JUDGMENT

Satish Chandra, J. - One Challoo was Bhumidhar of the plots in dispute. He died heirless. The plots vested in the Gram Sabha. The Gram Sabha appears to have let out these plots to the Respondents on Batai rent. Subsequently the Respondents were asked to pay rent in cash. Later on Gram Sabha filed suits for the ejectment of the Respondents u/s 209 of the Zamindari Abolition Act on the allegations that the Respondents were in occupation as licensees and the Gram Sabha has revoked their licenses.

2. The trial court held that the Gram Sabha had not followed at all the procedure prescribed u/s 198 of Zamindari Abolition Act read with Rules 173 and 174, the Defendants could not hence be held to be lessees in possession. Since they are in occupation of the land with the permission of the Gaon Sabha, they were simply licensees. With the revocation of the licences, the suit was maintainable. The suit was accordingly decreed.

3. On appeal, the Additional Commissioner held that the status of the Respondents was not that of licensees but of lessees. On this view, the suit was dismissed. The matter was taken up to the Board of Revenue. The Board of Revenue held that the Gaon Sabha had not at all followed the procedure laid down by Section 198 and Rules 173 and 174, but it allowed the Defendants to cultivate the land as an interim arrangement. In this situation, the Defendants would be merely licensees. Later the Gaon Sabha tried to settle the land according to the procedure laid down in the Act. Thereupon the Defendants turned round and contested the rights of the Gaon Sabha. Thereupon, their licenses were revoked. The suit was held maintainable.

4. Aggrieved, the Respondents filed writ petition in this Court. A learned single Judge held that the Respondents had been in possession of the land with the consent of the Gaon Sabha, therefore, Sub-clause (b) of Section 209 of the Act was not applicable and so the suit was maintainable. He was also of the opinion that only possible remedy was u/s 198(2) of the Act. On these findings the writ was allowed and the suits were dismissed.

5. Section 209 of the UP ZA Act provides that a person taking or retaining possession of the land is liable to ejectment on the suit of the Gram Sabha where the land does not form part of the holding of a Bhumidhar, without the consent of the Gaon Sabha. The phrase, 'taking or retaining' points to two different situations. Taking refers to the point of time when possession is initially taken; but retaining refers to the continuance of the possession after it has been taken. The situation where person may have taken possession with the consent of the Plaintiff and yet whose continuance of possession may be without his consent is well within the purview of the section because in that event he will be deemed to have retained possession without the consent of the Plaintiff. Since the Plaintiff alleged that the Defendants were licensees and their licenses were revoked, their continuance of possession was clearly retaining possession without the consent of the Plaintiff. The suit was clearly maintainable u/s 209 of the UP ZA and LR Act.

6. On the findings of facts, the position is that the Gaon Sabha had made no effort to make and regularise the allotment in accordance with the statutory provisions. It permitted the Respondents to cultivate the plots on agreed terms, one of which was that they will pay rents initially in kind and subsequently in cash. The Gaon Sabha has been authorised to let out the land in accordance with Section 198 read with Rules 173 and 174. This provision limits the rights if the Gaon Sabha to execute leases. The Gaon Sabha has no right to lease cut land in any other manner. The action of the Gaon Sabha in permitting toe Respondents to take field and cultivate the plots cannot be deemed to create an interest as lessee in them. No other kind of interest is claimed by them. In our opinion the arrangement between the parties did not create any kind