M.N. Shukla, J. - (1.) I had the advantage of perusing the opinions written by my learned brothers and after the exhaustive discussion of the subject in those two elaborate judgments it has become conveniently feasible for me to record my own views in the case with considerable brevity. In my opinion the writ petitions deserve to be dismissed with costs. I would only like to add with respect that though I agree with the ultimate conclusions of my learned brothers I am unable to agree with the opinion of Agrawal, J. on only one aspect of the case, namely, that respondents Nos. 4 to 9 had acquired the rights of hereditary tenants. I would rather subscribe to the contrary opinion of Mehrotra, J. and Gopi Nath, J. (in his referring order).
(2.) IN a nutshell the dispute in this case arose between the petitioner who was a sub-tenant inducted by the Zamindar after obtaining a decree for ejectment under S. 180 of the U. P. Tenancy Act and respondents Nos. 4 to 9 who were originally trespassers (defendants in the ejectment suit) but later persons reinstated under S. 27 (1) (c) of the U. P. Tenancy (Amendment) Act, 1947 (Act No. X of 1947) hereinafter referred to as the amending Act. After the reinstatement respondents Nos. 4 to 9 filed a suit for ejectment of the petitioner under S. 202 of the U. P. Zamindari Abolition and Land Reforms Act, 1951 (hereinafter referred as U. P. Act No. 1 of 1951). The suit was eventually decreed on 1st January, 1968 and the decree was affirmed by the Additional Commissioner. Thereafter these two writ petitions were filed. The first point canvassed by the learned counsel for the petitioner was that the suits under S. 202 of U. P. Act No. 1 of 1951 by respondents Nos. 4 to 9 were not maintainable. According to his submission such suits could be brought only by a ' land-holder' and only a Bhumidhar or Sirdar could be a ' landholder' under the scheme of U. P. Act No. 1 of 1951. Section 202 of U. P. Act No. 1 so far as is material reads as under :- " 202. Procedure of ejectment of asami.- Without prejudice to the provisions of S. 338, an asami shall be liable to ejectment from his holding on the suit of the Gaon Sabha or the land-holder, as the case may be, on the ground or grounds - (a) mentioned in Ss. 167, 191 or 206; (b) that he - (i) belongs to any of the classes mentioned in Cls. (a), (b), (c), (e), (g) or (i) of sub-s. (1) of S. 21, or sub-s. (2) of the said section, or in Cl. (c) or (d) of S. 133, or (ii) has acquired the rights of an asami under the Uttar Pradesh Land Reforms (Supplementary) Act, 1952, and that he holds the land from year to year or for a period which has expired or will expire before the end of the current agricultural year: (c) that he belongs to the class mentioned in clause (d) of sub-s. (1) of S. 21 and the mortgage has been satisfied or the amount owing under the mortgage has, whether or not it has become payable thereunder, been deposited in court." It is manifest that in the context of the present case it was only a ' land-holder' who was competent to file a suit for ejectment under S. 202 of U. P. Act No. 1 of 1951. To further elucidate the matter it is necessary to ascertain the meaning of the term ' land-holder' . Section 3 (26) of the U. P. Zamindari Abolition and Land Reforms Act provides that the expression ' land-holder' not defined under that Act shall have the meaning assigned to it in the U. P. Tenancy Act, 1939. The definition of ' land-holder' in the U. P. Tenancy Act was as follows :- 'landholder' means the person to whom rent is, or, but for a contract express or implied, would be payable, but except in Chap. VII and Chap. XIII does not include an assignee of rent or a person who has lost the proprietary or other interest by virtue of which rent became payable to him." As the definition indicates, the test of the character of a ' land-holder' is payability of rent to him. This test is completely fulfilled by the character of a reinstated person as described in the proviso to sub-s. (3) of S. 27 of the amending Act. It provides that in the event of reinstatement the rent payable by the applicant to the land-holder shall be the rent payable by him for such land before his ejectment or the amount calculated according to the circle rates, whichever is less, and the rent payable to the applicant by the person declared as sub-tenant shall be the amount payable by such person to the land-holder immediately before the declaration or twelve and a half per cent over and above the amount calculated according to the circle rates applicable to hereditary tenants, whichever is higher. Thus, the proviso postulates two important consequences. In the first place, it says that any person inducted by the original land holder on 1-9-1946 shall be declared to be the sub-tenant of the person reinstated under S. 27 (3) of the amending Act. Secondly, it enjoins that the rent would be payable by the sub-tenant (the person let in by the Zamindar) to the person reinstated. It, therefore, follows that the reinstated person is a ' land-holder' qua the person inducted by the ' land-holder' . Thus, there can be no doubt that respondents Nos. 4 to 9 were ' land-holders' vis-a-vis the