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Kedar Nath v. Jamuna

Allahabad High Court
Apr 2, 1964
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

S.A No. 1295 of 1952

Attorney(S)

R. B. Misra

V. B. L. Srivaslava

JUDGES

V.G Oak

Gyanendra Kumar

Gangeshwar Prasad, JJ.

ACTS

Sec. 27 of U.P Tenancy (Amendment) Act (No. X of 1947hereafter referred to as the 1947 Act).

Sec. 242, U.P Tenancy Act states:Subject to the provisions of Sec. 286

Sec. 180, U.P Tenancy Act (hereafter referred to as the Tenancy Act).

provision of Sec. 242, U.P Tenancy Act

sub-Sec. (5) of Sec. 27 of the 1947 Act,

Cl. (7) of Sec. 3 of the Tenancy Act,

Sec. 242, U.P Tenancy Act.23.

Sec. 242, U.P Tenancy Act. I,

Sec. 180, U.P Tenancy Act,

Sec. 242, U.P Tenancy Act,

Act (U.P Tenancy Act)

sub-section (3).4.

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Structured Summary of the Opinion

Factual and Procedural Background

This second appeal arises from a civil suit for ejectment. In 1940, Kedar Nath (the appellant) filed a suit under Sec. 180, U.P. Tenancy Act against the present respondents and obtained a decree for ejectment; possession was obtained through execution of that decree (the opinion assumes possession was obtained in October 1940 for facility of reference). Subsequently, after enactment of the U.P. Tenancy (Amendment) Act, 1947 (the "1947 Act"), the respondents were reinstated under Sec. 27 of that Act on 14-11-1950. Soon after reinstatement, the appellant filed the present civil suit for the defendants' ejectment. The First Additional Munsif decreed the suit in favour of the plaintiff; on appeal the Civil Judge of Gorakhpur allowed the appeal and dismissed the plaintiff's suit, holding that a person reinstated under Sec. 27 of the 1947 Act is not liable to be ejected again. The plaintiff (Kedar Nath) brought the matter in second appeal. A Division Bench referred the matter to a Full Bench for consideration of the correctness of an earlier decision (Sri Ram Pathak v. Board of Revenue, U.P).

Legal Issues Presented

  1. Whether, in the light of sub-section (5) of Sec. 27 of the U.P. Tenancy (Amendment) Act, 1947, a subsequent suit for ejectment of persons reinstated under Sec. 27 is maintainable.
  2. Whether the plaintiff's remedy, in the circumstances of this case (where a prior decree for ejectment under Sec. 180, U.P. Tenancy Act existed and had been executed prior to 1947), was by execution of that earlier decree rather than by filing a fresh civil suit — i.e., whether a fresh suit is barred by Sec. 47, Civil Procedure Code (C.P.C.).
  3. Whether the civil courts had jurisdiction to entertain the present suit, given that suits under Sec. 180, U.P. Tenancy Act are included in the Fourth Schedule and, under Sec. 242 of the U.P. Tenancy Act, such suits are to be heard and determined by Revenue Courts (i.e., whether Sec. 242 bars the civil suit).

Arguments of the Parties

Appellant's Arguments

  • The appellant relied on an earlier Division Bench decision, Sri Ram Pathak v. Board of Revenue, U.P (1956 A.L.J. 343), when the case was before a single Judge; the implication is that this precedent was relevant to maintainability of ejectment proceedings post-reinstatement.
  • At a later stage counsel for the plaintiff-appellant (Mr. R.B. Misra) relied upon Ram Sural Koeri v. Sri Ram Lal (1954 A.L.J. 699) to support propositions regarding when civil courts may entertain ejectment suits (particularly in contexts involving co-sharers).
  • The appellant argued practical difficulties (some co-sharers unwilling to join a revenue suit) justified filing the present civil suit, since the land-holder plaintiff could not obtain a suit under Sec. 180 in the absence of co-sharers' participation.

