The Upper Ganges Sugar Mills Ltd. Vs.
Khalil-Ul-Rahman & Ors  INSC 141 (6 September 1960)
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1961 AIR 143 1961 SCR (1) 564
CITATOR INFO :
RF 1965 SC 54 (18) F 1968 SC1351 (8,9,10) RF
1981 SC1005 (3) E 1990 SC 471 (5,8,9,10,13,14)
Tenancy-Adhivasi right, acquisition
of-Possession continued under stay orders of courts-Whether such Possession is
on behalf of courts-Person recorded in possession as thekadarWhether an
occupant in his own right U. P. Zamindari Abolition and Land Reforms Act, 1950,
(U. P. 1 of 1950), S. 20(b).
The landlord granted a theka to the company
for 10 years ending with 1356 F which was renewed up to 1355 F (June 1948). On
the company's refusal to vacate on the expiry of the theka the landlord filed a
suit for ejectment under the U. P. Tenancy Act, 1939. The suit was resisted by
the company on the ground that it has become a hereditary tenant under S. 29 of
that Act. The suit was decreed on November 3,1948, and an appeal and a second
appeal against the decree also failed, but the company remained in possession
of the land on account of stay orders granted by the appellate courts. In
execution the landlord obtained formal possession on October 13, 1950, but the company resisted actual ejectment., on July 1, 1953, the company instituted proceedings to recover actual possession of the land under S. 232 of
the U. P. Zamindari Abolition and Land Reforms Act, 1950, claiming to have
become an Adhivasi under S. 20 thereof. Section 20 provided that every person
who was recorded as occupant of any land in the Khasra or Khatauni of 1356 F
shall be called an adhivasi of the land and shall be 565 entitled to take or
retain possession thereof. The company was recorded in 1356 F in possession of
the land in dispute as thekedar. The landlord contended that the company had
not acquired the rights of an adhivasi : (i) as it being in possession in 1366
F under the stay orders of the courts it Was in occupation not on its own
behalf but on behalf of the court, and (ii) as it was A recorded as a thekedar
in 1356 F its possession was not on its own behalf but on behalf of the
landlords, whose thekedar it was.
Held, (per Sinha C. J., Gajendragadkar,
Wanchoo and Shah, JJ.), that the company had acquired adhivasi rights in the
land and was entitled to the possession thereof. Simply because there were stay
orders which enabled the company to remain in possession, the possession was
not on behalf of the court. It remained in possession in the same right in
which. it was in possession before the decree was passed on November 3, 1948. Though the company was recorded in possession as a thekedar it was an occupant in
its own right and not on behalf of the landlord. It was open to the court to
look beyond the entry of the company as a thekedar in the Khasra.
Swami Prasad v. Board of Revenue, U. P., 1960
A.L. T. 24 1, Parshotam Das v. Prem Narain, A.I.R. 1956 All. 665, Birjlal V.
Murli Pd., 1954 R. D. 175 and Lala Nanak Chand v. The Board of Revenue, U. P.,
1955 A.L.J. 408, referred to.
DAs GUPTA, J.-The company did not acquire the
rights of an adhivasi. The word " occupant " means a person in possession
in his own right and not on behalf of someone else.
The benefit under the section is available
only to those " recorded as " occupants ". It is not permissible
to look beyond the record to ascertain whether the claimant has been
"recorded as occupant ". The record in the khasra of the possession
" as thekedar " amounts to record of " possession on behalf of
thekedar's lessor ".
Swamy Prasad v. Board of Revenue, U. P., 1960
A.L.J. 241, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 196 of 1952.
Appeal from the judgment and order dated October 3, 1950, of the Court of Board of Revenue, U. P., Allahabad, in Review Application
No. 161 of 1949-50.
And Appeal by special leave from the judgment
and order dated January 21, 1956, of the Court of the Board of Revenue, U. P., Allahabad, in Petition No. 22/1954-55.
566 C.B. Aggarwala and C. P. Lal, for the
Appellants (In C.
A. No. 196 of 1952) and respondent No. 1 (in
C. A. No. 4 of 1959).
Achhru Ram and Naunit Lal, for the appellants
(in C. A. No. 4 of 59) and respondents (in C. A. No. 196 of 52).
