Satish Chandra, J.:— A Bench has referred there two connected Special Appeals to a Full Bench because it felt that the decision of another Division Bench in Gopal Narain v. Kanchan Lal A.I.R 1971 All. 556. required reconsideration.

2. Bhagmal, the respondent, was the original hereditary tenant of the holding in suit. The Zamindars obtained a decree for the ejectment of Bhagmal under Sec, 171, U.P Tenancy Act, 1939, on February 7, 1942. In execution, possession was delivered to the zamindars on 29th May, 1942-A couple of months later, in July, 1942 the zamindars inducted the appellants Soran Singh and others as hereditary tenants over the holding in dispute. Some disputes having arisen between Bhagma and the appellants, the appellants in 1946 filed a suit under Sec. 59, U.P Tenanq Act, for a declaration that they were the hereditary tenants of the holding. The trial court dismissed the suit, but on appeal it was decreed, and it was declared that the appellants were the hereditary tenants. The Board of Revenue upheld the appellate decree on 24th December 1951.

3. During the pendency of the appeal, U.P Tenancy (Amendment) Ac 10 of 1947 came into force. On 13th August, 1947, Bhagmal applied for ??? instatement to the holding under Sec. 2 of the Amending Act of 1947. The hearing of this application appears to have been stayed because of the pendency of the declaratory suit. The application was ultimately allowed by the trial court of 13th July, 1953. Bhagmal was reinstate to the holding; the appellants ??? declared its sub-tenants entitled to ??? in possession for three years, under ??? proviso to Sec. 27(3) of the ??? Act. The Appellants went up in ??? but failed. They filed a second ??? which was also dismissed by the Board Revenue. The appellants then ??? the dispute to this Court under writ ??? No. 1471 of 1961. The writ ??? was, however, dismissed on 29th Jul 1965 leading to special appeal No. 37 of 1965.

4. After the expiry of the three years ??? for which the appellants were ??? to remain in possession as sub-???, Bhagmal on September 20, 1956, ??? a suit for ejectment of the appellants under Sec. 202 of the Zamindari Abolition Act. The suit was decreed on 13th November, 1961. The appellants' appeal as well is their second appeal were also dismissed. The appellants then filed a writ petition on this Court which was dismissed by a earned single Judge on March 2, 1971 Against this judgement the appellants filed special appeal No. 311 of 1971.

5. The following submissions of the earned counsel for the parties raise the allowing points:—

(1) Whether the declaratory decree aider Sec. 59, U.P Tenancy Act, operated ??? res judicata;

(2) Whether the application for reinstatement under Sec. 27 of the Amending Act of 1947 could be decided on the merits after 30th June, 1952, the date preceding-he date of vesting under the Zamindari Abolition Act;

(3) Whether Bhagmal acquired the ??? of a sirdar under the Zamindari Abortion Act; and

(4) Whether the appellants became ??? or sirdars under the Zamindari Abolition Act.

6. Before the plea of res judicata can be considered, it must be pleaded at the roper stage. In order to establish such a plea, the copy of the judgement and the Decree ought to be filed. We find that this plea was not taken in the proceedings. The appellants who rely upon this plea ave not filed copy of the judgements rendered in the declaratory suit under Sec. 9, U.P Tenancy Act. It is hence not ??? entertain such a plea.

7. The declaratory suit was filed in 946. The Courts granted a declaration ??? the appellants were the hereditary ??? as against Bhagmal. Normally, such a declaration would relate to the rights as they were on the date of the ??? of the suit in 1946. It would not ??? the change in the rights of the parties, if any, brought about by the amending Act, 1947.

8. For the appellants reliance was placed upon the might and ought rule of the doctrine of res judicata and it was urged that Bhagmal could have and ought to have, raised appropriate plea arising out of the Amending Act of 1947 when the declaratory suit was still pending in appeal, when the Amending Act of 1947 came in force. In our opinion, there is no substance in this submission.