Respondents' Arguments

  • The respondents (defendants) relied on the view taken in Sri Ram Pathak that trespassers reinstated under Sec. 27 could be liable to ejection again — and argued that, on the view adopted in that case, reinstatement under Sec. 27 would be futile, particularly because sub-section (4) requires payment of compensation for improvements before reinstatement.
  • Implicitly, respondents relied on the protections and effects of Sec. 27(5) and related provisions of the 1947 Act regarding the legal status of reinstated persons.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sri Ram Pathak v. Board of Revenue, U.P (1956 A.L.J. 343) Held that trespassers who had not completed even two years at the time when they were previously ejected would be liable to be ejected upon a fresh suit (interpretation related to reinstatement and subsequent ejectment). The Court accepted the correctness of Sri Ram Pathak in so far as it held that a person reinstated under Sec. 27 of the 1947 Act remains liable to be ejected again. The present Court analysed Sec. 27(5) and concluded that it revives the rights and liabilities existing immediately before ejectment, including liability to be ejected in appropriate proceedings.
Jugal Kishore v. Manoka Singh (A.I.R. 1939 Pat. 260) Applied the principle under Sec. 47, C.P.C. that questions arising between the parties to the suit in which a decree was passed and relating to execution, discharge or satisfaction of the decree must be determined by the Court executing the decree and not by a separate suit; second suit for the same relief was barred. The Court relied on this precedent by analogy: the plaintiff had a prior decree for ejectment (20-8-1940) and, because after reinstatement the respondents' liability to ejectment revived as that which existed immediately before ejectment, the remedy remained execution of the earlier decree rather than a fresh suit — thus the fresh civil suit was barred by Sec. 47, C.P.C.
Ram Sural Koeri v. Sri Ram Lal (1954 A.L.J. 699) Considered whether a civil suit by only some co-sharers for ejectment is a suit under Sec. 180 and whether the civil court can try such a suit; the Division Bench observed that if only some co-sharers sue, it would not be a suit under Sec. 180, but expressly declined to decide whether tenancy land suits can generally be brought in civil courts. The Court held that the decision should not be treated as a clear authority that, in such circumstances, a civil suit for ejectment of a trespasser is maintainable; the present Court rejected the appellant's contention that unwillingness of co-sharers excuses filing in civil court and reaffirmed that Sec. 242 mandates revenue court jurisdiction for such causes of action.

Court's Reasoning and Analysis

The Court's analysis proceeded in a number of connected steps tied to statutory interpretation and the factual timeline:

  1. Interpretation of Sec. 27(5), 1947 Act:
    • Sec. 27(5) provides that "on reinstatement the rights and liabilities of the applicant existing on the date of his ejectment or dispossession ... shall revive."
    • The Court emphasised that sub‑section (5) refers to "the applicant" (not merely "the tenant"), and Sec. 27(1) includes former trespassers (clause (c)), so sub‑section (5) applies to reinstated trespassers as well as ex‑tenants.
    • The term "holding" in the Tenancy Act's definition must be read contextually; in the case of a trespasser the Court read "holding" broadly to mean the land previously occupied by the trespasser.
    • The Court identified the rights and liabilities that revive for a trespasser: entitlement to reap crops sown and right to remain until lawfully evicted; and liabilities include liability to be ejected in appropriate proceedings and liability to pay damages/mesne profits.
    • Conclusion: reinstatement revives a trespasser's pre‑ejectment liabilities, including liability to be ejected by appropriate proceedings.
  2. Application to the factual timeline:
    • The prior decree for ejectment was passed on 20‑8‑1940 and executed (possession obtained by court execution, assumed for reference to have been in October 1940).
    • The 1947 Act commenced on 14‑6‑1947. Sec. 31 (disposal of pending suits and appeals) did not affect the 1940 decree or its execution because no suit or execution was pending on the commencement date; therefore Sec. 31 did not quash or amend that decree or execution.
    • When the respondents were reinstated on 14‑11‑1950 under Sec. 27 of the 1947 Act, by operation of Sec. 27(5) their rights and liabilities as existing immediately before ejectment (i.e., in September 1940) revived — and that included liability to be ejected under the decree dated 20‑8‑1940.
  3. Bar to fresh suit under Sec. 47, C.P.C.:
    • Sec. 47, C.P.C. provides that questions arising between the parties to the suit in which the decree was passed and relating to execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit.
    • The Court relied on Jugal Kishore v. Manoka Singh to show that filing a fresh suit for the same relief is barred where the remedy lies in execution of an earlier decree.
    • Since the respondents' liability to ejectment revived as liability under the earlier decree, the appellant's remedy was execution of that decree; a fresh suit for ejectment was therefore barred by Sec. 47, C.P.C.
    • The Court expressly declined to decide whether execution in 1950 would have been within limitation — it limited its holding to the bar under Sec. 47.
  4. Jurisdictional bar under Sec. 242, U.P. Tenancy Act:
    • Sec. 242 provides that, subject to Sec. 286, suits of the nature specified in the Fourth Schedule shall be heard and determined by a Revenue Court and no other court shall take cognizance of such suits.
    • Sec. 180 (suits for ejectment of trespassers) is included in the Fourth Schedule; therefore the cause of action here was of a nature to be determined by a Revenue Court.
    • The appellant's argument that unwillingness of some co‑sharers to join a revenue suit justified filing in a civil court was rejected: the mandatory provision of Sec. 242 cannot be defeated by such a pleading, and the civil suit was barred by Sec. 242.
  5. Treatment of earlier judicial authorities:
    • The Court reviewed Ram Sural Koeri and observed the Division Bench there did not finally decide that a civil court can entertain tenancy‑land ejectment suits in the circumstances; the earlier decision did not justify circumventing Sec. 242 in the present case.
    • The Court accepted Sri Ram Pathak's conclusion insofar as it held that a person reinstated under Sec. 27 can remain liable to ejectment again.

