G.C. Mathur, J. - (1.) THE dispute which arose before the Consolidation authorities was in respect of plot No. 2033 area 0.45 acres. In the basic year the Petitioners were recorded as Bhumidhars over 0.31 acres out of this plot and the remaining 0.14 acres was recorded in the name of Sarju, the father of Respondents Nos. 4 and 5, as sirdar. Sarju is now dead. When consolidation proceedings started the Petitioners filed objections relating to the entry in the name of Sarju over 0.14 acres of this plot and Respondents Nos. 4 and 5 filed an objection relating to 0.31 acres which was recorded in the names of the Petitioners. Each party claimed to be tenure holder of the entire plot. The Consolidation Officer held that Sarju was the sub -tenant of the entire plot from before 1334 fasli and therefore, he and after him, the Respondents Nos. 4 and 5 were the sirdars of the entire plot. He accordingly rejected the objection of the Petitioners and allowed that filed by Respondents Nos. 4 and 5 and directed the entire plot to be recorded in the names of Respondents Nos. 4 and 5 as sirdars. Appeals filed by the Petitioners were dismissed by the Settlement Officer (Consolidation). He found that in 1333 F. the plot was re -corded as grove of Thakur Pandey father of the Petitioners. He further found that Sarju was a sub -tenant of the entire grove from the year 1345 Fasli and therefore, he became an asami Under Section 21(1)(b) of the UP ZA and LR Act. He repelled the Petitioner's contention that Sarju became an asami Under Section 21(2) of the UP ZA and LR Act. He further held that the limitation for filing a suit for eviction of Sarju Under Section 202, which was one year, having expired, Sarju became a sirdar of the entire plot. The Petitioners then filed revisions before the Deputy Director of Consolidation. In the revisions the Petitioners contended that Sarju had become an asami Under Section 21(2) of the UP ZA and LR Act as he was recorded as an occupant of the grove and since no period of limitation was prescribed for filing a suit for the eviction of this class of asami, Sarju did not become a sirdar and remained an asami. The Respondent Nos. 4 and 5 asserted before the Deputy Director that Sarju had become an asami Under Section 21(1)(b) as he was a sub -tenant of the grove and therefore, on the failure of the Petitioners to file a suit within the period of limitation he became a sirdar. The Deputy Director has noted the rival contentions but has not given any categorical finding whether Sarju was a subtenant of the grove or not and whether he was merely a recorded occupant. He has, however, observed that the Consolidation Officer and the Settlement Officer (Consolidation) had correctly held Respondent Nos. 4 and 5 to be sirdars of the entire plot. He has accordingly dismissed the revisions.
(2.) THE only question which arises for consideration in this writ petition is whether Sarju was a sub -tenant of the grove or whether he was merely re corded as an occupant and whether he had become sirdar of the plot on account of the failure of the Petitioners to file any suit for his eviction. The question whether Sarju was a sub -tenant of the gorve or not and whether he was merely a recorded occupant is a question of fact which should have been decided by the Deputy Director of Consolidation in the revisions filed before him. Section 21(1)(b) and (2) are as follows: 21(1) Notwithstanding anything contained in this Act, every person, who, on the date immediately preceding the date of vesting occupied or held land as - - (a) .... .... .... (b) a sub tenant of grove land; (c) .... .... .... shall be deemed to be an asami thereof; (2) Every person who, on the date immediately preceding the date of vesting was a person recorded, in the manner stated in Clause (b) of Section 20, as occupant of any grove land, shall be called an asami of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof. Sub -section (2) was introduced in Section 21 by UP Act XVI of 1953. It is clear that if Sarju was a sub -tenant of grove land then he would be an asami Under Section 21(1)(b) but if he was not a sub -tenant and was merely recorded as an occupant he would be an asami Under Section 21(2). Section 202(b) as originally enacted provided that a person who had become an assami Under Section 21(1)(b) shall be liable to ejectment from his holding on the suit of the land holder on the ground that he holds the land from year to year or for a period which had expired or will expire before the end of the current agricultural year. Limitation for filing a suit Under Section 202(b) was prescribed by item 25 of Appendix III of the Rules. In Item 25, as originally framed, the period of limitation for a suit Under Section 202(b) was one year from the date on which the cause of action arose Under Section 202(b). By a notification dated 16 -11 -195 published in the U.P. Gazette dated 20 -11 -1954, the limitation for filing a suit Under Section 202(b) was amended and thereafter there Was no period of limitation for such a suit. Section 204, as originally enacted provided that if a suit for the ejectment of a person who had become an asami Under Section 21(1)(b) was not instituted within the period of limitation prescribed therefore the asami shall, on the expiry of the period, become a sirdar of the land held by him. As already stated above Sub -section (2) to Section 21 was introduced in 1993. Section 202, as originally enacted, did not contain any provision for the eviction of an asami of this class. Subsequently by amendment an asami of this class also became liable to eviction Under Section 202. But at no time was any period of limitation prescribed for filing of a suit for the eviction of an asami of this class. From these provisions it is clear that if Sarju was merely a recorded occupant of the grove, then he would be an asami Under Section 21(2) and since there was no period of limitation prescribed for filing of a suit against an asami of this class the Petitioner's right to file such a suit against Sarju or his successors has not become time barred. Consequently Sarju till his death and thereafter his sons, Respondents Nos. 4 and 5 remained asamis and did not at any time become sirdars. There is no dispute about this proposition. Sri V.K.S. Chaudhary, learned Counsel for the Petitioners, contends that even if Sarju was a sub -tenant of the grove even then the Petitioners' right to file a suit for eviction against him or his sons has not become time barred and they have not become sirdars.
