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PETITIONER: BHINKA AND OTHERS

       Vs.

RESPONDENT: CHARAN SINGH

DATE OF JUDGMENT: 24/04/1959

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAS, S.K. SARKAR, A.K.

CITATION:  1959 AIR  960            1959 SCR  Supl. (2) 798  CITATOR INFO :  R          1964 SC 136  (11)  R          1965 SC 364  (238)  R          1982 SC 149  (1094)  R          1984 SC1471  (62)  RF         1991 SC2072  (17,19)

ACT: Agricultural Tenancy-Jurisdiction of Revenue Court-Suit  for ejectment of Person in occupation without  title-Provisional order  of  Magistrate  regarding  possession,  if  a  proper defence-U.   P.  Tenancy Act, 1939 (U.  P. 17 Of  1939),  s. 180-Code of Criminal Procedure (V of 1898), s. 145.

HEADNOTE: These appeals arose out of suits for ejectment instituted in the  Revenue  Court by the respondent Zamindar  against  the appellants  under s. 180 of the U. P. Tenancy Act, 1939  (U. P.  I7 Of 1939).  His case was that the lands in  suit  were his  sir lands and the appellants trespassed on the same  on the basis of a wrong order of the Criminal Court.  The  case of the appellants was that they were admitted as  hereditary tenants by the respondents.  There was a previous proceeding under  s. I45 of the Code of Criminal Procedure between  the parties  and  the  Magistrate  found  possession  with   the appellants   and  directed  that  they  should   remain   in possession till evicted by due process of law.  The  Revenue Court  which tried the suits found that the lands  were  sir lands  of  the  respondent  and  the  appellants  were   not hereditary  tenants  and did not take  possession  with  the consent  of the respondent.  The Additional Commissioner  on appeal  and  the Board of Revenue on second  appeal,  agreed with  these findings of the Revenue Court and dismissed  the appeals.   The  Board negatived the plea of  the  appellants that  the  suits  were not triable  by  the  Revenue  Court. Section 180 of the U. P. Tenancy Act, 1939, provides that  a person  taking or retaining possession of land  without  the consent of the person entitled to admit him into  occupation and otherwise than in accordance with the provisions of  law for  the  time being in force will be  liable  to  enactment thereunder.  In view of the finding of the courts below that the appellants had not taken possession with the consent  of

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the  respondent,  the question was whether they  did  so  by virtue Of s. I45 of the Code of Criminal Procedure. Held, that the provisions of s. I45 of the Code of  Criminal Procedure  authorised  the Magistrate only  to  declare  the actual possession of a party on a specified date and not  to give possession or permit any party to take possession.   He had no power under that section to decide questions of title or  right  to  possession which a civil  court  alone  could decide. The  words " taking " and " retaining " were used by s.  180 of  the  Act  in an independent and  exclusive  sense.   The former  referred to taking of possession illegally  and  the latter  to  taking  of  possession  legally  but  subsequent retaining  of  it illegally.  Consequently,  the  appellants whose possession had been found 799 to be illegal from the very inception, could not be said  to retain  possession legally so as to be outside the scope  of the section. It  was also clear that possession in accordance  with  law, such  as  was  contemplated  by s. 180  of  the  Act,  meant possession with lawful title.  The provisional Order of  the Magistrate with regard to possession, irrespective of lawful rights  of  the parties, could not,  therefore,  enable  the appellants to resist the suit under. s. 180 of the Act. Dinomoni Chowdhrani v. Barojo Mohini Chowdhyani, (1901) L.R. 29 I.A. 24, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION:’ Civil Appeals Nos. 78 to  83 of 1959. Appeals by special leave from the judgment and orders  dated July  28,  1954,  of the U. P. Board of  Revenue  in  Second Appeals Nos. 430-435 of 1953-54, arising out of the judgment and  orders  dated  April  28, 1954, of  the  Court  of  the Additional Commissioner, Meerut Division, Meerut, in Appeals Nos.  455-460 of 1954 against the judgment and orders  dated March  16, 1954, of the Addl.  District Magistrate,  Meerut, in Cases Nos. 389-394 of 1950. B.   C. Misra, for the appellants. S.   N. Andley, J. B. Dadachanji and Rameshwar Nath, for the respondent. 1959.  April 24.  The Judgment of the Court was delivered by SUBBA RAO, J.-These six appeals, by special leave were filed against the judgment of the Board of Revenue dated July  28, 1954. The respondent was a Zamindar of Gadhi, Baghu and Santokpore Villages  in  Uttar Pradesh.  He claimed  that  the  plaint- schedule  lands  were  his Sir.  The  appellants  set  up  a dispute  claiming that they were admitted by the  respondent as  hereditary tenants and that they were in  possession  of the  said lands.  As the dispute was likely to cause  breach of  the peace, the Sub-Divisional Magistrate, Baghpat,  took proceedings  under s. 145, Code of Criminal  Procedure,  and attached the disputed lands on October 8, 1948, and directed them  to  be placed in possession of a  superdgidar  pending disposal of those proceedings.  After 800 making  the necessary enquiry, by an order dated  March  20, 1950, he found that the appellants were in possession of the said  lands  and declared that they were entitled to  be  in possession thereof until evicted therefrom in due course  of law.

