K.B. Asthana, CJ., Satish Chandra, J.

Finding that he was unable to agree with the decision of a learned single Judge of this Court in Kamta Prasad v. Board of Revenue 1962 AWR 829 another learned single Judge has referred this writ petition to a Division Bench.

2. One Balroop was the sir-holder of the land in dispute. On his death it devolved on his widow, Smt. Anari. On 5th July, 1954, Smt. Anari executed a registered lease in favour of the Petitioner, Kumar, for a fixed term of eleven years. The lessee could not obtain possession because the land had been trespassed upon by some persons. Smt. Anari as well as the Petitioner jointly filed a suit No. 920 of 1954, in the Civil Court for injunction and/or possession against those trespassers. The suit was decreed on 9th August, 1960, and actual possession was taken by the Plaintiffs on 16th December, 1960, and 18th June, 1961. During the pendency of the suit Sm. Anari had died on 19th May, 1956 and her personal heirs, namely, Raj Narain and Sm. Kishore, Respondents 4 and 5, were substituted.

3. On 30th June, 1964, Sm. Kishore filed a suit for declaration and/or possession u/s 229-B/209 of the Zamindari Abolition Act against the Petitioner Kumar. The suit was decreed by the trial Court on 11th April, 1966. The Defendant went up in appeal. During its pendency the village where the land in dispute was situate came under consolidation operations, with the result that on 4th November, 1967, the suit was declared to have abated under the provisions of the U.P. Consolidation of Holdings Act.

4. The dispute was thereafter taken before the consolidation authorities. The Petitioner Kumar claimed that he was a sirdar. The Deputy Director of Consolidation held that the lease in favour of the Petitioner remained ineffective because the Petitioner did not get possession over the land during the life-time of the executor of the lease, namely, Sm. Anari. His possession as a result of the decree against the trespassers was with the consent of Sm. Kishore, who was the bhumidhar of the land, and so no sirdari rights accrued in his favour. Aggrieved, Kumar has come to this Court.

5. The principal contention raised on behalf of the Petitioner is that Sm. Anari was a disabled person. In view of the lease executed by her the Petitioner became an asami. On her death the disability determined. Her heirs could bring a suit for the Petitioner’s ejectment under clause (f)(i) of Section 202 within three years of the determination of the disability, from 19th May, 1956. No such suit having been filed, the Petitioner became a sirdar u/s 204 of the Act.

6. In support reliance was placed upon Kamta Prasad v. Board of Revenue 1962 AWR 829, in which it was held that the successor of a disabled bhumidhar must file a suit within three years of the death of the disabled bhumidhar because by the death the disability of the disabled bhmidhar ceased. It was also held that Section 160 of the U.P. Zamindari Abolition Act could not override the express provisions of clause (f)(ii) of Section 202.

7. Learned Counsel for the Petitioner also invited our attention to Parmeshwar Singh v. The Deputy Director of Consolidation 1969 AWR 347 and Salik Ram v. Ram Lakhan 1972 AWR 883.

8. Under the rules the prescribed period of limitation for a suit for ejectment of an asami under clause (f)(ii), namely, where the disablity has determined, is three years, and the period commences to run from the date the disability has determined. Section 202 provides for a suit for the ejectment of an asami. It will apply to such cases only where the asami is in factual possession. If, for any reason, the asami is not in possession of the land, no suit for his ejectment will obviously lie. In the present case, the Petitioner, who became an asami by virtue of the lease executed by Sm. Anari, was not able to obtain possession till the year 1960. Consequently the heirs of Sm. Anari could not sue for the ejectment of the Petitioner from the land in d