JUDGMENT Hon’ble Tarun Agarwala, J.—The plaintiff filed a suit for demolition of the construction raised by the defendant on the plot in question and also prayed for possession and for a permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the plot in dispute. The plaintiff alleged that they had purchased the plot from the respondent Nos. 4 to 7 vide a registered sale-deed 20.7.07 and that the defendant Nos. 1, 2 and 3 forcibly occupied the premises and placed three chappars on the land in question. 2. The defendants resisted the suit and submitted that they had been in possession of the plot from the time of their ancestors and that the construction on the plot is not a new one and that it was in existence since the time of their ancestors. The defendants further submitted that the disputed land was excluded by them from the scheme of consolidation before the Consolidation Authority and that the plot now assumed the character of an abadi. The defendant further submitted that the defendant Nos. 4 to 7 had never been in possession and had no right to execute the sale-deed in favour of the plaintiff. The defendant further contended that they are the members of the Scheduled Tribe, and therefore, the land was deemed to be settled with them under Section 123(2) of the U.P. Z.A & L.R Act. The defendants, in the alternative, further pleaded that they had perfected their rights by adverse means. 3. On the basis of the pleadings, the trial Court framed various issues and issue No. 5 was, whether the defendants were entitled to the benefit of the U.P. Act No. 34 of 1974 amending Section 123 of the U.P. Z.A. & L.R. Act. The trial Court, after considering the evidence and the pleadings as well as the submissions made by the parties decreed the suit and a mandatory injunction was issued directing the defendants to remove the construction from the plot in question and injuncted the defendants restraining them from interfering in the possession of the plaintiff over the land in question. The trial Court, after considering the evidence and the pleadings as well as the submissions made by the parties decreed the suit and a mandatory injunction was issued directing the defendants to remove the construction from the plot in question and injuncted the defendants restraining them from interfering in the possession of the plaintiff over the land in question. The trial Court found that the defendants had not produced any evidence to show that they were in possession of the plot prior to 15.3.1974, and therefore, held that the defendants were not entitled to the benefit of the U.P. Amendment Act No. 34 of 1974 amending Section 123(2) of the U.P. Z.A. & L.R. Act. 4. The defendants, being aggrieved by the decree of the suit, filed an appeal. The lower appellate Court after reappraising the evidence, dismissed the appeal again holding that no proof was filed by the defendants to show that they had raised the constructions prior to the enforcement of the U.P. Act No. 34 of 1974. The lower appellate Court further found that the benefit of Section 9 of the U.P.Z.A. & L.R. Act could not be extended to the defendant since they failed to prove that they were in continuous possession prior to the abolition of the Zamindari. The lower appellate Court also held that no proof had been submitted by the defendants that they were Scheduled Caste or Scheduled Tribe, and therefore, Section 122-C(3) was not applicable and consequently, the defendants were not covered under Section 123 and were not entitled to any benefit under Section 123(2) of the Act. 5. The defendants, being aggrieved have filed the present second appeal which was admitted on the following substantial question of law, namely : “A. Whether the rights conferred under Section 123 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 was available to the appellant and that the appellant was entitled for protection?” 6. It may be stated here that the suit was filed in the year 1977 and the judgment was delivered by the trial Court on 31.10.1983. The defendants filed an appeal which was decided on 24.5.91. The second appeal was filed in the year 1991 which is now been disposed of in the year 2007. 7. It may be stated here that the suit was filed in the year 1977 and the judgment was delivered by the trial Court on 31.10.1983. The defendants filed an appeal which was decided on 24.5.91. The second appeal was filed in the year 1991 which is now been disposed of in the year 2007. 7. Heard Sri R.S. Mishra, the learned Counsel for the appellant and Sri Sankatha Rai, the learned Senior Counsel assisted by Sri Santosh Kumar Mishra, the learned Counsel for the plaintiff-respondents. 8. The learned Counsel for the defendant-appellant submitted that assuming that the defendants were not in possession of the land in question prior to 1974, nonetheless, they were admittedly in possession prior to 30.6.85, consequently, the land was deemed to be settled in favour of the defendants in view of the amendment made in Section 123(2) by the Amending Act No. 24 of 1986. The learned Counsel further submitted that the amendment made in Section 123 of the Act was retrospective in nature and, assuming without admitting that it was prospective in nature, it still had a retroactive effect and, in any case, the benefit arising out of the said amendment during the pendency of the appeal would be applicable and available to the defendants, since the appeal was a continuation of the suit. 9. In support of his submission, the learned Counsel placed reliance upon the decisions of the Supreme Court in Dilip v. Mohd. Azizul Haq and another, 2000(3) SCC 607 and in the matter of Lakshmi Narain Guin and others v. Niranjan Modak, AIR 1985 SC 111 , wherein the Supreme Court held that an appeal, being a continuation of the suit, the legislative command in effect deprived the Court of its unqualified jurisdiction to make such an order or