Sham Kartik Singh Vs. Mathura  INSC
248 (31 August 1962)
31/08/1962 DAYAL, RAGHUBAR
DAYAL, RAGHUBAR GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1967 AIR 732 1963 SCR (3) 904
Tenancy Law-Sir lands-Suit for ejectment of
tenants-Decree-Appeal-Pending appeal provision made for filing particulars in
suits for ejectment-Statute providing penalty of dismissal of suit for failure
to file particularsRetrospectively If substantial compliance sufficientU.P. Tenancy
Act. 1939 (U.P. 27 of 1939), 88. 6.16,19-U, P. Tenancy(Amendment)Act 1947(U.P.
10 of 1947),s.31.
The appellants filed suit under the U.P
Tenancy Act, 1939.
for the ejectment of the respondents who were
tenants of sir. The appellants filed the necessary extracts of papers in
support of their case. The trial court decreed the suits 905 holding the land
in suit was sir, that the appellants were sir holders, that each of them did
not pay a local rate exceeding Rs 25, that he did not hold more then 50 acres
of sir land or more than 50 acres of sir and khudkast land which had not been
sublet and that the respondents had not become hereditary tenants. The
respondents preferred appeals before the Commissioner. During the pendency of
the appeals the U.P Tenancy (Amendment) Act.1947, amended s.19 of the Act
Amended s. 19 provided that in suits for ejectment of tenants of sir the sir
holder shall, before the first day fixed for recording evidence, furnish such
particulars as may be prescribed and further provided that for failure to file
such particulars the suit shall be dismissed. Section 31 of the Amending Act
provided that its provision shall apply to pending suits, appeals etc. The
respondents contended that the appellants had failed to comply with the
provisions of amended s. 19 and that the suits should be dismissed. The
Commissioner confirmed all the findings of the trial court and held that there
had been sufficient compliance with the provisions of amended s. 19 and
according dismissed the appeals. The respondents preferred second appeals
before the Board of Revenue. The Board held that the provisions of amended s.
19 and of the rules framed there under had not been complied with and remanded
the case to the trial court for compliance therewith and retrial.
Held, that there had been sufficient
compliance with the provisions of amended s. 19 and the rules framed there
under and that the Board was riot justified in remanding the cases for retrial.
Section 19 did not bring about any real change in the substantive law affecting
the question whether land was sir or not. Even after the amendment, a
sir-holder, in order to succeed in his suit, had to establish the same facts
which he had to establish prior to the amendment. The only difference brought
about by the amendment was in procedure and whereas prior to the amendment a
sir-holder could lead his evidence without informing the Court before hand
about the material he would produce, after the amendment it was incumbent upon
him to furnish such information to the Court before the date fixed for
recording evidence, The necessary particulars had been furnished even prior to
the amendment and the Commissioner could decide the appeals in accordance with
the provisions of the Act as amended by the amending Act. The attention of the
Board was not drawn to the relevant documents filed by the appellants and it
erred in stating that there had been no substantial compliance with the
provisions of amended s. 19 and of the rules framed thereunder.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 484 to 489 of 1958.
Appeals by special leave from the judgment
and order dated August 6, 1954, of the U.P. Board of Revenue, Allahabad, in
petitions Nos. 203 to 208 of 1947-48.
G. C. Mathur, for the appellants.
M. L. Agarwala, for the respondents (in. C.
As. Nos. 484 &485 of 1958) and respondent No.3 (In C.A No. 488. of 1958).
1962. August 31. The Judgment of the Court
was delivered by RAGHUBAR DAYAL, J.-These appeals, by special leave, against
the orders of the Board of Revenue, Utter Pradesh, arise in the following
The appellants presented applications against
each set of the respondents in these six appeals under s.175, U.P.
Tenancy Act, 1939 U.P. XVII of 1939,
hereinafter called the Act, for ejectment stating that they were the sir-bolders
of the land occupied by the respondents as non-occupancy tenants and that the
period of five years during which the respondents were entitled to retain
possession under s.20 of the Act had expired. The respondents contested the
notice of ejectment alleging that the land in suit was not air, that the
appellants were not sir-holders, that appellants paid local rate exceeding Rs.
