JUDGMENT I.B. Singh, Member. - This is a second appeal against judgment and decree passed by learned Additional Commissioner, Faizabad dated 12-6-1974 allowing appeal No. 743 of 1971 Faizabad against judgment and decree dated 22-12-1971 passed by Judicial Officer (Revenue) Faizabad in a case under Section 229B/209 of Act I of 1951 decreeing plaintiff's suit for declaration and ejectment of the defendant. 2. Plaintiff had filed this suit on 27-5-1969 equal to 1376 Fasli claiming to be sirdar in possession with the alternative relief for possession. The suit was contested by respondent-defendant Idris claiming to be sirdar is possession denying the claim of the plaintiff alleging to be hereditary tenant in possession and to have become sirdar and that he was not liable to ejectment, that after depositing 10 times of land revenue he had become bhumidhar. 3. The first appellate court dismissed the plaintiff's suit holding that lease dated 13-11-1962 in favour of the plaintiff being permanent lease was void being against the provisions of Section 44 of the U.P. Tenancy Act. 4. I have heard the learned counsel for the parties and have perused the record. 5. The learned counsel for the appellant argued that under the U.P. Tenancy Act hereditary tenant was entitled to lease out only for 5 years and if it was beyond that period the lease was not voidable at the opinion of the landholder according to Section 44(2) of the U.P. Tenancy Act, therefore, the finding by the first appellate court that it was void is erroneous. Reliance has been placed on 1923 R.D. page 347 I.S.B. of 1926 at page 534 R.D. Vol. I and that six years limitation was applicable and the suit was within time. In reply it was argued that there was no plea regarding lease in the plaint, therefore, any amount of evidence on the point cannot be looked into and that the suit was rightly dismissed by the first appellate court as the lease was void. 6. I and that six years limitation was applicable and the suit was within time. In reply it was argued that there was no plea regarding lease in the plaint, therefore, any amount of evidence on the point cannot be looked into and that the suit was rightly dismissed by the first appellate court as the lease was void. 6. In 1923 R.D. page 347 it was held that:- "If an occupancy tenant sublets his holding for more than five years, the illegality of the transaction does not effect a suit between the occupancy tenant and his shikmi, the question of illegality being a matter solely between the occupancy tenant and his zamindary." This was a ruling regarding Section 25(1) of Agra Tenancy Act 11 of 1901 which was followed in S.D. of 1926 reported in R.D. Vol. I page 534. 7. It is admitted case of the parties that Anwar was the hereditary tenant of the dispute plot. The lease dated 13-11-62 i.e. of 1370 fasli is a registered lease and was executed by Anwar in favour of the plaintiff. This lease is not disputed by any parties. It was filed no the date of the issues and was dealt with by both the courts below and no objection was raised, that it was not pleaded in the plaint. Furthermore a piece of evidence need not be pleaded, therefore, the argument that it cannot be looked into as it was not pleaded has got no force. 8. Now the main question of determination is whether this lease was a void document and was therefore, not fit to create any right in the plaintiff or whether it was voidable document of the instance of the zamindar only. Section 40 of the U.P. Tenancy Act runs as follows:- (1) No occupancy tenant is Agra, or exproprietary tenant or hereditary tenant shall sub-let the whole or any portion of his holding for a term exceeding five years, or within three years of any portion of such holding being held by a sub-tenant. (2) No non-occupancy tenant shall sub-let the whole or any portion of his holding for a term exceeding one year or within one year of any portion of the holding being held by a sub-tenant. (2) No non-occupancy tenant shall sub-let the whole or any portion of his holding for a term exceeding one year or within one year of any portion of the holding being held by a sub-tenant. Section 44 of that Act runs as follows:- (1) Every transfer, other than a sub lease, made by a tenant in contravention of the provisions of this act, and every sub-lease made by a tenant of sir, or by a sub-tenant in contravention of the provisions of sub-section(2) of Section 39, shall be void. (2) Every sub-lease made by a tenant in contravention of the provision of this Act, other than a sub-lease which is void under sub-section (1) shall be voidable at the option of the landholder. 9. Sub-Section 1 of section 44 is not applicable to the present case because it concerns of transfers other than a sub-lease made by a tenant in contravention of the provisions of the Act, and every sub-lease made a tenant of sir, or by a sub-tenant in contravention of the provisions of section 2 of Section 39, shall be void. In the present case it was a lease made by a hereditary tenant under Section 40(1) of the U.P. Tenancy Act and it was voidable at the option of the land holder only according to sub-section 2 of Section 44 mentioned above, therefore, the above two rulings are applicable and the findings of the first appellate court that it was a void lease is not correct, therefore, that findings is liable to be set aside and I hold that it was void, voidable lease at the option of land holder and was not a lease, therefore, it did create sub-tenancy right in favour of the appellate. 10. Six year's limitation was applicable from 27-3-1959 to 14-10-1971 and as lease was of 13-11-1962 i.e. of 1370 fasli six years limitation applied and the suit was filed on 27-5-1969 i.e. within limitation of six years. The admission of Anwar the hereditary tenant in favour of the defendant in the proceeding u/s 145 of the Cr.P.C. on 14-7-1965 i.e. in 1373 fasli is not binding on the plaintiffs because he was not a party to that proceeding and even if the possession of the defendant is taken for granted since than i.e. from 14-7-1965 even than the suit is within time. The appraisal of evidence by the first appellate court discarding the statement of Dashrath Lal P.W. is also not proper and holding D.W. Wali Mohammad's statement reliable only because he has a filed in the vicinity is not proper at least the statement of Dashrath Lal could not have been discarded only because he had no field in the vicinity. The name of the Mohd. Idris was recorded by order of amaldaramad only in 1370 Fasli and even if possession of the defendant is taken for granted from 1370 fasli even then the suit was within time. Therefore, in my considered opinion this appeal is to be allowed, the judgment and decree of the first appellate court are liable to be set aside and that of the trial court are liable to be restored and confirmed. 11. In view of the above, this appeal is allowed with costs. The judgment and decree of the first appellate court are hereby set aside and the judgment and decree of the trial court are restored and are hereby confirmed and the plaintiff's suit stands decreed with costs for declaration and for ejectment of the defendant from the land in suit.