JUDGMENT Satish Chandra, J.
1. Smt. Dulari Kuer, respondent No. 3, sued for the ejectment of the appellants under Section 202 of the U. P. Zamindari Abolition Act. on the ground that the appellants were asamis and that the plaintiff needed the land for personal cultivation. In defence, it was pleaded that the defendants had acquired hereditary tenancy rights, and as such they became sirdars. They were not liable to ejectment as asamis.
2. The trial Court held that the defendants were in possession of the plots in dispute as trespassers from 1355 F. They were recorded as occupants in 1356 F. They continued to remain in possession ever since. Since no suit for their ejectment under Section 180 of the U. P. Tenancy Act was filed within the prescribed period of limitation, the defendants became hereditary tenants under Section 180 (2) of the Tenancy Act. As hereditary tenants, they acquired sirdari rights under the Zamindari Abolition Act. They were not asamis. On these findings the suit was dismissed. The findings were affirmed, on appeal, by the Additional Commissioner.
The plaintiff filed a second appeal before the Board of Revenue. Sri S.N. Mitra. Member Board of Revenue, in his order dated 14th August 1961. held that possession of the defendants began from 1355 F., when the plaintiff was a widow. If she had not been a widow, the defendants would have acquired hereditary tenancy rights under Section 180 (2) of the Tenancy Act and would have become sirdars on the date of vesting but under Section 21 (11 (h) of the Zamindari Abolition Act, the defendants would not acquire any other rights than those of asami. On this view, he proposed to allow the appeal and decree the suit. It appears that the defendants filed an objection to the proposed order of Sri Mitra.
3. The matter was then placed before Sri Ram Kinkar Singh, another member, for concurrence on 4-10-1961. The learned Member passed the following order:--
"Nobody appears on behalf of the respondents to support the objection which had been filed. Learned counsel for the appellants is present. I have gone through the judgment of my learned colleague. I concur in the proposed order."
4. The defendants came to this Court by way of a writ petition. A learned single Judge held that the defendants had filed an objection, but they did not appear before Sri Ram Kinkar Singh, even though they had full knowledge of the date. They were guilty of extreme negligence in prosecuting their case. Even if there was any error of law in the order of the Board of Revenue, the petitioners being guilty of negligence in prosecuting the case and not putting their version before the second Member, no writ could be granted in their favour. On this view, the writ petition was dismissed, but without any order as to costs. Aggrieved, the defendants have preferred this appeal.
5. From the order passed by Sri Ram Kinkar Singh. it appears that he perused the judgment of Sri Mitra and concurred with him. It is apparent that Sri Ram Kinkar Singh agreed with the line of reasoning that had appealed to Sri Mitra. The defendants had appeared and argued their case before Sri Mitra. They had nothing new to submit before Sri Ram Kinkar Singh. Since their arguments had been mentioned in the order of Sri Mitra, they may well have felt satisfied that the second Member will consider their case on the merits. In this situation, it is difficult to hold the defendants guilty of extreme negligence in defending the appeal before the Board of Revenue. In our opinion, the learned single Judge was in error in refusing to go into the merits of the case. Since we have heard learned counsel for the parties on the merits we deem it unnecessary to remit the case to the learned single Judge.
6. The findings are that the defendants-appellants were in possession of the plots in dispute as trespassers from 1355 F. At that time, the plaintiff was a widow. No suit for the ejectment of the defendants under Section 180 of the Tenancy Act was ever filed. The defendants were recorded as occupants in 1356F.
7. Section 180 (1). U. P. Tenancy Act, provided for a suit for ejectment of persons occupying land without the consent of the land-holder. The prescribed period of limitation for such a suit was two years. Sub-section (2) of Section 180 provided :--
"(2) If no suit is brought under this section, or if a decree obtained under this section is not executed the person in possession shall become a hereditary tenant of such plot, or if such, person is e 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.
Provided that where the person in possession cannot be admitted to such plot except as sub-tenant by the person entitled to admit, the provisions of this sub-section shall not apply until the interest of the person so entitled to admit is extinguished in such plot under Section 45 (f)."
8. Section 45 (f) provides that the interest of a tenant shall be extinguished where the tenant has been deprived of possession and his right to recover possession is barred by limitations.