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On  June  30, 1950, the respondent filed six  suits  in  the Revenue  Court  (Additional Collector, Meerut)  against  the appellants under s. 180 of the U. P. Tenancy Act (U.  P.  17 of 1939), hereinafter called the Act, for evicting them from -the  said lands and for damages.  He alleged  therein  that the  disputed  lands  were  his  Sir  lands  and  that   the appellants  trespassed on the same on the basis of  a  wrong order of the Criminal Court.  The appellants pleaded,  inter alia,  that they had been admitted as hereditary tenants  by the respondent after receiving from them a sum of Rs. 40,000 towards  premium.   The suits were  consolidated,  but  were stayed  on  August 14, 1951, under r. 4 of  the  Rules  made under the U. P. Ordinance No. III of 1951.  On September 22, 1952, on an application made by the respondent, the  Revenue Court  ordered  under r. 5 for restarting the trial  of  the suits.  After the said order, the Revenue Court  transferred the  suits  to the Civil Court for retrial,  but  the  first Additional  Munsif,  Ghaziabad,  to  whom  the  suits   were transferred,  held that the said suits were triable only  by the Revenue Court and retransferred the same to that  Court. The  Additional Collector, Meerut, held, on  evidence,  that the said lands were Sir and Khud kasht of the respondent and that the appellants were not admitted thereto as  hereditary tenants.   The appellants preferred six appeals against  the decrees of the Additional Collector in the six suits to  the Court  of  the  Commissioner  at  Meerut.   The   Additional Commissioner,  who heard the appeals, held that one  of  the appeals  filed by the legal representatives of  Jahana,  the plaintiff  in the suit which gave rise to that  appeal,  had not  been  properly  presented  on  the  ground  that   Shri Brahmanand  Sharma,  Vakil,  did not file in  the  suit  any vakalat  given  to him by the legal representatives  of  the deceased  and therefore the appeal had abated, and  that  as all the suits were consolidated with the 801 consent  of  the parties, the decision in  the  suit  became final and operated as res judicata in the other appeals.  On the  merits, he agreed with the trial Court in holding  that the  lands in dispute were Sir and that the appellants  were not   hereditary   tenants.   Thereafter,   the   appellants preferred  six second appeals against the said order of  the Additional   Commissioner  to  the  Board  of   Revenue   at Allahabad.   The Board of Revenue accepted the  findings  of the two Courts, and also it negatived the plea raised by the appellants  for the first time to the effect that the  suits were not maintainable in the Revenue Court.  In the  result, the appeals were dismissed.  The present appeals were  filed against the order of the Board of Revenue. The learned Counsel for the appellants raised before us  the following   contentions:  (1)  The  appeal  by   the   legal representatives   of  Jahana  against  the  order   of   the Additional Collector, Meerut, was properly presented to  the Court of the Commissioner; (2) assuming that the said appeal had  abated,  the decision of the  Additional  Collector  in the suit giving rise to the said appeal would not operate as res judicata in the connected appeals; (3) the Revenue Court had no jurisdiction to try the suits ; (4) as the suits  had been  stayed  under r. 4 of the Rules made under the  U.  P. Zamindari Abolition and Land Reforms Act, 1950,  hereinafter called  the Rules, they had abated under r. 5 of  ’the  said Rules;  (5)  the  finding on issue  one,  namely,  that  the appellants  were  not hereditary tenants,  was  vitiated  by errors of law ; and (6) the finding on issue two, namely, to what  damages,  if  any,  was  the  plaintiff  entitled  was contrary  to law inasmuch as the Additional  Collector  gave

