Hon'ble Chandra Kumar Rai,J.

1. Heard Mr. Arvind Srivastava, learned counsel for the petitioners, Mr. Rajesh Kumar Tiwari, learned Additional Chief Standing Counsel for the State-respondent and Mr. Pradeep Singh, learned counsel for respondent No. 4/Gaon Sabha.

2. Brief facts of the case are that the petitioners' father was employed in the Indian Army and after retirement from the Armed Forces, he was inclined to settle at Mauza Roshannagar, Pargana Arhaura, Tehsil Chunar, District Mirzapur. Petitioners' father filed an application dated 24.03.1973 before the District Magistrate, Mirzapur, for allotting a peace of land to him so that he may cultivate, reside and earn his livelihood. On the application of petitioners' father proceeding was started and a land was allotted in favour of petitioners' father on 22.10.1973. The Sub-Divisional Magistrate granted his approval in respect to the aforementioned allotment made in favour of the petitioners' father giving him Sirdari right in respect to plot Nos. 84, 102, 104, 1, 64/1, 103, 104/183. Naiyab Tehsildar, vide order dated 20.08.1975, ordered to record the name of petitioners' father as Sirdar in respect to plot Nos. 84, 102, 104, 1, 64/1, 103, 104/183. In pursuance of the aforementioned allotment made in favour of the petitioners' father construction was made by him. After expiry of ten years, a proceeding was initiated in respect to the the aforementioned Sirdari right of petitioners and Tehsildar, vide order dated

07.12.1989, recommended to record the aforementioned plot as Asami class-3 after expiring the entry of bhumidhar with non-

transferable right. The aforementioned report dated 07.12.1989 was accepted by Sub-Divisional Magistrate, vide order dated 26.12.1989. Against the order dated 26.12.1989, a revision was filed by petitioners' father before the Commissioner, which was dismissed by Additional Commissioner, vide order dated 08.05.1997. Petitioners' father challenged the order dated

08.05.1997, through revision before the Board of Revenue, but Board of Revenue has also dismissed the revision vide order dated 01.03.2017. Hence, this writ petitioner challenging the order dated 26.12.1989 passed by Sub-Divisional Magistrate, order dated 08.05.1997 passed by Additional Commissioner and order dated 01.03.2017 passed by Board of Revenue.

3. This Court, vide order dated 26.05.2017, entertained the matter and granted interim protection in favour of petitioners. In pursuance of the order dated 26.05.2017, counter affidavit has been filed by State and petitioners has filed his rejoinder affidavit also.

4. Learned counsel for the petitioners submitted that petitioners' father was granted lease in the year 1973 being ex-army man as such, the entry of the petitioner cannot be expunged in arbitrary manner without cancelling the lease executed in favour of the petitioners' father in accordance with law. He further submitted that on the basis of lease executed in favour of petitioners' father, the entry was made in the revenue record as Sirdar and later on, due to operation of law petitioners' father became bhumidhar, with non-transferable right. He further placed a copy of Khatauni, which is annexed as Annexure No. 6 to the instant petition, in which petitioners' father was recorded as bhumidhar with non-

transferable right in respect to plot in question. He further submitted that due to further operation of law, the petitioners' father is to be recorded as bhumidhar with transferable right, but under the impugned order, the petitioners entry has been expunged on misconceived ground that petitioners were asami of the plot in question as such, no right will accrue to petitioners after expiry of five years. He further submitted that in view of provisions contained under Section 76 (dd) of U.P. Revenue Code 2006, every person, who was even an asami in possession of