N.B Lal, J.M:— This is an appeal against order, dated June 27, 1970, passed by Additional Commissioner, Lucknow, against judgment and decree, dated May 25, 1968, by Sri M.H Khan, Assistant Collector, First Class, Kheri in a suit under Section 209 of U.P.Z.A and L.R Act.
2. Plaintiff appellant Moti Lal Singh brought the suit for ejectment of the defendant respondent pleading that he was the Sirdar and that the defendant had entered into possession otherwise than in accordance with provisions of law and without his consent in the month of Jetha in 1966 A.D Contest was raised by the defendant alleging that the land in suit was not identifiable on spot that he had been in possession for 12 13 years and had acquired Sirda-i rights; that he had constructed a house and a well on this land and that the suit was not maintainable.
3. The trial court held that the defendant was not a trespasser and dismissed the suit. The learned Additional Commissioner, relying on a Panchnama Ex. D-1 has held that no title could pass to the defendant on basis of the document but it was evident that the possession was permissive and as such the suit was not maintainable under Section 209. The appeal was, therefore, dismissed.
4. The learned counsel for the appellant, placing reliance on 1967 R.D 8 urged that just as mortgage occupancy tenancy plots being void and the pos-session of the mortgagee being that of a licensee, the mortgagor, if he wanted to regain possession, could do so on ter-mination of licence, which could be by institution of a suit. Further, seeking reliance on 1989 R.D 200, he submitted that where the title in the plot was not transferred, and transference of possession to the transferee was intimately connected with transaction of loan whereunder the transferor had taken certain sum of money from the defendant, the transferor could not have legitimately required the defendant to restore possession, without having repaid the loan. Further he said that transferor could not have sued for possession on the ground that the defendant was a bare licensee whose licence was revocable at will because he was under an obligation, implicit in the transaction, entered into by htm with the defendant that he would not get back possession till he repaid the loan. As such the suit under Section 209, U.P ZA. and L.R Act was maintainable. Only the condition of fulfilling the obligation flowing from original transaction was necessary.
5. The learned counsel for the res pondents urged that letting out or use of Sirdari land in contravention of the provisions of the Act extinguished the rights of a Sirdar. A transferee is liable to: ejectment on a suit of Gaon Sabha under S. 167. He further stated that suit under Section 209 by the landholder was not maintainable. He placed reliance on 1966 R.D, 177 to urge that the mere act of letting out in contravention of the Act would not bring about by its own force the extinction of Sirdari right un less recourse were taken to provisions of Section 167 of the Act and a decree for ejectment were passed against a transferee or any person found in pos session on the suit of Gaon Samaj. Re ferring to 1965 R.D, 355 he urged that a licensee cannot be ejected as a tres passer under Section 209. He distin guished 1967 R.D 8 on the ground that it was in relation to occupancy tenancy which though was not legally transfer able but by practice such transactions in respect had been taking place.
6. It is admitted that both the courts below have held that the defen dant-respondent came into possession as a result of Panchnama Ex. D-1. The land admittedly was Sirdari and its transfer was in contravention of the Provisions of the Act. Ex. D-1, the Panchnama has rightly been rejected as a document of title in favour of the defendants because it was a document void ab initio and was not also registered but it has rightly been looked into to determine the nature of possession of the defendants. The possession as the recital in the Panchnama shows was permissive on payment of Rs. 275. The essential ingredient of Section 209 is that the defendant took or retained possession over land otherwise than in accordance with the provisions of law for the time being in force but he has also to prove that such a person was occupying without consent of the landholder. In the instant case, the plaintiff's Panchnama Ex. D-1 conclusively indicates that the possession was with his consent. The essential ingredient of Section 209 was, therefore, not made out. The distinction drawn by the learned counsel for the respondents in respect of 1967 R.D, 8 appears to be valid.
7. In view of the above discussions the appeal does not have force and is liable to be dismissed.
8. The appeal is dismissed with costs and counsel's fee of Rs. 40.
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