Hanuman Rai v. Deputy Director of Consolidation — 1973 DIGILAW 225 (ALL)

JUDGMENT Satish Chandra, J. - These two appeals arise out of a common judgment and raise the same questions. 2. The appellant Hanuman Rai filed an objection under Sec. 12(1) of the U. P. Consolidation of Holdings' Act claiming to be the bhumidhar of the plots in dispute. The objections were, however, dismissed by the Consolidation Officer and that order was upheld in appeal. The appellant took the dispute in revision. The Deputy Director held that the adverse possession of the respondents commenced in 1359 F. The period of limitation for the ejectment of a trespasser was originally two years and it expired one 30th June 1954. Thereafter the respondents became sirdars under Section 10 of the Zamindari Abolition and Land Reforms Act. On this view he dismissed revision. Aggrieved, the appellant filed two writ petitions in this Court. A learned Single Judge held that in view of the findings of fact the respondents did become sirdars after 30th June, 1954. 3. It appears that the notification under Sec. 4(2) of the U.P. Consolidation of Holdings was published on 16-3-1955. The learned Judge held that the publication of this notification, did not suspend the running on time and since no suit for the ejectment of the respondents had been filed within the prescribed period of limitation the respondents became sirdars under Section 210 of the Zamindari Abolition Act. On, these findings the writ petitions were dismissed. Hence the present appeals. 4. In Badal v. Deputy Director of Consolidation, 1970 A.L.J. 510 a Full Bench of this Court has held that a person; who has still limitation to file a suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act on the date of notification under Section 4 of the U. P. Consolidation of Holdings Act has every right to get relief under the provisions of the latter Act notwithstanding his failure to file a suit under Section 209 of the former Act. In view of this Full & Bench the finding of the learned Single Judge that the running of time for a suit under Section 209 was not suspended with the publication of the notification under Section 4 of the U. P. Consolidation of Holdings Act cannot be sustained. 5. In view of this Full & Bench the finding of the learned Single Judge that the running of time for a suit under Section 209 was not suspended with the publication of the notification under Section 4 of the U. P. Consolidation of Holdings Act cannot be sustained. 5. Learned counsel for the appellant, however, challenged the finding that the period of limitation for a suit; under Section 209 for the ejectment of the respondents expired on 30th June 1954. 6. Sec. 331 of the Zamindari Abolition Act provides that suits of proceedings mentioned in column 4 of the Schedule II shall not be taken cognizance of by any court than those mentioned in column No. 3. Schedule II referred to the revenue courts but 'it did not mention suits under Section 209 with the result that the suits under Section 209 remained cognizable by the civil courts. Rule 338 of the Rules framed under the Zamindari Abolition Act provided that suits, applications and other proceedings specified in Appendix III shall be instituted within the time specified in the said Appendix for them respectively. Entry No. 30 of Appendix III related to a suit under Sec. 209. It provided for a suit for ejectment of a person taking or retaining possession of the land unlawfully and for damage: (I) If the person was in possession of the land on the date of vesting and the period of limitation for his ejectment specified in the U. P. Tenancy Act, 1939, had not expired. The prescribed period of Limitation was two years and the time from which the period of limitation begins to run was mentioned as from the date of vesting. Thus in cases of persons in possession of land from before the date of vesting, the period of limitation of two years commenced to run from the date of vesting, namely, 1st July 1972. This period came to an end on 30th June 1954. For the appellant it was urged that under Section 209 a suit could be filed by a bhumidhar, sirdar or asami where a person takes or retains possession of land forming a part of the holding of bhumidhar, sirdar or asami. A holding could not in law be of a bhumidhar, sirdar or asami before the elate of vesting. For the appellant it was urged that under Section 209 a suit could be filed by a bhumidhar, sirdar or asami where a person takes or retains possession of land forming a part of the holding of bhumidhar, sirdar or asami. A holding could not in law be of a bhumidhar, sirdar or asami before the elate of vesting. So a suit under Section 209 was not maintainable in relation to persons who were in possession of such land from before the date of vesting. We are unable to agree. Sec. 209 applies to a person taking as well as to a person retaining possession of land. A person who has taken possession before the date of vesting and continues in possession is a person who is retaining possession of land after the date of vesting. With effect from the date of vesting the land forms part of the holding of the bhumidhar, sirdar and asami and hence the suit for ejectment of such a person can be filed on the basis that he was retaining possession of land forming part of such holding. Entry No. 30 of Appendix III specifically provides a period of limitation of two years from the date of vesting for a suit for the ejectment of a person in possession of the land on the date of vesting. It cannot hence be said that a suit for the ejectment of the respondents was not maintainable under Sec. 209. 