1960. September 6. The Judgment of Sinha C.
J., Gajendragadkar, Wanchoo and Shah, JJ. was delivered by WANCHOO J.-These two
connected appeals will be disposed of by one judgment. Appeal No. 196 of 1952
is by the Upper Ganges Sugar Mills Ltd. (hereinafter called the Company) while
appeal No. 4 of 1959 is by Mohd. Khalilul Rehman and others (hereinafter called
the landlords). The brief facts necessary for present purposes are these.
Mukhtiar Ahmed, father of the landlords, granted a theka to the Company in
August 1933 (corresponding to 1341 F) of the lands in dispute for a period of
ten years ending with 1350 F (June 1943). The theka contained a clause giving
option to the Company to get it renewed for five years and in consequence the
theka was renewed for five years from 1351 F to 1355 F (that is upto June
1948). Thereafter the theka provided for option to renew the lease with the
lessor. In March 1948, the landlords gave notice to the Company to the effect
that the theka would not be renewed after 1355 F. The Company, however' did not
agree to hand over possession to the landlords and consequently a suit was
filed by the landlords for ejectment of the Company under the U. P. Tenency
Act, 1939. It was resisted by the Company on the ground that it was not a
thekadar but a tenant and had become hereditary tenant under s. 29 of the U. P.
Tenancy Act. This plea failed and the suit was decreed on November 3, 1948. There was an appeal by the Company against the decree. This appeal also failed.
Then the Company went up in second appeal to the Board of Revenue and
eventually the second appeal was 567 dismissed on July 22, 1950. During all
this period from November 1948 to July 1950, the Company remained in possession
of the land in dispute on account of stay orders obtained from the appellate
courts. Execution began in October 1950 and it is said that possession was
delivered to the landlords on October 13, 1950 and a Dakhalnama was filed on
October 15, 1950. It appears, however, that the Company offered resistance to
actual ejectment and this led to proceedings under s. 145 of the Code of
Criminal Procedure and the magistrate ordered the attachment of the land in
November 1950 and appointed two superdars (caretakers). The Company applied to
the Board for a certificate which was granted; and that is how appeal No. 196
has come to this Court.
In the meantime, U. P. Zamindari Abolition
and Land Reforms Act, 1950 (U. P. I of 1951), (hereinafter called the Act) came
into force on July 1, 1953. The Company thereupon instituted proceedings to
recover actual possession of the land under s. 232 of the Act read with ss. 12
and 20 thereof. The Sub-Divisional Officer decided in January 1954 in favour of
the Company and ordered delivery of possession to it holding that the Company
was entitled to possession both under s. 12 as well as under s. 20 of the Act.
The landlords went up in appeal, which was dismissed in January, 1955. The
appellate court held that the Company was entitled to recover possession under
s. 12 but did not decide the case put forward by the Company under s. 20.
Thereupon there was a second appeal to the
Board of Revenue which was dismissed in January, 1956. The Board also decided
the appeal on the basis of s. 12 and did not consider the case as put forward
under s. 20. The landlords then came to this Court and were granted special
leave to appeal in May 1956; and that is how appeal No. 4 became pending in
These appeals were heard on November 18,
1959, and this Court remanded the matter and called for a finding from the
Board whether the Company had acquired any rights under s. 20 of the Act. The
finding has been submitted by the Board and is to the 73 568 effect that the
Company is entitled to the benefit of s. 20 of the Act and has acquired
Adhivasi rights thereunder.
It is conceded by learned counsel for the
landlords that if appeal No. 4 fails and the right of the Company either under
s. 12 or under s. 20 is upheld, it would not be necessary to go into appeal No,
196. On this view the Company would have acquired a new right under the Act,
which would not be affected by the decision in appeal No. 196, even if it goes
against the Company. We shall therefore first deal with appeal No. 4.
Taking the case of the Company under s. 20
first, we have to see whether the Company has acquired Adhivasi rights
thereunder. The relevant part of s.20 for our purposes is as follows "
Every person who(a).........................................................
(b) was recorded as occupant,(i)of any land
(other than grove land or land to which s. 16 applies) in the Khasra or
khatauni of 1356 F, prepared under ss. 28 and 33 respectively of the U. P. Land
Revenue Act, 1901, or who was on the date immediately preceding the date of
vesting entitled to regain possession thereof under el. (e) of sub-s. (1) of s.
