JUDGMENT K.P. Singh, J. - By means of this writ petition the defendant petitioner has prayed for quashing the judgment of the second appellate court contained in Annexure 3' attached with the writ petition. This writ petition arises out of a suit under Section 175 of the U.P. Tenancy Act filed by the plaintiff-opposite parties against the defendant petitioner. It appears that the defendant petitioner had claimed right in the disputed land on the basis of adverse and continuous possession and had denied the contract of sub-tenancy between the plaintiff and defendant. 2. The trial court through its judgment dated 18.7.1970 contained in Annexure 1' attached with the writ petition, defeated the plaintiffs' suit. In appeal the plaintiffs lost the suit as is evident from the judgment of the Commissioner Kumaun Division dated 10. 3. 1971. Thereafter in second appeal, the plaintiffs again succeeded in getting in decree in their favour against the defendant as is evident from the judgment of the second appellate court dated 9.9.1976. The defendant petitioner has approached this Court under Article 226 of the Constitution. 3. The learned counsel for the petitioner contends before me that the second appellate court has failed to apply its mind to the provisions of Section 175 of the U.P. Tenancy Act and has patently erred in giving a decree to the plaintiff-opposite parties in the circumstances of this case. 4. The learned counsel, for the contesting opposite parties has tried to support the impugned judgement and according to him when the second appellate court came to the conclusion that the defendant was sub-tenant, it rightly decreed the 'plaintiffs' suit. In order to appreciate the controversy between the parties, it is necessary to quote Section 175 of the United Provinces Tenancy Act, 1939, which reads as below :- "175 - Ejectment on application subject to the provisions of Section 19 a non-occupancy tenant shall also be liable to ejectment on the application of the land holder on any of the following grounds namely - (a) that he is a tenant holding from year to year ; (b) that he is a tenant holding under a lease or for a period which has expired or will expire before the end of the current agricultural year". It appears that the parties had joint issue between themselves only on the question whether the defendant was sub-tenant or a trespasser. It appears that the parties had joint issue between themselves only on the question whether the defendant was sub-tenant or a trespasser. The trial court and the second appellate court have held the defendant-petitioner as a subtenant; whereas the first appellate court had observed that the plaintiff had failed to prove sub-tenancy alleged. 5. In my opinion no decree for ejectment against the defendant could be passed unless the court comes to the conclusion that the sub-tenancy was from year to year and the sub-tenancy was for a fixed period and that period either had expired or would likely to expire in the current agricultural year when the suit was brought. 6. I have examined the judgments of the trial court and the second appellate court. I find that none of them have categorically held that the subtenancy was either from year to year or it was for a fixed time and that time had expired or was likely to expire during the current agricultural year when the suit was brought. Since the second appellate court has failed to examine an important aspect mentioned above. I think its judgment suffers from patent error of law and deserves to be quashed. 7. In the result the writ petition succeeds and the impugned judgment of the second appellate court 9.9.1976 is, thereby quashed and the second appellate court is directed to re-examine the claims of the parties in the light of their pleadings and evidence on record and in the light of the essential ingredients of Section 175 of the U.P. Tenancy Act, Parties are directed to bear their own costs.