Sher Singh Vs. Joint Director of
Consolidation & Ors [1978] INSC 107 (5 May 1978)
SINGH, JASWANT SINGH, JASWANT UNTWALIA, N.L.
PATHAK, R.S.
CITATION: 1978 AIR 1341 1978 SCR (3) 982 1978
SCC (3) 172
ACT:
U.P. Consolidation of Holdings Act, 1953
Section 48- Revisional powers of the Joint Director of Consolidation- Scope of.
HEADNOTE:
By lease deed dated July 20, 1945 for a
period of ten years beginning from the year 1353 fasli to the end of the year
1362 fasli, registered in his favour, the original appellant Sher Singh
obtained possession of ten plots of land admeasuring 6.63 acres situate in
Mahal Safed, Mouza Mahendri, Sikandarpur, Pargana Amroha, District Moradabad,
U.P. and was mutated in the Revenue Record as a "hereditary tenant".
Later, on September 6, 1945 a sale deed in respect of the proprietary right and
interest in the said lands were executed by the Zamindars in favour of Kaley
Singh, Harbans Singh and Nihal Singh, brothers of Sher Singh and one Chajju
Singh. Asserting their right of preemption in respect of the aforementioned
sale on the ground of they being co- sharers in the Mahal in which the said
plots were situate, Jai Kumar Singh and Roop Chand Singh, respondents 2 and 3
herein brought four suits in the Court of Munsif, Moradabad against the
aforesaid vendors and vendees and the original appellant Sher Singh for
possession of the land as also for cancellation of the lease in favour of Sher
Singh on the ground that it was fictitious and fraudulent and was executed with
a view to defeat their right of pre-emption.
The suits were decreed as prayed for and on
further appeal confirmed by the Civil Judge, Moradabad. Although the vendees
did not carry an appeal, the original appellant preferred a further appeal to
the High Court. The High Court allowed the appeal, holding that the revenue
court alone had jurisdiction to entertain the suits seeking relief of ejectment
of the lessee and the civil court had no jurisdiction, set aside the decree
passed against him.
Meanwhile the U.P. Zamindari Abolition and
Land Reforms.
Act, 1950 (U.P. Act 1 of 1951) came into
force with effect from the commencement of the 1360 fasli in July 1, 1952.
Pursuant to the observations of the High
Court, Respondents 2 & 3 filed ejectment suits against Sher Singh under section
209 of Act 1 of 1951, which were dismissed. First appeals preferred against
them also proved abortive. In second appeals the High Court stayed the orders
of the Courts below on account of the commencement of the consolidation
operations in the village.. Thereafter Respondents 2 and 3 filed objections
under section 9(2) of the U.P. Consoli- dation of Holdings Act, 1953 disputing
the correctness of the entries in the record showing Sher Singh as
"Bhumidar" and praying that the latter's name be expunged from the
records and in his place their names be substituted as Bhumidars, but the same
was rejected by the Consolidation Officer IV at Kanth. The Settlement Officer
in first appeal and the Deputy Director, Consolidation, Lucknow in second
appeal confirmed it. In the revision application under s. 48 of the 1953 Act,
the Joint Director of Consolidation allowed it, holding that the lease in
favour of Sher Singh was fictitious with intention to defraud the pre-emptors
and that the claim of respondents 2 and 3 was covered by Section 18 of the Act.
The Director, therefore, ordered the substitution of their names in the revenue
record as holders of the land as "Khudkhast" (self-cultivating
possession).
The appellant challenged the said order by
way of a writ petition which was dismissed.
Allowing the appeal by special leave, the
Court
HELD : (1) Section 48 of the U.P.
Consolidation of Hollings Act, as it stood on the relevant date, before its
amendment by Act No. VIII of 1963 is pari materia with S. 115 of the Civil
Procedure Code. The revisional jurisdiction of the High Court is confined to
cases of illegal or irregular exercise or non exercise or illegal assumption of
the jurisdiction by the subordinate courts.
983 If a subordinate court is found to
possess the jurisdiction to decide a matter, it cannot be said to exercise it
illegally or with' material irregularity even it decides the matter wrongly. In
other words, it is not open to the High Court while exercising its jurisdiction
under section 115 of the Code of Civil Procedure to correct errors of fact
howsoever gross or even errors of law unless the errors have relation to the
jurisdiction of the Court to try the ;dispute itself. [987 F-H] Section 115 of
the Code of Civil Procedure empowers the High Court to satisfy itself on three
matters : (a) that the order of the subordinate court is within its
jurisdiction;
(b) that the case is one in which the Court
ought to have exercised jurisdiction and failed to do so; and (c) that in
exercising jurisdiction the Court has not acted illegally, that is, in breach
of some provisions of law, or with material irregularity by committing some
error of procedure in the course of the trial which is material in that it may
have affected the ultimate decision. And if the High Court is satisfied that
there is no error in regard to any of these three matters, it has no power to
interfere merely because it differs from the conclusions of the subordinate
court on questions of fact or law. A distinction must be drawn between the
errors committed by subordinate courts in deciding questions of law which have
relation to, or are concerned with, questions of jurisdiction of the said
Courts, and errors of law which have no such relation or connection. An
erroneous decision on a question of fact or of law reached by the subordinate
court which has no relation to question of jurisdiction of that court, cannot
be corrected by the High Court under Section 115. [989 F-G, 990 A-B] Applying
the tests to the facts of the instant, case, it must be held that the Joint
Director of Consolidation ignored the limitation that existed on his power
under S. 48 of the 1953 'Act as it stood on the relevant date and illegally
assumed jurisdiction which he did not possess.
