D. S. Bajpai, J. - (1.) THIS is a defendants' second appeal against the judgment and decree dated 23-2-70 passed by the Civil and Sessions Judge, Faizabad in Civil Appeal No. 48 of 1967 confirming the judgment and decree dated 7-2-67 passed by the Munsif, Faizabad in suit no. 109 of 1965. It appears that the plaintiff filed a suit for declaration and possession in respect of six agriculture plots described at the foot of the plaint. These plots lay in the Nazool area within the Municipal limits of Faizabad which, it was asserted, belonged to the plaintiff, the Union of India. Defendant-respondent no. 2 was Ziledar of the Opium Department and defendant-respondent no. 3, Smt. Dulari, was impleaded. The plaintiff's case was that the plots were leased out to Ghisey Lal, the predecessor-in-interest of defendants 1 to 5, for a period of one year in the year 1951-52 ; that the said Ghisey Lal relinquished the plots on 10-7-52 and delivered the possession to the District Opium Officer, Faizabad ; that thereafter a lease was granted in favour of Gopal Krishna alias Ram Gopal, the defendant-respondent no. 2, and thereafter, it was alleged, Ghisey Lal filed a collusive suit no. 288 of 1953 against the said Gopal Krishna alias Ram Gopal and obtained an ex parte decree on 20-9-55 and in the execution of the said decree Ghisey Lal took possession over the plots and dispossessed the plaintiff on 19-10-55. Objection under Order XXI rule 100 of the Code of Civil Procedure was filed by the plaintiff, but the same was rejected on 21-4-56 being barred by time whereafter the plaintiff filed a Regular Suit in the revenue court against Ghisey Lal and others. A decision that the revenue court had no jurisdiction to try the suit was recorded and the same was affirmed upto the stage of Board of Revenue, hence the plaintiff filed the instant suit. Ghisey Lal having died during the pendency of the case was substituted by his legal heirs and representatives as defendants 1 to 5. The defendant no. 2, Ram Khelawan, died and he was also substituted by his legal heirs and representatives. The precise prayer for declaration was that the defendants 1 to 6 were not the tenants in the plots in suit and on the basis of this declaration a further relief of possession of plots was claimed. Defendants 1 to 6 contested the suit and filed joint written-statement pleading that Ghisey Lal having been in cultivatory possession of the plots in suit since before the year 1951 and he never having relinquished the said plots, Ghisey Lal and thereafter his legal representatives acquired tenancy rights in the plots ; that the Union of India has no right to file suit through the Opium Department and finally it was urged that the finding having been recorded by the revenue court, the plaintiff was estopped from filing the suit in respect of the same subject-matter and that, in any case, the suit was barred by limitation and no relief for declaration as framed could be granted. After framing necessary issues, the learned Munsif held that Ghisey Lal had relinquished the plots in suit on 10-7-52 and that thereafter the possession of Ghisey Lal and his representatives became that of trespassers. The defence plea of adverse possession was negatived, but it was held that the suit was maintainable and that the decree passed in the revenue case did not bar filing of a fresh suit. It was further held that the Union of India could maintain the suit through the Opium Department and that it was not barred by limitation. The trial court, however, held that a negative declaration to the effect that the defendants were not the tenants of the plots could not be granted and hence the suit for possession alone was decreed. The defendants went up in appeal and the lower appellate court by judgment and decree dated 23-2-70 affirmed the findings recorded by the trial court and while upholding the judgment and decree of the trial court dismissed the appeal with costs. Aggrieved, the defendants have preferred this second appeal before this Court.
(2.) I have heard learned counsel for the parties and perused the record. It has been contended by the learned counsel for the appellants that Ghisey Lal having filed Regular Suit No. 288 of 1953 and the said suit having been decreed on 20-9-55 against which the Union of India filed an objection under Order XXI, rule 100 of the Code of Civil Procedure, the instant suit could only be treated as one under Order XXI Rule 103 of the Code of Civil Procedure since Rule 103 of the said Order provides that an order passed under Rule 100 would have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree since there was no other remedy provided and the suit could only have been filed within a year from the date of rejection of the application under Order XXI, Rule 100 as provided in Article 11-A of the Limitation Act equivalent to Article 98 of the present Act and was not governed by Article 112 of the Act. A reading of Article 98 of the Limitation Act would indicate that a person against whom an order referred to in Rule 103 of Order XXI of the Code of Civil Procedure is passed can challenge the same within the period of one year from the date of the final order. In the instant case the submission of the learned counsel for the appellants to the effect that computation of Limitation for filing the appeal would be governed by Article 98 of the Limitation Act as the said appeal would be treated only as an appeal under Order XXI, Rule 103 has substance and the suit should as such have been filed within one year and not thereafter. Applicability of Article 112 of the Limitation Act conferring a limitation to file the suit within 30 years would not be attracted. It was next contended that the Union of India, the plaintiff, having filed a suit thereafter under section 160 of the U. P. Tenancy Act and the suit having been dismissed on 25-5-58 and having failed to get any relief filed second appeal which was also dismissed on 4-10-60 and whereafter the revision also having been dismissed on 28-2-62 the instant suit was not maintainable. The scope of section 160 of the U. P. Tenancy Act is limited to the right to crops and trees when the ejectment takes place and as such the revenue court rightly held that they had no jurisdiction to try the suit to put the Union of India back into possession which they had lost by virtue of the execution of the decree in Regular Suit No. 288 of 1953. I find no error in this view taken by the revenue court. In view of this the suit has been filed much beyond time and would not be entertained.
(3.) THE next submission made was that Ghisey Lal being in possession of the plots admittedly on 10-7-52 the defendants had perfected their rights under section 18 (1) (c) of the U. P. Zamindari Abolition and Land Reforms Act. Section 18 reads as under :- " 18. Settlement of certain lands with intermediaries or cultivators as Bhumidhar :-(1) Subject to the provisions of sections 10, 15, 16 and 17, all lands- (a) in possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary's grove, (b) held as a grove by, or in the personal cultivation of a permanent lessee in Avadh, (c) held by a fixed-rate tenant or a rent-free grantee as such, or (d) held as such by- (i) an occupancy tenant possessing the (ii) a hereditary tenant right to trans- (iii) a tenant on Patta Dawani or Istamrari referred fer the hold-to in Section 17 ing by sale, (e) held by a grove holder, on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary, lessess, tenant, grantee or grove-holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof. (2) Every person belonging to the "class mentioned in Sec 3. or sub-section (2) of section 3-A of the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949 (U. P. Act X of 1949), who has been granted the declaration referred to in section 6 of the said Act in respect of any holding or share thereof shall, unless the declaration is subsequently set aside, be deemed to be the bhumidhar of the holding or the share in respect of which the declaration has been made and continues in force. (3) Notwithstanding anything contained in the United Provinces Agricultural Tenants (Acquisition of Privileges) Act, .1949 (U. P. Act X of 1949), any declaration granted under section 6 of the said Act in favour of a tenant whom sub-section (2) of section 10 applies, shall be and is hereby cancelled and the amount deposited by him under section 3 or 6 of the said Act shall, after deducting the amount which might have been paid or be payable by the State Government to his land-holder under sections 7 and 8 of the said Act, be refunded to the person entitled in such manner as may be prescribed. " There is no doubt that the defendants were fixed-rate tenants and they were entitled to avail the benefit of the said provision.;