Amba Prasad Vs. Abdul Noor Khan &
Ors  INSC 128 (17 April 1964)
17/04/1964 HIDAYATULLAH, M.
AYYANGAR, N. RAJAGOPALA
CITATION: 1965 AIR 54 1964 SCR (7) 800
R 1968 SC 466 (3) F 1968 SC1351 (13) RF 1976
SC1485 (15) R 1979 SC 413 (8,10,11) RF 1981 SC1005 (3) F 1990 SC 471
(5,9,10,13,14) RF 1990 SC 723 (9)
U. P. Zamindari Abolition and Land Reforms
Act, 1950, s. 20-Explanation II to s. 20-Suit for possession by occupant on the
basis of entry in Khasra for 1356F--Entry not corrected before date of
vesting-Its effect-Whether correctness of entry be questioned
subsequently-Whether plaintiff required to prove actual possession.
On October 10, 1953, the respondents filed
suits under s. 232 read with s. 20 of the U. P. Zamindari Abolition, and Land
Reforms Act, 1950 against the appellant before the SubDivisional Officer.
Before the coming into operation of the Abolition Act the appellant (Amba
Prasad) was Zamindar of the disputed land. The names of the respondents were
recorded in column 23 (miscellaneous) in the Khasra for the year 1356 Fasli as
persons in possession of the disputed land. The respondents claimed adhivasi
rights under s. 20 of the Abolition Act because they were recorded as occupants
of the fields in dispute in the Khasra for 1356 Fasli. The common case of the
respondents was: (i) that they were in possession of the suit land (ii) that
they were dispossessed after June 30, 1948 by the appellant, (iii) that as they
were recorded occupants in 1356F they were not required to prove actual
possession. The case of the appellant was that the entry was fraudulently made
after July 1, 1949. These suits were dismissed by the SubDivisional officer. On
appeal, the Additional Commissioner held that the respondents had acquired the
Against this order Amba Prasad (the
appellant) appealed to the Board of Revenue. The Board of Revenue dismissed the
appeals. The appellant then filed appeals in this Court.
Held:(i) Under s. 20 of the Abolition Act (U.
P. Zamindari Abolition and Land Reforms Act) a person continues as an adhivasi
after July 1, 1952. provided he is in possession or was evicted after June 30,
1948. If he was evicted after June 30, 1948 he is entitled to regain possession
in spite of any order or decree to the contrary.
(ii)The words "recorded as
occupants" in s. 20 of the Abolition Act mean persons recorded as
occupants in the Khasra or Khatauni for 1356 Fasli (1-7-48 to 30-6-49). Such
persons do not include an intermediary. The word "occupant" must mean
a person holding the land in possession or actual enjoyment. Mediate possession
(except where he immediate possessor holds on behalf of the mediate possessor)
is of no consequence.
(iii)The appellant was not entitled to raise
the plea of the correctness of the entry in Khasra because the entry was not
corrected before the date of vesting (1-7-52) as required by Explanation (ii)
to s. 20 of the Abolition Act.
(iv)The title to possession as adhiwasi
depends on the entries in the Khasra or Khatauni for the year 1356 Fasli.
Section 20 of the Abolition Act does not
require the proof of actual possession. Therefore, s. 20 eliminates inquiries
into disputed possession by accepting the record in the Khasra or Khatauni of
1356F. or its correction before July 1, 1952.
801 The Upper Ganges Sugar Mills Ltd. v.
Khalil-ul-Rehman,  1 S.C.R. 564, referred to.
Lala Nanak Chand v. Board of Revenue, U. P.,
408, Ram Dular Singh v. Babu Sukh Ram, 1963
A.L.J. 667, Bhal Singh v. Bhop and Anr., 1963 A.L.J. 288 and Sugriva v. Mukhi
etc., 1963 A.L.J. 17 (Rev.), approved.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 680 to 682 of 1963. Appeals by special leave from the judgment and decree
dated February 8, 1960 of the Board of Revenue, U. P.
in petitions Nos. 203 to 205 of 1958-59.