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damages  though neither the witnesses deposed to it nor  the Advocate advanced any argument thereon. The  first  two contentions need not detain us.  As  we  are rejecting  the  contentions of the learned Counsel  for  the appellants  on all the other points, the correctness of  the decision  of the Revenue Board on the said two points  would not affect the result of the appeals.  We do not, therefore, propose to express our opinion thereon. 101 802 We  shall take the fifth contention next.   That  contention raises  the question whether the appellants were  hereditary tenants  of  the  disputed lands.   The  three  Courts  have concurrently held on a consideration of oral and documentary evidence that they were not hereditary tenants.  The learned Counsel  for  the appellants made an attempt to  reopen  the said  finding  by  contending that it was  vitiated  by  the following  errors of law: (i) Though the appellants filed  a certified copy of the khatauni of 1355 fasli, the Courts did not  draw the presumption, which they were bound to  do,  to the  effect  that  the said certified  copy  was  a  genuine document and that the person who purported to have signed it had held the official character which he claimed to hold  in the  said document; (ii) as the Magistrate made an order  in favour  of  the  appellants  under s. 145  of  the  Code  of Criminal Procedure, the Courts should have thrown the burden of  proof  on the respondent; (iii)  the  material  evidence adduced on the side of the appellants was ignored; (iv)  the Courts   applied  different  standards  of  proof   to   the appellants  and  the respondent in regard to  the  certified copies of khatauni and khasra prepared by the same  patwari, Ahmed  Ali;  and  (v) the Courts  also  ignored  the  rights accrued to the appellants and ss: 10, 16 and 20 of the U. P. Tenancy   Act.    For  convenience  of  reference   and   to distinguish  the  alleged  errors  of  law  from  the   main contentions, we shall refer to the former as points. The first point, in the manner presented before us, does not appear  to  have  been raised in any of  the  three  Courts. Section 79 of the Evidence Act reads: "  The  Court  shall presume to be  genuine  every  document purporting  to  be a certificate.......... which is  by  law declared  to  be admissible as evidence  of  any  particular fact, and which purports to be duly certified by any officer -of    the    Central    Government   or    of    a    State Government................................................ Provided that such document is substantially in the form and purports  to  be executed in the manner directed by  law  in that behalf. The  Court shall also presume that any officer by  whom  any such document purports to be signed or 803 certified,  held, when he signed it, the official  character which he claims in such paper ". Under this section a Court is bound to draw the  presumption that a certified copy of a document is genuine and also that the  officer  signed it in the official character  which  he claimed  in  the said document.  But such a  presumption  is permissible only if the, certified copy is substantially  in the form and purported to be executed in the manner provided by law in that behalf.  Section 4 of the Evidence Act  indi- cates  the limits of such a presumption.  The relevant  part of that section reads: "  Whenever it is directed by this Act that the Court  shall presume a fact, it shall regard such fact as proved,  unless and until it is disproved ".