Holding and Implications

Holding:
DISMISSED — The second appeal is dismissed with costs.

Implications (direct effect on the parties and court process):

  • The present civil suit for ejectment filed soon after the respondents' reinstatement fails for two independent reasons identified by the Court:
    1. It is barred by Sec. 47, Civil Procedure Code, because the respondents' liability to be ejected revived as liability under the prior decree dated 20‑8‑1940, and questions relating to execution of that decree must be pursued by execution proceedings in the executing court rather than by a fresh suit.
    2. It is barred by Sec. 242 of the U.P. Tenancy Act because suits of the nature of Sec. 180 (ejectment of trespassers) are to be heard by Revenue Courts and a civil court cannot take cognizance of such a suit; the appellant cannot evade Sec. 242 by alleging non‑cooperation of co‑sharers.
  • The Court agreed (for its own reasons) with the Civil Judge's result that the civil suit fails, and also agreed in part with the earlier authority (Sri Ram Pathak) that reinstatement under Sec. 27 does not preclude subsequent liability to ejectment.
  • No broader change to statutory law was enacted by the Court; the decision applies the statutes and precedents to the facts and resolves the present dispute by dismissing the appeal. The direct consequence is that the appellant's civil suit fails and the second appeal is dismissed with costs.
Show all summary ...

Oak, J.:— This second appeal arises out of a suit for ejectment. In 1940, Kedar Nath appellant filed a suit against the present respondents for their ejectment under Sec. 180, U.P Tenancy Act (hereafter referred to as the Tenancy Act). That suit was decreed; and the appellant obtained possession. Subsequently the respondents were reinstated under Sec. 27 of U.P Tenancy (Amendment) Act (No. X of 1947—hereafter referred to as the 1947 Act). Soon after the respondents' reinstatement, the appellant, filed the present suit, out of which this second appeal has arisen. This civil suit for the defendants' ejectment was decreed by the First Additional Munsif of Gorakhpur. The defendants appealed. The appeal was allowed by the learned Civil Judge of Gorakhpur and the plaintiff's suit was dismissed. The learned Civil Judge held that a person who was reinstated under Sec. 27 of the 1947 Act is not liable to be ejected again. Kedar Nath plaintiff has, therefore, come up in second appeal.

2. When the second appeal came up for hearing before a learned single Judge, the appellant relied upon a decision by a Division Bench of this Court in Sri Ram Pathak v. Board of Revenue, U.P 1956 A.L.J 343. The learned single Judge considered that that decision required reconsideration. He, therefore, referred the case to a Division Bench. When the matter was considered by a Division Bench, the Bench also thought that the previous decision of this Court in Sri Ram Pathak's case is not correct. The case has, therefore, been referred to a Full Bench.

3. The main question for consideration in this case is whether, in the light of sub-Sec. (5) of Sec. 27 of the 1947 Act, the subsequent suit for ejectment of the respondents is maintainable. The headnote of Sec. 27 of the 1947 Act is:

“Reinstatement of certain ejected tenants”. But the operation of Sec. 27 is not confined to tenants. Clauses (a) and (b) of sub-Sec. (1) of Sec. 27 deal with ex-tenants. But Cl. (c) deals with persons ejected under Sec. 180 of the Tenancy Act. In other words, clause (c) provides for reinstatement of former trespassers. Sub Sec. (5) of Sec. 27 of the 1947 Act ran thus:

“On reinstatement the rights 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-section (3).”