J. P. Goyal, for the appellant (in all the
Brijbans Kishore and Ramesh B. Saxena, for
respon,dents Nos. I to 3 (in all the appeals).
April 17, 1964. The judgment of the Court was
delivered ,by HIDAYATULLAH, J.-This judgment shall also govern the disposal of
C. A. 681 of 1963. These are appeals by special leave of this Court against a
common order of the Board of Revenue, U.P. dated February 8, 1960 disposing of
three .appeals. Civil Appeal No. 682 of 1963 (since compromised) was also
against the same decision. The appellant in each 'of these appeals is one Amba
Prasad who was the Zamindar of village Rhonda, Pargana and Tehsil Khurja,
District Bulandshahr, before the coming into operation of the U. P. Zamindari
Abolition and Land Reforms Act, 1950. The opposite parties (who will be
referred to as the answering respondents in this judgment) are persons whose
names were recorded in column 23 (miscellaneous) in the Khasra for the year
1356 Fasli, as persons in possession and who claim, by reason of the entry, to
be the recorded, occupants of the fields in dispute, and to have 'obtained
adhivasi rights in the fields under s. 20 of the Abolition Act. Though the
point in dispute appears to lie within a very narrow compass the history of
litigation in respect of these plots is as tedious as it is long. It must
unfortunately be told to get a true measure of the ,arguments in the appeals.
Amba Prasad brought two suits under s. 180 of
Tenancy Act, 1939 for ejectment from the
fields now in dispute and for damages, against Mohammad Ali and Mst.
Sharifan respectively because their names
A-ere recorded in the Khasra as tenants 'bila tasfia lagan'. These suits were
dismissed by the trial Judge and Aniba Prasad's appeal to the Commissioner
failed on November 30, 1943. Amba Pra.sad then appealed to the Board of
Revenue, U.P. and succeeded.
The order of the Board of Revenue, U. P. is
dated March 19, 1949 (item No. 25). Mohammad Ali had died by L/P(D)ISCI-26 802
then and was represented by one Faivazali and six others.
Mst. Sarifan had also died and was represened
by one Abdul Sattar alias Chunna Khan and two others. As a result of the
decision of the Board of Revenue possession of the fields was delivered to Amba
Prasad on July 1, 1949-the day of the commencement of the year 1357 Fasli. The
dakhalnamas are items Nos. 44 and 45 in this record and they mention fields
Nos. 427/2, 428/2, 429, 430 and 380 (item No. 44) and fields Nos. 416, 418/1
and 418/2 (item No. 45) of village Rhonda, Pargana and Tehsil Khurja, District
Immediately after obtaining possession of the
fields Amba Prasad was required to commence proceedings under s. 145, Criminal
Procedure Code before the Sub-Divisional Magistrate, Anupshahr against
Faiyazali and Abdul Sattar and others and on January 13, 1951 these proceedings
terminated in favour of Amba Prasad (item No. 28). The Sessions Judge
Bulandshahr made a reference to the High Court of Allahabad recommending that
the order be vacated but the High Court declined to interfere. The order of the
High Court is dated October 20, 1951 (item No. 29). Meanwhile Amba Prasad
started a prosecution under s. 218, Indian Penal Code against the Lekhpal
alleging that he had made false entries in the Revenue papers but the
Magistrate, 1st Class, Bulandshahr discharged him by his order dated July 24,
1950 (item No. 26). An application for revision of the order filed by Amba
Prasad was dismissed by the Sessions Judge, Bulandshahr on October 10, 1950
(item No. 27).
During the pendency of the proceedings under
Criminal Procedure Code these fields remained
under attachment from August 23, 1949 (1358 F.) to November 6, 1951 (1359 F.).
Two suits were then commenced in the court of the Munsif, Khurja for
declaration that crops of the fields under attachment belonged to the
plaintiffs. One suit (97 of 1951) was filed by Abdul Noor Khan and others
(answering respondents) and the other (67 of 1952) was filed by Sarfraz Ali Beg
and 8 others (respondents in C. A. 682 of 1963since compromised). These suits
were directed against Amba Prasad and the plaintiffs claimed to be in
possession of the fields by virtue of entries to this effect in the remarks
column of the Khasras of the relevant years. These suits failed on August 9,
1952 and August 8, 1953 respectively (vide items Nos. 30 and 32). It appears
that proceedings under s. 107,, Criminal Procedure Code were also started
against A. Noorkhan and others before Magistrate, 1st Class, Bulandshahrand
they were bound over to keep the peace. There is on the file of this case an
order of the Sessions Judge, Bulandshahr dismissing their application in
revision on February 24, 1953 (item No. 31).
