JUDGMENT S.R. Misra 1. Plaintiff/Petitioners filed a suit under section 229-B/176 of the U. P. Zamindari Abolition and Land Reforms Act (from hereinafter referred as the 'Act') seeking declaration that they are co-bhumindhars along with the defendant/opposite party no. 6 to the extent of 1/2 share each in the land in dispute and the land in dispute be portioned accordingly. 2. Plaintiffs case was that Smt. Ram Kali, the daughter of Sheo Ratan, inheritted the seer property which belonged to Sheo Ratan, who admitedly was a sir-holder of the land in dispute. Smt. Ram Kali executed a registered Patta-Istam Marari on 9-11-1933 in favour of Jagdish Prasad alias Jagdish Narain, the father of the petitioners. After the death of Ram Kali, Jagdish and Krishna Dutt remained in possession over their respective half shares. The suit was contested by the opposite party no. 6 (Krishna Dutt) who denied the title and possession of the petitioners. However, he admitted that previously Smt. Ram Kali was the Khewardar, but further denied the execution of the Patta-Istam Marari by her in favour of Jagdish Prasad alias Jagdish Narain. Before the trial court the petitioners filed a registered Patta-Istam Marari dated 9-11-1933 and the extract of Khewat 1359 F which shows that Krishna Dutt, respondent no. 3 has been entered as Patta Dharinda and Jagdish has been entered as Patta-Dharinda. On behalf of the petitioners, oral statements of Shesh Narain, Jagdish Prasad and Ram Kumar were recorded and they supported the petitioners case, Trial court by its order dated 14-1-1972 dismissed the suit. The appeal filed by the petitioners was also dismissed by the Additional Commissioner, Faizabad Division, Faizabad by his order dated 23-10-1975. The second appeal filed before the Board of Revenue, U.P., Allahabad was also dismissed on 17-11-1981. The trial court did not accept the Patta as the same has not been proved, but observed that the Patta was a document of more than 23 years old, it required no proof. The Additional Commissioner rejected the claim of the petitioners on a different ground. Aggrieved by the orders of the respondent nos. 1 to 3 petitioners seek a writ in the nature of certiorari quashing the orders of Judicial Officer, Pratapgarh dated 14-1-1972, Additional Commissioner dated 23-10-1975 and that of Board of Revenue, U. P. Allahabad dated 17-11-1981. The Additional Commissioner rejected the claim of the petitioners on a different ground. Aggrieved by the orders of the respondent nos. 1 to 3 petitioners seek a writ in the nature of certiorari quashing the orders of Judicial Officer, Pratapgarh dated 14-1-1972, Additional Commissioner dated 23-10-1975 and that of Board of Revenue, U. P. Allahabad dated 17-11-1981. I have heard learned counsel for the petitioners Sri Sankhata Rai and Sri R. N. Singh, appearing for the respondents. 3. Sri Sankhata Rai has urged that the courts below have erred in applying the provisions of U.P. Tenancy Act, 1939 although in the present case the provisions of Awadh Rent Act, 1886 was applicable and in accordance with the provisions of 7-A of the Awadh Rent Act the propriety right could voluntarily be alienated and the Patta having, been executed by Smt. Ram Kali was validly executed and after the enforcement of Zamindari Abolition and Land Reforms Act petitioners became bhumidhars of half share in accordance with the provisions of section 17 of the U.P. Zamindari Abolition and Land Reforms Act. In view of the finding of the Additional Commissioner the execution of the Patta has been held to be proved. Regarding possession reliance was placed on oral statement. It is contended that the entry of 1359 F shows that the name of the father of the petitioners was recorded over half share of the land in dispute, but the Board of Revenue has failed to consider the argument of the counsel for the appellants and has also not decided the case in its proper perspective. It is also urged that even if, for the sake of argument, the transfer by Smt. Ram Kali is treated to be in respect of propriety right or khewat even then as the propriety right includes seer sights, the said patta would confer right on the petitioners. 4. In the alternative it is also urged that assuming it for the sake of argument that the Patta Istam Marari did not pass seer rights or propriety rights, in that case, it creates sub-tenancy rights in favour of the petitioners and after the enforcement of U.P. Zamindari Abolition and Land Reforms Act, they are entitled to get their shares as sirdars. As regards the findings on the question of possession, it has been urged that there is no proper finding of possession and since the petitioners were claiming the co-sharers right they shall be deemed to be in possession as co-sharers in view of the fact that from the material on record the contesting respondent has failed to prove the custer of the petitioner or their hostile possession, ejectment or dispossession of the petitioners. Moreover, no such plea was taken, as such, the question of denying the right of the petitioners as co-sharers does not arise. 5. Counsel for the respondents has urged that the findings recorded by the Revenue Authorities are those of facts and no error has been committed by them. According to him the grievance of the petitioners in the writ petition that as a result of the execution of Patta Istam Marari petitioners have become co- sirdars and are entitled to get declaration, or their argument that they have become bhumidhars or sirdars is devoid of merits. He has also urged that the sir right could not be transferred and Smt. Ram Kali had no legal right to execute patta as both Awadh Rent Act and U. P. Tenancy Act forbids transfer of sir right through Patta. It has also been urged that in view of concurrent findings of fact no question of law is involved in the present writ petition and the same is liable to be dismissed. The finding regarding possession has not been challenged in this writ petition and in the absence of such a challenge the question of going into the findings of possession by the petitioners does not arise. 