JUDGMENT K. P. Singh, J. 1. This is a plaintiff's writ petition arising out of a suit for declaration of their Sirdari right in the disputed land on the basis of their adverse and continuous possession for more than statutory period. 2. The defence in the case was that the defendant has been in possession over the disputed land and that the plaintiffs were not in possession and the plaintiffs' suit was barred by time and that the defendant was Bhumidhar in possession over the disputed land. The trial court and the first appellate court gave judgments for the plaintiffs petitioners and held as sirdars in possession whereas the second appellate court has negatived the claim of the plaintiffs and has indicated that the plaintiffs can never acquire sirdari right in the disputed land. Aggrieved by the judgment of the second appellate court, the plaintiffs petitioners have approached this Court under Article 226 of the Constitution. 3. The learned Counsel for the plaintiffs petitioners has contended before me that the defendant contesting opposite party had not executed the decree in his favour against the plaintiffs' father within the prescribed time, hence the plaintiffs and their father acquired hereditary and sirdari right in the disputed land. 4. Second contention raised on behalf of the petitioners is that the second appellate court has acted illegally in taking into consideration the additional evidence adduced before it. Third contention raised on behalf of the petitioners is that the defendant opposite party never took a plea that the disputed land was in the bed of river, hence the second appellate court has patently erred in regativing the claim of the plaintiffs petitioners in the disputed land on the ground that the disputed land has been under water due to flood in the Ganges. 5. Fourth contention raised on behalf of the petitioners is that the defendant filed an application for amendment of the written statement and the amendment application was not allowed, yet the plea raised in the written statement has been entertained. Therefore, the impugned judgment should be quashed. 6. 5. Fourth contention raised on behalf of the petitioners is that the defendant filed an application for amendment of the written statement and the amendment application was not allowed, yet the plea raised in the written statement has been entertained. Therefore, the impugned judgment should be quashed. 6. Fifth contention raised on behalf of the petitioners is that the second appellate court had no jurisdiction to reappraise the evidence on record and upset the findings of fact recorded by the court of fact, hence the impugned judgment of the second appellate court should be quashed and the case should be sent back to the second appellate court for deciding the second appeal strictly in accordance with law. The learned counsel for the contesting opposite party has tried to refute the contentions raised on behalf of the plaintiffs petitioners. According to him the second appellate court was fully justified in interfering with the findings recorded by the first two courts in the circumstances of the case. He has emphasized that after compromise in the earlier litigation the defendant respondent came into possession over the disputed property and has been in continuous possession. The plaintiffs petitioners have succeeded in obtaining certain revenue entries, hence they are claiming right in the disputed land which has rightly been negatived by the second appellate court. It has also been stressed that the impugned judgment has done substantial justice between the parties by recognizing the claim of the tenure-holder, hence it should not be interfered with. It has also been emphasized that the so-called findings of fact were based on surmises and conjectures and misreading of the evidence on record, therefore, the impugned judgment should not be interfered with. The learned counsel for the contesting opposite party has cited a large number of rulings in support of his contention that the finding of fact could be interfered with by the second appellate court and that it is not a fit case where this Hon'ble Court should interfere with the impugned judgment. 7. I have considered the contentions raised on behalf of the parties and I have gone through the judgments attached with the writ petition and I have also gone through the plaint and evidence filed by the plaintiffs petitioners. In my opinion, the plaintiffs petitioners have failed to establish their Sirdari right in the disputed land. 7. I have considered the contentions raised on behalf of the parties and I have gone through the judgments attached with the writ petition and I have also gone through the plaint and evidence filed by the plaintiffs petitioners. In my opinion, the plaintiffs petitioners have failed to establish their Sirdari right in the disputed land. It was seriously contended before me that in the compromise in the year 1945 though it was written that the defendant of that case had delivered possession to the plaintiffs of that case but as a matter of fact the possession continued with the defendants of that case, i.e. the plaintiffs of the present case. Therefore, the plaintiffs acquired sirdari right in the disputed land. The learned counsel for the contesting opposite party submitted that due to compromise the plaintiffs of that case had readily obtained possession and they continued in possession but due to wrong recent entries in favour of the plaintiffs of the