803 Meanwhile, the answering respondents and
Sarfraz Ali and others commenced on November 6, 1951 three suits under s. 61
read with s. 183 of the U. P. Tenancy Act, 1939 .for declaration of Sirdar
rights and to claim hereditary rights under s. 180/2 ibid. These suits were
decreed against Amba Prasad by the Judicial Officer, Anupshahr on July 14,
He held that the Dakhaldehi of July 1, 1949
did not affect the plaintiffs and since they were shown to be in possession
they were entitled to succeed (item No. 33). Amba Prasad filed an appeal and
the Commissioner Meerut Division reversed the decision by his order dated April
1, 1954 (item No. 35). The Board of Revenue, U. P. also dismissed the -appeal
of the plaintiffs on September 17, 1955 (item No. 38).
On October 10, 1953 two suits were filed by
the answering respondents in these two appeals and a third by the respondents
in C. A. No. 682 of 1963 which has been compromised. These suits were under s.
232/2O of the U. P. Zamindari Abolition and Land Reforms Act. It is with these
suits -that we are concerned in the appeals. Two suits also under s. 232/20 of
the Abolition Act were filed by Ayub Ali Khan and Abdul Sattar Khan and others
against Amba Prasad. The answering respondents and Sarfraz Ali and others were
joined as defendants in those suits. The plaints in these two suits are dated
December 28, 1954 and December 20, 1954 (items Nos. 36 and 38). They were
dismissed by the SubDivisional Magistrate, Khurja on %-lay 16, 1955. The Additional
Commissioner, Meerut, dismissed the appeals on January 30, 1950 in default of
appearance (item No. 39).
On September 4, 1958 the Sub-Divisional
Officer, Khurja dismissed the three suits filed by the answering respondents
,and the respondents in the companion appeal. In these suits -the answering respondents
relied on extracts from the Khasras -of 1355F, 1356F, 1357F, 1358F and 1359F as
showing their possession. These lands, however, were under attachment from
August 23, 1949 (1358F) to November 6, 1959 (1359F) and could not be in the
possession of the answering respondents in the years 1358F and 1359F. This fact
was noticed by the Commissioner, Meerut Division, in his order dated April 1,
1954 and he cast doubts on the entries in 1355F ,and 1356F. The Sub-Divisional
Officer took up the same line of reasoning and pointed 'out that in years
subsequent to 1355F the entry would have found place in column 6 of the Khasra
and not the remarks column. He accordingly held that the entries of 1355 F and
1356 F were unreliable and .the answering respondents had not acquired adhivasi
rights. On Appeal, the Additional Commissioner, Meerut, reversed ,the decision
on April 19, 1959 and decreed the suits. Before the Commissioner the answering
respondents claimed that as L /P(D)ISCI-26(a) 804 they were recorded occupants
in 1356F they were not required to prove actual possession. This proposition,
it appears, was conceded by the counsel for Amba Prasad. He only argued that
the entries were not in accordance with paragraph 87 of the Land Records Manual
and they were considered spurious in earlier litigation. He also claimed that
the answering respondents were barred by the principle of res judicata because
though they were parties to the suits of Ayub Ali Khan and Abdul Sattar they
did not claim adhivasi rights in those suits.
The learned Commissioner pointed out that the
entries were no doubt suspected to be spurious by the Commissioner on April 1,
1954, but this was after July 1. 1952 which was the date of vesting and the
case therefore was outside Explanations 11 and III of s. 20(b) of the Abolition
Act. The learned Commissioner, therefore, was of the opinion that the entries
could not be discarded as they must have been completed under the rules before
April 30, 1949, that is to say, even before the Dakhaldehi. He held that the
answering respondents (appellants before him) had acquired adhivasi rights.
