K.B. Asthana, J. - (1.) By this petition Under Article 226 of the Constitution the order passed by the Board of Revenue in a Second Appeal and an order passed by the Additional Commissioner in a First Appeal have been brought up for being quashed by a writ of certiorari. The Petitioners Tej Bahadur Singh and Ram Bilas were the Defendants in a suit brought by Jai Kumar Singh, Respondent No. 4 to the petition, Under Sec. 229B read with Sec. 209 of the UPZA and LR Act for a declaration that the Plaintiff alongwith his other brothers was the Bhumidhar and Sirdar in possession of the lands in dispute and in the alternative, if found out of possession, then decree for possession be awarded. It was alleged by the Plaintiff that the disputed land was the tenancy of his brother Nand Prasad after whose death Smt. Ram Dulari, brother's widow came into possession of it. It was further alleged that when Smt. Ram Dulari died, the Plaintiff along with his brother started cultivating the lands as the heirs of Nand Prasad and since the Defendants tried to assert their claim, hence the suit. It may be stated that the suit was filed on 18 -2 -1960 about 7 years after the death of Smt. Ram Dulari. The defence was that the Defendants were the heirs of Nand Prasad being the daughter's sons and they under the law were entitled to succeed. It was also alleged that on the death of Smt. Ram Dulari which took place on 24 -3 -1953 they as heirs came into possession and have been in possession ever since then. It was pleaded that even if the Plaintiff had any right or title, that was extinguished Under Sec. 210 of the UPZA and LR Act as no suit was brought by the Plaintiff Under Sec. 209 of that Act within the period prescribed. It is not necessary to state the other pleas raised in defence. The Assistant Collector, I Class who tried the suit dismissed it on the finding that the Defendants came into possession of the disputed lands on the death of Smt. Ram Dulari which occurred on 24 -3 -1953 and the Plaintiff though was under the law the rightful heir, was not entitled to any decree he not having brought the suit Under Sec. 209 of the UPZA and LR Act within three years of 1st July, 1953 his and his brother's right or title was extinguished and the Defendants became Sirdars by virtue of the provisions of Sec. 210 of the UPZA and LR Act. It may be stated that the trial court did not accept the defence plea that as daughter's sons the Defendants were the rightful heirs. The Plaintiff then appealed. The learned Additional Commissioner who heard the appeal allowed it mainly on the finding that inasmuch as soon after the death of Smt. Ram Dulari a dispute between the parties arose about mutation and that matter was not finally decided till the year 1957 the Plaintiff was entitled to get the benefit of the period of pendency of those proceedings and the present suit was not barred by limitation and no right Under Sec. 210 of the UPZA and LR Act accrued to the Defendants. The Board of Revenue in Second Appeal by the Defendants confirmed this decision of the Additional Commissioner and dismissed the appeal. The Defendants have now come up to this Court Under Article 226 of the Constitution questioning the validity of the decision of the Additional Commissioner and that of the Board of Revenue.
(2.) Sri R.B. Misra, learned Counsel for the Petitioners urged two grounds in support of the petition. His first ground was that the Petitioners were the rightful heirs under the law and the Board of Revenue manifestly erred in holding to the contrary. Learned Counsel submitted that on 24 -3 -1953 when Smt. Ram Dulari died, Under Sec. 171 of the UPZA and LR Act daughter's sons were to be preferred as heirs as against the brothers and the subsequent amendment of the Act by UP Act No. XVI of 1953 could not be read so as to affect the vested right accruing to the Petitioners there being no indication in that Act that it was applicable retrospectively. There is no substance whatsoever in this submission. The provisions of the UP Act No. XVI of 1953 which was published on 19th June, 1953 clearly show that the relevant amendment of Sec. 171 preferring the brothers to daughter's sons as heirs would be deemed to have come into effect on 1st July, 1952. The intention of the Legislature is very clear. Once the deeming clause is given its full effect, no right whatsoever could vest in the daughter's sons on 24 -3 -1953 as on that day the law would be that it is the brother who will prefer over the daughter's sons of Nand Prasad.
