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"The plaintiff obtained against the defendants a decree for ejectment on 20-8-1940. That decree had not been executed by Sept. 1940. The defendants were liable to be ejected in execution of the decree dated 20-8-1940. That was the respondents' liability in September 1940 ..... Although the decree was executed, that execution, stood annulled as a result of Sub-section (5). of Section 27 of the 1947 Act. On reinstatement of the defendants on 14-11-1950 their status was the same as in September 1940. They remained liable to ejectment in execution of the decree dated 20-8-1940." From the proposition that the earlier decree was valid and what was affected by Sub-section (5) of Section 27 of the amending Act was merely the execution thereof it is a logical corollary that the status of a trespasser cannot be converted into that of a hereditary tenant on the ground that the actual ejectment took place after two years from the date of trespass as in the instant case.

These figures were furnished by the Board's office for the period from January 1, 1940 to December 31, 1945.

   

32. The aforesaid facts, however, in no way, will justify the interpretation which is sought to be placed on Section 27 (5) read with Section 32 of the U. P. Act 10 of 1947. I again repeat that in the absence of necessary amendment in Section 180 (2) of the U. P. Tenancy Act or in the absence of a provision in Section 27 (5) of the amending Act 10 of 1947 providing that the earlier institution of suits under Section 180 was to be disregarded for the purpose of determining the rights of the parties on the date of ejectment, it was not possible to confer hereditary rights on such tre.--passers against whom suits under Section 180 had been filed within a period of two years but who were ejected in the execution of the decrees passed in the said suit after a period of two years. In my opinion, our brother Gopi Nath, J. who referred this case to the larger Bench, in his referring order correctly doubted the contention that such trespassers (against whom suits were filed within a period of two years but who were ejected in the execution of the decrees after the said period) became hereditary tenants in view of the provisions of the U. P. Act 10 of 1947. He observed .

38. It is, therefore, clear that the retrospectivity which was given to Section 32 was confined only to pending actions and not to those cases which stood already decided and in which even execution had been carried out in full. It was emphasised that :

"Even if an enactment is retrospective in operation, it should not be given a larger retrospective effect than is absolutely necessary."

39. In 1956 All LJ 343 (supra), the Division Bench consisted of Agarwala, and M. L. Chaturvedi, JJ. I have already stated that Agarwala, J. was in the earlier Full Bench and he wrote out the main opinion with which the other two learned Judges of the Full Bench agreed. It will be reasonable, therefore, to think that Agarwala, J., in the Division Bench, did not intend to contradict himself with his stand in the earlier Full Bench. In the facts of the said case, proceedings for reinstatement had taken place under the U. P. Act No. 10 of 1947. Thus, the trespasser who had been ejected in the execution of a decree in a suit under Section 180 was able to eet reinstatement. A week after such reinstatement, the landlords filed a second suit under Section 180 of the U. P. Tenancy Act for ejecting the reinstated trespasser. The question was whether the second suit under Section 180 was maintainable or not looking to the provisions of Section 27 (3) and Sub-section (5) of the U. P. Act 10 of 1947. Two rival contentions which were raised were these. On behalf of the landlord it was contended that even after reinstatement, in view of Section 27 (5), the reinstated person remained a trespasser and he was liable to be ejected in a fresh suit under Section 180. On the other hand, the reinstated person claimed that if the said contention of the landlords were to be accepted, the provisions of Section 27 by which he was restored possession would be nullified. The Division Bench observed :--

46. In 1973 All LJ 913 : (AIR 1974 All 50 (FB)) (supra), again, there was no such controversy as is being dealt with by this Full Bench. The reinstated person was an occupancy tenant and he had been ejected in the execution of the decree passed in a suit under Section 171 of the U. P. Tenancy Act, 1939. The Full Bench in the said case was not concerned with the case of trespassers ejected under Section 180 of the said Act. There is nothing in this Full Bench which may throw any light on the controversy at hand.