Satish Chandra, J. - (1.) THE Petitioner wants that the decree dismissing his suit Under Section 209 of the UP ZA and LR Act be set aside.
(2.) THE land in dispute is situate in Pargana and Tahsil Shahabad, district Rampur. The UP ZA and LR Act was extended to the land in dispute on 26 -1 -1956. On 22 -10 -1955, the Petitioner filed a suit for declaration and an injunction in the civil court against Jagan Respondent No. 6. With effect from 26 -5 -1956, the jurisdiction to try suits for ejectment Under Section 209 of the UP ZA and LR Act was transferred to the revenue court. On 11 -8 -1956, the Petitioner moved an application for amendment of the plaint and ultimately the suit was decreed on 19 -11 -1957. The Defendant went up in appeal. The case was remanded back on 23 - -12 -1958, on the ground that the issue of sirdari should be referred to the revenue court. Ultimately on 21 -4 -1960, the suit was dismissed by the civil court on the finding that the civil court had no jurisdiction to entertain the suit for possession, presumably because the jurisdiction had been transferred to the revenue court. Five days later, that is on 26 -4 -1960 the Petitioner filed the present suit Under Section 209 of the UP ZA and LR Act in the relevant revenue court. The suit was contested on many grounds. The trial court held that according to the Petitioner's own allegation the Defendant had taken forcible possession on 27 -11 -1955, that is to say prior to the corning into force of the UP ZA and LR Act on 21 -6 -1956. Relying on a decision of this Court in Bhawani Tewari v. Ram Bhawan Tewari, 1962 RD 277 it held that the suit was not maintainable Under Section 209 because the taking of possession by the Defendant happened before the enforcement of the Act. It also held that the suit was time barred. The Plaintiff went up in appeal which was dismissed by the Additional Commissioner on the sole finding that the suit was not maintainable. The Board of Revenue has confirmed this view and dismissed the Petitioner's second appeal. For the Petitioner it was urged that in view of the decision of a Division Bench of this Court in Bodhi Lal and Ors. v. Board of Revenue and Ors. Writ Petition No. 1144 of 1960 decided on 2 -2 -1966 the decision of a learned Single Judge of this Court in Bhawani Tewari's (supra) case does not any longer hold the field.
(3.) SECTION 209 makes a person taking or retaining possession of a land forming part of the holding of the bhumidhar or sirdar otherwise than in accordance with the law for the time being in force, liable to ejectment on the suit of the bhumidhar or sirdar. Takru, J. in Bhawani Tewari's (supra) case held that two conditions must co exist before a suit can be maintained Under Section 209(1) that the person should have taken or retained possession of a land forming part of a holding of a Bhumidhar otherwise than in accordance with the provisions of the law for the time being in force and (2) that where the land forms part of the holding of the bhurnidhar the said 'taking' or 'retaining' should be without his consent. Takru, J. referred to the decision of the Supreme Court in Gita and Ors. v. Charan Singh, AIR 1961 SC 960. There is no such case in the reports. His Lordship obviously referred to Bhinka and Ors. v. Charan Singh, 1959 AWR 440 SC:, AIR 1961 SC 960. The latter case interpreted the expression 'taking' or 'retaining' as occurring in Section 180 of the UP Tenancy Act. The learned Single Judge observed: It was held in that case that the word 'taking' applies where a person takes possession otherwise than in accordance with the provisions of law for the time being in force, i.e. to say that the possession is illegal ab initio, whereas 'retaining' applies where possession is, initially, in accordance with the provisions of law for the time being in force, but subsequently becomes illegal. If the dispossession of the Plaintiff was initially illegal it would be a case of taking alone and not retaining. It such dispossession took place prior to the coming into force of the UP ZA and LR Act, that is to say before the Plaintiff became a bhumidhar, the bhumidhar could not maintain a suit Under Section 209 because the taking could not possibly be -without the consent of the bhumidhar - -the bhumidhar not being in existence at the time of the taking. In that case the same person, namely the Plaintiff, was the tenure -holder both at the time of the taking as well as on the date of the suit.;