25/-in the United Provinces, Agra and Oudh, and held more than 50 acres of sir
They claimed to be hereditary tenants of the
land in dispute, in accordance with ss. 14, 15 and 16 of the Act.
The paper were thereafter forwarded by the
Tehsilder to the Assistant Collector in charge of the sub-division, in
accordance with the provisions of s. 179 of the Act 907 The applications which
were presented for the ejectment of the respondents were deemed to be plaints
and the proceedings continued as suits, in view of sub-s. (2) of a. 179 of the
The Court called upon the appellants to file
necessary extracts of papers and to join all tenants of air as parties. The
sub-Divisional Officer did not accept the contention of the respondents and
decreed the suits on February 28, 1946, holding that the land in suit was air,
that the appellants were air-holders, that each of them did not pay a local
rate exceeding Rs. 25/either in 1938 or in 1940, that he did not hold more than
fifty acres of air land or more than fifty acres of air and khudkasht land
which had not been sublet in 1317 F., corresponding to the period from July 1,
1939 to June 30,1940.
The respondents appealed against the decree
to the Additional Commissioner, Benaras, and repeated their contentions which
had not found favour in the Trial Court.
They also contended that the appellants had
not complied with the requirements of s, 19 of the Act as amended by the U.P.
Tenancy (Amendment) Act, 1947 (U.P. X of 1947) which came in to force on June
14. 1947 after the appeals had been instituted.
The Additional Commissioner confirmed the
findings of the Sub-Divisional Officer and further hold that there had been
substantial compliance with the spirit of the law as laid down in the amended
a. 19 of the Act. He accordingly dismissed the appeals.
The respondents then instituted second
appeals in the Board of Revenue. The Board of Revenue did not agree with the
additional Commissioner about their having been sufficient compliance with the
provisions of amended a. 19 of 908 the Act and of the rules framed there under.
It therefore set aside the decree against the respondents and remanded the
cases for fresh disposal in accordance with law and further directed the Trial
Court to decide the further contention raised by the respondents before the
Board to the effect that they had acquired adivasi rights in the land in suit
after the coming into force of the U. P. Zamindari Abolition and Land Reforms
Act, 1950 (U. P. 1 of 1951). It is against these orders of the Board of Revenue
that these six appeals have been filed after obtaining special leave from this
It appears that there was no particular
procedure laid down for the progress of the proceedings in the suit before the
Sub-Divisional Officer after the papers had been sent to him in accordance with
the provisions of s. 179 of the Act. The ordinary procedure for the conduct of
suits was followed.
The Sub-Divisional Officer therefore called
upon the appellants to file necessary extracts of documents.
Naturally evidence had to be led, documentary
or oral, to substantiate the allegations made by the parties and, especially by
the appellants, who bad to prove their right to eject the respondents. They had
to prove that the land in suit was sir and that they were sir holders.
Section 6 of the Act defines `sir'. This
"Sir" means (a) land which
immediately before the commencement of this Act was air under the provisions of
the Agra Tenancy Act, 1926, or the Oudh Rent Act, 1886:
Provided that if at the commencement of this
Act, the sir holder is assessed in the United Provinces to a local rate of more
than 909 twenty-five rupees, land which was sir, under the provisions of clause
(d) or clause (e) of Section 4 of the Agra Tenancy Act, 1926, or of clause (c)
or clause (d) of sub-Section (17) of Section 3 of the Oudh Rent Act, 1886,
,shall on this Act coming into force cease to be sir unless it was (i)before
the first day of July, 1938, received otherwise than in accordance with the
provisions of Section 122 of the United Provinces Land Revenue Act, 1901, or
(ii)before the commencement of this Act, received in accordance with the
provisions of that section, in exchange for land which was sir under the
provisions of clause (a) or clause (b) or clause (c) of Section 4 of the Agra
Tenancy Act, 1926, or of clause (a) or clause (b) of sub-Section (17) of
Section 3 of the Oudh Rent Act, 1886.