4. In the instant case the proviso to sub-Sec. (3) of Sec. 27 has no application. The question is whether, after their reinstatement under sub-Secs. (1) and (3) of Sec. 27, the respondents remained liable to be ejected again by virtue of sub-Sec. (5) of Sec. 27.

5. That question came up for consideration in Sri Ram Pathak v. Board of Revenue, U.P. It was held in that case that, trespassers who had not completed even two years at the time when they were previously ejected would be liable to be ejected upon a fresh suit. It was urged for the defendants-respondents that, upon the view taken by the Court in Sri Ram Pathak's case, reinstatement under Sec. 27 of the 1947 Act would prove futile. Reference was made to sub-Sec. (4) of Sec. 27. Sub-Sec. (4) lays down that, the applicant shall not be reinstated in a holding unless he pays to the land-holder compensation for improvements. It was contended that, it would be futile to pay compensation to the land-holder, if the appellant is again liable for ejectment in a fresh suit. One must, however, remember that it is for the applicant to decide whether it is worthwhile obtaining reinstatement under Sec. 27 of the 1947 Act. If the appellant apprehends fresh ejectment, he need not avail of the relief provided by Sec. 27 of the 1947 Act.

6. In Sri Ram Pathak's case it was pointed out that, by Sec. 32 of the 1947 Act, the period of limitation for ejectment of a trespasser has been reduced from three years to two years. The result is that certain trespassers, who have been reinstated under Sec. 27 of the 1947 Act, can not be ejected again. Reinstatement under Sec. 27 gives a trespasser temporary relief at least. It is open to him to pursuade the land holder to admit the applicant as a tenant, and permit him to continue in possession. I, therefore, do not think that reinstatement of a trespasser under Cl. (c) of sub-Sec. (1) of Sec. 27 read with sub-Sec. (3) is altogether futile.

7. Sub-Sec. (5) of Sec. 27 lays down that, on reinstatement the rights and liabilities of the applicant existing on the date of his ejectment shall revive. Sub-Sec. (5) refers to “the applicant,” and not “the tenant.” We have seen that sub-Sec. (1) provides for reinstatement of former trespassers as well as ex-tenants. So the expression “the applicant” used in sub-Sec. (5) cannot be confined to ex-tenants. Sub-Sec. (5) applies to former trespassers also. According to Cl. (7) of Sec. 3 of the Tenancy Act, “holding” means a parcel or parcels of land held under one lease, engagement or grant or in the absence of such lease, engagement or grant under one tenure and, in the case of a Thekedar includes the Theka area. In the case of a trespasser, there is no lease, grant or a Theka. There is no holding as defined in Cl. (7) of Sec. 3 of the Tenancy Act. But that definition must be understood as subject to anything repugnant in the subject or context. So, in the case of a trespasser, the word ‘holding’ has to be understood in a broad sense. In the case of a trespasser, ‘holding’ means the land previously occupied by him. According to sub-Sec. (5) of Sec. 27 of the 1947 Act, on reinstatement, the rights and liabilities of a trespasser existing on the date of his ejectment are revived. In the case of a tenant, his tenancy rights are revived. In the case of a trespasser, there is no question of revival of tenancy rights. But even a trespasser has certain rights and liabilities in the land. If a trespasser has been in peaceful possession for a long time, he will be entitled to reap the crop sown by him. He will be entitled to remain in possession till he is evicted in accordance with law. A trespasser is liable for ejectment in appropriate proceedings. He is also liable to pay damages or mesne profits. These are the rights and liabilities of a trespasser. There is hardly any ambiguity in sub-Sec. (5). I have explained above that reinstatement of a trespasser under Sec. 27 is not futile. The Court should, therefore, give effect to the plain meaning of sub-Sec. (5) of Sec. 27. According to Sec. 27(5), on reinstatement of a former trespasser, his liability for ejectment in an appropriate proceeding is revived.

8. That being the legal position, we have to consider whether the respondents” were liable to be ejected in the present suit. The material facts are these. In the previous suit under Sec. 180, U.P Tenancy Act, the appellant obtained a decree on 20-8-1940. That decree was executed; and the appellant obtained possession through Court. I do not know the date, on which the appellant obtained possession. But obviously he must have obtained possession long before the 1947 Act came into force. For facility of reference, I shall assume that the appellant obtained possession over this land in October 1940. On 14-11-1950, the defendants-respondents were re instated under Sec. 27 of the 1947 Act. The present civil suit was filed in 1950 soon after the respondents' reinstatements.

