NAJJOO Vs. BOARD OF REVENUE, UTTAR PRADESH, ALLAHABAD AND OTHERS

JUDGEMENT

(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.

(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: