JUDGMENT

Jagdish Sahai, J. This is a plaintiff's Special Appeal which arises in the following circumstances :

1. The plaintiff-appellant had filed a suit for ejectment under Section 202 of the U.P.Z.A. Act (hereinafter referred to as the Act) against the defendants-respondents on the allegation that the plots in dispute were her sir plots which had been let out to the defendant-respondents by an agreement dated the 14th of Sept. 1947, on rent and that the defendant-respondents, who were non-occupancy tenants from year to year under the U.P. Tenancy Act and assamis under the Act, were tenants liable to be ejected. The suit was contested inter alia, on the ground that Shishpal Singh, the husband of the plaintiff-appellant was not suffering from chronic fistula and was not incapacitated from cultivating the land and further that the rights of the defendant-respondents had matured into sirdari rights in respect of the land in suit. The trial court (the Assistant Collector) dismissed the suit with costs on the finding that the defendants were not asamis of the land in dispute. The first appellate court (the learned Civil Judge, Aligarh) reversed the decree of the trial court and decreed the suit with casts. On a Second Appeal, Balram Upadhya, J. set aside the decree passed by the first appellate court and restored that of the trial court dismissing the suit of the plaintiff-appellant by his judgment and decree dated the 19th of Feb. 1958. On leave being granted this special Appeal is directed against the decree passed by Balram Upadhya, J.

2. It would contribute to a correct decision of the case if it were mentioned at the very outset that the finding of fact recorded by the first appellate court, which is binding on us, is that in fact Shishpal Singh, the husband of the plaintiff-appellant suffered from chronic fistula and was incapacitated from cultivating the land.

3. After the suit had been filed, U.P. (Amendment) Act (No. XX of 1954) (hereinafter referred to as the Amending Act) was passed and came into force on the 30th of Oct. 1954. It amended several sections of the Act including Secs. 21, 157 and 202. Sec. 5(2) of the Amending Act reads as follows:

"(2) For Cl, (h) of sub-sec. (1) the following shall and be deemed to have been substituted with effect from the date of commencement of the Principal Act -

(h) a tenant of Sir of land referred to in sub-Cl. (a) of Cl. (i) of the explanation under Section 16, a subtenant referred to in sub-Cl. (ii) of Cl. (a) of Section 20 of an occupant referred to in sub-Cl. (i) of Cl. (b) of the said section where the land-holder 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 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-sec. (1) of Sec. 157."

4. The effect of this section is that the amended Section 21 would be deemed to have stood on the statute book right from the date of the commencement of the Act and the original Section 21 would be deemed never to have existed. It may, however, be stated that there is no provision in the Amending Act analogous to Section 5 in respect of either Section 157 or Section 202 of the Act. Sec. 202(1) (f), after amendment, reads as follows:

"202(1) Without prejudice to the provisions of Section 338 an asami shall be liable to ejectment from his holding on the suit of the landholder, on the ground or grounds -

(f) that he belongs to the class mentioned in Cl. (h) or sub-sec. (1) of Section 21, sub-sec. (1) or Cl. (b) of Section 133 and that-

(i) the land-holder wishes to bring the land under his personal cultivation and in cases where the lease is for a fixed term such term has expired, or

(ii) the disability has determined."

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