9. Sec. 31 of the 1947 Act has some bearing on the problem. The 1947 Act came into force on 14-6-1947. The headnote of Sec. 31 is: “disposal of pending suits and appeals.” We have to ascertain the position on 14-6-1947. Sub-Sec. (1) of Sec. 31 states:

“All proceedings, suits, appeals and revisions pending under the said Act (U.P Tenancy Act) on the date of the commencement of this Act and all decrees and orders passed thereunder which have not been satisfied in full, shall be decided or executed as the case may be, and where necessary such decrees and orders shall be amended, in accordance with the provisions of the said Act as amended by this Act. …….”

10. The suit under Sec. 180, U.P Tenancy Act was decided in August 1940. That decree was executed in October 1940. No suit or execution was pending before the Court on 14-6-47. There was no question of amendment of the decree dated 20-8-1949. The first proviso to sub-Sec. (1) of Sec. 31 ran thus:—

“Provided firstly that if such a decree or order cannot be so amended, or the execution of or the appeal or revision from such an amended decree or order cannot be proceeded with, it shall be quashed ……”

11. In the present case the decree was passed in 1940; and that decree was executed long before 1947. There was, therefore, no question of quashing the decree or the execution under the first proviso.—The fourth proviso to sub-Sec. (1) of Sec. 31 ran thus:

“Provided fourthly, that all suits, appeals and revisions pending under Sec. 180 of the said Act, on the date of the commencement of this Act for the ejectment of any person ………shall be dismissed, and all decrees and orders for the ejectment of such persons which have not been satisfied in full on the date of the commencement of this Act, shall be quashed.”

12. In the instant case the suit under Sec. 180 of the Tenancy Act was decided in 1940. The decree was satisfied long before 1947. So the decree or the execution cannot be quashed under the fourth proviso. The present case is not hit by any provision of Sec. 31 of the 1947 Act. Sec. 31 did not affect either the decree dated 20-8-1940 or its execution before 1947.

13. Under sub-Sec. (5) of Sec. 27 of the 1947 Act, on reinstatement, the rights and liabilities of the respondents existing on the date of their ejectment in respect of the land revived. One can hardly speak of rights and liabilities of a person after his ejectment. In order to make sub-Sec. (5) effective, the expression “existing on the date of his ejectment” should be understood in the sense of “existing immediately before the date of his ejectment.” In the present case I have assumed that the respondents were ejected in October 1940. We may, therefore, ascertain the position, which obtained in September 1940.

14. In September 1940 the position was this. The plaintiff obtained against the defendants a decree for ejectment on 20-8-1940. That decree had not been executed by September 1940. The defendants were liable to be ejected in execution of the decree dated 20-8-1940. That was the respondents' liability in September 1940. The question remains whether they could be ejected by filing a fresh suit against them.

15. Accordnig to Sec. 47, C. P. C, all questions arising between the parties to the suit in which the decree was passed and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. In Jugal Kishore v. Manoka Singh A.I.R 1939 Pat. 260 the plaintiffs obtained a decree for possession of land, which was submerged under water during the rainy season, but could be cultivated in the rest of the year. They did not take possession of the land until execution of the decree was barred by limitation, They filed a fresh suit for the same purpose. It was held that the second suit was barred under Sec. 47, C. P. C. That is the position in the present case. The plaintiff obtained against the defendants a decree for ejectment on 20-8-1940 under Sec. 180, U.P Tenancy Act. Although the decree was executed, that execution stood annulled as a result of sub-Sec. (5) of Sec. 27 of the 1947 Act. On reinstatement of the defendants on 14-11-1950, their status was the same as in September 1940, They remained liable to ejectment in execution of the decree dated 20-8-1940. Since the respondents were liable to ejectment under a decree, another suit for their ejectment could not be filed either in the revenue Court or in the civil Court. The second suit is barred under Sec. 47, C. P. C. I express no opinion as to whether in the year 1950 execution of the decree dated 20-8-1940 would have been within limitation.

16. There is another reason why the civil suit must fail. Sec. 180, U.P Tenancy Act provided for suits for ejectment of trespassers from agricultural land, Sec. 242, U.P Tenancy Act states:

“Subject to the provisions of Sec. 286 all suits and applications of the nature specified in the Fourth Schedule shall be heard and determined by a Revenue Court, and no Court other than a Revenue Court shall ……..take cognizance of any such suit……. based on a cause of action in respect of which any relief could be obtained by means of any such suit or application …..”