9. Sec. 27 of the Amending Act of 1947 entitled a person ejected, inter alia, under Sec. 171, U.P Tenancy Act, to file an application for reinstatement to the holding, within six months of the commencement of the Act. The Court after hearing the parties, could make an order for reinstatement. Under sub-sec. (5) of Sec. 27 of the aforesaid Act, the rights and liabilities of the plaintiff revived on the making of an order for reinstatement to the holding. Bhagmal could possibly have raised a plea that he was the reinstated herediatary tenant, only after an order of reinstatement had been passed in his favour in proceedings under Sec. 27 of the Amending Act. Till an order of reinstatement was passed, his rights as the original herediatary tenant did not revive. Pie could not take any plea in the declaratory suit under Sec. 59 that his rights as herediatary tenant had revived till an order of reinstatement to the holding had been passed in his favour. Such an order was passed for the first time on 13th July, 1953, long after the dismissal of the second appeal by the Board of Revenue on 24th December, 1951. So till the date the declaratory suit was pending in second appeal, Bhagmal could not in law raise any useful plea in that suit, on the basis of the Amending Act of 1947. The doctrine of res judicata would not bar the application for reinstatement or the subsequent suit for ejectment under Sec. 202 of the Zamindari Abolition Act under the might and ought rule.

10. The Principal question is whether the proceedings for reinstatement could continue after the coming into force of the Zamindari Abolition Act.

11. Sec. 339 of the Zamindari Abolition Act, inter alia, repealed the U.P Tenancy Act, 1939, with effect from 1st July, 1952. In exercise of the powers conferred by Sec. 342 of Zamindari Abolition Act, the State Government issued the U.P Land Tenures (Legal proceedings) (Removal of Difficulties) Order, 1952. This order, inter alia, provided that any legal proceeding in respect of any right, privilege, obligation or liability acquired, accrued or incurred under or in pursuance of, the U.P Tenancy Act, 1939, if pending on 30th June, 1952, shall be decided in accordance with the provisions of that Act.

12. The question upon which the parties are in controversy is whether proceedings for reinstatement under Sec. 27 of the Amending Act of 1947 are legal proceedings in respect of any right, privilege, obligation or liability acquired, accrued or incurred under the U.P Tenancy Act, 1939.

13. For the appellants it was urged that Sec. 27 was not bodily incorporated in any section or otherwise in the body of the U.P Tenancy Act, 1939. It was an independent provision which retained its efficiasy and operation because of the continuance in force of the Amending Act of 1947. A proceeding commenced under Sec. 27 could not hence be a proceeding under the U.P Tenancy Act or in respect of any right etc. acquired under that Act.

14. The Amending Act of 1947 was, entitled as the United Provinces Tenancy (Amendment) Act, 1947. Its preamble stated that it was an Act further to amend the United Provinces Tenancy Act 17 of 1939. It would show that the legislative intent was to amend the Tenancy Act. Sec. 2 to 26 and 32 and 33 of the Amending Act made amendments in various sections of the Principal Act namely the Tenancy Act of 1939. Sec. 27 provides for reinstatement of tenants who had been ejected under Secs. 165, 171 and 180 of the Principal Act and for the revival of their rights and liabilities as they existed on the date of their ejectment. A Division Bend of this Court in Daryao Singh v. Board of Revenue 1952 A.L.J 196. had occasion to consider the fact of the Amending Act of 1947 upon the Principal Act of 1939. It was observe that Sec. 27 deal with the ejectment effect prior to the Amendment under Secs. 165, 171 and 180 of the Principal Act. In a was Sec. 27 is intended to amend the effect on Secs. 165, 171 and 180. Sec. 27 is in suit stance a proviso to each of these the sections. Sec. 27 of the Amending Act was not given a permanent place in the ??? Act because Sec. 27 as its terms would show, was temporary in operation. ??? application under it could be made ??? in six months from the date of commence ??? of the Act. The Bench observe that to find out whether or not a ??? law amends an existing law, one has to ??? its pith and substance and not its for. There is no room for any doubt that the scope of Sec. 27 is the same as that of Secs. 165, 171 and 180 of the parent Act. I amends the previous operation of those three sections to a certain extent by ??? the decree which had been passes under them. The very name “Amending Act” shows that it is an Act intended ??? amend the U.P Tenancy Act. In view of the wide language of Sec. 242 of the U.P Tenancy Act, 1939, which provide that suits and applications of the nature specified in the fourth Schedule shall ??? heard and determined by the revenue court, the clear effect was to insert an application under Sec. 27 of Amending Act also in the Fourth Schedule. Sec. 2 was a part and parcel of the U.P The nancy Act, 1939. The Bench held that 5 revision was maintainable under Sec. 27 of the U.P Tenancy Act against decision made in an application for reinstatement under Sec. 27 of the Amending Act. With respect, in our opinion, this decision lay down correct law. Proceedings under Sec. 27 of the Amending Act are proceedings under U.P Tenancy Act 1939. The are proceedings in respect of a right on obligation or liability acquired or ??? under the Tenancy Act, because these pro ??? have the effect of nullifying the ??? operation of decrees for ejectment ??? under Secs. 165, 171 and 180 of the principal Act. The proceedings under Sec. 27 were within the purview of the U.P Land Tenures (Legal proceedings) (Removal of Difficulties) Order, 1952, and ??? could validly continue and be decided in accordance with the provisions of ??? Tenancy Act read with the Amending ct of 1947, notwithstanding their repeal.

