Satish Chandra, J. - (1.) FINDING a conflict of opinion between Lunkush v. Rajendra Sahai : AIR 1950 All. 528 : 1950 AWR 487 and Rasul Ahmad v. Beni Prasad 1965 ALJ 70 a learned single Judge has referred this case to a larger Bench. That is how the matter has been placed before us.
(2.) THE Union of India (Respondent No. 4) instituted a suit Under Section 180 of the U.P. Tenancy Act against the Petitioner's lather for his ejectment from the plot in dispute and for damages. The Plaintiff's case was that this plot had been acquired by the Govt. of India in 1942. The Defendant had illegally occupied it in 1376 F. The defence was that the suit was not maintainable Under Section 180 of the U.P. Tenancy Act, that it was barred by limitation and also that it was barred by Section 49 of the U.P. Consolidation of Holdings Act. The SDO repelled the various pleas in bar and d creed the suit. This decree was upheld in appeal as well as in second appeal. Aggrieved the Petitioners have come to his Court Under Article 226 of the Constitution and have reiterated the same pleas before us. In regard to the maintainability of the suit Under Section 180 of the U.P. Tenancy Act learned Counsel for the Petitioners invited our attention to a decision of a Jingle Judge in Lunkush v. Rajendra Sahai (supra). In that case a suit for ejectment from a grove land was filed in t le civil court prior to 1947. It was argued that the civil court had no jurisdiction. It was held that Section 180 of the U.P. Tenancy Act was not applicable to grove land. The reasons being firstly, that although the section speaks of 'land' which includes a 'grove -land' it speaks of land to which a person can be admitted as a 'tenant' which expression does not include a grove holder and secondly, that on the expiry of the period of limitation, the person in possession becomes a hereditary tenant and no person can become a hereditary tenant of a grove land.
(3.) IN Mahadeo Das v. Satyendra Kumar : AIR 1953 All. 85 a Full Bench was concerned with the, question as to whether Section 183 of the U.P. Tenancy Act was applicable to trove land. The Full Bench held that the decision in D.N. Rege v. Kazi Muhammad Haider 1949 ALJ 369 was distinguishable on facts. The Bench went an to make the following obiter observations: Section 180 applies to 'land' to which some body could be admitted as a tenant and which land becomes the hereditary tenancy of the trespasser if he was claiming as tenant, or which becomes khudkasht land if the Defendant was a co -sharer and was claiming the land as his khudkasht. Although 'land' as defined in the U.P. Tenancy Act includes grove -land, yet the definition is subject to the exception 'unless the contrary appears'. The contrary appears from the context in which the word 'land' is used in Section 180. A grove -holder is tot a tenant under the Tenancy Act except for certain purposes and a trespasser of grove -land cannot become a hereditary tenant or a khudkasht -holder. It follows that the word 'land' used in Section 180 is confined to agricultural land. In the case before the Full Bench the suit was filed in 1946. Prior to its amendment by UP Act No. 10 of 1947 Section 180 of the U.P. Tenancy, Act provided for a suit for ejectment at the instance of a person entitled to admit him as tenant. The condition precedent to the applicability of the section was that the Plaintiff should be a person entitled to admit the Defendant as a tenant. The section was inapplicable to those class of cases where the Plaintiff by reason of his status was not entitles to admit the Defendant as tenant, for instance a grove -holder, sub -tenant, or non -occupancy tenant etc. Sub -section (2) of Section 180 provides: (2) If no suit is brought under this section, or if a decree obtained under this section is not executed, the person in possession shall, on the expiry of the period of limitation prescribed for such, a suit, become a hereditary tenant of such plot or plots. By the Amending Act 10 of 197 the phrase 'person entitled to admit, him as tenant' was repealed and substituted by the phrase 'person entitled to admit him to occupy such plot'. It was no longer necessary that the Plaintiff should be in a position to admit the Defendant as the tenant. It was now sufficient; if he could permit him to occupy the plot. Obviously the ambit of Section 180 was considerably widened. Sub -section (2) was also amended and the following proviso was added: Provided that where the person in possession cannot be admitted to, such plot except as sub -tenant by the, person entitled to admit, the provisions of his sub -section shall Act apply until the interest of the person so entitled, to admit is extinguished in such plot Under Section 45(f). After, the addition of the proviso to Sub -section (2) a suit Under Section 180 would be maintained even if the consequence mentioned in Sub -section (2) did not accrue in cases where the proviso becomes applicable, It cannot hence be said that Sub -section (2) any longer laid down a condition precedent to the maintainability of a suit Under Section 180 in the sense that, such a suit will not be competent if the Defendant could not become a hereditary tenant or a khudkasht holder. After the amendment of 1947 the only condition precedent to the maintainability of a suit Under Section 180 is that the Plaintiff should be entitled to admit the Defendant to occupy the plot. So even if prior to 1947 a suit Under Section 180 may not have been maintainable in relation to grove land, such a suit was competent after the amendment. The decisions in Lunkush v. Rajendra Sahai (supra) and Mahadeo Das v. Satyendra Kumar (supra) related to Section 180 as it was prior to its amendment in 1947. Those decisions are not helpful in construing the section after it had been amended in 1947.;