea in the petition before the High Court. The learned counsel however, candidly pointed out that such a point seems to have been raised before the Board of Revenue in second appeal. A copy of the plaint, which has been annexed with the counter affidavit, does show that the plaintiff express words did not plead that the Thekedar was put in possession with his consent. The plaintiff, however, has pleaded that the Theka was given by his grand mother, the Zamindaria, with the knowledge of the plaintiff and that all the arrangement about the properties including the grove which the plaintiff had planted in the land in dispute was done by his grand-mother as a family member. It does indicate that what he wanted to import was that all the arrangement was made by his grand-mother and he being dependant on her agreed to it or at least tacitly to. This is the way, I think, the pleading was understood in the courts below also. In his petition before this Court the petitioner has definitely alleged that the Thekedar was put in possession by the Zamindaria with the consent of the plaintiff. That allegation has not been admitted in the counter affidavit but at the same time not denied. I am unable to agree with the submission of the learned counsel for the respondents that the point seems to have been raised for the first time only in second appeal. It would be seen that the Additional Commissioner threw out the suit of the plaintiff on the ground that the plaintiff ought to have filed a suit for possession after the Thekedar had been put in possession and he having failed to do so, his right was extinguished. It would be seen that the Additional Commissioner threw out the suit of the plaintiff on the ground that the plaintiff ought to have filed a suit for possession after the Thekedar had been put in possession and he having failed to do so, his right was extinguished. This involves that the Additional Commissioner rejected the plea of the plaintiff that the Thekedar was put in possession of the land in dispute with his consent by the Zamindaria. It became, therefore, the duty of the Board of Revenue in second appeal to apply the law as adumbrated by this Court and by the Board of Revenue in the cases noticed above. I have not been shown any case law contrary to the view taken in those cases. I, therefore, take it that is the law. However, I think there is great force in the alternative submission of the learned counsel for the respondent that it was the duty of the revenue courts to give a clear finding on this important question of fact. The plaintiff sought a declaration of his rights. It was his duty to prove his title. The concurrent finding recorded by the Revenue Board that the defendant had failed to establish adverse possession will not, in my way of thinking, be of any benefit to the plaintiff in giving him a declaration of title. The revenue courts ought to have recorded a clear finding. It appears from a perusal of the two judgments, which were in favour of the plaintiff, that of the court of first instance and that of Sri R.K. Singh, Member of the Board of Revenue, that the plaintiff was held entitled to the deck ration on the ground that it was admitted by the Zamindaria and her heirs the plaintiff was the land holder. It does not been shown to me that Onkarnath defendant admitted this fact. Then fore, to produce a proper judgment in the appeal the Board of Revenue ought to have, in the light of the law, called for a clear finding. As pointed out above in the impugned judgment the Board Revenue has not been able to properly, appreciate the law applicable to the fad of the case. The petitioner has, there fore, succeeded in showing that there an error apparent. 7. As pointed out above in the impugned judgment the Board Revenue has not been able to properly, appreciate the law applicable to the fad of the case. The petitioner has, there fore, succeeded in showing that there an error apparent. 7. The result is that I allow the petition, quash the impugned order Sri Y.N. Varma dated August 30, 197 and direct the re-hearing of the second appeal in the light of the observation made above. As the plaintiff has not been very clear in the pleadings, which led to sore amount of confusion in the revenue courts, the sequal of which was a writ here, I deprive him of his costs.