9. The plaintiff has alleged that she was an occupancy tenant of the plots in dispute. Under Section 45 (f), her interest stood extinguished, when the right to recover possession was barred by limitation. Since the defendants were in occupation as trespassers the tenant could recover possession only by a suit under Section 180 (1) of the U. P. Tenancy Act. After the expiry of the period prescribed for such a suit, the tenants' right to recover possession was barred by limitation and, so, with the expiry of that period the interest of the tenant stood extinguished. Thereupon sub-section (2) became operative, and the persons in possession, namely the defendants became hereditary tenants. It is thus clear that the defendants-appellants became hereditary tenants in 1358 F. This was prior to the date of vesting. They being hereditary tenants on the date immediately preceding the date of vesting (30th June. 1952), acquired sirdari rights under Section 19 of the Zamindari Abolition Act.
10. Section 180 of the Tenancy Act is not confined to cases where the land-holder is a male. It operates irrespective of the sex of the land-holder., The plaintiff, who was a female and e widow, could have filed a suit under Section 180 for the ejectment of the appellants. Similarly, hereditary tenancy rights accrue under Section 180 (2) irrespective of the sex of the landholder. There is no exception to its applicability in respect of a widow. The section applies irrespective of the status of the land-holder. We are unable to appreciate the view of the Board of Revenue that if the plaintiff had not been a widow, the defendants would have acquired hereditary tenancy rights under Section 180 (2).
11. For the plaintiff-respondent, it was urged that since the defendants were recorded as occupants in the revenue records prepared for the year 1356 F.. Clause (h) of Section 21 (1) of the Zaminderi Abolition Act will apply; end that section applies "notwithstanding anything contained elsewhere in the Act." In other words, the submission was that Section 21 will prevail over Section 19, with the result that if e person becomes an asami under Section 21. he will not acquire rights as a sirdar under Section 19. Section 21 pro-vides:--
"21. Non-occupancy tenants sub-tenants of grove-lands and tenant's mortgagees to be asamis.-- (1) Notwithstanding anything contained in this Act, every person who. on the date immediately preceding the date of vesting, occupied, or held land as-
(a) a non-occupancy tenant of an intermediary's grove-land;
(b) a sub-tenant of grove-land;
(c) a sub-tenant referred to in the proviso to sub-section (3) of Section 27 of the United Provinces Tenancy (Amendment) Act. 1947;
(d) a mortgagee in actual possession from a person belonging to any of the classes mentioned in Clauses (b) to (e) of Sub-section (1) of Section 18 or Clauses (i) to (vii) of Section 19;
(e) e non-occupancy tenant of pasture land or of land covered by water and used for the purpose of growing singhara or other produce or of land in the bed of a river and used for casual or occasional cultivation;
(f) a non-occupancy tenant of land declared by the State Government, by notification in the Gazette, to be intended or set apart for taungya plantation, or
(g) a tenant of land which the State Government has, by a notification in the Gazette, declared to be part of tract of shifting or unstable cultivation;
(h) a tenant of sir land referred to in Sub-clause (a) of Clause (i) of the Explanation under Section 16, a subtenant referred to in Sub-clause (ii) of Clause (a) of Section 20 or an occupant referred to in Sub-clause (i) of Clause (b) of the said section where the landholder or if there are more than one land-holder, all of them were person or persons belonging-
(a) if the land was let out or occupied prior to the ninth day of April, 1946. both on the date of letting or occupation, as the case may be, and on the ninth day of April. 1946; and
(b) if the land was let out or occupied on or after the ninth day of April. 1946 on the date of letting or occupation, to any one or more of the classes mentioned in Sub-section (1) of Section 157.
(i) a lessee holding under a lease from a court under Sub-section (1) of Section 252 of the Tenancy Act. 1939 shall be deemed to be asami thereof.
Explanation:-- The expression 'taungya plantation' means the system of afforestation in which the plantation of trees is in the earlier stages done simultaneously with, the cultivation of, agricultural crops which ceases when the trees so planted begin to form a canopy rendering the cultivation of agricultural crops impossible:
(2) Occupants of grove-land.--Every person, who, on the date immediately preceding the date of vesting was a person recorded in the manner stated in Clause (b) of Section 20, as occupants of any grove-land, shall be called en asami of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof as an asami from year to year."