decree. The Supreme Court held : “The legislative command in effect deprives the Court of its unqualified jurisdiction to make such order or decree. It is true that when the suit was instituted the Court possessed such jurisdiction and could pass a decree for possession. But it was divested of that jurisdiction when the Act was brought into force. The language of the sub-section makes that abundantly clear, and regard must be had to its object.” and also held in the case of Dilip (supra) “In theory the appeal is only a condition of the hearing of the suit. But it was divested of that jurisdiction when the Act was brought into force. The language of the sub-section makes that abundantly clear, and regard must be had to its object.” and also held in the case of Dilip (supra) “In theory the appeal is only a condition of the hearing of the suit. Accordingly, the word “suit” in the Order has to be understood to include an appeal. The result is that if at the time of the institution of the suit for eviction clause 13-A was not in force, but at the time of appeal such a clause is introduced, the tenant in appeal becomes entitled to its protection. We draw support for these propositions from the three decisions of this Court cited by the learned Counsel for the appellants. Therefore, we are of the view that the High Court was not justified in holding that there was no appeal filed or pending against the tenant. In this case, although a decree for eviction had been passed in the suit, that decree was under challenge in a proceeding arising out of that suit in appeal and was pending in a Court. Thus an appeal being a rehearing of the suit, as stated earlier, the inference drawn by the High Court that no proceedings were filed or pending against the tenant as on the date would not be correct.” 10. The learned Counsel also submitted that pursuant to the affidavit filed before this Court dated 3.7.05, the defendants-appellants are entitled to the benefit of the Amending Act 27 of 2004. Further, assuming that the defendants did not come under the category of a Scheduled Caste or a Scheduled Tribe, nonetheless, they would still be entitled to be given the benefit of a backward class since they are “Bhar” by caste and even if they do not come under the category of a backward class they would be entitled to be given the benefit under the category of “a person of a general category living below the poverty line.” 11. Upon considering the submissions of the learned Counsel for the parties at length, it is necessary to find out as to whether the defendants-appellants had perfected their rights over the land in question, and were therefore, entitled for the protection in accordance with the provision of Section 123(2) of the U.P.Z.A & L.R. Act. Upon considering the submissions of the learned Counsel for the parties at length, it is necessary to find out as to whether the defendants-appellants had perfected their rights over the land in question, and were therefore, entitled for the protection in accordance with the provision of Section 123(2) of the U.P.Z.A & L.R. Act. Before proceeding any further, it would be necessary to consider the provision of Section 123 of the Act. By U.P. Act No. 21 of 1971, Section 123 of the Act was re-enacted, and thereafter, by Act No. 34 of 1974, sub-section (2) of Section 123 of the Act was inserted while describing Section 123, as amended by Act No. 21 of 1971, as sub-section (1). This provision was subsequently amended by the U.P. Act No. 24 of 1986 and again by U.P. Act No. 1997 and U.P. Act No. 12 of 2002 and now by the U.P. Act No. 27 of 2004 w.e.f. 23.8.2004. The provision of Section 123 as amended by the U.P. Act No. 27 of 2004 is quoted hereunder : “123. Certain house sites to be settled with existing owner thereof.—(1) Without prejudice to the provisions of Section 9, where any person referred to in sub-section (3) of Section 122-C has built a house on any land referred to in sub-section (2) of this section, not being land reserved for any public purpose and such house exists on the May 1, 2002, the site of such house shall be held by the owner of the house on terms and conditions as may be prescribed. (2) Where any person referred to in sub-section (3) of Section 122-C has built a house on any land held by a tenure holder (not being a Government lessee) and such house exists on the (June 3, 1995), the site of such house shall, notwithstanding anything contained in this Act, be deemed to be settled with the owner of such house by the tenure holder on such terms and conditions as may be prescribed. Explanation.—For the purpose of sub-section (2), a house existing on (June 3, 1995), on any land held by a tenure holder, shall unless the contrary is proved, be presumed to have been built by the occupant thereof and where the occupants are members of one family by the head of that family.” 12. Explanation.—For the purpose of sub-section (2), a house existing on (June 3, 1995), on any land held by a tenure holder, shall unless the contrary is proved, be presumed to have been built by the occupant thereof and where the occupants are members of one family by the head of that family.” 12. The learned Counsel submitted that admittedly, the defendants came into possession some times after 1974 and, constructed a house on the land in question during the pendency of the appeal. Consequently, in view of the change in the provision of law, as brought by the Amending Act No. 24 of 1986 in Section 123(2), the defendants had matured their rights, and therefore, no decree could be passed against them. 13. In Rameshwar Gond (Dead) v. Ilnd Addl. District Judge, Deoria and others, 1998(89) RD 742, a single Judge of this Court examined the provisions of Section 123 of the Act, as incorporated by U.P. Act No. 34 of 1974, and held that the said provision was prospective in nature and that there was nothing to indicate that the said provision was required to be given a retrospective effect. 