Provided further that the provisions of the
first proviso shall apply to a sir holder who was not at the commencement of
this Act assessed in the United Provinces to a local rate of more than
twenty-five rupees if be or his predecessor-in-interest was so assessed on the
30th June, 1938 unless the local rate assessed on him has been decreased by
resettlement or by revision of settlement or unless since that day-he obtained
his sir rights by succession or survivorship Provided also that if the land to
which the provisions of the first proviso apply was joint air of several air
holders and all, such joint air holders are not air holders to whom such
provisions apply, such land shall not 910 cease to be sir at the commencement
of this Act, but shall remain sir until that portion of it which is the sir of
those joint holders to whom such provisions apply is demarcated under the
provisions of this Act;
(b) land which was khudkasht and which is
demarcated as sir under the provisions of this Act.
ExplanationIf any portion of the land revenue
assessed on the sir holder's land has been remitted owing to a fall in the
price of agricultural produce, the local rate payable by him shall, for the
purposes of this section, be deemed to have been reduced in the same
proportion." It follows from these provisions that the appellants bad to
establish the following facts : (i) The land in suit was `sir' on January 1,
1940, when the Act came into force. (ii) Each sir-holder was not assessed in
the United Provinces to a local rate of more than Rs. 25/-. (iii) The sir
holder or his predecessor in interest was not assessed to a local rate
exceeding Rs. 25/on June 30, 1938.
The appellants proved these facts and the
trial Court held that the land in suit did not cease to be 'sir'. Further, if
the finding had been that the first proviso to s. 6 applied, s. 16 would have
come into play and it would have been necessary for the Court to determine
whether each of the sir holders possessed more than fifty acres of sir or of sir
and khudkasht land which had not been let. On this point too, the finding of
the Trial Court, however, is that each sir holder bad less than fifty acres of
sir and khudkasht land.
Section 19 of the Act, before its amendment,
in 1947, provided that if a sir-bolder could apply under the provisions of B.
15 or 16 of the Act, the 911 Court was to take action under those sections. The
amended section also repeated these provisions in its sub-s. (3).
Its sub-ss. (1) and (2) were, however new and
read as follows.
"(1) In a suit or proceeding for the
ejectment of a tenant of sir the sir holder shall before the first date fixed
for recording evidence, furnish to the court such particulars as the Board may
by rule made in this behalf prescribe for ascertaining'(a) whether the
sir-holder is a person to whom the provisions of the first proviso to clause
(a) of Section 6 apply; and (b) the total area and nature of the sir-holder's
Provided that if the sir-holder satisfied the
Court that he had sufficient cause for not filing the particulars before the
date fixed, it way, subject to the payment of costs to the opposite party,
extend the time.
(2)If the. sir-holder does not file the
particulars mentioned in sub-Section (1) within the time fixed there under, or
deliberately furnishes inaccurate particulars, the Court shall dismiss the suit
or proceeding, as the case may be, and shall declare are the tenant to be
hereditary tenant." It is to be noticed I that sub-s. (1) requires a
air-holder to furnish particulars prescribed by the Board and' that the purpose
-of furnishing those particulars 'is to assist the Court in ascertaining
whether the provisions of the first proviso to clause (a) of s. 6 apply to the
sirholder and what is the total area and nature of the sirholder's sir and
khudkasht. Section 19' therefore, did not bring 912 about any real change in
the substantive law affecting the question whether certain land is `sir' or
not, according to the definition of 'sir' in s. 6 of the Act. After the
amendment, a sir-holder, in order to succeed in his suit, had to establish the
same facts which he had to establish prior to the amendment, What proof he had
to lead to support his case, he has to give even after the amendment. The only
difference brought about by the amendment is in the procedural conduct of the
suit and is that prior to the amendment the sir-holder had simply to lead
evidence to prove his case, without informing the Court before-hand about the
material on which he would rely to establish that the provisions of the proviso
(a) of s. 6 did not apply to him and in case they applied how effect would be
given to the provisions of s 16. The amended Section made it incumbent on the
sir-bolder to furnish such information to the Court and thereby to the tenant
before the parties proceeded to lead evidence. Such information has to be
furnished according to sub-s. (1) of amended s. 19, before the first date fixed
for recording evidence. The time for furnishing such information can be
extended under the proviso to that sub-section. Great importance however, has
been attached to the new provision as sub-s. (2) of amended s.19 provides that
the consequences of not filing those particulars, or filing those particulars
inaccurately, would be that the Court shall dismiss the suit or proceeding and
also declare the tenant to be a hereditary tenant.
