MANHOO MAL Vs. MULLOO

JUDGEMENT

(1.) This is an appeal by a plaintiff whose suit under Section 209 of the Zamindari Abolition and Land. Reforms Act for possession over a plot of agricultural land has been dismissed by the Courts below. The facts, as found by them, are that the land id dispute was Sir of the appellant on 30-6-1962 the day preceding the date of vesting mentioned in Section 4 of the Act. In 1358 Fasli corresponding to 1950-51 the respondent took unlawful possession of the land. After the Act came into force on 1-7-1952, the appellant sued the respondent claiming that he acquired bhumidari rights over it by virtue of Section 18 and alleging that the respondent acquired no right whatsoever under the Act and was liable to be ejected under Section 209 as a trespasser. He also claimed damages. The suit was contested by the respondent, who claimed to have been in possession for more than 12 years as a hereditary tenant and to have acquired adhiyasi right under Section 3 of the Zamindari Abolition and Land Reforms (Supplementary) Act 31 of 1952 which matured into sirdari rights under Section 240-B of the Act. The suit was dismissed by the trial Court on 14-10-1953 and by the lower appellate Court on 20-7-1954. Both held that the respondent became an adhivasi and could not be ejected as a trespasser under Section 209. The appellant filed this second appeal on 12-10-1954 which came up for hearing before our brother Mithan Lal, who thought that it raised several important questions of frequent occurrence and referred it to a larger Bench.

(2.) The law in respect of trespasser under the U. P. Tenancy Act, which was in force upto 30-6-1952, was that a trespasser could be ejected under Section 180 of the U. P. Tenancy Act at the instance of the person entitled to admit him to tenancy within a period of two years commencing on the Ist July following the date of unauthorised occupation. Consequently, the respondent was liable to be ejected by the appellant through a suit to be brought under Section 180 on or befoe 30-6-1953. It was provided in Section 180 that if a suit under Section 180 became barred by time the trespasser would be a hereditary tenant. No suit was brought under Section 180, but, before the period of limitation expired, the U. P. Tenancy Act itself was repealed by the Zamindari Abolition and Land Reforms Act which contained Section 209 providing for suits against trespassers by bhumidars, sirdars, asamis and Gaon Sabhas, and Section 342 empowering the State Government to make orders for removal of difficulties arising out of the transition from the provisions of the Tenancy Act to those of the Zamindari Abolition and Land Reforms Act. In exercise of the powers conferred by Section 342 the State Government issued a number of removal of difficulties orders. The first was issued in 1952 and Clause (2) of it laid down that except as expressly provided in the Act (the reference henceforth will be to the Zamindari Abolition and Land Reforms Act except where a contrary indication is given) a suit in respect of any right acquired on liability incurred under the Tenancy Act could be instituted in the Court in which it would have been instituted under that Act and was to be heard, enquired into and decided under, and in accordance with its provisions. Though the Act contains Section 209 providing for the relief which could have been obtained under Section 180 of the U. P. Tenancy Act, it does not contain any express provision forbidding the institution of such a suit after 30-6-1952. Consequently, a suit under Section 180 could have been filed at any time upto 30-6-1953 and could be decided in accordance with the provisions of the U. P. Tenancy Act, but of course the Zamindari Abolition and Land Reforms Act, which came into force on 1-7-1952, remained operative and, whatever rights were acquired under its provisions also remained in force. The socalled Removal of Difficulties Order did not suspend the operation of the Zamindari Abolition and Land Reforms Act or keep in abeyance the rights acquired under it. How a suit under Section 180, U. P. Tenancy Act, could be decided in accordance with the provisions of the Zamindari Abolition and Land Reforms Act is beyond comprehension. If a person, who was liable to be sued as a trespasser under Section 180, U. P. Tenancy Act, acquired a certain right under the Zamindari Abolition and Land Reforms Act on account of which he was entitled to remain in possession, unless ejected in accordance with the provisions of Zamindari Abolition and Land Reforms Act, it is not understood how the suit under Section 180, U. P. Tenancy Act, could be decreed. Whatever may be said about the institution after 30-6-1952, and the decision, of a suit under Section 180 of the U. P. Tenancy Act, the Removal of Difficulties Order did not keep alive the provisions of Subsection (2) of Section 180 conferring hereditary rights upon a trespasser after the expiry of the period of limitation for such a suit. A trespasser who had not already acquired hereditary rights under Sub-section (2) prior to 1-7-1952 will not acquire them after that date. The respondent, therefore, could not claim that the effect of the appellant's failure to file a suit under Section 180 prior to 1-7-1953 was that he acquired hereditary rights by virtue of Sub-section (2). If he acquired any rights he acquired them only under the Zamindari Abolition and Land Reforms Act.