(3.) IN support of this proposition he has first contended that Sub -section (2) of Section 21 overrides Sub -section (1)(b) and therefore, if a person is recorded as a sub tenant of a grove he (fan only become an asami Under Sub -section (2) even if he is in fact a sub -tenant also. This contention cannot be accepted for a simple reason that the opening words of Sub -section (1) "notwithstanding anything contained in this Act" clearly show that the provisions of Sub -section (1) override the provisions of Sub -section (2). If the intention of the legislature was otherwise then it would have, when it introduced Sub -section (2), amended Sub -section (I) and instead of the words "notwithstanding anything contained in this Act" used the words "except as provided in Sub -section (2)" as it has done in Section 20. From the language used in the two sub -sections there can be no doubt that if a person is a subtenant of grove land he will be an asami Under Section 21(1)(b) notwithstanding the fact that he is also recorded as an occupant. The next contention of the learned Counsel is that after the amendment of item 25 of Appendix III of the Rules there was no period of limitation for evicting an asami Under Section 21(1)(b) and therefore, the suit for eviction was not barred. A similar contention has been repelled by a Division Bench of this Court in Uchan Singh v. Board of Revenue 1962 AWR 26. In this case a suit Under Section 202(b) of the ZA and LR Act had been filed for the eviction of a person who had become an asami Under Section 21(1)(c). Clause (c) of Section 21(1) relates to a sub -tenant referred to in the proviso to Sub -section (3) of Section 27 of the UP Tenancy (Amendment) Act, 1947. Asamis whether Under Clause (b) or Clause (c) of Section 21(1) are liable to eviction Under Section 202(b) and are governed by the same rule of limitation. In that case the suit was decreed by all the revenue courts and in a writ petition before this Court the Defendant contended that since the suit was filed after the period of one year for filing the suit had expired he had become a sirdar and was not liable to eviction. This plea was opposed by the Plaintiff on the ground that after the abolition of the period of limitation the suit could be filed at any time. The suit in that case was filed in 1958. The Division Bench held: It is true that on the date of suit no period of limitation remained prescribed in respect of suits Under Section 202(b) of the UP ZA and LR Act of the nature of the present suit. This, however, is immaterial. The period of limitation, as originally prescribed when the first cause of action arose on 1 -7 -1952, having expired on 30 -6 -1953, the Petitioners acquired a vested right sirdars Under Section 204 of the UP ZA and LR Act and a subsequent amendment in the period of limitation could not defeat that right and could not as a result revive the right of the opposite parties to bring the suit which right had already become extinguished when the Petitioners acquired the rights as sirdars, Under Section 204 of the UP ZA and LR Act. This completely answers the contention of the learned Counsel. It was then contended by learned Counsel that there was no question of filing a suit for the eviction of Sarju as no cause of action had accrued to the Petitioners. This also is not correct. Section 202(b) gave an immediate right to the Petitioners to evict Sarju. The right accrued on the coming into force of ZA and LR Act on 1 -7 - -1952. It is no body's case that Sarju was a subtenant for any fixed period. At best he was an asami from year to year and he could have been evicted on any date after 1 -7 -1952. The same view was taken by the Division Bench in Uchan Singh's case.;