JUDGMENT K.P. Singh, J. - This writ petition arises out of a suit filed by the petitioner for declaration of Sirdari right in the dispute land. The Petitioner had claimed Sirdari right in the ground that he had been in adverse and continuous possession for more than statutory period and that he had become Adhivasi-cum-Sirdar of the disputed land under the provisions of the U.P. Zamindari Abolition and Land Reforms Act. 2. The Claim of the petitioner has been contested by the contesting opposite parties on the ground that the petitioner was only Sajhidar and did not acquire right and title claimed by him and that he had surrendered the disputed land to the tenure-holder ; hence his suit could not be decreed and various other pleas were taken to negative the claim of the plaintiff-petitioner. 3. The trial court through its judgment dated 18.11.1968 dismissed the plaintiff-petitioner's suit, in appeal the judgment of the trial court has been confirmed as is evident from the Annexure 2' attached with the writ petition. Thereafter, in second appeal the plaintiff petitioner has failed and now the plaintiff-petitioner has approached this Court under Article 226 of the Constitution. 4. The learned counsel for the petitioner has contended before me that the petitioner could withdraw his suit at any stage and the second appellate court has wrongly refused that prayer. It has been suggested that in the circumstance of the present case the disputed land has been acquired by the State Government and only dispute remains regarding the apportionment of the compensation with regard to the disputed land; hence the plaintiff-petitioner was fully justified to withdraw his suit and the second appellate court has patently erred in not granting relief to the plaintiff-petitioner. 5. The second contention raised on behalf of the plaintiff-petitioner is that the appellate courts have not applied their mind to the question as to whether the plaintiff-petitioner is entitled to any relief on the facts found by them and, therefore, they have patently erred in dismissing the plaintiffs suit. 6. The learned counsel for the contesting opposite-parties has submitted in reply that the second appellate court was fully justified in not permitting the withdrawal of the suit by the plaintiff-petitioner in the circumstances of the present case. 6. The learned counsel for the contesting opposite-parties has submitted in reply that the second appellate court was fully justified in not permitting the withdrawal of the suit by the plaintiff-petitioner in the circumstances of the present case. Reliance has been placed on the ruling reported in AIR 1971 (Allahabad), page 41, Vidhvadhar Dube and others v. Har Charan and others, and the ruling reported in 1973 (Allahabad, page 212, Kanhaiya and others v. Mst. Dhaneshwari and another. 7. I have examined the contentions raised on behalf of the parties. My attention has been drawn to the ruling reported in AIR 1973 (Allahabad), page 466, Suraj Pal Singh v. Sri Dharam Singh and others. The head note of the aforesaid ruling reads as below : "A plaintiff can always withdraw from a suit even at an appellate stage and the appellate Court has power to allow the withdrawal under order 23, Rule 1, even where the suit had been dismissed by the trial court." 8. The second appellate court has considered this case and has not accepted the prayer of the plaintiff-petitioner. Before me the learned counsel for the plaintiff-petitioner has suggested that as the disputed land has been acquired by the State of U.P. and the question of compensation is under consideration in the First Appeal, it was though proper that the plaintiff petitioner might withdraw his suit and the real relief claimed by the plaintiff-petitioner in the circumstances is for the abatement of the suit due to the circumstances that the disputed land has been acquired by the State of U.P. A perusal of impugned judgment does not indicate that the learned Member has applied his mind to thisaspect of the matter. On the question of withdrawal of the suit by the plaintiff in the circumstances of the present case, there appears decisions on both sides ; hence it is difficult to say that the view taken by the Board is patently erroneous in view of the authorities mentioned in the cases cited (supra). However, the question deserves re-consideration by the Board in the light of the submission made by the learned counsel for the petitioner that the land has been acquired by the State of U.P. ; hence the suit should stand as abated without any decision on merits. However, the question deserves re-consideration by the Board in the light of the submission made by the learned counsel for the petitioner that the land has been acquired by the State of U.P. ; hence the suit should stand as abated without any decision on merits. I do not express any opinion in this regard at this stage and leave this question open to be canvassed by the parties before the second appellate court. 