present case they have asserted their adverse possession in the disputed land. The contesting opposite party is asserting that he continues in possession over the disputed land after the decree of the year 1945, hence no question of execution arose and the plaintiffs of the present case would not succeed in acquiring any right in the disputed land due to non-execution of the earlier decree. For the sake of argument it may be assumed that the plaintiffs of the present case continued in possession over the disputed property, yet the question arises whether the plaintiffs or their father succeeded in acquiring right in the disputed land either hereditary under the U. P. Tenancy Act or sirdari under the provisions of U. P. Zamindari Abolition and Land Reforms Act. In the plaint it has been mentioned vide paragraph 4 as below 1- ".........Aur tay yah tha ki woh dono kabiz ho kar kachhar ki paidavar ka faida uthavenge." The petitioner no. 1 Syed Afzal Ahmad in the present suit has stated as below - ..Andajan raqba kabhi 40 Bigha kabhi 20 Bigha kabhi 16-18 Bigha ho jata hai. Jaise dariya ghatta barhta hai uske uttar mera khet hai Majhar Hasnain ka nahin hai. Mere pas khasrah khatauni ka koi saboot nahi hai maine kanoongo se namdarj karne ko nahin kiya. " 8. In view of the allegations in the plaint and the statement of the petitioner no. Jaise dariya ghatta barhta hai uske uttar mera khet hai Majhar Hasnain ka nahin hai. Mere pas khasrah khatauni ka koi saboot nahi hai maine kanoongo se namdarj karne ko nahin kiya. " 8. In view of the allegations in the plaint and the statement of the petitioner no. 1 as well as the assertion of the defendant opposite party that the .disputed land is situate in the bed of river Ganges and every year the disputed land undergoes water during rainy season and big Magh Mela is held over the disputed land every year, hence the plaintiffs cannot acquire sirdari right in the disputed land, I think that the plaintiffs petitioners have utterly failed to prove their right in the disputed land. The plaintiffs petitioners had claimed right on the basis of adverse possession, A heavy burden lay upon the petitioners to prove his continuous possession and location of the disputed land. If on his own allegations it is evident that the disputed land is in the bed of river Ganges and goes under water, I think that the plaintiff's petitioners cannot successfully challenge the impugned judgment. During the course of argument it was brought to my notice that the disputed land is situate north to Bandh road in this city and that position was not seriously challenged by judicial notice can be taken of about the situation of the disputed land and it would be evident that the disputed land is situate at a place where every year water of Ganges river covers the disputed land. Section 30 of the U. P. Tenancy Act indicates as below - " Notwithstanding anything in Section 29, hereditary rights shall not accrue in- (1)......... (2) land used for casual or occasional cultivation in the bed of a river. 9. In the facts and circumstances of the present case I think that the disputed land is in the bed of river Ganges and, therefore, the plaintiffs petitioners have failed to establish the claim of Sirdari right. 10. No doubt the earlier suit was filed by the defendant or his predecessor-in-interest against the plaintiffs or their predecessor-in-interest but it is not necessary that the consequences mentioned under Section 180 (2) of the U. P. Tenancy Act must follow. In 1965 ALJ 70 a learned Single Judge of this Court has observed at page 76, Col. 1 as below : 1. In 1965 ALJ 70 a learned Single Judge of this Court has observed at page 76, Col. 1 as below : 1. Rasool Ahmad, thereafter Noor Uddin v. Beni Prasad and others. ".........To my mind, the matter does not admit of any doubt that irrespective of the fact whether it is possible that the consequences mentioned in section 180 (2) of the Act may follow, a suit under section 180 (1) would lie in respect of what is land within the meaning of the Act........." 11. In 1973 RD page 339, a Division Bench of this Court has held that hereditary rights under Section 29 of the Act would not accrue in the land covered by clause (3) of Section 30 of the U. P. Tenancy Act. 12. In view of the above two rulings it can be safely inferred that when the disputed land is situate in the bed of river Ganges and remains under water for a sufficiently long time, the provisions of Section 180 (2) of the U. P. Tenancy Act would not be attracted and because of the nature of the disputed land the plaintiffs petitioners even in possession for a long period after the compromise decree in the year 1945 would not succeed in acquiring hereditary or tenancy right in the disputed land. During the course of argument the learned counsel for the petitioners stressed that the compromise decree was not put into execution within the period of one year limitation, hence the plaintiffs succeeded in getting hereditary and sirdari right in the disputed land. Where due to the nature of the disputed land no hereditary right could accrue in view of the provisions of Section 30 of the U. P. Tenancy Act, it is incorrect to hold that non-execution of the decree under section 180 of the U. P. Tenancy Act would confer tenancy right upon the person in possession. It is also note-worthy that the plaintiffs petitioners had not taken any specific plea that the plaintiffs petitioners acquired hereditary right due to non-execution