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To  put  it differently, if a certified  copy  was  executed substantially in the form and in the manner provided by law, the  Court raises a rebuttable presumption in regard to  its genuineness.   The khatauni of 1355 fasli with which we  are concerned,  gives the relevant details and purports to  have been  signed by Ahmed Ali, the patwari of the  village.   It cannot be disputed that the patwari was an officer appointed by the State Government and that he was authorized to  issue certified  copies of the record of rights.  The U.  P.  Land Records Manual gives the rules prescribing the form and  the manner  in which a certified. copy of the record  of  rights should  be issued.  Paragraph 26 of the Manual confers  upon him  the  power to give to the applicants  certified  copies from his record; and tinder el. (d) of the said paragraph he should  enter  in  his diary a note of  such  extracts.   He should  also note the amount of fee realised by him  in  the diary  as well as on the extract.  In this case neither  the diary  was produced to prove that the  procedure  prescribed was  followed nor the extract to disclose that  the  officer made  any  note of payment.  It cannot, therefore,  be  said that  the  certified  copy  was issued  by  the  patwari  in substantial compliance with the provisions of law  governing such  issue.  If so, it follows that the Court is not  bound to draw the presumption in regard to its genuineness. 804 That  apart,  a  Court is bound to draw  only  a  rebuttable presumption in regard to its genuineness.  In this case  the three Courts rejected the document on the ground that it was not  genuine on the basis of not only the internal  evidence furnished by the document but also on other evidence.   They have  given  -convincing reasons for doing so, and  even  if there was any rebuttable presumption, it was rebutted in the present case. Nor  is  there any merit in the second  point  either.   The order of the Magistrate under s. 145 of the Code of Criminal Procedure  may,  at best, throw the burden of proof  on  the plaintiff  ; but in the present case the question of  burden of  proof  is not material, for the findings  of  the  three Courts  were  arrived at on a consideration  of  the  entire evidence.   Though  the learned Counsel says  that  material evidence  has  been ignored by the Courts, he has  not  been able  to  point out what evidence has  been  excluded.   The Courts  have  considered the entire evidence  placed  before them  and the findings were based on an appreciation of  the said  evidence.   We  are  also  unable  to  appreciate  the contention  that  different  standards of  proof  have  been applied  by the Courts in respect of the different  parties. This  argument  is based upon the fact that  the  Additional Commissioner,  while  rejecting the certified  copy  of  the khatauni  of 1355 fasli filed by the appellant, relied  upon the  certified copy of khasra dated June 28, 1948, filed  by the respondent, though both of them were issued by the  same patwari,  Ahmed Ali.  We do not see any incongruity  in  the action  of  the Additional Commissioner.   He  rejected  the former  as,  for  other reasons, he held  that  it  was  not genuine,  and he relied upon the latter as he  accepted  its genuineness.   The last of the points has not been  made  in any of the Courts below and indeed it does not arise on  the finding  that the appellants are not tenants.  Sections  10, 16  and  20  of the U. P. Tenancy Act  presuppose  that  the person  claiming rights thereunder is a tenant, and, on  the finding  that  the appellants are not tenants, there  is  no scope for invoking the said provisions.  Presumably for that very reason, 805

