Case: Ganga Devi Vs. Ram Saran & Another

Hegde, J.1. These are appeals by special leave. The appellant Ganga Devi is the defendant in both these appeals. The suit was for partition. The genealogy of the family is as under :Lalta Prasad son of Bal Gobind and Rajinder Bahadur son of Ram Bharose were the co-owners of the suit property. On the death of Lalta Prasad on December 26, 1948, his widow Chhabili Kuer succeeded to his share. After the death of Lalta Prasad and Rajendra Bahadur, Chhabili Kuer and Ganga Devi were in possession of the suit properties as co-owners. They were the zamindars of the land. Their zamindari rights were abolished by U. P. Act 1 of 1951 (to be hereinafter referred to as the Act). Thereafter, the title to the suit properties vested in the State of U. P., but in view of Section 18 of that Act the persons who were in possession of the land which vested in the Government became bhumidhars. Prima facie Chhabili Kuer and Ganga Devi became co-bhumidhars, in view of Section 18 of the Act. After the death of Chhabili Kuer, Ganga Devi applied for change of mutation exclusively in her favour and the mutation was effected in her favour in March, 1951. The present suits were brought in 1958.2. The only contention taken before the Courts below as well as before the High Court was that the suits in question came within the scope of Section 209 of the Act and hence they were barred by limitation under the provision of the Act. The trial Court as well as the first appellate Court accepted that contention and dismissed the suit but the High Court differing from the view taken by those Courts decreed the plaintiffs suits for partition. The only question that arises for our decision at present is whether the aforementioned Section 209 as well as Section 210 of the Act are applicable to the facts of the present cases. If they are applicable the suits are admittedly barred by limitation. The marginal note to Section 209 speaks of ejectment of persons occupying land without title. That note indicates that Section deals with suits for ejectment of trespassers. The section reads :"209. Ejectment of persons occupying land without title. - (1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and -(a) Where the land forms part of the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar or asami.(b) Where the land does not form part of the holding of a bhumidhar, sirdar or asami without consent of Gaon Sabha, shall be liable to ejectment on the suit in cases referred to in Clause (a) above, of the bhumidhar, sirdar or asami concerned, and in cases referred to in clause (b) above, of the Gaon Sabha.........and shall also be liable to pay damages.(2) To every suit relating to a land referred to in Clause (a) of Sub-section (1) State Government shall be impleaded as a necessary party."Section 210 reads :"210. Failure to file suit under Section 209 or to execute decree obtained thereunder. - If a suit is not brought under Section 209 or a decree obtained in any such suit is not executed within the period of limitation provided for the filing of the suit or the execution of the decree, the person taking or retaining possession shall -(i) where the land forms part of the holding of a bhumidhar, or sirdar, become a sirdar thereof and the rights and interest of an asami, if any, on such land shall be extinguished.(ii) where the land forms part of the holding of an asami on behalf of the Gaon Sabha become an asami holding from year to year,(iii) in any case to which the provisions of Clause (b) of Section 209 apply, become a sirdar or asami holding from year to year as if he had been admitted to possession of the land by the Gaon Sabha."3. On a reading of these two sections, it is clear that they relate to suits for ejectment and not to suits for partition for which provision is made under Section 176 of the Act. For suits for ejectment under Section 209 a limitation of three years is prescribed. No period of limitation is prescribed under that Act for a suit for partition. The suits with which we are concerned are suits for partition. Therefore, neither Section 209 nor Section 210 is applicable to these suits. That was the conclusion reached by the High Court. We are entirely in agreement with that conclusion.4. In this Court an attempt was made by Mr. G. N. Dixit, learned counsel for the defendant, to show that the plaintiffs have no title to the suit property in view of Section 15 of the Act. No such contention appears to have been taken either in the pleading or before the trial Court or the appellate Court or the High Court. To decide that contention, it is necessary to decide certain questions of fact. Hence, we have not permitted him to take that contention.

Decision:
0[ds]y question that arises for our decision at present is whether the aforementioned Section 209 as well as Section 210 of the Act are applicable to the facts of the present cases.If they are applicable the suits are admittedly barred by limitation. The marginal note to Section 209 speaks of ejectment of persons occupying land without title. That note indicates that Section deals with suits for ejectment of trespassers.On a reading of these two sections, it is clear that they relate to suits for ejectment and not to suits for partition for which provision is made under Section 176 of the Act. For suits for ejectment under Section 209 a limitation of three years is prescribed. No period of limitation is prescribed under that Act for a suit for partition. The suits with which we are concerned are suits for partition. Therefore, neither Section 209 nor Section 210 is applicable to these suits. That was the conclusion reached by the High Court. We are entirely in agreement with that conclusion.4. In this Court an attempt was made by Mr. G. N. Dixit, learned counsel for the defendant, to show that the plaintiffs have no title to the suit property in view of Section 15 of the Act. No such contention appears to have been taken either in the pleading or before the trial Court or the appellate Court or the High Court. To decide that contention, it is necessary to decide certain questions of fact. Hence, we have not permitted him to take that contention.