27 of the United Provinces Tenancy (Amendment) Act, 1947, or
shall unless he' has become a bhumidar of the
land under sub-s. (2) of s-18 or an asami under el. (h) of s. 21, be called
adhivasi of the land and shall, subject to the provisions of this Act, be
entitled to take or retain possession thereof" Section 232 of the Act
gives right to an Adhivasi to whom cl. (b) of s. 20 applies to apply within
thirty months from the date of vesting to the Assistant Collector in-charge of
the Sub-Division for putting him in possession of the land of which he is the
The question therefore that arises is whether
the Company was recorded as occupant of the land in dispute which is
undoubtedly not grove land or land 569 to which s. 16 applies. The word I
occupant' used in this part of the Act is not a term of art and has not been
defined anywhere in the Act or in the U. P. Tenancy Act or in the Land Revenue
Act. It must therefore be given its' ordinary dictionary meaning which is
" a person in occupation ". In order therefore that the Company can
take the benefit of s. 20 it should have been recorded in occupation of the
land in dispute in the year 1356 F. The only limitation that has been placed by
judicial decisions on this meaning of the word " occupant " is that
the person should be in occupation in his own right and not on behalf of
someone else. (See Swami Prasad and another v. Board of Revenue, U. P. (1) ).
So long therefore as a person has been in occupation in the relevant year in
his own right (and not on behalf of someone else) he will be entitled to the
rights conferred under s. 20 of the Act. Learned counsel for the landlords
however contends that the Company was not in possession in its own right and
his argument in this connection is two-fold. Firstly, it is submitted that the
Company was ordered to be ejected on November 3, 1948, which was in 1356 F.
Thereafter it remained in possession because of the stay orders passed by the
appellate courts to which it went in appeal successively. Therefore even though
the Company was in occupation throughout 1356 F its possession after November
3, 1948 was not on its own behalf but on 'behalf of the Court. Secondly, it is
urged that as the Company was recorded as a thekadar in 1356 F, its possession
was not on its own behalf but on behalf of the landlords, whose thekadar it
We are of opinion that there is no force in
either of these contentions. So far as the first contention is concerned, all
that had happened after November 3, 1948, is that the Company got stay orders
from the appellate courts and remained in possession as before till July 1950,
when its second appeal before the Board of Revenue was finally dismissed. It
cannot, however, be said simply because there were stay orders as a result of
which the Company continued to (1) 1960 A.L.J. 241.
570 remain in possession that it was in
possession on behalf of the court. In such circumstances the possession of the
Company, though it continued because of the stay orders, cannot be held to be
on behalf of the court; and it must be in occupation in the right asserted by
it, even though if it had not obtained the stay orders it would not have
remained in possession. Learned counsel for the landlords in this connection
relied on Parshotam Das v. Prem Narain (1). That case, however, is
distinguishable because in that case a receiver had been appointed and the
person recorded in occupation of the land was held to be the agent of the
receiver. Reliance was also placed on a decision of the Board of Revenue in
Birjlal v. Murli' Pd. (2), where it was held that where a person is recorded as
occupant in 1356 F, because of possession acquired on the basis of a stay order
issued by a court, his possession will be deemed to be on behalf of the court
and will therefore not qualify him for acquisition of the rights of 'an
Adhivasi under s. 20. The facts in that case were somewhat different inasmuch
as there was redelivery of possession and that is how the person to whom
possession was redelivered was recorded in the revenue records in 1356 F as
occupant. But if that case means to lay down that a person who remains in
possession because a stay order has been passed by an appellate court must be
deemed to be in possession on behalf of the court, it is incorrect. In this
case the Company was in possession from before November 3, 1948, and remained
in possession thereafter because certain stay orders were passed by the
appellate courts. In the circumstances it must be held to have remained in
possession in the same right in which it was in possession before November 3,
1948, and its possession thereafter cannot be said to be on behalf of the court.
The next argument on behalf of the landlords
is that as the Company was recorded as a thekadar in 1356 F in the revenue
records it must be held to have remained in possession on behalf of the
landlords whose thekadar it was. In this connection reliance (1) A.I.R. 1956
(2)  R.D. 175.
