R.B. Misra, J. - (1.) This is an application for the review of my judgment dated 12 -9 -1969. The only ground for the review is that in view of the provisions of R. 5(i) the rules framed under the Kumaun and Uttarakhand ZA and LR Act of 1960, the second appeal should have remained stayed as the said Act came into force in district Tehri on 1st of July, 1969. In order to appreciate the point taken in the review application, it will be relevant to refer to R. 5 of Kumaun and Uttarakhand ZA and LR Act of 1960. In so far as it is material, it reads: - - In respect of the area for which a notification u/S. 4 has been issued all suits and proceedings whether of the first instance, appeal or revision of the nature specified below pending in any court on the appointed date and all proceedings upon any decree or order passed in any such suits or proceedings previous to the appointed date shall be stayed...... 6. All suits, applications and proceedings under the Tehri Garhwal Bhumi Sambandh Adhikar Niyam 1941 mentioned at items......7, 8, and 11 of sub -clause 'kha' of S. 35 of the said Adhikar Niyam.......... S. 35 of the Tehri Garhwal Bhumi Sambandh Adhikar Niyam, 1941 contemplates a suit for ejectment of a 'sirtan' u/S.27 of the said Act. It is 'sirtan', the case would be covered by R. 5 and the appeal together with the suit would be abated. Therefore the only question to be determined is whether it is a suit u/S. 27 of the Tehri Garhwal Bhumi Sambandh Adhikar Niyam for the ejectment of a 'sirtan'. The plaintiff respondent in his plaint treated the defendant as a trespasser. The defendant, however, in his written statement pleaded that he was a sirtan and his defence also found favour with the trial court but on appeal the lower appellate court reversed the finding and held that the defendant was a trespasser and on that basis passed a decree for ejectment. The contention of Sri G.G. Ghildyal is that as he has taken a plea of sirtan in the written statement the suit naturally would be a suit for the ejectment of a sirtan and would be covered by R. 5 while Sri S.N. Doval for the respondent contends that the R. 5 contemplates a suit for the ejectment of a sirtan whose possession as sirtan is admitted, but as the plaintiff never treated the defendants as a sirtan and he filed the suit treating him as a trespasser, the suit cannot partake the nature of the suit u/S. 27 of the Tehri Garhwal Bhumi Sambandh Adhikar Niyam 1941. Having heard the counsel for the parties I have no doubt that R. 5 contemplates a suit given in list 'Kha' of S. 35 at serial No. 8 which includes a suit for ejectment of a sirtan u/S. 27. The wordings of the Sec. make it quite obvious that the plaintiff must have filed the suit against the defendant treating him as a sirtan. If the plaintiff did not treat him as a sirtan but treated him as a trespasser and filed the suit on that allegation, to my mind, it cannot be a suit u/S. 27 of the Act for the ejectment of a sirtan. The mere fact that the defendant took up a plea that he was a sirtan and the plea found favour in the trial court although the appellate court did not accept the finding, will not bring the case within the ambit of S. 27. If the Sec. intended that a case involving a dispute about sirtani rights would be covered by R. 5, the Sec. would have been differently worded.
(2.) For the reasons given above I am of the view that the present suit is not covered by R. 5 of the rules framed under the Kumaun and Uttarakhand ZA and LR Act of 1960. Consequently the review application has no force. There is no order as to costs.;