An invalid lease can be looked into for collateral purposes to determine the nature of possession enjoyed by the lessee, but it cannot be used to confer title upon the lessee or to acquire sirdari right through adverse possession or through the provisions of section 165 of the U.P. Zamindari Abolition and Land Reforms Act, 1950.

K. P. Singh, J.

1. THIS is a plaintiff's writ petition against the judgment of the Second Appellate Court dated 6-2-1978 in Second Appeal No. 3 of 1971-72 (Muzaffarnagar) Bhurey and another v. Phool Singh and others.

2. THE plaintiff-petitioner no. 1 had approached the Trial Court with the allegations that the tenure-holder Phool Singh had executed a lease dated 6-11-1965 in his favour and since then he had been in possession over the disputed land. THErefore, he acquired sirdari right in the disputed land and the right and interest of Phool Singh became extinct in the disputed land.

The contesting defendants namely Man Singh and Beg Ram refuted the contentions raised on behalf of the plaintiff with the allegations that the tenure-holder Phool Singh had executed an agreement to sell in their favour on 14-7-65 and with a view to nullify the agreement to sell he executed a lease in favour of the petitioner no. 1 fictitiously. It was further alleged that the plaintiff had no right and title to the disputed land hence the suit should be dismissed.

3. ALL the revenue courts have negatived the claim of the plaintiff' petitioners and aggrieved by their judgment they have approached this Court under Article 226 of the Constitution,

4. THE learned counsel for the petitioner has contended before me that the tenure-holder Phool Singh executed an invalid lease in favour of the petitioner no. 1, hence the right and title of the tenure-holder became extinct in the disputed land and the petitioner no. 1 acquired sirdari right in the disputed land.

The second contention raised on behalf of the petitioner no. 1 is that Gaon Sabha did not institute any suit against petitioner no. 1 hence the petitioner no. 1 has acquired sirdari right in the disputed land on the basis of his adverse and continuous possession for more than statutory period.

5. THE third contention raised on behalf of the petitioners is that in the circumstances of the present case the petitioner's possession became adverse against the tenure-holder from the date of lease and due to the mere circumstances that tenure-holder had executed an invalid lease hence his interest became extinct in view of the provisions of section 189 (aa) of the Act No. I of 1951.

6. THE fourth contention raised on behalf of the petitioners is that the petitioner no. 2 has been in possession over the disputed land since long hence he at least acquired sirdari right in the disputed land, but the revenue courts have erroneously negatived his claim in the disputed land.

I have considered the contentions raised on behalf of the petitioners and I have gone through the judgments attached with the writ petition.

7. DURING the course of arguments the learned counsel for the petitioner placed reliance upon the ruling reported in Pitamber Govinda Bhavsar v. Abdul Gafur Abdul Rajak, AIR 1972 Bom. 43, and stressed Head Note (C) wherein it has been indicated that;

"Where a lease is invalid the possession of lessee or his transferee becomes adverse from the date and the lessor's suit for possession filed beyond 12 years from the lease is time barred."

8. IT is note-worthy that even in this case it has been indicated that the lessee cannot acquire by prescription a right higher than a right conveyed to him, which would mean that by being in possession for more than statutory period the lessee would acquire only lessee right in the disputed land.

The next case relied upon by the learned counsel for the petitioners in support of his contention that the petitioners should acquire sirdari right on the basis of the adverse possession is reported in Bhola Ram v. Bhagwati, 1978 ALJ 574.

9. THE aforesaid case is distinguishable because it dealt with the case of void sale and not void lease. In my opinion the transaction of sale stands on a quite different footing than transaction of mortagage or lease. THErefore, the petitioners cannot derive any benefit out of the observation made in this ruling.

10. THE learned counsel