Amba Prasad appealed to the Board of Revenue.
The Board dismissed his appeal on February 8, 1960 by the order now impugned.
This time the learned counsel for Amba Prasad conceded that the entry was made
but contended that it was fraudulently made after July 1, 1949 and referred to
the prosecution of the Lekhpal. The Board 'of Revenue pointed out that there
was no order for the correction of the entry before the date of vesting and the
Lekhpal was acquitted of' the charge under s. 218, Indian Penal Code. Since the
entries were not corrected as required by Explanation 11 to s. 20 the
conditions of s. 20(b) of the Abolition Act were held to be satisfied and the
appeal was dismissed.
Mr. Goyal on behalf of Amba Prasad contends
that these suits were barred by res judicata. He submits that in the previous
suits filed by Ayub Ali Khan and Abdul Sattar and others, the answering
respondents were made defendants and could have raised the plea that they had
acquired adhivasi rights and as they did not raise such a plea they cannot now
raise it. We do not accept this Contention. The answering respondents had filed
these suits even before Ayub Ali Khan and Abdul Sattar had filed their suits.
Further, the suits filed by Ayub Ali Khan and Abdul Sattar did not decide
anything because they were dismissed owing to a technical flaw in the plaint.
Even the appeal was dismissed in default of appearance. Lastly, the answering
respondents and Amba Prasad were co-defendants and no issue between them was
tried or decided even if one was necessary to be tried.
805 Mr. Goyal next contends that the answer
inrespondents must show that they were in possession and that under Explanation
I to s. 20 they were evicted after June 30, 1948. He submits that these
conditions are not fulfilled by them.
Mr. Goyal also wishes to withdraw the
concession made on behalf of Amba Prasad before the Tribunals below that the
answering respondents need not prove their possession. He says that the
concession was made because there were rulings of the Allahabad High Court
which bound the Revenue Tribunals. He submits that these rulings should be
considered and urge that possession in 1356 Fasli must be proved. He further
submits that even entries in the Khasra and Khatauni to be of value must be
made in accordance with ss. 28 and 33 of the U. P. Land Revenue Act and he
relies on paragraph 87 of the Land Record Manual to contend that the entries in
favour of the answering respondents were irregular. These contentions though
they appear to be many are really two.
The first questions the entry and the other
the right of the answering respondents even if the record be correct to claim
adhivasi rights under s. 20 of the Abolition Act. We shall consider them
The first question is whether these entries
were regularly made. It is pointed out that they were doubted by the Revenue
Tribunals in some other proceedings and that the Lekhpal was also prosecuted
under s. 218, Indian Penal Code.
That, however, does not prove in these
proceedings that the entries are spurious. The Lekhpal was discharged and the
Additional Commissioner has held here:
"By making the entry in the remarks
column it is also not possible to attribute any dishonest or collusive entry.
It appears that Shri Amba Prasad had filed a criminal case against the patwari
but this was after the entries in the remarks column in favour of appellants
had been made. The entry in 1356 fasli cannot be discarded on the remarks in
the judgments referred by the learned counsel for the respondent. It appears
that Sri Mohammad Ali and Srimati Sharifan were the proprietors and they
mortgaged their share with present respondents and Sri Amba Prasad purchased
the equity of redemption and got the share partitioned. There was litigation
between Sri Amba Prasad and Sri Mohammad Ali and Srimati Sharifan upto High
Sri Amba Prasad and others filed suits
against Srimati Sharifan and Sri Mohammad Ali under section 180 and it was
decreed in the 2nd appeal on 19-3-49. The possession was delivered on 1-7-1949,
in execution of the decree. The Khasra for 1356 fasli under 806 the rules may
have been deposited some time before 31st July 1950 but the entries in the
Khasras had to be completed upto 30th April 1949" Mr. Goyal relies upon
paragraph 87 of the Land Records Manual and argues that the names of persons
occupying land without the consent of persons whose names are recorded in
column 5 of the khasra should have been entered in column 6 but column 6 is
crossed out. It is, however, to be seen that when a tenant leaves the
neighbourhood without leaving in charge of his holding, a person responsible
for the payment of his rent as it falls due and without giving a written notice
to the land holder of such arrangement, the Lekhpal is required to show the
name of the actual cultivator in the column of remarks preceded by the word
'qabiz' (see Para. 85(c)). That is how the entry stands and there is nothing on
the record of this case on the strength of which it can be said that the entry
in 1356F was not regularly made. If it was wrong Amba Prasad ought to have got
it corrected but the doubts cast on the entry cannot be said to have corrected
it .as required by Explanation III to s. 20 of the Abolition Act.