14. Similar view was held by me in Majid and others v. Rahmatullah and others, 2007 (102) RD 235, wherein I had also held that the provision of Section 123(2), as amended from time to time, was only prospective in nature and could not be given a retrospective effect. 15. In a recent decision in Kayam Singh and others v. Board of Revenue, U.P., Allahabad and others, 2007(3) ADJ 149 , it was held that the amendment Act of 1985 were not retrospective and was only prospective, i.e. it could be enforced from the date of the enforcement of the Amending Act. 16. In view of the aforesaid, it is clear that the amending Act, amending Section 123(2) of the U.P. Z.A. & L.R. Act was only prospective in nature and was not retrospective in nature. 17. The submission of the learned Counsel that the amending Act, even if it was prospective in nature, had a retroactive effect and the law having been amended on the date of the pendency of the appeal, the Amending Act would still apply, and therefore, protection should be given to the defendants is, bereft of merit. 17. The submission of the learned Counsel that the amending Act, even if it was prospective in nature, had a retroactive effect and the law having been amended on the date of the pendency of the appeal, the Amending Act would still apply, and therefore, protection should be given to the defendants is, bereft of merit. The reliance placed on the decision of the Supreme Court in the case of Dilip and Lakshmi Narayan Guin (supra) is totally distinguishable and is not applicable to the present facts and circumstances of the case. 18. In the case of Dilip (supra), the Supreme Court interpreted clause 13-A of the C.P. and Berar Letting of Houses and Rent Control Order, 1949. Clause 13-A as introduced by the Amending Act read as under : “no decree for eviction shall be passed in a suit or proceeding filed and pending against the tenant in any Court or before any authority unless the landlord produces a written permission of the Controller as required by sub-clause (1) of Clause 13.” 19. Similarly, in the case of Laxmi Narain Guin (supra), the Supreme Court interpreted Section 13(1) of the West Bengal Premises Tenancy Act which reads as under : “Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds.......” 20. In the judgment of Laxmi Narain Guin (supra), the Supreme Court held that the change in the law during the pendency of the appeal had to be taken into account and would govern the rights of the parties. The Supreme Court found that the effect of the amendment deprived the Court of its unqualified jurisdiction to make such an order or decree. The Supreme Court further found that when the suit was instituted, the Court could pass a decree for possession since it had the jurisdiction but the Court was divested of its jurisdiction when the amending Act was brought into force. 21. The amending Act expressly used by the words “Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court”. 21. The amending Act expressly used by the words “Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court”. In Dilip’s case (supra), the words used is "no decree for eviction shall be passed in proceeding filed pending against the tenant in any Court.” 22. These words were interpreted by the Supreme Court to hold that after the amendment, the Court was divested its jurisdiction when the Amendment Act was brought into force. 23. In my opinion, the said judgments are distinguishable and has no application to the present case. Section 123 of the U.P.Z.A. & L.R. Act clearly indicates that it does not provide either expressly or by necessary implication that from the appointed date, valid decrees or orders of the Court would become void or would be rendered a nullity. The Act No. 24 of 1974 nowhere states that a decree of the Court would become invalid or a nullity either by express provision or by implication. 24. Similarly the other amendment Acts, namely, U.P. Act No. 24 of 1986, U.P. Act No. 19 of 1997, U.P. Act No. 11 of 2002 and finally amendment Act No. 27 of 2004 are silent on this aspect of the matter. The provisions of Section 123(2) of the Act does not give any overriding effect to any valid decree passed by a Court of law. In fact, the expression “notwithstanding anything contained in the Act” as given in Section 123(2) of the Act is confined only to the provisions of U.P.Z.A. & L.R. Act. The said expression cannot be stretched to anything beyond the Act. It cannot be stretched to any decree or order passed by a Court of Law. The provision of Section 123(2) of the Act does not contain any provision which would indicate that a valid decree passed by a Court would become a nullity or void by a reason of enactment of Section 123(2) of the Act from the appointed date. 25. In view of the aforesaid, this Court is of the opinion that Section 123(2) as amended by U.P. Act No. 34 of 1974 and subsequent amendments made from time to time has no application and a decree of the Court could not be declared to be a nullity or inexecutable nor would the defendants-appellants be entitled for protection. 25. In view of the aforesaid, this Court is of the opinion that Section 123(2) as amended by U.P. Act No. 34 of 1974 and subsequent amendments made from time to time has no application and a decree of the Court could not be declared to be a nullity or inexecutable nor would the defendants-appellants be entitled for protection. Admittedly, a clear finding of fact had been given to the effect that the defendants-appellants were not in possession as on March 1974. In view of the aforesaid, it is not necessary for the Court to go into the question as to whether the defendants-appellants was covered under the provision of Section 122-C(3) of the Act. 26. In view of the aforesaid, this Court does not find any merit in the second appeal and is dismissed with cost. ————