petitioner and were as such entitled to institute a suit for ejectment under S. 202 of U. P. Act No. 1 of 1951. Sri Sripat Narain Singh, learned counsel for the petitioner, however, sought to add one more condition to the right of filing a suit under S. 202 of U. P. Act No. 1 of 1951. He submitted that only a Bhumidhar or Sirdar could be a ' land-holder' and therefore in order to establish the right of respondents Nos. 4 to 9 to file a suit under S. 202 it was also necessary to demonstrate that they were in the circumstances of the case ' Sirdars' . I am unable to find any provision either in U. P. Act, Act No. 1 of 1951 or in the amending Act of 1947 to buttress such proposition. The sole test of being a ' land-holder' , according to the definition of the term already quoted is the eligibility to receive rent and since the proviso to sub-s. (3) of S. 27 of the amending Act shows unmistakably that the reinstated persons are entitled to the payment of rent by the sub-tenant inducted, they must be held to be ' land holders' and there is no justification for reading into the definition of ' land-holder' anything which is not provided therein. Therefore, I find absolutely no justification for importing any such other requirement as suggested by the learned counsel for the petitioner, namely, that only a Bhumidhar or Sirdar can be deemed to be a ' land-holder' .
(3.) IN this view of the matter it is in fact not necessary at all to go into the alternative question as to whether the respondents Nos. 4 to 9 had also become Sirdars so as to satisfy the second, and, if I may say so, the artificial requirement postulated by the learned counsel for the petitioner. But since that limb of the argument poses a somewhat important question of law which has been the subject-matter of several decided cases which appear to have been not always interpreted rightly and with precision, it is worthwhile adverting to this aspect of the case also. There is no doubt that if respondents Nos. 4 to 9 had become hereditary tenants under the U. P. Tenancy Act, they would later become Adhivasis and thereafter Sirdars under U. P. Act No. 1 of 1951. But in my opinion the central fact which must be borne in mind in this connection is that S. 180 (2) of the U. P. Tenancy Act is the fulcrum which controls the entire machinery relating to the acquisition of the status of a hereditary tenant. The contention that respondents Nos. 4 to 9 had become hereditary tenants on the facts of the instant case can be compatible only with an amendment in the language of sub-s. (2) of S. 180 otherwise there is no justification for importing into sub-s. (5) of S. 27 of the amending Act something which is not enacted by the Legislature. IN the language of these two important provisions as they exist it is impossible to reach such a conclusion as the learned counsel for the petitioner suggests. Section 180 (2) runs as follows :- " If no suit is brought under this section, or if a decree obtained under this section, is not executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a co-sharer, he shall become a Khudkasht-holder, on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be." On a bare reading of the plain language of the above provision it becomes evident that the accrual of the rights of hereditary tenant is thwarted by the mere institution of a suit for ejectment against a trespasser within the period of limitation and not by his actual dispossession. The fallacy appears to be rather common and wide-spread that the actual dispossession must also take place within the period of limitation otherwise hereditary rights shall accrue. There is nothing in the phraseology of sub-s. (2) of S. 180 of the U. P. Tenancy Act to bear any such construction. It is to be noted that notwithstanding the amendments effected by U. P. Act No. X of 1947, S. 180 of the U. P. Tenancy Act has not suffered any change. This central provision has stood firm like a rock in the midst of legislative vicissitudes. Neither this section has been amended nor is there anything in sub-s. (5) of S. 27 of the amending Act which may destroy the effect of the former or override its basic provision. The only qualification which has been added by S. 32 of the amending Act in this context is that " two years" limitation has been substituted for three years rule which initially applied to a suit under S. 180 of the U. P. Tenancy Act. Thus, the erstwhile rule that no hereditary rights would accrue if a suit is brought within three years of dispossession has only to be modified to this extent that such a suit must be brought within two years of the trespass. The facts of the present case clearly reveal that the suits under S. 180 had been brought within two years of limitation and hence the question of the trespassers (respondents Nos. 4 to 9) becoming hereditary tenants was cut at the very root. The trespass had been committed on 12-12-1939 and two years limitation computed from 1st July, 1940 would run out on 30th June, 1942. But the suit under S. 180 has been filed on 7th February, 1942 and decreed on 28th March, 1943 and in execution possession had also been obtained by the land-holder on 21st May, 1943. On