Now, it is contended for the appellants, that
the provisions of amended s.19 do not apply to the facts of this case as the
amended section was enacted long after the first date of recording evidence and
that therefore it could not have been possible for the appellant to furnish the
necessary particulars in accordance with its provisions and that if its
provisions apply to the facts of this case 913 the appellants have
substantially complied with those provisions inasmuch as they had actually
filed in Court documents which gave the necessary particulars required under
rr. 239A and 239B made by the Boara of Revenue under s19. The contention for
the respondents is that amended section 19 is retrospective in view of the
provisions of s.
31 of the Amendment Act of 197 and that the
appellants had not complied with requirements of s. 19 (1) and rules framed
The aforesaid s. 31 reads :
"Disposal of pending suits and appeals
(1)All proceedings, suits; appeals and revisions pending under the said Act on
the date of the commencement of this Act and all appeals and revisions filed
after that date against orders or decrees passed under that Act and all decrees
and 'orders passed thereunder which have not been satisfied in full, shall be
decided or executed, as the case may be, and where necessary such decrees and
orders shall be amended, in accordance with the provisions of the said Act as
amended by this Act:
Providedfirstly that if such a decree or
order cannot be so amended, or the execution of or the appeal or revision from
such an amended decree or order cannot be proceeded with, it shall be quashed.
In such a case the aggrieved party shall, notwithstanding any law of limitation
be entitled to claim, within six months from the date on which such decree or
order is quashed such rights and remedies as he had on the date of the
institution of the suit or proceedings in which such decree or order was
passed, except in so far as such rights or remedies are, inconsistent with 914
the provisions of the said Act as amended by this Act:
Provided secondly that the proceedings under
Section 53 between a landlord and his tenant and all proceedings under section
54 shall be quashed:
Provided thirdly that appeals and revisions
arising out of the proceedings under Section 53 between a landholder and his
tenant or out of those under section 54 shall be so decided as to place the
parties in the same position in which they were immediately before the
institution of such proceedings Provided fourthly that all suits, appeals and
revisions pending under Section 180 of the said Act, on the date of the
commencement of this Act for the ejectment of any person who was recorded as an
occupant on or after the first day of January, 1938, in a record revised under
Chapter IV of the United Provinces Land Revenue Act, 1901, or corrected by an
officer specialty appointed for the correction of annual registers in any tract
shall be dismissed, and all decrees and orders for the ejectment of such
persons, which have not been satisfied in full on the date of the commencement
of this Act shall be quashed-.
Provided fifthly that nothing in this
subsection shall affect the forum of appeal or revision from a decree or order
passed by a Civil Court under the said Act.
(2)In counting the period of limitation in
respect of an application for the execution of a decree or order which was
passed under the said Act and the execution of which was 915 stayed pending the
enactment of this Act, the period during which execution was so stayed shall be
excluded." In view of this section, the appeals which. were pending before
the additional Commissioner when the amendment Act came into force bad to be decided
in accordance with the provisions of the Act as amended. It has been stated
above that no change in the substantive law affecting the rights of the parties
has been brought about by the Amendment Act.