571 was placed on Lala Nanak Chand v. The
Board of Revenue, U. P. (1), where it was held that what s. 20(b) requires is
that there should be an entry of a person's name as an occupant in the khasra
or khatauni of 1356 F; but it is not necessary that the person recorded as an
occupant should also have been in actual possession. It is not necessary to
consider the correctness of that decision in this case for it is not in dispute
here that the Company was not only recorded in possession but was in actual
possession in 1356 F. What is contended on behalf of the landlords is that as
the Company was recorded as a thekadar in 1356 F it is not open to the court to
go behind that entry and therefore it must be held that the company was in
occupation as a thekadar in that year and thus was in occupation on behalf of
the landlords and not on its own behalf In this connection we may point out
that the Company claimed that it was entitled to possession not only as an
Adhivasi under s. 20 but also as a hereditary tenant under s. 12, which
provides that a thekadar under certain circumstances becomes a hereditary
tenant. To meet the Company's case under s. 12 the landlords contended that the
Company was not a thekadar in 1356 F because the theka expired on June 30,
1948. The landlords were thus taking contradictory positions for the purposes
of ss. 12 and 20; in opposition to the claim under s. 12 they said that the
Company was not their thekadar in 1356 F while in opposition to the claim under
s. 20, they said that the Company was not in possession on its own behalf but
as their thekadar. It is argued on their behalf that for the purpose of s. 20
all that has to be looked into is the entry and nothing more and they rely on
Lala Nanak Chand's case (1). That case, however, was concerned only with the
question whether a person recorded in the revenue records had also to prove
actual possession and it was held therein that it was enough that a person
should be recorded in the revenue records as an occupant and it was not necessary
that he should also be actually in possession in the relevant year. We need say
nothing about the (1) 1955 A.L.J.408.
572 correctness of that decision in the
present case. But that case was not concerned with the nature of possession,
namely, whether it was on a person's own behalf or on behalf of someone else.
The words in s. 20(b)(i) man Only speak of a person being recorded as occupant
and there is nothing in that section as to the nature of the occupancy, namely
whether it is on behalf of the person recorded or on behalf of somebody else.
That is a matter which in our opinion must always be decided on other evidence
for the entry does not contemplate recording the nature of the possession in the
sense of its being on behalf of the person recorded or on someone-else' behalf
We have already observed that the expression " occupant " is not
defined in the Act and it is clear that neither the Act nor the Rules made
under it prescribe the form in which the entry specified by s. 20(b) should be
made. Besides the reference to the theka was bound to be continued even after
its termination so long as the Company remained in possession and the lekhpal
received no order to change it. Therefore the contention on behalf of the
landlords that we cannot look beyond the entry of the Company as a thekadar and
must hold on that basis that it was in possession on behalf of the landlords,
is incorrect. On the landlords' own showing in this case, the Company was not in
possession as a thekadar as the theka had expired before 1356 F. Under the
circumstances we are of opinion that the company was recorded as an occupant in
1356 F and that the nature of that occupation was on its own behalf and was not
either on behalf of the court or on behalf of the landlords. Therefore the
Company would be entitled to Adhivasi rights. On this view it is not necessary
to decide whether the Company, is also entitled to the benefit of s. 12. Appeal
No. 4 therefore fails.
As appeal No.4 fails, it is not necessary to
decide appeal No. 196 and that appeal must under the circumstances be dismissed
In the circumstances of these two appeals we
are of opinion that parties should bear their own costs of the two appeals in.
this Court. We therefore dismiss the appeals and pass no order as to costs.
573 DAS GUPTA J.-I have had the advantage of
reading the judgment prepared by my brother Mr. Justice Wanchoo; but I regret
my inability to agree that the Upper Ganges Sugar Mills Ltd the respondent in
Civil Appeal No. 4 of 1959 is entitled to the benefit of s. 20(b)of the U. P.
Zamindari Abolition Act.
The facts have been fully stated by Mr.
Justice Wanchoo and it is unnecessary to repeat them.
