Anjani Kumar Mishra, J. - (1.) Plaintiff -respondent filed a suit for mandatory injunction claiming relief of possession on the ground that the possession of the suit property was given to the defendant in the year 1983, pursuant to an agreement to sell but no sale -deed ultimately was executed. Infact, a suit for specific performance was filed but the same was dismissed with the finding that the suit itself was barred by time. A belated appeal is stated to have been filed but the delay in filing of the appeal has not even been condoned. Plaintiff contents that the possession which has been given to the defendant could not be continued any further once the transaction of sale could not materialise and, therefore, the plaintiff was entitled to return of possession. It was stated that defendants were at best a licencee and such licencee stood revoked. Suit was contested by the defendant -appellant on the ground that the proceedings before the Civil Court was not maintainable as the property sought to be sold was an agricultural land and the suit for eviction could be filed under Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act and the civil Court has no jurisdiction by virtue of Sec. 331 of the Act. It was also stated that once the possession was transferred pursuant to agreement to sell, the defendant is entitled to the protection of Sec. 53 -A of the Transfer of Property Act. Other submissions were also raised. In support of the respective pleas advanced by the parties, evidence both oral and documentary were led. Courts below have decreed the plaintiff's suit by observing that once no sale -deed had been got executed, pursuant to agreement to sell, and licence had been revoked the possession of the defendant was unauthorised and the plaintiff is entitled to decree for possession of the land in question. It was also stated that the protection of Sec. 53 -A would not be available once transaction of sale itself had not materialised and the belated attempt to secure it by filing a suit for specific performance failed. So far as the question of jurisdiction is concerned, it has been held that Suit under Sec. 209 of U.P.Z.A. & L.R. Act could be filed only against trespasser whereas in the facts of the present case, possession was voluntarily given to different by the plaintiff, as such, the defendant could not be treated as trespasser, and as such a revenue suit under Sec. 209 of the Act was not maintainable. Sec. 209 of the Act is quoted below: - - "209. Ejectment of persons occupying land without title. - -(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and - (a) where the land forms part of the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar or asami: (b) where the land does not form part of the holding of a bhumidhar, sirdar or asami without the consent of the Gaon Sabha, shall be liable to ejectment on the suit, in cases referred to in Clause (a) above, of the bhumidhar, sirdar or asami, concerned, and in cases referred to in Clause (b) above, of the Gaon Sabha and shall also be liable to pay damages. (2) To every suit relating to a land referred to in Clause (a) of sub -section (1) the State Government shall be impleaded as a necessary party". Aggrieved by the judgment and decree passed by the Courts below, defendant appellant has preferred this appeal.
(2.) Sri Siddharth, learned Counsel appearing for the appellant, on the factual aspect, does not dispute that even after expiry of the prescribed period in the contract since sale -deed was not executed, no right survives with the defendant to continue in possession but the learned Counsel submits that by no means, such a suit was maintainable before the Civil Court. Learned Counsel for the appellant submits that once the period during which sale -deed was to be executed, had expired, the status of the defendant would be that of a trespasser and a revenue suit alone would lie under Sec. 209 of the Act. Learned Counsel submits that the suit before the Civil Court was barred by Sec. 331 of the U.P.Z.A. & L.R. Act need with Order -VII, Rule 11, C.P.C. It is stated that the nature of the suit property has continued to remain agricultural and no declaration under Sec. 143 of the Act has been granted.
(3.) Learned Counsel for the plaintiff -respondent, on the other hand, contends that since the possession was delivered to the defendant pursuant to an agreement to sell, as such, the status of the defendant, in the facts and circumstances of the case, would not turn into that of an trespasser/unauthorised occupant after the expiry of the period with in which the sale -deed was to be got executed.;