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no question on the basis of those sections was raised in the Courts below.  The concurrent finding of the three Courts to the effect that the appellants are not hereditary tenants is essentially one of fact and is not vitiated by any error  of law.   Following the usual practice of this Court,  we  must accept the finding. The  sixth  contention,  in our view, is  not  open  to  the appellants  at  this stage.  The Additional  Collector  gave damages  though he noticed the fact that no witness  deposed in  regard to damages and though the.  respondent’s  Counsel did not argue on that point.  Notwithstanding the said fact, he  gave  damages  on the basis of the annual  rent  of  the holdings.  The correctness of this finding was not canvassed either  in  the  first  appellate Court  or  in  the  second appellate  Court;  nor does the statement of case  filed  in this  Court  disclose any grievance on that score.   In  the circumstances,  we  do  not  feel  justified  to  allow  the appellants to raise that plea in this Court. We may now advert to the main and substantial contention  of the  appellants, namely that the suits are not  maintainable in   a  Revenue  Court.   This  question  turns   upon   the interpretation  of  s. 180 of the Act.  Before  reading  the section, it would be convenient and useful to notice briefly the scheme of the Act relevant to the question raised.   The Act,  as the preamble shows, was passed to  consolidate  and amend   the   laws  relating   to   Agricultural   tenancies (proprietary  cultivation).  It regulates  the  relationship between  the  landlords and the tenants in  respect  of  the agricultural holdings.  It confers exclusive jurisdiction on Revenue  Courts  in respect of rights inter se  between  the landlord  -and  the  tenant.  It also  reconciles  the  con- flicting jurisdictions of Revenue and Civil Courts.  Briefly stated,  all disputes between a landlord and his  tenant  in respect  of tenancy are exclusively made triable by  Revenue Courts and all disputes in respect of proprietary rights are left  to the decision of Civil Courts.  Incidentally,  if  a question  exclusively falling within the jurisdiction  of  a Revenue  Court arises in a suit in a Civil Court, that  suit is  stayed and the relevant issue is submitted for  decision of the Revenue. 806 Court.  So too, if a question of proprietary right arises in a proceeding before a Revenue Court, that issue is submitted for  the  decision  of  a  Civil  Court.   Jurisdiction   is expressly  conferred on Revenue Courts to  entertain,  among others,  suits for ejectment under certain circumstances  on specified  grounds.   Section 180 of the Act is one  of  the fasciculus of sections dealing with ejectment.  Sections 155 to  179 provide for suits for ejectment against  tenants  on specified grounds.  Then comes s. 180, the material part  of which reads: " (1).  A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to  occupy such plot and otherwise than in  accordance  with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to  four  times  the  annual  rental  value  calculated   in accordance   with   the  sanctioned  rates   applicable   to hereditary tenants. - Explanation II.-- A tenant entitled to sublet a lot of  land in  accordance with the provisions of the law for  the  time being  in  force  may maintain a  suit  under  this  section against  the person taking or retaining possession  of  such plot otherwise than in the circumstances for which provision

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is made in section 183. (2)  If  no  suit  is brought under this section,  or  if  a person    in possession shall become a hereditary tenant  of such plot, or if such person is a co-sharer, he shall become a   khudkasht-holder,  on  the  expiry  of  the  period   of limitation prescribed for such suit or for the execution  of such decree, as the case may be." Section  242 says that suits of the nature specified in  the fourth  schedule  shall be heard and determined  by  Revenue Courts.    Schedule   4,  Group  B,  gives   succintly   the description  of the suits and the periods of limitation  and the  court-fee payable thereon.  Serial No. 8 relates  to  a suit under s. 180 of the Act.  Against that 807 serial  number, the nature of the suit is described  in  the following terms: " For the ejectment of a person occupying land without title and for damages." The period of limitation for instituting such a suit is also prescribed thereunder. Under s. 180 of the Act, a person entitled to admit  another to  a  plot of land can file a suit in a  Revenue  Court  to eject  him.   The  latter can defend the suit  only  on  two grounds,  namely,  (1)  that  he  has  taken  possession  or retained possession of the said plot with the consent of the former;  and  (2)  that  he  took  possession  or   retained possession in accordance with the provisions of law for  the time  being  in force.  If no suit was brought  against  the occupier  or  if  the decree obtained against  him  was  not executed,  he  would become a hereditary  tenant  after  the period  of limitation prescribed in the fourth  Schedule  to the  Act.   On  the  findings  of  the  Courts  below,   the appellants  did  not take possession of the lands  with  the consent  of  the respondent, but it is said  that  they  had taken  possession  of  the  lands  in  accordance  with  the provisions  of  the  law for the time being  in  force.   To substantiate this contention, reliance is placed firstly  on the   recitals  in  the  plaints,  and,  secondly,  on   the provisions of s. 145 of the Code of Criminal Procedure.   In the  plaints  it  was stated that  the  Criminal  Court  had declared  on March 20, 1950, the appellants’ possession  for some reason, and after the order of the said Court, they had forcibly  reaped  the crops raised by the  respondent.   The cause of action was alleged to have accrued after March  20, 1950,  or near about the date of their taking possession  of the  said  lands.   The allegations in the  plaints  do  not support  the appellants.  The respondent did not admit  that possession  was taken in execution of the order made by  the Magistrate; but lie averred that taking advantage of a wrong order declaring the appellants’ possession, they  trespassed upon  his  lands’  If the  allegations-were  assumed  to  be correct,   the  appellants  did  not  take   possession   in accordance with the provisions of the law for the time being in force. 808 Can  it be said that the appellants had taken possession  in accordance  with  the provisions of s. 145 of  the  Code  of Criminal Procedure ? The short answer is that s. 145 of  the said Code does not confer on a Magistrate any power to  make an-order  directing the delivery of possession to  a  person who  is  not. in possession on the date of  the  preliminary order  made  by him under s. 145(1) of the Code.   Under  s. 145(1)  of  the Code, his jurisdiction is confined  only  to decide whether any and which of the parties was on the  date of  the preliminary order in possession of the land in  dis-