(3.) When the Act came into force on 1-7-1952 all estates vested in the State free from all encumbrances, all tenancy rights were extinguished and new tenancy rights were created. Certain land was deemed to be settled with certain persons on whom were conferred new rights as bhumidars or sirdars and certain land was let remain in possession of certain persons without its being settled with them and they were given certain rights known as adhivasi rights. In respect of land deemed to be settled with bhumidars and sirdars inferior tenancy rights akin to old sub-tenancy rights and known as asami rights were conferred upon certain persons in actual occupation. Section 18 provides that sir and khudkhast holders and proprietary grove holders became bhumidars. A bhumidar has under Section 142 and subject to the provisions of the Act the right to be in exclusiye possession of the land. He is not liable to ejectment, vide Section 199. Section 19 provides that all land held by ex-proprietary, occupancy and hereditary tenants shall be deemed to be settled with them as sirdars and subject to the provisions of the Act they will be entitled to take or retain possession of the land. A sirdar has, subject to the provisions of the Act, the right to be in exclusive possession of the land, vide Section 146, and he cannot be ejected from it except as provided in the Act, vide Section 200. He is liable to ejectment on the suit of the Gaon Sabha on certain grounds such as that he has made a transfer in contravention of the provisions of the Act, that he has used the land for a non-agricultural purpose or that he has brought under cultivation, or planted a grove upon, common pasture land, tank, pathway etc. Under Section 20 a tenant of sir, a sub-tenant of a certain class, a person recorded as occupant of any land in the khasra or khatauni of 1356 Fasli and a person who was entitled to regain possession under Section 27 of the United Provinces Tenancy (Amendment) Act of 1947 were conferred adhivasi rights unless they became bhumidhars or asamis under Section 21(h) and were entitled, subject to the provisions of the Act, to take or retain possession. Asami rights are conferred by Section 21 and under Section 146 an asami has the right to exclusive possession subject to the provisions of the Act. Under Section 202 he is liable to be ejected on the suit of the landholder on certain grounds. In 1952 the Land Reforms (Supplementary) Act No. 31 of 1952 was passed, Section 3 of which provides that every person who was in cultivatory possession during the year 1359 Fasli but who did not become a bhumidar, sirdar, adhivasi or asami under Sections 18 to 21 of the Act would become with effect from 1-7-1952 either an asami from year to year or an adhivasi, depending upon circumstances and would be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi. He would become an asami from year to year if the bhumidar or sirdar of the land was on 1-7-1952 a person referred to in items (i) to (vi) of Section 10 (2) of the Act; otherwise he would become an adhivasi. The items mentioned in Section 10(2) are a woman, a minor, a lunatic, an idiot, a blind or physically infirm person and a person in the Armed Forces of the Indian Union. The effect of this provision was that a trespasser in possession of land in 1359 Fasli became an adhivasi if the sir holder or proprietary groveholder or ex-proprietary, occupancy or hereditary tenant was not a person mentioned in Section 10 (2), items (i) to (vi). Subject to Sections 233 and 234 an adhivasi continues to have all the rights and liabilities which he possessed or, was subject to, on 30-6-1952. Section 233 deals with rent payable by an adhivasi and Section 234, with his ejectment. He is liable to ejectment on the ground of his being in arrears of rent or of transferring his holding or using the land for a non-agricultural purpose.