15. Learned counsel for the ??? urged that the fact that the ??? Abolition Act specifically refers to ??? Amending Act of 1947 as such, shows that the legislative intent was to treat it as ??? independent Act and not as a provision ??? the Tenancy Act or as introducing any provision therein. Relying on re decision of the Supreme Court in ??? v. District Magistrate, Thana A.I.R 1952 S.C 324. it as urged that an Act after its amendment mains and is identified as the Principal Act. The Amending Act is not referred independently. In paragraph 7 the Supreme Court held that according to the ??? canons of construction, the rule that when a subsequent Act amends an ??? one in such a way as to incorporate self, or a part of itself, into the earlier, ??? the earlier Act must thereafter be ad and construed as if the altered words id been written into the earlier Act with in and ink and the old words scored out that thereafter there is no need to refer the Amending Act at all. A perusal of paragraph 7 of the Supreme Court decisions shows that this rule applies except ??? that would lead to a repugnancy, consistency or absurdity.

16. In our opinion, the exception ??? to the present case. It has been ??? that Sec. 27 of the Amending Act of 47 operated as a proviso to several sections the Principal Act. Instead of making ??? same detailed provision in Secs. 165, ??? and 180 of the Tenancy Act separately, ??? Legislature though it better to make single separate provision to cover all ??? sections. Since the provisions of Sec. 27 were not bodily incorporated in some existing provisions of the Principal Act but they were to act only as a proviso thereto, the Zamindari Abolition Act had to refer to the Amending Act specially when it conferred rights on persons reinstated under clause (c) of Sec. 27(1) alone. This was necessary in order to identify the persons upon whom right were to be conferred. It was a matter of form. It did not affect the pith and substance of the Amending Act of 1947.

17. The next question for consideration relates to the rights acquired by the parties under the Zamindari Abolition Act. The acquisition of rights under the Zamindari Abolition Act would depend upon the effect of the reinstatement ordered under Sec. 27 of the Amending Act of 1947. Under sub-sec. (3) of Sec. 27 the Court is to order that the applicant be reinstated in such holding and that any other person in possession of it be ejected therefrom. Its proviso states that if such holding be in the possession of any person to whom the landholder had let it out before the 1st day of September, 1946, the Court, instead of ordering the ejectment of such person, shall, notwithstanding the provisions of any law for the time being in force, declare him to be the sub-tenant of the applicant. The person so declared as sub-tenant shall not be liable to ejectment until after the expiry of three years from the date of the declaration. Sub-sec. (5) of Sec. 27 provides:—

“On reinstatement, their 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-sec. (3)”.

18. The effect of reinstatement is nullification of the operation of the decree for ejectment of the applicant. The rights and liabilities of the applicant existing on the date of his ejectment revive. They are not conferred afresh. On reinstatement the original hereditary tenant becomes the hereditary tenant of the holding, with the same rights and liabilities.