7. The period of limitation of two years for suits mentioned in Clause (i) of Entry of Appendix III changed to three years by a notification issued by the State Government on April 9, 1955. By this notification the Governor made amendments in existing rules framed under the Z. A. and L. R. Act Paragraph 32 of this notification deals with amendments in Appendix III, Clause (6) was as follows : "(6) for the existing entries in column 4 against serial No. 30 the following shall be substituted against items (i), (ii) and (iii) of column 3.3 years". Thus the period of limitation which was two years for all the three clauses was changed to three years. 8. For the appellant it was urged that this notification must be deemed to operate retrospectively from the date of vesting because otherwise it will become totally infructuous. Thus the period of limitation which was two years for all the three clauses was changed to three years. 8. For the appellant it was urged that this notification must be deemed to operate retrospectively from the date of vesting because otherwise it will become totally infructuous. It was urged that the period of limitation for suit under clause (i) of Entry 30 expired on 30-6-1954. The amendment of two years to three years brought about by notification dated 9th April 1955 was wholly infructuous in relation to suits mentioned in clause (i) of Entry 30, and so it must be given a retrospective operation so that it may be a validly operative provision. We have looked into the notification carefully but we are unable to find any indication on the face of it which makes it operative retrospectively. By this notification the Governor made amendments of existing rules. Normally such amendments operate from the date of the publication of the notification in the gazette. This is corroborated by Section 344 of the Zamindari Abolition Act which deals with the rule making power. Sub-Sec. (3) of Section 344 provides that all rules made under this Act shall be published in the official gazette, and shall, unless some later date is appointed, come into force on the date of such publication. It is thus clear that the rules cannot have any retrospective operation. The rule making authority can only provide for their coming into operation at a date subsequent to their publication. Sec. 344(3), rules out the possibility of any rule being operative retrospectively. 9. The amendments made to the period of limitation for suits under Section 209 mentioned in Entry 30 were not wholly infructuous. The period of limitation for suits mentioned in all the three clauses was changed to three years. This change was not infructuous in relation to clauses (ii) and (iii). For all these reasons we are unable to accept the submission that the change in the period of limitation operated retrospectively. 10. The next point urged on behalf of the appellant was that the State Government did not possess any rule making power to prescribe the period of limitation for any suit under the Zamindari Abolition Act. For this sub mission our attention was invited to Section 344 of the Act. 10. The next point urged on behalf of the appellant was that the State Government did not possess any rule making power to prescribe the period of limitation for any suit under the Zamindari Abolition Act. For this sub mission our attention was invited to Section 344 of the Act. Sec. 344 provides: "344(1) - Entry power to make rules given by this act shall be deemed to include the powers to provide for - (a) imposing limits of time for the purposes of the rules must be done, with or without powers to any authority therein specified to extend limits imposed; (b) the procedure to be followed in suits, applications and other proceedings under this act, in cases for which no specific provision has been made herein; (c). .........................; (d) the time within which applications and appeals may be presented under this Act, in cases for which no specific provision in that behalf is made herein." 11. The Uttar Pradesh Land Reforms (Amendment) Act, XX of 1954 (which came into force on 10-10-1954) amended clause (d). By Section 67 the word "suits" was added in clause (d) between the words "which" and application. "After this amendment clause (d) provided for the time within which the suits, applications and appeals may be presented under this Act. It was argued that it was only after the amendment of 1954 that the rule making authority was conferred the power to provide the time within which the suits may be presented under the Act 12. Sec. 344 is not the provision conferring rule making power. It provides for matter which will be deemed to be included in the rule making power conferred by the Act. So wherever the rule making power has been given by the Act it shall be deemed to include powers mentioned in Section 344 (i) Under clause (b) one of the powers which will be deemed to be included in the rule making power is the procedure to be followed in suits, applications and other proceedings under this Act. Prescribing a period for limitation to file a suit is a matter of procedure relating to suits. So the power to prescribe the period of limitation within which a suit may be filed will be deemed to be included in the power to make rules. 