Sub-section (1) of Section 21 applies to a person, who occupied or held land on the date immediately preceding the date of vesting. The various clauses of Section 21 (1) show that the person should hold land as one of the kinds of tenure-holders mentioned in them, namely, as a non-occupancy tenant, a sub-tenant, a mortgagee, or as a tenant of sir, etc. etc. Admittedly, the defendants-appellants were not holding the land in any such capacity.
12. Clause (h) inter alia, refers to an occupant referred to in sub-clause (i) of Clause (b) of Section 20. No other clause refers to an occupant. The term 'occupied' occurring in the phrase "occupied or held land" in Section 21 (1) would, in the context have the same meaning and connotation as is assignable to the term 'occupant' referred to in Sub-clause (i) of Clause (b) of Section 20. It is settled that Section 20 (b) (i) uses the word 'occupant' in its ordinary meaning, that is to say a person in occupation in his own right and not on behalf of anyone else (See Upper Ganges Sugar Mills Ltd. v. Khalilul Rahman, AIR 1961 SC 143). In Jagdish Prasad v. Board of Revenue, 1956 All LJ 317. a trespasser having no legal title was held to be an occupant, because he was claiming rights to occupy land on his own behalf. The defendants appellants were trespassers. They were not in possession on behalf of anyone else. They were in possession in their own rights. They were occupants recorded as such, within meaning of Clause (b) (i) of Section 20.
13. The matter may be looked at from another point of view. The opening part of Section 21 (1) uses the phrase "occupied or held land". In Budhan Singh v. Nabi Bux. 1961 All LJ 536 = (AIR 1962 All 43) (FB). a Full Bench of this Court held that the word 'held' occurring in Section 9 of the Zamindari Abolition Act did not connote the title of a trespasser, but it referred to a title having a legal origin. The word 'held' in Section 9 refers to a person having some sort of right or title to the building as well as its site. In our opinion, the word 'held' has the same significance in Section 21 (1). It refers to a person in possession of land with a valid source of title, such as tenant of Sir. a sub-tenant, mortgagee, etc. mentioned in the various clauses of Section 21 (1).
14. The Legislature could not be imputed the intention to use the word 'occupied' superfluously. The word 'occupied' must mean something else than 'held'. This also supports the conclusion that the word 'occupied' occurring in Section 21 (1) refers to possession without title, e.g.. as a trespasser.
15. Section 21 (1) requires that the Person must be "occupying" land on the date immediately preceding the date of vesting. In other words, the person in possession must be an occupier, namely a person in possession without any title that is as a trespasser, on 30th June. 1952. If. on that day, he is not occupying the land or holding the land as a tenure-holder of the kind mentioned in the various clauses of Section 21 (1), or as a trespasser Section 21 will not apply to him.
16. We have seen that prior to the date of vesting the defendants-appellants had acquired hereditary tenancy rights. Since 1358 F., they were in possession as hereditary tenants. They could not be held to have occupied the land on the date immediately preceding the date of vesting, within meaning of Section 21 (1). This provision was hence not attracted to them.
17. It is true that Clause (h) applies to an occupant referred to in Sub-clause (i) of Clause (b) of Section 20, that is, an occupant recorded as such in 1356 F. But, that is only one of the conditions. Another condition as laid down by the opening part is to the effect that the occupant must be in possession as such, on the date immediately preceding the date of vesting. If by this date, a person, who was recorded as an occupant in 1356 F, has come to acquire a different status, it cannot be said that he was a person, who, on the date immediately preceding the date of vesting, "occupied" the land. The opening clause of Section 21 (1) lays down a condition in addition to the one referred to in Clause (h). Both the conditions have to be satisfied before a person can become an asami under Section 21 (1) (h)
18. The Board of Revenue committed a manifest error of low in holding that the appellants became asamis. They having become sirdars, the suit was not competent.
19. In the result, the appeal succeeds and is allowed. The judgment of the learned single Judge is set aside, The writ petition is allowed. The order of the Board of Revenue is quashed, and that of the Additional Commissioner restored. The appellants would be entitled to costs.