The only provision which could affect the
rights of the parties is contained in sub-s.(2) of amended s.19 and provides
the consequences of the failure of the sir-holder to furnish the necessary
particulars. It follows therefore that if the necessary particulars had been
furnished in this case even prior to the Amendment Act coming into force, there
could be no difficulty in deciding the appeals by the Additional Commissioner
in accordance with the provisions of the Act as amended by the Amending Act.
This is exactly what the Additional Commissioner did. He held that substantial
compliance has been made with the provisions of the amended section and the
rules framed there under. The Board of Revenue is itself of the opinion that if
substantial compliance bad been made of those provisions that would have been
sufficient. It however did riot agree with the Additional Commissioner's view
that the appellants had sufficiently complied with the provisions of amended
s.19 aid the rules framed there under. We are of opinion that in this the Board
of Revenue was wrong.
Rules 239A and 239B framed by the Board are:
"239A. In a suit or proceeding for the
ejectment of a tenant of sir, the sir-holder shall before the first date fixed
for recording 916 evidence, furnish to the Court the following particulars:
(1)The amount of local rate to which the
sir-holder was assessed on 1st January, 1940, in the United Provinces.
(2) If the amount shown under the preceding
sub clause (1) is Rs. 25, or less, then(a) the amount of local rate to which
the sir-holder or his predecessor-in-interest was assessed on June 30, 1938.
(b)Whether the local rate assessed on 30th
June, 1938, was decreased before 1st January, 1940, as a result of resettlement
or revision 'of settlement, and if so, the amount by which it was decreased;
(c)Whether the sir-holder obtained his sir
rights by succession or survivorship between 30th June, 1938, and 1st January,
II. (1)The area and khasra numbers of the
plots, if any, held by him in severally or jointly with others, on 31st
December, 1939, as sir in the United Provinces under the provisions of clause
(d) or clause (e) of section 4 of the Agra Tenancy Act 1926, or of clause (c)
or clause (d) of sub-section (17) of section 3 of the Avadh Rent Act, 1886.
(2) Such of the plots, if any shown under the
preceding sub-clause (1) along with their areas, as were received by him in
exchange for the land which was his sir under the provisions of clause (a) or
clause (b) or 917 clause (c) of Section 4 of the Agra Tenancy Act, 1926, or
clause (a) or clause (b) of, subsection (17) of the Avadh Rent Act, 1886(a)
before the first day of July 1938 otherwise than in accordance with the
provisions of Section 122 of the United Provinces Land Revenue Act, 1901, or
(b) before the first day of January, 1940, in accordance with the provisions of
(3) The area and: khasra numbers of the
plots, if any, held by him in severally or jointly with others and khudkasht in
the United Provinces, along with the period of cultivation and nature of
khudkasht of each such plot.
(4) The extent of his share in the joint air
and khudkasht, if any shown under the preceding sub-clauses (1) and (3).
239B. The particulars furnished in accordance
with rule 239A shall be accompanied by the following documents:
(1) If the local rate payable by the sirholder
in the United Provinces is claimed to be Rs.25 or less, copies of the khewat
khatas of 1345 Fasli and of 1347 Fasli, in which he was recorded as a
918 (2) a certified copy of the khatauni
khatas of his air and khudkasht;
(3) a certified copy of the khewat to which
such sir or khudkasht appertains, unless such copy is filed under sub-rule (1);
(4) a list giving the amount of local rate to
which each co-sharer of the sir-holder in the joint sir and khudkasht, if any,
(5) in the case of sir or khudkasht of a
joint Hindu family, a genealogical table and a list showing the share of each
living member of the family having an interest in such sir or khudkasht and the
share of local rate which each member would be liable to pay on ratable
distribution." The documents filed by the appellants in the Trial Court
consisted of (1) khewats of the various villages for the years 1345, 1346 and
1347 Fasli, i.e. for the periods between July 1, 1937 to June 30, 1940 (2) khatauni
jamabandis of the various villages for the years 1345 and 1347 Fasli,
corresponding to July 1, 1937 to June 30, 1938 and July 1, 1939 to June 30,
1940, respectively; (3) (a) a statement showing the shares of the appellants as
recorded in the khewats and khataunis of 1347 Fasli, this statement showed the
total of the air area held by the appellants to be 152.33 acres, their
khudkasht area to be 19.93 acres and the total of the local rate payable by
them to be Rs.
