Satish Chandra, J. - (1.) IN consolidation proceedings Chhotey Lal appellant filed an objection claiming to be bhumidhar of plots Nos. 277, 278 and 282/1 on the ground that he was recorded as occupant in 1356 Fasli over these plots and so he became Adhivasi on the date of vesting and thereafter Sirdar. He thereafter deposited ten times rent and became bhumidhar. Ashtbhuja contested the claim and contended that he had taken the plots from the zamindar and his name was rightly recorded in the basic year. One Jitai lodged claim to some other plots. The Consolidation Officer held that Chhotey Lal was recorded over the three plots claimed by him and Jitai was also recorded over two plots namely plots Nos. 274 and 282/2 and the name of Ashtbhuja was liable to be excluded from these plots. Aggrieved, Ashtbhuja filed an appeal. The Settlement Officer held that Chhotey Lal was not in possession after 1356 Fasli. Jitai also failed to prove the contract of tenancy. They, therefore, did not become Adhivasis, These findings appear to have been recorded in respect of plot No. 274. The appeal was partly allowed and it was held that plot No. 274 should be recorded in the name of Ashtbhuja. In respect of other plots the appeal was dismissed. Aggrieved, the parties filed three revisions before the Deputy Director. The Deputy Director dismissed the revision filed by Chhotey Lal and allowed the revision filed by Ashtbhuja. He directed that the plots be recorded in the name of Ashtbhuja. On merits he found that Chhotey Lal was not in possession. His right to regain possession was barred by limitation. The suit that he had filed u/Sec. 232/209 of the UP ZA and LR Act on 22 -11 -1955 was clearly time barred. His right to be recorded as tenant extinguished. Since Ashtbhuja was recorded tenant he was entitled to the plots. Aggrieved, Chhotey Lal filed a writ petition which was dismissed by a learned single Judge. Hence the present appeal. In our opinion the suit filed by Chhotey Lal u/Sec. 232/209 of the UP ZA and LR Act on 22 -11 -1955 was not barred by time. An application for restoration of possession u/Sec. 232 of the Act could be moved by an Adhivasi within thirty months of the date of vesting, i.e. upto 1st January, 1955. By virtue of the Amending Act of 1954, which came into force on 10th October, 1954, an existing Adhivasi became a Sirdar. On that date the right to file an application for restoration of possession u/Sec. 232 had not become time barred. So, Chhotey Lal who was recorded as occupant over the three plots in the revenue papers of 1356 Fasli had become Adhivasi u/Cl. (b) (i) of Sec. 20, became Sirdar on 10th October, 1954. From that date onwards he could file a suit for the ejectment of the respondents u/Sec. 209 of the Act. The period of limitation for such a suit is prescribed by serial No. 30, Appendix III to the UP ZA and LR Rules. The material part of this entry is: - - * * * In the first clause of this entry the three years period of limitation commences from the date of vesting if the person was in possession of the land on the date of vesting and the period of limitation for his ejectment specified under the U.P. Tenancy Act had not expired. Dealing with this entry, a learned Judge of this Court in Badal v. Khadim Husain ( : 1965 AWR 752) held that it covers only cases of such persons who were in possession on the date of vesting and against whom cause of action existed even prior to the date of vesting. We are in agreement with this view. In the present case, Ashtbhuja was in lawful possession. Prior to the date of vesting Chhotey Lal had acquired no right in the plots on the basis of which he could have a cause of action for the ejectment of Ashtbhuja. Therefore the first clause of this entry was inapplicable. The second clause applied to occupants referred to in Sec. 144 which was not the case here. Therefore the suit filed by Chhotey Lal was covered by the third clause of this entry. Under it the period of limitation of three years commences from 1st July following the date of occupation.
(2.) IN Bhara Mal v. Ram Chander (1964 AL/1045) it was held that if the possession of the land was ab initio lawful, and the person in possession lost all rights in the land on the date of vesting, thereafter, he could not lawfully retain possession of the land. The date of occupation, i.e. the unlawful occupation, shall be the date of vesting and the suit for ejectment u/Sec. 209 of the Act shall be maintainable upto 1 - -7 - -1956. We are also of the same opinion. Ashtbhuja was unlawfully (?) in possession till the date of vesting. On the date of vesting he lost rights because Chhotey Lal acquired the adhivasi rights. From 1st July, 1952, onwards the possession of Ashtbhuja became unlawful. Therefore the period of limitation commenced from 1st July, 1953. A suit could validly be filed upto 1st July, 1956. In the present case the suit was filed on 22nd November, 1955. It was not barred by time. Prior to April, 1955, the period of limitation under entry 30 was two years, that is to say, a suit could thereunder be filed upto 1st July, 1955, but before that with effect from April 9, 1955, the entry was amended and the period of limitation was changed to three years, that is to say, before the expiry of two years' period of limitation the period was extended to three years. So it cannot be said that the right to sue u/Sec. 209 became barred by time at any stage till 22nd November, 1955, when the suit was actually filed. Since the suit was filed within time the right of Chhotey Lal did not extinguish by reason of the continued possession of Ashtbhuja. It is admitted that the suit remained pending till the commencement of the consolidation operations. It is settled that the unlawful possession of a trespasser does not enure to his benefit after the notification u/Sec. 4 of the Consolidation of Holdings Act. The result is that Chhotey Lal became Sirdar of the plots in dispute and having deposited ten times rent became Bhumidhar. He is entitled to be recorded as such. In the result the appeal succeeds and is allowed. The judgment of the learned Single Judge is set aside. The writ petition is allowed. The order of the Deputy Director is quashed in respect of the three plots mentioned above. Chhotey Lal will be recorded as Bhumidhar in respect of these plots. The appellant is entitled to his costs.;