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pute.   The order only declares the actual possession  of  a party  on  a  specified date and does not  purport  to  give possession  or  authorise any party to  take  possession   . Even  in  the case of ’any party who has been  forcibly  and wrongfully  dispossessed within two months next  before  the date  of  the  preliminary order,  the  Magistrate  is  only authorised to treat that party who is dispossessed as if lie had  been in possession on such date.  If that be the  legal position, the appellants could not have taken possession  of the  disputed  lands by virtue of an order  made  under  the provisions  of  s. 145 of the Code  of  Criminal  Procedure. They  were either in possession or not in possession of  the said  lands on the specified date, and, if they were not  in possession on that date, their subsequent taking  possession thereof could not have been under the provisions of the Code of Criminal Procedure. If  the appellants did not take possession of  the  disputed lands, did they retain possession of the same in  accordance with the provisions of the law for the time being in force ? The  dichotomy between taking and retaining  indicates  that they  are  mutually  exclusive and apply  to  two  different situations.  The word " taking " applies to a person  taking possession  of a land otherwise than in accordance with  the provisions  of the law, while, the word " retaining "  to  a person  taking possession in accordance with the  provisions of  the law but subsequently retaining the  same  illegally. So construed, the appellants’ possession of the lands  being illegal  from the inception, they could not be described  as persons retaining possession of the said 809 lands  in accordance with the provisions of any law for  the time being in force, so as to be outside the scope of s. 180 of the Act. But the contention may be negatived on a broader basis.  Can it  be said that the possession by virtue of an order  of  a Magistrate  under the provisions of s. 145 s of the Code  of Criminal Procedure is one in accordance with the  provisions of  the law for the time being in force ? It appears  to  us that  the words " possession in accordance with the law  for the  time  being  in force " in the context  can  only  mean possession with title.  The suit contemplated by the section is  one by a landlord against a person who has no  right  to possession.   The  preceding sections, as  we  have  already indicated,  provided  for evicting different  categories  of tenants on specified grounds.  Section 180 provides for  the eviction of a person who but for the eviction would become a hereditary  tenant  by efflux of the  prescribed  time.   If there  is any ambiguity-we find none-it is dispelled by  the heading given to the section and also the description of the nature of the suit given in the Schedule.  The heading reads thus: " Ejectment of person occupying land without Title ". " Maxwell On Interpretation of Statutes ", 10th Edn.,  gives the   scope   of  the  user  of  such  a  heading   in   the interpretation of a section thus, at p. 50 : "The  headings prefixed to sections or sets of  sections  in some  modern  statutes are regarded as  preambles  to  those sections.   They  cannot  control the  plain  words  of  the statute but they may explain ambiguous words." If there is any doubt in the interpretation of the words  in the section, the heading certainly helps us to resolve  that doubt.  Unless the person sought to be evicted has title  or right  to possession, it cannot be said that his  possession is in accordance with the provisions of the law for the time being  in force.  If so, the appellants must establish  that

