Satish Chandra, J. - (1.) IT appears that a zamindari share including Sir and khudkasht plots was usufructuarily mortgaged. The mortgagee continued in possession even after the date of voting. Subsequently the mortgagor, who had become a bhumidhar, filed a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act for the ejectment of the mortgagee from the bhumidhari plots, which, prior to the date of vesting, were sir and khudkasht. The defence, inter alia, was that the suit was barred by time, because the defendants were in possession after the date of vesting, as trespassers, and the period of limitation commenced to run from the date of vesting. The plaintiff's case was that the retention of possession by the mortgagee was, after the date of vesting, permissive. The time will begin to run from the date of demand for possession, if any otherwise from the date of the institution of the suit. The suit was within time.
(2.) THE suit was under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act, which reads :- "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". Clause (a) of sub-section (1) of this section authorised a bhumidhar, sirdar or asami, while clause (b) entitled the Gaon Sabha, to sue for the ejectment of a person taking or retaining possession otherwise than in accordance with the provisions of the law for the time being in force, and without their consent.
(3.) THIS provision lays down two conditions, first, that the person takes or retains possession in contravention of the law, and, in the next place, without the consent of the plaintiff, be he a bhumidhar, sirdar or asami or the Gaon Sabha.;