75.5.11; (b) a statement showing the air,
khudkasht and local rate of each plain in 1317 Fasli. This shows that none of
them held sir or sir and khudkasht in excess of 50 919 acres, or was assessed
to local rate exceeding Rs. 25/(4) Copy of the pedigree.
These documents clearly furnish the
particulars required by the rules as the periods covered by these documents
include June 30, 1938, December 31, 1939 and January 1, 1940. Rule 239AI
required particulars regarding the amount of local rates on June 30, 1938 and
January 1, 1940 and also about sir-holders' obtaining sir-rights by succession
or survivorship during the period.
The particulars required under sub-rules (3)
and (4) of rule 239AII were available from these documents. Rule 239B required
copies of the khewat khatas of 1345 Fasli and of 1347 Fasli; certified copies
of khatauni khatas of sir and khudkasht; certified copies of the khewats to
which that sir or khudkasht appertained; a list giving the amount of local rate
to which each co-sharer of the sir-holder was assessed and a genealogical table
in the case of sir or khudkasht of a joint Hindu family showing the share of
each living member of the family.
The only particulars which can possibly be
not had directly from the documents on record are those required by sub-rules
(1) and (2) of rule 239AII. These require particulars about such sir which was
the sir of the appellants under the provisions of cls. (d) and (e) of s.4 of
the Agra Tenancy Act, 1926 i.e., land which became sir on account of the
landlord's cultivation at the commencement of that Act, i.e., on September 7,
1926, and had been recorded as khudkasht in the previous agricultural year,
i.e, in 1333 Fasli, or land which became air on account of the landlord's
continuously cultivating it for a period of ten years subsequent to the
enforcement of the Agra Tenancy Act. It is clear from the findings of the Trial
Court that the land in suit had been sir from the time of 920 the settlement,
presumably, the first settlement, which took place in the Nineties of the last
Century. This seems to be based on the fact that khatauni jamabandhis of 1345
and 1347 Fasli did not record a period of cultivation against the sir entry,
indicating thereby that the sir is not of the kind mentioned in cls. (d) and
(e) of s.4 of the Agra Tenancy Act, 1926.
The Trial Court could and did record findings
on all the facts which had to be proved by the appellants to establish their
case. The first Appellate Court confirmed them. The particulars required by
sub-s. (1) of amended s. 19 of the Act and the rules framed there under, were
for the purpose of ascertaining those facts. In the circumstances it is
reasonable to hold that there had been substantial compliance with the
provisions of amended s. 19 and the rules framed there under. The Board of
Revenue was therefore in error in stating that the appellants had not given the
amount of local rate to which they were assessed in U.P. on January 1, 1940,
and that compliance did not appear to have been made of rule 239AII of the
Revenue Court Manual and that there had not been sufficient compliance with the
mandatory provisions of rules 239A and 239B. From the judgment of the Board it
is clear that its attention was not drawn to the several relevant documents
filed by the appellants in the trial Court. We have no doubt that if the Board
had considered the said document it would not have held that s. 19 had not been
substantially complied with.
We therefore hold that the Board of Revenue
was in error in setting aside the decree of the Additional Commissioner and remanding
the case for fresh trial on the ground that there had not been compliance with
the provisions of amended s. 19 of the Act and the rules framed there under.
921 We accordingly allow the appeals, set
aside the order of the Board of Revenue and remand the cases to it for decision
in accordance with law. We further direct it to decide itself the contention
raised by the respondents about their having acquired adivasi rights under the
U.P. Zamindari Abolition and Reforms Act. In case the Board takes the view that
for deciding the said issue any finding of fact is necessary, it. may call for
the said finding from the Trial Court and, on receiving it, proceed to deal
with the appeals on the merits.
In the circumstances of these cases, we
direct that the parties on either side bear their own costs.