17. A suit under Sec. 180 is mentioned in the Fourth Schedule. The question, therefore, arises whether notwithstanding Sec. 242, U.P Tenancy Act, the appellant could file the present suit in the Civil Court.

18. Mr. R.B Misra, appearing for the plaintiff-appellant, relied upon a decision by a Division Bench of this Court in Ram Sural Koeri v. Sri Ram Lal 1954 A.L.J 699. The facts of that case were these. The plaintiffs filed a suit in the Court of Munsif for ejectment of the defendants from certain land on the/ground that they were trespassers. The defendants pleaded that the Civil Court had no jurisdiction. That plea was upheld by the trial Court. It was held that the suit was not cognizable by the civil Court. In appeal that point was decided in favour of the plaintiffs. The lower appellate court remanded the case to the trial Court for decision on merits. The defendants filed a civil revision. The revision was dismissed by a single Judge, who held that it was not open to some co-sharers to file a suit under Sec. 180 for ejectment of a trespasser. Consequently a suit by some co-sharers in the civil court is maintainable. After remand the Munsii decided the case on merits, and dismissed the plaintiffs' suit. The lower appellate Court reversed that decision. The defendants filed a second appeal. The second appeal was allowed by this Court; and the trial Court's decision dismissing the suit was restored.

19. On page 701, the learned Judges observed:—

“If, therefore, only some out of the several co-sharers filed a suit for ejectment, it would not be a suit under Sec. 180. Whether such a suit can be filed in the civil Court, with respect to tenancy land, is a matter on which we do not wish to express any opinion in this case. But in a suit filed in the civil Court by only some co-sharers, the defendant can be ejected only if he is trespasser.”

20. It will be seen that the learned Judges of the Division Bench assumed that, a civil suit by some co-sharers for ejectment of the defendants as trespassers was maintainable. It was made clear that, they were not expressing any opinion as to whether a suit relating to tenancy land can at all be filed in the civil Court. This point was considered at an earlier stage by a single Judge, who took the view that the civil Court had jurisdiction to try the suit. It was difficult to reverse that view at a subsequent stage of the same suit. The Bench dismissed the plaintiffs' suit on the ground that the defendants had become hereditary tenants. So, the judgment in Ram Sural Koeri's case should not be treated as a decision by the Division Bench that, under such circumstances, a civil suit for ejectment of a trespasser is maintainable.

21. It is the case of the present appellant that the land-holder could file a suit for ejectment of the respondents under Sec. 180, U.P Tenancy Act. But the plaintiff complained that there are other co-sharers in the land. They did not join the plaintiff in suing the defendants for their ejectment. In the absence of those co-sharers, it became impossible to file a suit for ejectment of the defendants under Sec. 180, U.P Tenancy Act. That was why the plaintiff was forced to file the present civil suit for ejectment of the defendants.

22. I do not think that unwillingness on the part of some co-sharers can be offered as a valid ground for not filing a suit in the revenue Court under Sec. 180, U.P Tenancy Act. The appellant is claiming the relief of ejectment of the respondents. This relief could be granted by the revenue Court in a suit properly brought under Sec. 180, U.P Tenancy Act. The cause of action is the same. So the mandatory provision of Sec. 242, U.P Tenancy Act is attracted. The provision of Sec. 242, U.P Tenancy Act cannot be defeated by pleading that, some co-sharers are not willing to join in a suit under Sec. 180, U.P Tenancy Act. The present civil suit is barred by Sec. 242, U.P Tenancy Act.

23. To sum up: The decision in Sri Ram Pathak v. Board of Revenue, U.P is right in so far as it was held that, a person who obtained reinstatement under Sec. 27 of Act No. X of 1947 remains liable to ejectment again. But in the present case the plainaiffs' remedy was by way of execution of the decree dated 20-8-40. The present suit is barred under Sec 47, C.P.C The civil suit is also barred under Sec. 242, U.P Tenancy Act. I, therefore, agree (although for different reasons) with the learned Civil Judge that, the present civil suit fails.

24. In my opinion, the second appeal should be dismissed with costs.

25. G. Kumar & G. Prasad, JJ.— We agree that the appeal must be dismissed with costs.

26. By The Court—The second Appeal is dismissed with costs.

27. Appeal dismissed

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