Bhimaji Narayanrao Lokur, J. - (1.) The petitioner filed a suit u/S. 209 of the ZA and LR Act (hereinafter referred to as the Act) against respondents Nos. 4 to 9, alleging that they forcibly cultivated the plots in disputes, of which the petitioner was the Sirdar. The suit was decreed on 28th August, 1958 and an appeal filed by respondents Nos. 4 to 9 was dismissed on 19th November 1959. The case of the petitioner is that thereafter, by mutual understanding, respondents Nos. 4 to 9 delivered possession of the disputed plots to the petitioner and the petitioner agreed to forgo the costs of the suit. The petitioner had to file another suit later u/S. 229B of the Act in which he alleged that respondents Nos. 4 to 9 threatened to dispossess the plaintiff of the plots. This suit was dismissed on the only ground that the plaintiff had lost his rights in the plots and respondents Nos. 4 to 9 had become Sirdars thereof since the petitioner had not executed the decree for possession in the earlier suit u/S. 209 of the Act. The petitioner having failed in appeals to the Additional Commissioner and the Board of Revenue, has come to this Court with this petition, contending that the orders of the revenue courts are transparently against law. The only question which arises for consideration is whether the petitioner lost his rights in the plots and respondents Nos. 4 to 9 became Sirdars thereof by virtue of S. 210 of the Act on the ground that he had not executed the decree in the earlier suit u/S. 209. S. 210, so far as is relevant, reads: - - If a suit is not brought u/S. 209 or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall - - (i) where the land forms part of the holding of a bhumidhar or sirdar, becomes a sirdar thereof and the rights, title and interest of an asami, if any, on such land shall be extinguished;
(2.) Two conditions are required to be fulfilled under this provision if the decree -holder in the suit u/S. 209 has to lose his rights; firstly, he should not have executed the decree within the prescribed period of limitation; and secondly, he should not be in possession and the possession should remain with judgment -debtor. The revenue courts have proceeded on the basis that the petitioner had not executed the decree and hence his rights had been extinguished. They have lost sight of the fact that according to the petitioner he had received possession of the plots out of court from respondents Nos. 4 to 9 and there was no occasion to execute the decree. A decree for possession is satisfied if the judgment debtor delivers possession to the decree -holder without the decree -holder moving the executing court. In such cases, S. 210 has no application. The Sec. can be invoked only where the decree -holder has not obtained possession out of court and has also not executed the decree within the period of limitation. It would be absurd to construe S. 210 as implying that even if the decree -holder is given possession of the plots in dispute, he was bound to execute the decree or otherwise he would forfeit his rights in the plots. Thus, the crucial question was whether the petitioner had taken possession of the plots by respondents Nos. 4 to 9 by a mutual understanding, as alleged by him. It was incumbent on the revenue courts, therefore, to consider whether the petitioner had actually been put in possession of the plots as alleged. The Addl. Commissioner has observed that it was not necessary for trial court to give any finding regarding possession of the parties and the same view is held by the Board of Revenue.
(3.) The learned counsel for respondents Nos. 4 to 9, however, contended that the Board of Revenue had recorded a finding that the petitioner had not been able to prove that he had taken possession by a mutual understanding. Reliance is placed on the following statements in the order of the Board of Revenue: - - He claimed that he had taken possession by mutual understanding and private arrangement. He, however, failed to establish this theory.;