19. Corpus Juris Secundum, Vol. 77, page 362 defines “revive” to mean:

“to bring again to life, to reanimate, to renew, to bring into action after a suspension; to restore or bring again to life; to bring hick to life an object which has become moribund……….”

20. This suggests that a revived right or obligation had till then remained in a state of suspenion and became active or reanimate on revival. The original rights and liabilities of the applicant continued to remain in existence, though in a state of suspension. This coupled with the fact that the effect of the decree for ejectment was nullified, suggests that in the eye of law the applicant remained a tenant during the period between his ejectment and reinstatement, but since he was out of possession he could not actively exercise his rights or be subject to his liabilities.

21. It is settled that a zamindar cannot lawfully superimpose a person as a tenant on the holding of an existing tenant. With the revival of the tenancy rights of the applicant, the position in law would be that the person who was inducted on the holding by the zamindari after the ejectment of the original tenant, would no longer be entitled to the rights or status of a herediatary tenant. Even if initially rights as herediatary tenant accrued in favour of such induct person, they will stand nullified by the order of reinstatement. Two persons cannot at the same time be validly herediatary tenants of a holding. When sub-sec. (5) of Sec. 27 provides for the revival of the rights of the original tenant, its necessary consequence and effect is the nullification of whatever rights may have initially accured to the subsequently inducted person. The nullification is co-existensive with the revival. Since the pre-existing rights and liabilities of the original tenant revive, their revival can be effective only if the nullification of the rights and obligations of the subsequently inducted tenant is co-extensive in duration. The subsequently inducted tenant could not hence validly say that he was ever the hereditary tenant of the holding.

22. So, even if the subsequently ??? person may have been a ??? on the date preceding the date ??? vesting, namely 30th June, 1952, yet ??? effect of the order of reinstatement ??? subsequent to that date is retrospect nullification of those rights; with the ??? suit that such a person cannot be them to be hereditary tenant on 30th June 1952. In this view, such a person can claim to have become a sirdar under sec. 19 of the Zamindari Abolition Act on ??? footing that he was a hereditary ??? of the holding on 30-6-1952.

23. Sec. 19 of the Zamindari ??? Act confers sirdari rights, on inter alia, hereditary tenants who held ??? holding or were deemed to hold it as ??? on 30th June, 1952. The effect of ??? order of reinstatement is that the ??? will be deemed to have held ??? holding as a hereditary tenant on 30 June, 1952. The reinstated tenant be comes a sirdar under Sec. 19 of the Zamidari Abolition Act.

24. The question then arises as the status of the subsequently inducts person. It has been seen that his star as a hereditary tenant is nullified by ??? order of reinstatement. Under the ??? to Sec. 27(3) the court is to declare ??? person as the sub-tenant of the ??? entitled to remain in possession for a ??? period of three years from the date of ??? declaration. The proviso does not ??? say that the declaration as a sub-??? is to be prospective. The only prospective provision is about exemption fro liability to ejectment for three years fro the date of the declaration. In our ???, the proviso ought to be read as having the effect of a retrospective ??? as a sub-tenant with a prospective ??? from ejectment for three year Read this way, the proviso has the ??? of not leaving a vacuum in regard to ??? rights of the inducted person, for ??? period between his induction and the ??? of the declaration as sub-tenant. ??? declaration as sub-tenant is effective ??? this prior period as well, with the ??? that for this intervening period the ??? remains the hereditary tenant, the ??? inducted person being his ib-tenant.

25. This construction is corroborated Sec. 20 of the Zamindari Abolition Act. Under Sec. 20(a)(ii) a sub-tenant ??? an adhivasi: but there is an express ??? of a sub-tenant referred to in ??? proviso to Sec. 27(3) of the Amending ct of 1947. A person declared to be a ib-tenant under the proviso does not ??? adhivasi rights. Similarly, such a sub-tenant does not acquire adhivasi rights under clause (b)(i) of Sec. 20, by virtue the express exclusion of such person by ib-sec. (2) of Sec. 20. This would show tat though such a person was recognised be a sub-tenant for a period prior to ??? order of reinstatement and declaration a sub-tenant, including the date ??? the date of vesting, yet he was not ??? adhivasi rights. The reason is that ??? a person was conferred ??? rights under clause (c) of Sec. 21 of the Zamindari Abolition Act. The subsequently ??? person becomes an ??? under Sec. 21 and hence is under a liability to ??? under Sec. 202 of the Zamindari ??? Act.

