JUDGEMENT :- This is a defendants' second appeal. One of the defendants-appellants died during the pendency of the appeal and has been substituted by his heirs. Likewise the plaintiff-respondent died during the pendency of the appeal and has been substituted by his heir Swami Nath.

2. The dispute in this case relates to a portion of plot No. 34, 2 bighas 4 biswas and 10 dhurs in area. Relying on a registered patta dated the 10th of October, 1948, executed in his favour by the then zamindar the plaintiff-respondent filed a suit in respect of the disputed piece of land against the defendants-appellants in the year 1950 purporting to be one under Section 180 of the U.P. Tenancy Act on the allegation that the plaintiff-respondent was a tenant of the disputed land whereas the defendants-appellants had trespassed on it only a few days before the suit.

In defence the defendants-appellants pleaded that they were in possession with the permission of the zamindar ever since December, 1929, in accordance with a deed of licence executed in their favour on the 17th of December, 1929. The trial Court in that suit held that the Ijazatnama dated the 17th of December, 1929, resulted in creating hereditary rights in favour of the defendants-appellants and accordingly dismissed the suit. The plaintiff-respondent went in appeal which was dismissed by an Additional Commissioner. He then preferred a second appeal before the Board of Revenue. The Board of Revenue held that even though the document relied on by the defendants-appellants did not make them hereditary tenants still the allegation of the plaintiff-respondent on the basis of which he founded his claim under Section 180 of the U.P. Tenancy Act was incorrect and as such his suit must fail notwithstanding the fact that the status of the defendants-appellants with reference to the disputed land was only that of a non-occupancy tenant as provided in Sec. 30 of the U.P. Tenancy Act. Thus the Board of Revenue dismissed the appeal. It is thereafter that the suit giving rise to this appeal was instituted seeking the ejectment of the defendants-appellants under the provisions of Sec. 202 of the U.P. Zamindari Abolition and Land Reforms Act. The appellants pleaded that they were not non-occupancy tenants but were hereditary tenants under the provisions of the U.P. Tenancy Act and became sirdars under the provisions of the U.P. Zamindari Abolition arid Land Reforms Act.

3. The trial Court upheld the plea raised in defence and dismissed the suit. The plaintiff-respondent went in appeal. The lower appellate Court held that under the Ijazatnama dated the 17th of December, 1929 the appellants could not claim any right higher than that of a non-occupancy tenant as provided in Section 30 of the U.P. Tenancy Act and as such they became asamis under the provisions of the U.P. Zamindari Abolition and Land Reforms Act and were liable to ejectment. In the result the lower appellate Court decreed the suit. It is in these circumstances that the defendants have come up in second appeal.

4. I have heard learned counsel for the parties.

5. The main contention of the learned counsel appearing for the appellants is that the view of the lower appellate Court that the appellants could be only non-occupancy tenants by virtue of their possession under the deed dated the 17th of December, 1929, is erroneous. The material portion of the deed Ex. A-3 has been reproduced in the judgement of the lower appellate Court. It appears therefrom that the disputed piece of land which was then lying as Usar was given to the appellants with liberty to use it as pasture land or to plant trees on it or to bring it under cultivation on condition that in case they brought it under cultivation they would be liable to pay rent according to the quality of the land. Since the deed Ex. A-3 gives liberty to the appellant to use the disputed piece of land for the purpose of pasturage the lower appellate Court has held that Section 30 of the U.P. Tenanc

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