BANNI Vs. MUZAFFAR HASAN

JUDGEMENT

(1.) The present second appeal has been filed by the defendant-appellants against the decree for damages amounting to Rs. 915/-having been passed against him by the- Court below. It is not disputed at this stags that the defendant-appellant were found to be a tenure-holders of the disputed plots by the consolidation authorities. It is also admitted that the plaintiff-respondent was entered into possession as a trespasser under Class IX para A-124 of the Land Records Manual. In Ext. 29, Ch. Form No. 45, the plaintiff was entered in Part II under Class IX. There was some dispute between the parties about the crops sown after the decision of the consolidation authorities. The plaintiff-respondent claimed that he had sown the disputed plots and the defendants had illegally harvested the same and consequently was liable to pay the damages to him. The defendant-appellants claimed that he was Bhumidhar of the disputed land and matter was contested by the plaintiff before the consolidation autho rities and the consolidation authorities finally determined that the defendants were the Bhumidhars and the plaintiff was merely a trespasser. In the meantime, these was some criminal litigation and the defendants filed a complaint under Section 379 of the Indian Penal Code against the plaintiff alleging the theft of the crop. It is alleged that the crop was given in the 'supurdgi' of a third person but the defendant harvested the same illegally. The trial Court came to the finding that the defendant had sown the crop and harvested the same. It also found that they would be deemed to have entered into the possession by virtue of sub-section (2) of Section 28 of the U. P. Consolidation of Holdings Act. In the result, the suit was dismissed. The plaintiff came in appeal and the lower appellate Court decreed the suit holding that the crops were sown by the plaintiff and the defendant did not obtain possession under Section 28 (1) of the U. P. Consolidation of Holdings Act. He accordingly assessed the damages at Rs. 915/- and decreed the suit in favour of the plaintiff. The learned counsel for the appellant has argued that under sub-section (2) of Section 28 of the U. P. Consolidation of Holdings Act, there was a deeming clause under which even if the defendant had not been delivered possession under sub-section (1) of Section 28, he will be deemed to have been put in possession after the expiry of six months from the date on which he was allotted the chak. C. H. Form No. 23 and C. H. Form No. 45 leaves no room for doubt that the defendant were given the disputed plot in their chak. Consequently on expiry of six months from that date he would be deemed to have been entered in possession, whatever the factual position on the spot may be. The second argument was that the defendants were bound to be the title-holder of the land and the plaintiff was found to be a mere trespasser. Under the circumstances, the plaintiff could not maintain the suit against the real owner either for his ejectment or for damage. The learned counsel relied upon a case, Udit Naroyan Singh v. Shib Rai A. L. R. 20 All. 198. (F. B ). This case supports his contention. Learned counsel for the respondent relied upon a case Shyam Lal v. Ram Shanker. 1973 R. d. 17. In that case, the question relating to the effect of sub sections (1) and (2) of Section 28 and entry in C. H. From 45 of the U. P. Consolidation of Holdings Act was considered. That case, I find, goes against the plaintiff- respondent. Assuming that the plaintiff was not evicted and the defendant did not obtain possession under sub-section (1) of Section 28 of the U. P. Consolidation of Holdings Act, the possession will be deemed to have been delivered to the tenure-holder, that is the defendant under sub section (2 ). The effect of deeming clause is to ignore the factual position and apply the legal fiction created by it. Under the circumstances, the defendant will be deemed to have entered into the possession on the expiry of six months after the chak was finally allotted to him. That period comes to the year 1965. The disputed crops were sown much after that and consequently on the date, the defendant will be deemed to be in possession. In the result, the defendants would be deemed to be in possession and even if the trespasser, that is the plaintiff, had sown the crop, the latter could not maintain a suit for damages against the real tenure- holder, that is the defendants. Consequently, the appeal is allowed. The Judgment and decree passed by the lower appellate Court is set aside and that passed by the trial Court is restored. The suit of the plaintiff is dismissed. However, in the circumstances of the case, the parties are directed their own costs. .