26. The view that on reinstatement re-existing rights revive retrospectively is ??? by a decision of a Bench in Sri Ram Pathak v. Board of Revenue 1956 A.L.J 343.. In lat case a trespasser mentioned in clause ??? of Sec. 27(1) was reinstated. After ??? a suit for his ejectment was gain filed. Previously the period of limitation for a suit under Sec. 180 of the tenancy Act for ejectment of a trespasser as three years. By Sec. 32 of Act 10 of 947 the period was reduced to two years. The Bench held that for the second suit or ejectment (filed after the commence-lent of Act 10 of 1947) the applicable period of limitation will be two years. It was also held that if the resinstated ??? had completed two years of ??? prior to his original ejectment, he could be entitled to retain possession after ??? and will not be liable to ejectment again. But if he had not completed two years at that time, the second suit for ejectment will succeed. This shows that the period of possession prior to the original ejectment was liable to be recognised and was a material circumstance for deciding the rights in the second suit for ejectment. After completion of two years, a trespasser became a hereditary tenant under Sec. 180(2), U.P Tenancy Act. The effect of the reduction in the period of limitation was retrospectively made applicable to the possession of the trespasser prior to the commencement of Act 10 of 1917, as a result of the retrospective operation of the order of reinstatement. The decision in Sri Ram Pathak's case was upheld by a Full Bench in Kedar Nath v. Jamuna 1964 A.L.J 442..

27. Assuming, however, that the correct legal position is that the person declared to be a sub-tenant under the proviso aforesaid becomes a sub-tenant only from the date of the declaration, the result will be that such a person will not acquire asami rights in cases where the declaration is made after the date of vesting; because Sec. 21 confers asami rights on persons who were sub-tenants on the date preceding the date of vesting, namely on 30th June, 1952. In that event the appellants did not become asamis. They did not acquire any other status under the Zamindari Abolition Act; their only right was to remain in possession for three years under the proviso to Sec. 27(3) of the Amending Act of 1947. Thereafter they had no immunity from ejectment. Their right to remain in possession as sub-tenants having extinguished on the expiry of three years, their possession thereafter would be as trespassers. A trespasser is liable to be ejected under Sec. 209 of the Zamindari Abolition Act.

28. A suit under Sec. 209 lies in the same court as a suit under S. 202. It is true that the present proceedings arise out of the suit for ejectment under Sec. 202. But the jurisdiction of the court does not depend upon the label given to a suit for ejectment. If in its pith and substance the suit is within the competence of a court, the court can entertain and decide it. It is thus clear that even on this line of reasoning the appellants cannot gain immunity from ejectment.

29. It was urged that the subsequently inducted tenant being a hereditary tenant till the passing of the order of reinstatement, he in fact as well as in the eye of law, was a hereditary tenant on the date proceeding the date of vesting mentioned in sec. 19 of the Zamindari Abolition Act, in those cases where the order of reinstatement is passed after the date. Under Sec. 19 he acquired sirdari rights. Having acquired rights of sirdar he can lose them only in the contingencies mentioned in Sec. 190 of the Zamindari Abolition Act, which provides for the extinguishment of sirdari rights. The effect of the reinstatement order is not mentioned in Sec. 190 as operating to extinguish sirdari rights. The submission is plausible in so far as it goes.