There is thus no doubt that the answering
respondents were recorded as 'qabiz' in 1356F. There is also no doubt that if
they were 'qabiz' they were dispossessed after June 30, 1948. The possession of
Amba Prasad did not begin ,earlier than July 1, 1949. There is nothing to show
that the possession of the answering respondents was disturbed between these
two dates, because the attachment came much later. Mr. Goyal, however, contends
that the burden is on ,the answering respondents to prove their possession and
eviction after June 30, 1948 before they can regain possession as adhivasis
under s. 20. Mr. Brij Bans Kishore, however, joins issue and claims that the
answering respondents have done enough when they show that they are recorded as
'occupants' in the year 1356F. He contends that it is not necessary to show
possession though he does not admit that the Ian were not in his clients'
We have pointed out above that the eviction
could not have taken place before July 1, 1949. The Dakhalnamas show that
possession was given to Amba Prasad on July 1, 1949. In so far as the appellant
is concerned he was not in possession before that date and the khasra for 1356F
shows that the answering respondents were 'qabiz' (in possession). It is
,contended that the suit is for possession and the date of dispossession has
not been given as required by rule 183.
No -such objection appears to have been made
at any time.
In -any event, that date is useful only to
calculate limitation and it is not Amba Prasad's cases that there is any such
807 The real dispute thus is whether a person
who is recorded as 'qabiz' but not as a tenant or a sub-tenant can get the
advantage of s. 20 of the Abolition Act and claim rights as an adhivasi. It is
convenient at this stage to set out the material portions of s. 20:
"20. Every person who (a) * (b) was
recored as occupant(i)of any land (other than grove land or land to which
section 16 applies) in the khasra or khatauni of 1356F prepared under sections
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 clause (c) of subsection (1) of section 27 of the United
Provinces Tenancy (Amendment) Act, 1947, or (ii) * * * * be called adhivasi of
the land and shall, subject to the provisions of this Act, be entitled to take
or retain possession thereof.
Explanation I-Where a person referred to in
clause (b) was evicted, from the land after June 30, 1948, he shall
notwithstanding anything in any order or decree, be deemed to be a person
entitled to regain possession of the land.
Explanation II-Where any entry in the records
referred to in clause (b) has been corrected before the date of vesting under
or in accordance with the provisions of the U. P. Land Revenue Act, 1901, the
entry so corrected shall for the purposes of the said clause, prevail.
Explanation III-For the purposes of
explanation 11 an entry shall be deemed to have been corrected before the date
of vesting if an order or decree of a competent court requiring any correction
in records has been made before the said date and had become final even though
the correction may not have been incorporated in the records.
Explanation IV-For the purposes of this
section " occupant" as respects any land does not include a person
who was entitled as an intermediary to the land or any share therein in the
year l356 Fasli. " The scheme of the section may now be noticed. The
section, speaking generally says that certain persons "recorded" a,,
"occupants" of lands (other than grove lands or lands to which
section 16 applies) shall be known as adhivasis and.
808 shall be entitled to retain or to regain
possession of them, after the date of vesting which was July 1, 1952. Such
persons do not include an intermediary (Explanation IV).
Such persons must be recorded as occupants in
the khasra or khatauni for 1356F (1-7-48 to 30-6-49). If such a person is in
possession be continues in possession. If he is evicted after June 30, 1948 he
is to be put back in possession notwithstanding anything in any order or
decree. By fiction such persons are deemed to be entitled to regain possession
(Explanation 1). The emphasis has been laid on the record of khasra or khatauni
of 1356F and June 30, 1948 is the datuni line. The importance of an entry in
these two documents is further apparent from explanations 11 and 111.