9. The main argument of the learned counsel for the opposite-parties before me is that findings of fact recorded by all the courts conclude the claim put forward by the plaintiff petitioner ; hence it is not a fit case where interference should be made with the impugned judgment. In my opinion, the appellate courts have failed to record categorical finding as to whether the possession of the plaintiff-petitioner was only as a Sajhidar or as a Batai Nisfi, whether in the circumstances of the case Batai Nisfi can be treated as sub-tenancy or not ? At one place the first appellate court has indicated that the plaintiffs claim regarding sub-tenancy has not been established but later on it has recorded a finding of Asami right of the plaintiff in the disputed land treating the plaintiff as sub-tenant of the disputed land. The second appellate court has also accepted the plaintiff petitioner as Asami of the disputed land but has negatived the claim of the petitioner on the ground that the plaintiff-petitioner had surrendered the disputed land and thereafter his possession was not for requisite period to acquire Sirdari right in the disputed land. To me, it appears that the appellate courts have patently erred in dismissing the plaintiffs suit in to. For the sake of arguments, it may be assumed that the findings of fact recorded by the revenue courts are correct yet if the plaintiff acquired Asami right in the disputed land on the observations of the appellate courts where this suit should be dismissed in to or should get some relief of which he is entitled in law. The learned counsel for the contesting opposite-parties has emphasised that neither the claim of Asami right was put forward nor the contesting opposite parties have got an opportunity to contest, the plaintiffs claim of Asami right ; hence no interference should be made with the impugned judgment. The learned counsel for the contesting opposite-parties has emphasised that neither the claim of Asami right was put forward nor the contesting opposite parties have got an opportunity to contest, the plaintiffs claim of Asami right ; hence no interference should be made with the impugned judgment. On the observations of the appellate courts when I find that the plaintiffs Asami right has been more or less accepted by the appellate courts but the plain tiff-petitioners claim has been negatived on the ground of surrender, I am not impressed by the arguments of the learned counsel for the opposite-parties that the plaintiffs claim of Asami right may not be examined and the dismissal of the plaintiffs suit should be maintained. Since the appellate courts have not examined this aspect of the matter whether the plaintiff-petitioner can get some relief in the suit or not, I think it proper to quash the judgment of the second appellate court and to ask the second appellate court to consider as to whether the plaintiff-petitioner can get relief regarding declaration of Asami right in the present suit or not ? In case, necessity of amendment of the pleadings arises it would be open to the second appellate court to consider that questions strictly in accordance with law. 10. To my mind, the finding recorded by the appellate courts on the question of surrender suffers from patent error of law. Sections 183 and 184 of the U. P. Zamindari Abolition and Land Reforms Act deal with the question of surrender and the appellate courts have failed to examine those provisions and have not addressed themselves to the relevant law ; hence the nega ion of the plaintiffs claim of the disputed land on the theory of surrender appears to me vitiated in law. It would be proper to ask the second appellate court to re-examine the questions of surrender in the light of the provisions mentioned above. 11. Since the appellate courts have not examined the question as to whether the plaintiff petitioner can be declared Asami in suit or not and their findings on the question of surrender appear to be vitiated in law ; their judgments deserve to be quashed. In the circumstances of this case I quash the judgment of the second appellate court only and ask the second appellate court to re-examine the claims of the parties strictly in-accordance with law. In the circumstances of this case I quash the judgment of the second appellate court only and ask the second appellate court to re-examine the claims of the parties strictly in-accordance with law. 12. At this stage the learned counsel for the petitioner stresses that the petitioner has acquired Sirdari right against opposite-party no. 4 and his claim should not be closed for good and he may he directed to urge this point before the second appellate court. It would be open to the second appellate court to deal with the claim of the petitioner strictly in accordance with law. 13. The learned counsel for the opposite parties desires that an observation be made that the opposite parties may be entitled to canvass that the plaintiff-petitioner has not acquired Asami right. It is a legal plea, which can be raised at every stage and by any observation made by me he has not been debarred from raising this question. 14. In the result, the writ petition-succeeds and the impugned judgment of the appellate court dated 25-10-1976, is, hereby, quashed and the second appellate court is directed to decide the claims of the parties in the light of the observations made above. Parties are directed to bear their own costs.