(3.) The second ground urged, however, appears to have some substance. In my judgment Sri Misra has rightly contended that the Board of Revenue and; the Additional Commissioner fell into an apparent error in giving the benefit of the provisions of Sec. 14 of the Indian Limitation Act to the Plaintiff in repelling the defence plea raised on the basis of the provisions of Sec. 210 of the UPZA and LR Act. As I approach the provisions of Sec. 210 of the Act, I find hardly any scope for applying the provisions of the Limitation Act in order to find out whether the right, if any, of the rightful tenant gets extinguished and right accrues in favour of the person in possession. Sec. 210 lays down the consequence of not bringing a suit Under Sec. 209 or not executing a decree obtained in such a suit within the period prescribed. The period prescribed for a suit Under Sec. 209 is provided in the Schedule to the UPZA and LR Act. From time to time there have been amendments in prescribing the period. It is not disputed that at the material time it was three years from the 1st of July following the date of occupation. In the present case if the occupation of the Defendants started on 24th March, 1953, on the day of death of Smt. Ram Dulari, widow of last male owner Nand Prasad then Jai Kumar Singh, Respondent No. 4 being the rightful heir, ought to have brought the suit for possession Under Sec. 209 of the Act by 30th June, 1956. He having not done so, the consequence as provided in Sec. 210 would automatically follow. The right of Jai Kumar Singh and his brothers would extinguish and a legal right of tenancy would accrue to the Petitioners. The crucial question, therefore, to be considered was the question of possession. The trial court gave a categorical finding on a consideration of the evidence on record in favour of the Defendants. It held that the Defendants came into possession and occupation of the lands in dispute on the death of Smt. Ram Dulari. That finding would be consistent also with the factual position as is prevailed at the material time. It would be seen that according to the law as then prevailed it was the daughter's sons who were entitled to succeed and not the brothers of Nand Prasad. The daughter's sons of Nand Prasad soon after applied for mutation which case was contested by Jai Kumar Singh and his brothers. As mentioned above, this matter could not be finally decided till 1957. It was the name of the daughter's sons which was ordered to be mutated. The question then is whether these mutation proceedings can be said to be in law amounting to a suit Under Sec. 209 of the UP Zamindari Abolition and Land Reforms Act or proceedings analogous thereto. Though, of course, in my view, an analogous proceeding is not contemplated in so far as the provisions of Sec. 210 to the Act go, even for a moment if it be assumed that the mutation proceedings relate to possession and can be said to be Analogous proceedings, it is not the case here that Jai Kumar Singh and his brother were the Applicants before the mutation court. They only contested the claim of the daughter's sons of Nand Prasad. It cannot, therefore, be said that it was Jai Kumar Singh and his brothers who took legal proceedings for ejecting the daughter's sons from the lands in dispute. The Board of Revenue, it appears from the impugned judgment, did not apply its mind to this aspect of the matter at all. Even if it be assumed that it did, then to my mind, it misdirected itself in agreeing with the view of the Addl. Commissioner that since the mutation proceedings remained pending for a period of four years, Jai Kumar Singh and his brothers ought to be given the benefit of the period as they were bonafide pursuing a remedy open to them under the law. The Board of Revenue failed to appreciate that Sec. 210 of the U.P.Z.A. and L.R. Act does not contemplate any proceeding other than one Under Sec. 209 of the Act. I have already pointed out above that for bringing a suit Under Sec. 209 the period at the relevant time was three years commencing from 1st July next following the date of occupation. If there is a person sitting on the land otherwise than in accordance with the law, the only manner in which he can be dispossessed is by filing a suit Under Sec. 209 of the Act and I do not see how a proceeding before a mutation court would amount to a bonafide proceeding for ejectment so as to extend the period of limitation for a suit Under Sec. 209 of the U.P.Z.A. and R.L. Act.;