of the decree by the defendant or his predecessor-in-interest. Therefore, I am not at all impressed by the argument of the learned counsel for the petitioners that due to non-execution of the decree by the defendant or his predecessor-in-interest the plaintiffs petitioners succeeded in obtaining tenancy right in the disputed land. 13. Therefore, I am not at all impressed by the argument of the learned counsel for the petitioners that due to non-execution of the decree by the defendant or his predecessor-in-interest the plaintiffs petitioners succeeded in obtaining tenancy right in the disputed land. 13. As regards the second contention, even if the additional evidence is excluded from consideration, the bare fact remains that the plaintiffs-petitioners claim tenancy right in the disputed land on the basis of adverse possession and on oral evidence of the plaintiffs it is evident that the disputed land goes under water due to the flood in river Ganges. The plaintiffs petitioners cannot acquire tenancy right in the disputed land due to the situation of the disputed land to the north of Bandh in this city, where almost every year the water of river Ganges remains for sufficiently long time. Therefore, it disrupts the adverse possession of a trespasser. Even the additional evidence is excluded, on the evidence of the plaintiffs it is not established that the plaintiffs succeeded in acquiring tenancy right in the disputed land. Therefore, the impugned judgment cannot be assailed on the ground of additional evidence having been taken into consideration. 14. As regards the third contention, it is sufficient to mention that the plaintiffs had claimed tenancy right in the disputed land on the basis of adverse possession. A heavy burden lay upon the plaintiffs to establish their claim. If on the evidence of the plaintiffs it is evident that 16, 20 or 40 Bighas land undergoes water of Ganges, and on the allegations in the plaint the disputed land is Kachhar (i. e. in the bed of the river) I think that want of pleading would not vitiate the impugned judgment. Both the parties knew the location of the disputed land and both the parties knew the issue involved in the suit, therefore, the absence of the pleading is immaterial in the circumstances of the present case when both the parties approached the court knowing the correct situation. In such a circumstance if the second appellate court has examined the contention about sub-mersion of the disputed land, it has not committed any manifest error and on that ground its judgment is not assailable. In such a circumstance if the second appellate court has examined the contention about sub-mersion of the disputed land, it has not committed any manifest error and on that ground its judgment is not assailable. As regards the 4th contention, it would have been better if the second appellate court had allowed the amendment formally and would have afforded opportunity to the parties in that regard but in the circumstances of the present case when on the materials on record the question was very much before the parties concerned and the parties have also led evidence on the question involved, I do not think that absence of formal amendment of the written statement would vitiate the conclusions arrived at by the second appellate court in the circumstances of the present case. 15. As regards the fifth contention, it appears that the first two courts had unnecessarily emphasized the fact that the Lekhpal lived in the house of the defendant, hence wrong entries were made to oblige the defendant. If the second appellate court has characterised the aforesaid finding based on surmises, it has at least not committed patent error in the circumstances of the present case. The entry in favour of the defendant or his predecessor-in-interest continued for about 20 years and in that circumstance it is unresonable to hold that the Lekhpal would continue making wrong entries to oblige the defendant. Moreover, the first two courts have failed to address themselves to this aspect of the matter as to whether the plaintiffs could acquire tenancy right in the disputed land due to its location in the bed of the river Ganges. Therefore, I think that the second appellate court was fully justified in appraising the evidence and examining the situation of the disputed land. Question of adverse possession and accrual of tenancy right in the disputed land are not pure questions of fact. They have legal tinge also, hence in my opinion, the second appellate court was fully justified in re-examining the claims of the parties and In setting aside the judgments of the first two courts. 16. On merits the claim of the plaintiffs petitioners has been rightly negatived by the second appellate court in the circumstances of the present case in view of the decisions of this Court reported in 1965 RD page 50, 1969 RD page 477 and 1981 RD page 231. 16. On merits the claim of the plaintiffs petitioners has been rightly negatived by the second appellate court in the circumstances of the present case in view of the decisions of this Court reported in 1965 RD page 50, 1969 RD page 477 and 1981 RD page 231. Therefore, I am unable to hold that the impugned judgment suffers from any error of law much less an error apparent on the face of the record. In the result all the contentions raised on behalf of the petitioners fail and the writ petition is accordingly dismissed. Parties are directed to bear their own costs. Petition dismissed.