Under the former, if the entry is corrected
before the date of vesting (1-7-52), the corrected entry is to prevail and
under the latter the entry is deemed to be corrected (even though not actually
corrected) if an order or decree of a competent court ordering the correction
had been made before the date of vesting and the order or decree had become
final. There are thus two date lines. They are June 30, 1948 and July 1, 1952,
and the title to possession as adhivasi depends on the entries in the khasra or
khatauni for the year 1356F.
Before we proceed to decide whether the
answering respondents satisfy the above tests we must consider what is meant by
the terms 'occupant' and 'recorded'. The word 'occupant' is not defined in the
Act. Since khasra records possession and enjoyment the word 'occupant' must
mean a person holding the land in possession or actual enjoyment.
The khasra, however, may mention the
proprietor, the tenant, the sub-tenant and other person in actual possession,
as the case may be. If by occupant is meant the person in actual possession it
is clear that between a proprietor and a tenant the tenant, and between a
tenant and the sub-tenant the latter and between him and a person recorded in
the remarks column as "Dawedar qabiz" the dawedar qabiz are the
occupants. This is the only logical way to interpret the section which does
away with all intermediaries. If rights are not to be determined except in the
manner laid down by the section, the entries must be construed as explained by
the four explanations. Once we find out the right person in the light of the
explanations, that person continues as an adhivasi after July 1, 1952, provided
he is in possession or was evicted after June 30, 1948. If he was evicted after
June 30, 1948 he is entitled to regain possession in spite of any order or
decree to the contrary. The word 'occupant' thus signifies occupancy and
enjoyment. Mediate possession, (except where the immediate possessor holds on
behalf of the mediate possessor) is ,of no consequence. In this way even
persons who got into Occupation when lands were abandoned get recognition. The
809 section eliminates inquiries into disputed possession by accepting the
records in the khasra or khatauni of 1356F, or its correction before July 1,
1952. It was perhaps thought that all such disputes would have solved
themselves in the four years between June 30, 1948 and June 30, 1952.
There was, however, for some time a
difference of opinion, on the point whether possession in 1356F should be
proved, between the High Court of Allahabad and the Board of Revenue. Section
20 came before this Court in The Upper Ganges Sugar Mills Ltd. v.
Khalil-ul-Rehman and others(1) where the correctness of Lala Nanak Chand v. The
Board of Revenue, U.P.(2) was challenged oil the ground that it had held that a
mere entry in 1356F without possession in that year was sufficient. This Court
did not decide the question and left it open. Subsequently, the Allahabad High
Court in several decisions including the Full Bench decision in Ram Dular Singh
and another v. Babu Sukh Ram and others(3) has endorsed the earlier view in
Nanakchand v. Board of Revenue, U.P.(2) In L. Bhal Singh v. Bhop and another(4)
the following passage from Nanak Chand's case was expressly approved: "It
seems to us that clauses (b)(i) and (b)(ii) of Sec. 20 do not require the proof
of actual possession in the year 1356F. What they require merely is the entry
of a person's name as an occupant in the Khasra or Khatauni of 1356F. The words
of the section are clear.
(Every person who was recorded as occupant in
the Khasra or Khatauni in 1356F. etc.).
The words are not "every person who was
an occupant in 1356F": nor are the words "every person who was
recorded as an occupant in the year 1356F and who was also in possession in
that year". There is no warrant for introducing words in the section which
are not there. This conclusion is reinforced by what is stated in Explanation
The Board of Revenue in Sugriva v. Mukhi
etc.(5) has also adopted the same view. In view of the long established line
'of cases we see no justification for reopening of this question. The decision
of the Board of Revenue was therefore right. The appeal fails and is dismissed
with costs. One set of hearing fees.
(1)  1, S.C.R. 564.
(2) 1955 A.L.J. 408.
(3) 1963 A.L.J. 667.
(4) 1963 A.L.J. 288 at p. 291.
(5) 1963 A.L.J. 17 (Rev.).