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the  order of the Magistrate issued under the provisions  of s. 145 of the Code of 102 810 Criminal  Procedure  conferred a title or a  right  to  pos- session on them. This  leads us to the consideration of the legal  effect  of the order made by the Magistrate under s. 145 of the Code of Criminal  Procedure.   Under  s.  145(6)  of  the  Code,   a Magistrate is authorized to issue an order declaring a party to  be  entitled  to  possession of  a  land  until  evicted therefrom  in  due course of law.  The Magistrate  does  not purport to decide a party’s title or right to possession  of the land but expressly reserves that question to be  decided in due course of law.  The foundation of his jurisdiction is on  apprehension of the breach of the peace, and, with  that object,  he  makes  a temporary order  irrespective  of  the rights  of the parties, which will have to be  agitated  and disposed of in the manner provided by law.  The life of  the said order is conterminous with the passing of a decree by a Civil  Court and the moment a Civil Court makes an order  of eviction, it displaces the order of the Criminal Court.  The Privy  Council  in  Dinomoni  Chowdhrani  v.  Brojo   Mohini Chowdhrani (1) tersely states the effect of orders under  s. 145 of the Code of Criminal Procedure thus: "These  orders  are  merely police orders  made  to  prevent breaches   of  the  peace.   They  decide  no  question   of title..............." We, therefore, hold that a provisional order of a Magistrate in  regard to possession irrespective of the rights  of  the parties  cannot enable a person to resist the suit under  s. 180 of the Act. This leaves us with the fourth contention based upon the  U. P.   Zamindari  Abolition  and  Land  Reforms   Rules.    To appreciate  this  contention  some  relevant  facts  may  be -recapitulated.   On  August 14, 1951, the  six  suits  were stayed  in view of the U. P. Government  Notification  dated August  9,  1951, issued under Ordinance No.  III  of  1951. Thereafter  the suits continued to remain stayed under r.  4 of  the  said Rules.  The appellants  filed  an  application under  subrule (3) of r. 5 for restarting the trial  of  the suits,  and an order directing the restarting of  the  suits was  made by the Additional Collector, Meerut, on  September 22, (1)  (1901) L.R. 29 I.A. 24, 33. 811 1952.   The  appellants preferred a  revision  against  that order to the Board of Revenue.  It was contended before  the Board of Revenue that the suits had abated under cl. (v)  of r.  4 of the Rules, but the Board of Revenue rejected  their contention  on  the ground that the suits  fell  within  the exception to r. 5. It, may also be mentioned that the  rules were  amended  on October 8, 1952, i. e.,  after  the  order directing  the restarting of the proceedings.  On  the  said facts,  the  first question is whether r. 5 of  the  amended Rules  would apply to a case which was restarted  under  the provisions  of  the original Rules.  The following  are  the relevant  rules  from  the two sets of  Rules,  i.  e.,  the original Rules and the amended Rules: Original Rules as publish-         As amended on 8-10-1952. ed in Gazette dated 30-6-1952. 4.   Stay of certain suits and  proceedings.- All suits and proceedings whether of the first instance,  appeal

