KHANZAMAN KHAN Vs. MAQBOOL

JUDGEMENT

(1.) This second rent appeal under Section 269, U. P. Tenancy Act read with Section 100, Civil P. C., arises out of a suit for ejectment under Section 180, U. P. Tenancy Act.

(2.) The suit for ejectment was decreed by the learned Revenue Officer on 31st December 1943. On appeal the order for ejectment was set aside by the lower Court by its judgment dated 3rd August 1944. The present appeal was filed by the plaintiffs against this order dismissing the suit for ejectment on 6th November 1944. When this appeal came up for hearing a prelimiary objection was taken on behalf of the respondents that in view of the U. P. Tenancy (Amendment) Act, 1947, he suit under Section 180, filed by the appellants was time barred and hence the dismissal of the suit by the lower Court is correct. It appears from the plaint that the appellants alleged that the respondents had taken wrongful possession of the land in suit from the beginning of Fasli year 1346. The possession of the respondents thus began some time in the year 1938. The suit was instituted after the commencement of the U. P. Tenancy Act, 1939, and under serial No. 18 of group B of Schedule IV of the Act the period of limitation allowed by the Act as originally passed was three years from 1st July following the date of the unauthorised occupation or following the date of the commencement of the Act whichever be later. In the present case limitation, therefore, began from 1st July 1940 and the suit could be instituted in time up to 1st July 1943. The suit was actually instituted on 24th December 1942 and was, therefore, within time. It, however, appears that this entry under serial No. 18 of group B of schedule IV, U.P. Tenancy Act, 1939, was amended by the U. P. Tenancy (Amendment) Act, 1947 and the period of three years was substituted by a period of 2 years only. Section 31, U. P. Tenancy (Amendment) Act, 1947, further lays down that all proceedings, suits, appeals and revisions pending under the U. P. Tenancy Act of 1939 on the date of the commencement of this Act of 1947 shall be decided or executed as the case may be in accordance with the provisions of the Act of 1939 as amended by the Act of 1947. This Section 31 of the Act of 1947 gave retrospective effect to the amendments made in the Act of 1939. Consequently all suits for ejectment falling within Sub-clause (b) of Clause (2) in the third column under serial No. 18 of group B of Schedule IV were required to be filed within two years and not within three years from 1st July following the date of unauthorised occupation or following the date of the commencement of the U. P. Tenancy Act, 1939. Even suits already instituted beyond this period of two years had to be held to have become time-barred. In the present case this suit could have been instituted within two years from 1st July 1940, i. e., by 1st July 1942. The suit was actually instituted on 24th December 1942. The effect of the retrospective amendment thus is that this suit has now to be held to be time-barred. The preliminary objection, therefore, succeeds and there is no reason for interference with the order of the lower Court dismissing the suit.

(3.) The appeal is, therefore, dismissed. This appeal is being dismissed on a ground which arose long alter the appeal had been bled and which only raised a question of law. It would, therefore, be equitable that the appellants should not be saddled with costs. The parties will, therefore, bear their own coats of this appeal.