30. Sec. 342 of the Zamindari Abolition Act confers upon the State Government power to issue orders to remove difficulties. Under clause (a) thereof the State Government can by order direct that this Act shall have effect subject to such adaptations and modifications as may be mentioned in it. The Removal of Difficulties order 1952, provided that pending proceedings shall continue to be decided in terms of the repealed U.P Tenancy Act or the land Revenue Act as the case may be. The result was that those proceedings were liable to be decided unaffected by the provisions of the Zamindari Abolition Act. If in a pending proceeding there is a dispute as to who was the herediatary tenant, the effect of such proceeding continuing and being decided unaffected by the Zamindari Abolition Act necessarily is that the decision reached in that proceeding will prevail and the rights under the Zamindari Abolition Act will accrue on the basis of and inaccordance with such decision. The effect of Sec. 342, Zamindari Abolition Act read with the Removal of difficulties Order and the order of reinstatement, would be the ??? creation or nullification of ??? rights of the parties on the date ??? the date of vesting. Sirdari rights uncle Sec. 19 of the Zamindari Abolition ??? would accrue in favour of the person ??? is held to be the hereditary tenant ??? such proceedings. The declaration rights having retrospective effect, the person declared to be entitled to ??? as a hereditary tenant will be been ed to be the hereditary tenant on the date preceding the date of vesting, the subsequently inducted tenant being ??? only a sub-tenant. Sec. 342 acts as proviso or an exception to Sec. 190.

31. It was also submitted that if the Zamindari Abolition Act intended to ??? rights on reinstated tenants ??? in clauses (a) and (b) of Sec. 27(1) of the Amending Act of 1947, then the would have been as clear and specific provision in regard to them, as the ??? made for ejected persons for who reinstatement was provided by clause Sec. of Sec. 27(1) aforesaid. There is an ??? fallacy in this submission. Claus (a) and (b) of Sec. 27(1) deal with ??? ejected under Secs. 165 and 171 of the U.P Tenancy Act. They apply, inter alia, to hereditary tenants. But clause (c) refers to a particular class of trespasser; namely those who were recorded as ??? pants on 1st January, 1938, in a revise or corrected record. Such persons ??? not recognised by the Tenancy Act a having any rights as a tenure-holder. ??? sec. (5) of Sec. 27 provided for revival ??? the rights and liabilities. On reinstate ??? the applicant gets the same right and liabilities which he had on the dat of ejectment. A trespasser had no rights. He was liable to ejectment under Sec. 18 as a trespasser. Since such a person do not get any right to the holding in spit of reinstatement, it was necessary to ??? rights on him. That is why he has been specifically mentioned in clause (1) of Sec. 16 of the Zamindari Abolition Act Under it he becomes sirdar if he was re instated to land to which Sec. 16 ??? and was in possession. He gets adhivasi ??? under Sec. 20(b)(i) if he was ??? as an occupant in 1356 Fasli. Since ??? mentioned in clause (a) and (b) Sec. 27(1) of the Amending Act ached tenancy rights on reinstatement, it ??? not necessary to provide for them ??? under the Zamindari Abolition ??? As recognised tenants, they acquired ??? under Secs. 18 and 19. The ??? while enacting the Zamindari ??? Act made it clear that a trespasser ??? was recorded as an occupant on 1-1-??? would not get any rights under the ??? Abolition Act even if he is related, in those cases where he is ??? land which constituted a part of the ??? of a tenure-holder mentioned in explanation to Sec. 16. This ???, however, does not apply to sub-??? inducted tenant, because on ??? of a trespasser mentioned in use (c) the subsequently inducted tent, if any, becomes a sub-tenant and ??? explanation to Sec. 16 does not refer land included in the holding of a sub-???. Since on the reinstatement of:h a trespasser the subsequently inducted ??? became a sub-tenant, it was all the re necessary to expressly confer rights such reinstated trespasser, because other-??? the rights of the sub-tenant would ??? prevailed over a trespasser. This nation could not arise between a restated tenant and a person declared to a sub-tenant.

32. On these considerations, the decision in Gopal Narain v. Kanchan Lal ??? to us to lay down the law correct. In our opinion, Bhagmal became a ???. The appellants acquired the status sub-tenants. They were liable to ejectment on the expiry of three years from the to of the order of reinstatement. The plication for reinstatement was rightly allowed. The suit for ejectment under sec. 202, Zamindari Abolition Act, was ??? decreed.

33. In the result, both the appeals ??? and are accordingly dismissed with ???.

Appeals dismissed.