JUDGMENT Sinha, J.
1. This is a defendants' appeal and arises out of a suit for ejectment brought in the revenue Court. The facts are these : Plot No. 467 was divided into six plots, all placed in different mahals, under different zamindars. Plots Nos. 467/3, 467/4, and 467/6 constituted a grove and were recorded as such. The case of the plaintiffs was that these plots lost their character as groves and they were entitled to eject the defendants.
2. The defence was that the defendants were grove-holders. Proprietary rights were also claimed.
3. The issue of proprietary title was referred by the Revenue Officer to the civil Court, which returned a finding adverse to the defendant. It however found that the defendants were hereditary tenants within the meaning of Section 206, U.P. Tenancy Act, (17[xvii] of 1939).
4. On appeal, the learned Civil Judge held otherwise, but agreed with the finding of the Revenue Officer that the defendants did not possess proprietary title. He however, disagreed with him in his conclusion that Section 206 gave the defendants the rights of hereditary tenants. The defendants are before me in second appeal.
5. It might be mentioned that the suit was originally brought in the Revenue Court under Section 86, Agra Tenancy Act, (3[III] of 1926) and the defendants were described as non-occupancy tenants. The U.P. Tenancy Act of 1939 stepped in, during the pendency of the suit, and there was an amendment of the plaint. The defendants were treated as trespassers.
6. The learned Counsel for the appellant contends that, even though the defendants, once the land lost its character as a grove, became non-occupancy tenants under Section 197, Agra Tenancy Act (Act 3[in] of 1926), nevertheless, inasmuch as the actual ejectment has not so far taken place and they had been allowed to hold on to the land, the rights of the parties fall to be determined under the new Act and not under the Act of 1926.
7. The learned Counsel for the respondents, however, contends that, if the status of the defendants was that of non-occupancy tenants under the Act of 1926, nothing under the new Act can improve that status and confer new rights upon them.
8. I am of opinion that the contention of the learned Counsel for the appellants is right. If the object of the Act of 1939 was to consolidate and amend the law relating to agricultural tenancies, its effect must be to wipe out the previous Act. Indeed we are not left in any doubt on this point as Section 2 says:
The Agra Tenancy Act of 1926 is hereby repealed except in respect of areas to which this Act does not apply.
9. In other words, in the area to which the Act of 1939 applied, the Act of 1926 ceased to operate from and after 1-1-1940. The suit was no doubt, instituted on 24-9-1936, but the Act of 1939 came into force during its pendency. The plaintiffs themselves realised this difficulty and amended their plaint. They virtually claimed relief under Section 180 of the Act of 1939. It is not necessary for me to express an opinion whether Section 180 has any application to the facts of the case, perhaps it has. But, if the plaintiff is entitled to fall back upon Section 180 of the Act of 1939, the defendant is equally entitled to claim the benefit of Section 206 of that Act. This section clearly provides that:
Once the grove loses its character as such the holder shall become hereditary tenant of such land.
10. The learned Counsel for the respondents has strenuously contended that the land remained idle for a number of years and the present case is governed by Sheo Nandan Lal v. Mannu Lal ('43) 1943 R.D. 254 (All.) Allahabad. He is right that the learned Judge, in that case, gave some weight to a factor which is present in this case also. In my opinion, with all respect, this is a consideration which hardly affects the legal position. Be that as it may, that was a case under the Act of 1926 and not under the present Act.
11. The land lost its character as a grove and the defendants ceased to be grove holders. In that event they remained only non-occupancy tenants and the plaintiffs were entitled, under Section 86 of the Act of 1926 to claim ejectment. That right was theirs whether the land remained cultivated or was uncultivated. There could but for the intervention of the Act of 1939 be no answer to the claim. The question really is what is the effect of the Act of 1939. To that question I have already returned an answer.
12. The case may be approached from yet another point' of view. The N.W.P, Tenancy Act (2 [II] of 1901), not to go into the distant past, created certain rights affecting the landlord and the tenant. The Act (3[III] of 1926) aimed at a further improvement in the lot of the tenants. The Act of 1939 had the same purpose in view. Each succeeding enactment vied with its predecessor in this object. Even the Act of 1901 was opposed to forfeiture or, in other words, to the ejectment or expropriation of the tenant, unless the legal conditions were strictly complied with. The case in Tara Singh v. Khushal Kunwar ('06) 3 AL.J. 349, though the facts were entirely different, throws light upon the intention of the Legislature. This case was followed in Kuber Das v. Ramdin Kalwar 10 A.I.R. 1923 All. 14. If the Act of 1901 was averse to forfeiture or expropriation, there can be no doubt that the Act of 1926, and even more so the Act of 1939, view them with positive disfavour.
13. I think the view taken by the Court of first instance is right and that taken by the lower appellate Court is wrong. I, therefore, allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs in all Courts. Leave to appeal under the Letters Patent is refused.