a correct interpretation of Section 180 (2), therefore, the contention that respondents Nos. 4 to 9 became hereditary tenants must be ruled out. There is nothing in sub-s. (5) of S. 27 of the amending Act which militates against this provision. The result of reducing the period of limitation to two years by S. 32 of the amending Act is merely this that if a trespasser had completed two years at the time when the suit for ejectment under S. 180 was brought against him he would be entitled to retain possession. Here again the crucial date is the date of the filing of the suit and not the date of actual ejectment. Sub- section (5) of S. 27 of the amending Act to in the following terms : " On reinstatement, the right and liabilities of the applicant existing on the date of his ejectment or dispossession in respect of the holding or any part thereof from which he was ejected or dispossessed, shall revive subject to the proviso to sub-s. (3)." The above section emphasises the fact that on reinstatement the rights and liabilities of the trespasser existing on the date of his ejectment or dispossession shall revive subject to the proviso to sub-s. (3). Unquestionably the status of such a person on the date of his ejectment was that of a trespasser. This status could be obviated only if the suit had not been brought within three years formerly and latterly two years from the date of trespass. In case the suit had been filed within this period the inescapable result would be that a trespasser would remain liable to ejectment as a trespasser and cannot in any manner improve his status or convert it from that of trespasser to that of a tenant. Improvement in status, or what is only the other side of the coin, an avoidance of the status of a trespasser can be possible only in one situation, namely, that the suit under S. 180 of the U. P. Tenancy Act had not been filed within the period of limitation. Therefore, the contents of sub-s. (5) of S. 27 of the amending Act actually stem from S. 180 (2) of the U. P. Tenancy Act and ultimately we have to fall back upon the latter provision in order to interpret the former. It would not be wrong to assert that sub-s. (5) of S. 27 of the amending Act logically and substantially reinforces the primary provisions of Section 180 (2) of the U. P. Tenancy Act. I am inclined to adopt the following observations of Gopi Nath, J. on this point made in his referring order : " A trespasser can become a hereditary tenant only if no suit against him is filed within the prescribed period or a decree obtained is not executed within time. What is therefore to be seen in the instant case is whether a suit was filed within two years and a decree executed within time. As seen above, the suit was filed within two years and the decree executed and possession obtained within one year of the decree. Respondents 4 to 9 consequently did not mature hereditary rights." In my opinion the cumulative effect of S. 32 and sub-s. (5) of S. 27 of the amending Act was most succinctly summed up in the Division Bench case of Sri Ram Pathak v. Board of Revenue, 1956 All LJ 343. The following observations were made at P. 344 : " It may be noted, however, that by S. 32 of Act X of 1947 the period of limitation for the ejectment of a trespasser was reduced from three to two years and this may provide the key for understanding the anomaly created by S. 27. It appears to us that the effect of sub-s. (5) of S. 27 is that if a suit for the ejectment of the trespasser, who has been reinstated to his land under S. 27, if filed, the period of limitation, that will now be calculated, is not three years, as it was when the earlier suit for ejectment was filed but two years, as it has been laid down in Act X of 1947. Therefore, those trespassers, who had completed two years of possession before they were ejected under the law as it prevailed before the commencement of Act X of 1947, would be entitled to retain possession after their reinstatement; but those trespassers, who had not completed even two years at the time when they were previously ejected, would be liable to be ejected upon a suit being filed within two years of their reinstatement." On a careful reading of the case law on the subject including the later decisions, I, however, feel that the above dictum in Sri Ram Pathak' s case still provides the guiding light for interpreting the law relating to the right of a trespasser to retain possession by virtue of sub-section (5) of S. 27 of the amending Act even after the institution of a suit for ejectment. The main principle in Sri Ram Pathak' s case was reiterated and affirmed in the Full Bench case of Kedar Nath v. Jamuna, 1964 All LJ 442 : (AIR 1965 All 116). The Full Bench overruled the decision in Sri Ram Pathak' s case (supra) only to the extent that while in the earlier Division Bench it was held that a second suit for ejectment was barred, the Full Bench ruled that the very decree passed in the previous suit could be executed. Barring this variation, the core of the decision in Sri Ram Pathak' s case (supra) in my humble opinion remains intact and still governs the legal rights of a trespasser reinstated under the amending Act.;