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or  revision  of  the nature  as  hereinafter  specified  in respect of the area for which a notification under section 4 has  been  issued  pending  in any  court  on  the  date  of vesting, ...shall be stayed: 4(v).    Suits,  applications  and   proceedings   including appeals,  references and revisions under section 180 of  the U. P. Tenancy Act, 1939. As amended on 8-10-1952. 4.   All   suits  and  proceedings  whether  of  the   first instance,  appeal or revision of the nature  as  hereinafter specified  in respect of the area for which  a  notification under  section  4 has been issued pending in any  court  for hearing  on  the date  of  vesting.......................... shall be stayed: 4(v).    Suits,  applications  and   proceedings   including appeals,  references and revisions under section 180 of  the U.  P. Tenancy Act, 1939, or of similar nature pending in  a civil court, except where the plaintiff is a tenant or where the land was the Sir, khudkhast or grove of an  intermediary and in which rights 812 5(1).   Disposal of suits and proceedings stayed under  rule 4(a)(1).-Every  suit  or  proceeding whether  of  the  first instance,  appeal  or revision stayed under clauses  (i)  to (iv) of rule 4 shall be abated by the court or the authority before  which it may be pending after notice to the  parties and giving them an opportunity to be heard. 5(2).   The abatement of any suit or proceeding  under  sub- rule  (1) shall not debar any person from  establishing  his right  in  a court of competent jurisdiction  in  accordance with  the law for the time being in force in respect of  any matter in issue in such suit or proceeding. 5(3).  Where a suit has been stayed under clause (v) of rule 4 any party to the suit may within six months from the  date of  vesting  apply  to the court concerned  to  restart  the issue. have  not accrued’ to the defendant under section 16 or  any other  section  of  the U.P. Zamindari  Abolition  and  Land Reforms Act, 1950. 5(1).  Disposal of suits and proceedings stayed under rule 4 (a)(1):  Every  suit or proceeding, whether pending  in  the court  of  first instance, or in appeal or  revision  stayed under clauses (i) to (v) of rule 4, shall together with  the appeals  or revision, if any, be abated by the court or  the authority before which it may be pending after notice to the parties and giving them an opportunity to be heard. 5(2).   The abatement of any suit or proceeding  under  sub- rule  (1) shall not debar any person from  establishing  his right  in  a court of competent jurisdiction  in  accordance with  the law for the time being in force in respect of  any matter in issue in such suit or proceeding. 813 From a comparative study of the aforesaid rules, it will  be seen  that there are two fundamental differences B  relevant to the present enquiry, namely, (i) while under the original Rules,  all suits under s. 180 of the Act are stayed,  under the corresponding rules of the amended Rules an exception is made  in the case of lands which are Sir, Khudkast or  grove of  an intermediary in which rights have not accrued to  the defendant  under  s. 16 or any other section of  the  U.  P. Zamindari  Abolition  and Land Reforms Act, 1950;  and  (ii) while  under  the original Rules, there is a  procedure  for restarting  a  suit  stayed under r. 4,  there  is  no  such procedure under the amended Rules.  In the present case, the suits  were restarted under the old Rules and thereafter  no

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stay order was made under the amended Rules.  The  position, therefore, is that there was neither a subsisting stay under the  old Rules nor any stay order made under the new  Rules. If  so,  r. 5 of the amended Rules cannot  be  invoked,  for under  that rule only a suit stayed under r. 4 (a)(i)  shall be abated thereunder.  We, therefore, hold that r. 5 of  the amended Rules cannot be invoked in the present case. That  apart, cl. (v) of sub-rule (2) of r. 4 of the  amended Rules does not in terms apply to a land which is Sir  unless rights have accrued to a person in possession thereof  under s. 16 or any other section of the U. P. Zamindari  Abolition and  Land Reforms Act, 1950.  On the findings arrived at  by the Courts, namely, that the appellants were trespassers  on the  Sir  land,  it cannot be disputed that  they  have  not acquired any rights under the aforesaid provisions.  As  the operation of r. 5 is conditioned by cl. (v) of sub-rule  (2) of  r.  4,  there  is  no  scope  for  invoking  the  former provisions unless cl. (v) of sub-rule (2) of r. 4 applies to a  given  case  and  also an order of  stay  has  been  made thereunder.  In this case, as the suit lands are found to be Sir lands and as the appellants have not acquired any of the rights  mentioned  in cl. (v) of sub-rule (2) of r.  4,  the said sub-rule cannot apply, and, therefore, r. 5 cannot also be invoked. Further, this contention was raised in the revision 814 petitions filed by the appellants to the Revenue Board,  and the  latter  by  its order dated  September  6,  1953,  held against them and that order has become final.  For the  said reasons,  we  must hold that the suits could not  be  abated under r. 5 of the amended Rules. In  the  result,  the appeals fail and  are  dismissed  with costs. Appeals dismissed.