R.N Dey, J.M:— This is a defendant's appeal out of a suit under Section 180, U.P Tenancy Act. I have heard the learned counsels of both the parties. A preliminary contention of the learned counsel for Baliraj defendant-appellant is that as he was recorded occupant in the khasra of 1356F. and 1359F. he has acquired either the rights of a hereditary tenant under Section 16(II), Zamindari Abolition Act or the rights of an adhivasi under Section 20. The claim to the former rights was not pressed seriously by the counsel when it was pointed out that Section 16(II) requires entry in a record of rights prepared under clause ‘e’ of Section 32 of the Land Revenue Act and not in the khasra.
2. The claim of the defendant-appellant to have acquired ‘adhivasi’ rights under Section 20 requires detailed consideration. The Additional Commissioner allowed the plaintiff's appeal and decreed his suit on December 7, 1945.
3. In pursuance of this dakhaldehani was given to the plaintiff on January 2, 1946. The defendant had in the mean time filed his second appeal to the Board and on this stay order was passed on January 4, 1946. On receipt of the stay order the trial court redelivered possession to the defendant oh March 6, 1946.
4. The learned counsel for the plaintiff-respondents urged that even if it was supposed that the trial court acted within its jurisdiction in ordering redelivery of possession to the defendant, the possession that the defendant thus acquired and the consequent entry of his occupation in the khasra of 1356F. and his possession in 1359F. should be deemed to be on behalf of the court and, therefore, will not entitle him to the rights of “adhivasi”. In support of this view he has cited Tara Chand v. Parmeshwari ( 1953 R.D 171 (169?)) and Ram Deo Singh v. Ram Nihore Singh ( 1953 R.D 58). The former ruling clearly held that where a person is recorded as occupant in 1356F. because of possession acquired on the basis of a stay order issued by a court, his possession will be deemed to be on behalf of the court and will therefore, not qualify him for acquisition of the rights of an “adhivasi” under Section 20, I am in agreement with this ruling, mentioned above and, therefore, hold that even if the order of the trial court redelivering possession to the defendant is regarded as within jurisdiction, the entry in the khasra of 1356F. in favour of the defendant which was the result of the trial court's order does not qualify him for “adhivasi” rights under Section 20.
5. Actually, the learned counsel for the respondent has impugned and I think successfully, the order of the trial court redelivering possession to the appellant as being beyond jurisdiction. This has done on the basis of the ruling Motiya v. Ganga Singh ( 1953 R.D 161). According to this stay orders issued by the Board should be deemed to take effect not from the date they are passed but from the date such order are communicated to the court concerned. Against this the learned counsel for the appellant cited the views expressed in Raj Bahadur Singh v. Prithi Pal Singh ( 1941 R.D 795) and Abdul Majid Khan v. Rameshwar Prasad Singh ( 1947 R.D 232) I am in agreement with the latter ruling Motiya v. Ganga Singh ( 1953 R.D 161) which considered and for good reasons differed from the principles laid down in the earlier and contrary rulings. Thus in my opinion the proper course for the trial court on receipt of the stay order was not to recall its perfectly legal order giving “dakhal”, to the plaintiff and, but to submit a report to the Board that such an order had already been passed and ‘dakhal’ given to the plaintiff. The subsequent order of the trial court redelivering possession to the defendant being without jurisdiction, it must be treated as a nullity and the consequent entry in the khasra of 1356 in favour of defendant's possession which was the consequence of this illegal order must also be treated as a nullity.
6. As for the merits of the order passed by the learned Additional Commissioner decreeing the defendant's ejectment, the only point raised by the counsel for the appellant was regarding the plaintiff's suit being within limitation. His argument was that the report of the S.D.O to the effect that the file of the original plaint, instituted by the plaintiff, had been lost, was not proper evidence of this fact, since this report gave no inkling of the specific plots involved in the alleged previous plaint. Regarding this the counsel for the respondent has pointed out that the entries from the ‘misllbund register’ showed that the previous plaint had the same number of plots and the same area and, therefore, there can be no real doubt that the previous plaint was regarding the plots in suit. I agree with this view.
7. I, therefore, see no reason to interfere and the appeal is dismissed. In view of the peculiar circumstances I do not award costs in this court.
8. Appeal dismissed.
C.C.O No. 4856 for R.D