It is common ground that if the Company, the
Upper Ganges Sugar Mills Ltd., can get the benefit of s. 20(b) or s. 12 of the
U. P. Zamindari Abolition Act the Civil Appeal No. 4 of 1959 must be dismissed
and consequently Civil Appeal No. 196 of 1952 which is by the Company against
the decree of ejectment made in favour of the superior landlords must be
dismissed as infructuous. The relevant portion of s. 20 is in these words:"
Every person who (a) (b) was recorded as occupant (i) of any land (other than
grove land or land to which s. 16 applies) in the Khasra or Khatauni of 1356 F,
prepared under ss. 28 and 33 respectively of the U. P. Land Revenue Act, 1901
(ii) shall unless he has become Bhumidhar of the land under sub-s. (2) of s. 18
or an asami under cl. (h) of s. 21 be called Adhivasi of the land and shall,
subject to the provision of this Act, be entitled to take or retain possession
thereof." The Khasra and Khatauni have been produced before us and they
show that the Upper Ganges Sugar Mills Ltd., has been recorded as in possession
of the land in dispute. They also show however that the possession was as a
" Thekadar ". What we have to ask ourselves is, whether these entries
in the Khasra or Khatauni justify the conclusion that the Company has been
recorded as an " occupant " within the meaning of a. 20(b).
The word " occupant " has not been
defined in the Act and it has to be properly interpreted on a consideration of
the entire scheme and the purpose of the 574 legislation. It was suggested on
behalf of the landlords (Appellants in C. X. No. 196 of 1952) that "
occupant " connotes a person who is in possession in his own right and not
on behalf of someone else. This was the view taken by the Allahabad High Court
in Swami Prasad v. Board of Revenue, U. P. (1). The correctness of this view
has not been challenged before us.
Bearing in mind this connotation of the word
,,occupant " we have to examine the entries in the Khasra and Khatauni to
see whether they amount to the recording of the Company as an " occupant
". It has to be noticed that this benefit under s. 20(b) is under the
provisions of the section available to those who are " recorded " as
" occupants " and not to all those who are "occupants ". If
the fact of being occupants was what was necessary, and reference to the
records was to be made only in supporting or resisting any claim on that basis,
we could certainly look-beyond the record to decide the question. The
Legislature has thought fit to correlate the benefit to the record as an
occupant and not merely to the-fact of being an occupant. The Khasra or
Khatauni as prepared in the Uttar Pradesh does not in any, case record any
person as an " occupant "; that is why we have to examine the entries
in the record to show whether they record the facts which are necessary to satisfy
the connotation of the word " occupant ". Looking at the entries
before us I find that they record the Upper Ganges Sugar Mills' possession as a
Thekadar. Chapter XI of the U. P. Tenancy Act (U. P. XVII of 1939) deals with a
Thekadar. It seems reasonable to hold that in this Chapter, Thekadar is equated
to a farmer of rents, and Thekadar's possession ordinarily is contemplated to
be possession on behalf of his lessor. The record in the Khasra of possession
" as a Thekadar " appears to me therefore to amount to record of
" possession on behalf of the Thekadar's lessor ". On the accepted
interpretation of the word " occupant " in s. 20 that it means a
person in possession in his own right and not on (1) 1960 A.L.J. 241 575 behalf
of somebody else, these entries in my opinion must be held to record the Upper
Ganges Sugar Mills Ltd., as an " occupant ". The fact that the Theka
had come to an end, and yet, the Khasra continued to record the possession as
" Thekadar " is, I apprehend, wholly beside the question.
I cannot see how we can look beyond the
actual record to ascertain whether the claimant has been " recorded as
occupant " ; nor can I find any way of holding that possession as "
Thekadar " in the record, may or may not mean " possession on behalf
of the lessor ". Nor do I think it possible to say that " occupant
" should be interpreted to include even one in possession on behalf of
another person. I therefore find it difficult to agree that the Upper Ganges
Sugar Mills is entitled to the benefit of is. 20(b) of the U. P. Zamindari
As my learned brethren have taken the view
that the Company is so entitled to the benefit, full arguments have not been
heard on the question whether the Company is entitled to the benefit of s. 12
and no arguments were heard in the other appeal, viz., Civil Appeal No. 196/52.
I am therefore unable to come to any conclusion as to how these appeals should
be disposed of.
ORDER OF COURT. In view of the majority
Judgment the appeals are dismissed. No order as to costs.