BHAGWATI SINGH Vs. BOARD OF REVENUE ALLAHABAD

JUDGEMENT

(1.) I had the advantage of perusing the opinions written by my learned brothers and after the exhaustive discussion of the subject in those two elaborate judgments it has become conveniently feasible for me to record my own views in the case with considerable brevity. In my opinion the writ petitions deserve to be dismissed with costs. I would only like to add with respect that though I agree with the ultimate conclusions of my learned brothers I am unable to agree with the opinion of Agrawal, J. on only one aspect of the case, namely, that respondents Nos. 4 to 9 had acquired the rights of hereditary tenants. I would rather subscribe to the contrary opinion of Mehrotra, J. and Gopi Nath, J. (in his referring order).

(2.) IN a nutshell the dispute in this case arose between the petitioner who was a sub-tenant inducted by the Zamindar after obtaining a decree for ejectment under S. 180 of the U. P. Tenancy Act and respondents Nos. 4 to 9 who were originally trespassers (defendants in the ejectment suit) but later persons reinstated under S. 27 (1) (c) of the U. P. Tenancy (Amendment) Act, 1947 (Act No. X of 1947) hereinafter referred to as the amending Act. After the reinstatement respondents Nos. 4 to 9 filed a suit for ejectment of the petitioner under S. 202 of the U. P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred as U. P. Act No. 1 of 1951). The suit was eventually decreed on 1st January, 1968 and the decree was affirmed by the Additional Commissioner. Thereafter these two writ petitions were filed.

(3.) IN this view of the matter it is in fact not necessary at all to go into the alternative question as to whether the respondents Nos. 4 to 9 had also become Sirdars so as to satisfy the second, and, if I may say so, the artificial requirement postulated by the learned counsel for the petitioner. But since that limb of the argument poses a somewhat important question of law which has been the subject-matter of several decided cases which appear to have been not always interpreted rightly and with precision, it is worthwhile adverting to this aspect of the case also. There is no doubt that if respondents Nos. 4 to 9 had become hereditary tenants under the U. P. Tenancy Act, they would later become Adhivasis and thereafter Sirdars under U. P. Act No. 1 of 1951. But in my opinion the central fact which must be borne in mind in this connection is that S. 180 (2) of the U. P. Tenancy Act is the fulcrum which controls the entire machinery relating to the acquisition of the status of a hereditary tenant. The contention that respondents Nos. 4 to 9 had become hereditary tenants on the facts of the instant case can be compatible only with an amendment in the language of sub-s. (2) of S. 180 otherwise there is no justification for importing into sub-s. (5) of S. 27 of the amending Act something which is not enacted by the Legislature. IN the language of these two important provisions as they exist it is impossible to reach such a conclusion as the learned counsel for the petitioner suggests. Section 180 (2) runs as follows :- " If no suit is brought under this section, or if a decree obtained under this section, is not executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a co-sharer, he shall become a Khudkasht-holder, on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be." On a bare reading of the plain language of the above provision it becomes evident that the accrual of the rights of hereditary tenant is thwarted by the mere institution of a suit for ejectment against a trespasser within the period of limitation and not by his actual dispossession. The fallacy appears to be rather common and wide-spread that the actual dispossession must also take place within the period of limitation otherwise hereditary rights shall accrue. There is nothing in the phraseology of sub-s. (2) of S. 180 of the U. P. Tenancy Act to bear any such construction. It is to be noted that notwithstanding the amendments effected by U. P. Act No. X of 1947, S. 180 of the U. P. Tenancy Act has not suffered any change. This central provision has stood firm like a rock in the midst of legislative vicissitudes. Neither this section has been amended nor is there anything in sub-s. (5) of S. 27 of the amending Act which may destroy the effect of the former or override its basic provision. The only qualification which has been added by S. 32 of the amending Act in this context is that " two years" limitation has been substituted for three years rule which initially applied to a suit under S. 180 of the U. P. Tenancy Act. Thus, the erstwhile rule that no hereditary rights would accrue if a suit is brought within three years of dispossession has only to be modified to this extent that such a suit must be brought within two years of the trespass. The facts of the present case clearly reveal that the suits under S. 180 had been brought within two years of limitation and hence the question of the trespassers (respondents Nos. 4 to 9) becoming hereditary tenants was cut at the very root. The trespass had been committed on 12-12-1939 and two years limitation computed from 1st July, 1940 would run out on 30th June, 1942. But the suit under S. 180 has been filed on 7th February, 1942 and decreed on 28th March, 1943 and in execution possession had also been obtained by the land-holder on 21st May, 1943. On a correct interpretation of Section 180 (2), therefore, the contention that respondents Nos. 4 to 9 became hereditary tenants must be ruled out. There is nothing in sub-s. (5) of S. 27 of the amending Act which militates against this provision. The result of reducing the period of limitation to two years by S. 32 of the amending Act is merely this that if a trespasser had completed two years at the time when the suit for ejectment under S. 180 was brought against him he would be entitled to retain possession. Here again the crucial date is the date of the filing of the suit and not the date of actual ejectment. Sub- section (5) of S. 27 of the amending Act to in the following terms : " On reinstatement, the right and liabilities of the applicant existing on the date of his ejectment or dispossession in respect of the holding or any part thereof from which he was ejected or dispossessed, shall revive subject to the proviso to sub-s. (3)."