6. Having considered the respective arguments of the counsel for the petitioners and contesting respondent and having perused the orders of the Revenue Authorities I would first consider the question of possession. If the answer on the question of possession is in favour of the petitioners, the rest of the questions survive and if the answer is otherwise rest of the points raised in the writ petition will not be required to be considered at this stage. Before the trial court issue no. 1 was framed whether the plaintiffs along with defendant are co-bhumidhars on the land in dispute or in possession. A perusal of the order of the trial court goes to show that trial court dealing issue nos. Before the trial court issue no. 1 was framed whether the plaintiffs along with defendant are co-bhumidhars on the land in dispute or in possession. A perusal of the order of the trial court goes to show that trial court dealing issue nos. 1 and 2 observed as follows :- "Regarding possession, there is the testimony of Shesh Narain, Jot Prasad and Ram Kumar...The plaintiff Shesh Narain stated that he does not know the number of the land in suit not does he know as to how many plots are involved in the dispute. As a plaintiff he should know all these things. While he stated that only a few plots have been divided equally......... Thus, besides the fact that the witness are interested, there is inconsistency in their statements. On the strength of their testimony the plaintiff can not be in possession...... Thus the plaintiff have failed to prove that a valid lease was executed and that they are in possession. They cannot be co-bhumidhars. J hold that the defendant is the sole bhumidhar off the land in suit." The observation of the appellate court is as under :- "The name of appellants is not entered in any capacity in any land record over the plots in suit. No rent receipt has been filed......in support of PW I Shesh Narain stated in support of plaintiff's case. PW 2 Jot Prasad supported the plaintiff's case......Thus there is no independent witness in support of plaintiffs case......" - 7. The appellate court has also recorded a finding that no land was given on Patta Istam Marari. The second appellate court has also agreed that the plaintiffs have failed to prove their possession over the land in dispute and accordingly the second appeal was also dismissed. 8. In view of the findings of the trial court and the affirmance of the first appellate court, which are findings of fact, I am in agreement with the counsel for the respondents that the plaintiffs never entered in possession in pursuance of the said Patta Istam Marari of 1933. 8. In view of the findings of the trial court and the affirmance of the first appellate court, which are findings of fact, I am in agreement with the counsel for the respondents that the plaintiffs never entered in possession in pursuance of the said Patta Istam Marari of 1933. Now the question as to what right should accrue to the plaintiffs on the question of Patta Istam Marari executed by Smt. Ram Kali, either in accordance with the provisions of Awadh Rent Act 1886 or, Agra, or U. P. Tenancy Act and whether by virtue of being co-sharer, the possession of co-sharer will be deemed to be the possession of the other, will not arise in the instant case as from very beginning from the date of execution of the Patta Istam Marari the plaintiffs could get any right but on account of remaining out of possession after the execution of the said Patta in 1933 and filing a suit in 1972, the right and interest of the plaintiffs-petitioners have come to an end. Even if assuming it for the sake of argument that they may be entitled to some right on account of the execution of the Patta Istam Marari in. 1933, but as a matter of fact when in pursuance of the Patta of 1933, possession in their favour passed, the question of conferring any right in pursuance of the said Patta does not arise. It was also urged by the learned counsel for the respondents that there is not a single word in the writ petition challenging the finding on the question of possession recorded by the courts below. In this view of the matter, even if the petitioners may be entitled to some right on account of Patta Istam Marari of 1933, but on account of nondelivery of possession and finding that they never entered into possession, the question of maturing any right in pursuance of said patta cannot arise. 9. So far as the argument of the counsel for the petitioners that if the plaintiffs-petitioners became co-sharers then in the absence of pleading of hostile possession or actual possession, they will be deemed to be co-sharers is concerned it has no force as in accordance with the provisions of Zamindari Abolition and Land Reforms Act, if a person remains out of possession then his right and interest would automatically come to an end. 10. 10. In the light of what has been stated above the orders and judgment of the respondents 1 to 3 do not call for any interference as the finding on the question of possession having been arrived at by the trial court and affirmed by the appellate court and second appellate court, being a finding of fact, no interference is called for by this Court in writ jurisdiction. Accordingly the writ petition fails and is dismissed. Stay order if any is hereby vacated. Parties are directed to bear their own costs. Petition dismissed.