13. Sec. 209 occurs in Chapter VIII of the Act. Prescribing a period for limitation to file a suit is a matter of procedure relating to suits. So the power to prescribe the period of limitation within which a suit may be filed will be deemed to be included in the power to make rules. 13. Sec. 209 occurs in Chapter VIII of the Act. Sec. 230 which is the last section in that Chapter confers upon the State Government power to make rules for the purpose of carrying into effect the provisions of this Chapter. Sec. 209 provides for a suit for ejectment. In order to carry it into effect, the rule making authority will have power for making provision for various procedural matters relating to such suits including prescribing the period of limitation for the institution of such suits, the quantum of court-fee to be paid thereon, the procedure to be followed in respect thereto, etc. In our opinion, the rule making authority had in 1952 power to prescribe the period of limitation for a suit under Sec. 209. 14. For the appellant it was urged that Appendix III prescribes the period of limitation for suits to be filed in the revenue courts. Rule 338 which provides the period of limitation with reference to Appendix III is general in its application and is not confined to suits that may be filed in the revenue court. On its language Rule 338 applies equally to suits that may be filed in the civil courts. 15. Our attention was, however, invited to the foot-note appearing at the end of Appendix III. We have seen the rules as published in the Government Gazette. There is no foot-note to Appendix III. We are afraid an argument cannot be built on the basis of a foot-note occurring in Appendix III as published by some private publishers. Our attention was also invited to serial No. 52 of Appendix III. The entry at serial No. 52 was not enacted in the rules as framed initially in 1952. It appears to have been added to Appendix III later on. It cannot hence be said that there is intrinsic evidence in Appendix III to establish that it was not intended to apply to suits which may be filed in the Civil Courts. 16. Reliance was Placed on Puttu Singh v. Kirat Singh, 1965 A.L.J. 936. It appears to have been added to Appendix III later on. It cannot hence be said that there is intrinsic evidence in Appendix III to establish that it was not intended to apply to suits which may be filed in the Civil Courts. 16. Reliance was Placed on Puttu Singh v. Kirat Singh, 1965 A.L.J. 936. In that case a person was in possession of the holding of an adhivasi. Adhivasis became sirdars with effect from 30-10-1954, under Chapter IX of the Zamindari Abolition Act. It was held in this case that the period of limitation for a suit for ejectment under Section 209 wall commence to run from the date the plaintiff became a sirdar. This case is not helpful to the appellant. The appellant became a bhumidhar on the date of vesting namely 1-7-1952. The prescribed period of limitation commenced from the date of vesting and not from any earlier point of time. 17. Reliance was also placed upon Badal v. Khadim Hussain, 1965 A.L.J. 967. That was a case of mortgagee whose possession prior to the date of vesting was not unlawful; and it was hence held that it was not covered by clause (1) at serial No. 30 in Appendix III as held above the present is a case which squarely falls within the purview of clause (i) aforesaid. This case is, therefore, distinguishable. 18. In Ram Surat Koeri v. Ram Lal, 1954 A.L.J. 699 (D.B.), dealing with the provisions of Section 180 (2) of the U.P. Tenancy Act which is in pari materia with Section 210 of the U.P. Zamindari Abolition and Land Reforms Act a Division Bench of this Court held that even if for certain reasons a suit for ejectment of a trespasser could not be filed under Section 180 of U. P. Tenancy Act in the Revenue Court and had to be filed in the Civil Court, the period of limitation to file such a suit even in the Civil Court would be the same as prescribed in Section 180 and if that period of limitation has been allowed to expire the person in possession would become a hereditary tenant under Section 180 (2) and the civil Court cannot eject him as a trespasser. In view of this decision we are of opinion that even if a suit for ejectment in the instant case was not maintainable, under Section 209 of U. P. Z. A. and L. R. Act and had to be filed in the Civil Court, the consequences of not filing a suit within the period of limitation prescribed to file a suit u/Sec. 209 ensued and the respondents acquired sirdari rights under Section 210 of the said Act. 19. The various points urged in support of these appeals having failed they are dismissed with costs.