[990 B-C] Rajah Amir Hassan Khan v. Sheo
Baksh Singh, [1884] LR. 11 I.A. 237; Balakrishna Udayar v. Vasudeva Aiyar,
[1917] LR 44 I.A. 261; N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments
Board, Madras, [1948-49] LR 76 I.A. 67; Manindra Land and Building Corporation
Ltd. v. Bhutnath Banerjee & Ors., [1964] 3 SCR 495; Vora Abbashhai
Ali-mohammed v. Haji Gulamnabi Haji Safibhai,, AIR, 1964 SC 134; D.L.F. Housing
Construction Co. Pvt. Ltd. New Delhi v. Sarup Singh & Ors., [1930] 2 SCR
368; Pandurang Dhoni Chougute v. Maruti Hari Jadhav, [1956] 1 SCR 102 and M. L.
Sethi v. R. P. Kapur, [1973] 1 SCR 697 applied.
(2)(a) The Joint Director of Consolidation
was not competent to interfere, with the decisions of the subordinate
consolidation authorities who have not acted illegally in exercising their
jurisdiction. It is not and cannot be disputed that the consolidation
authorities subordinate to the Joint Director possessed plenary jurisdiction
and competence to go into the question of the correctness or otherwise of the
entries in the revenue records. Relating to Sher Singh's possession over the
plots of land in question and they arrived at. a concurrent finding of fact
that Sher Singh was in actual possession of the land on his own behalf on the
relevant date on the basis of the aforesaid valid lease deed and that neither
the vendees had even held the land in question as khukhasht holders nor could
they be deemed to be so. [990 C-D, 991 E-D] (b) Mere relationship of Sher Singh
with three out of four vendees on which the Joint Director of Consolidation has
relied was not enough to warrant the finding that the aforesaid lease grated in
his favour was fictitious. Even the subsequent transfer of the land in question
in favour of his nephew to which reference has been made in a casual and laconic
manner by the Joint Director of Consolidation cannot lead to the conclusion
that the lease was fictitious. No evidence which may indicate as to when the
said transfer was made nor has any material been placed before the Court to
show that the nephew in whose favour the land was transferred was the son of
any one of Sher Singh's three brothers who were povendees with Chajju Singh.
The 984 nature and character of the so called transfer by Sher Singh in favour
of his nephew is also shrouded in mystery. In the circumstances, the finding of
the Joint Director of Consolidation that the aforesaid lease in favour of Sher
Singh was fictitious cannot be sustained. [991 D-F] (3)The 1953 Act was
designed by the State Legislature principally to do away with the zamindary
system which involved intermediaries between the tiller of the soil and the
State in Uttar Pradesh, to provide for the acquisition of their rights, title
and interest and to reform the law relating to land tenure consequent upon the
aforesaid abolition and acquisition. To attain this object, the legislature
empowered the State Government to declare by means of a notification that as
from a specified date, all estates situate in Uttar Pradesh or in specified
area or areas thereof shall vest in the State and as from the beginning of that
date (which would be called the date of vesting), all such estates shall stand
transferred to and vest except as provided in the Act, in the State free from
all encumbrances. [991 G-H, 992 A] A close scrutiny of the facts and
circumstances of the case in the light of the provisions of Section 3(28) read
with S. 3(9) of and Sections 6, 7, 18, 19, 20, 131, 134, 135, 136, of the 1953
Act, leaves no room for doubt that Sher rights of a Bhumidar. There is nothing
on the record lease deed in favour of Sher Singh was fictitious or that the
revenue record on the basis of that deed were not conform to the true factual
position and that Sher Singh of the fields in question on his own behalf.
Consequently as Sher Singh was holding the said fields as a hereditary tenant
on the date immediately preceding the date of vesting, he became entitled to
retain possession thereof as a Sirdar under S. 19 of the Act and on depositing
to the credit of the State Government in the manner provided in section 134 and
other allied provisions of the Act an amount equal to ten times the land
revenue payable or deemed to be payable he became entitled to a declaration
that he had acquired the rights of a Bhumidhar mentioned in section 137 of the
Act in respect of the said fields and to the grant of a certificate to that
effect. [998 E-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 4 of 1969.
Appeal by special leave from the Judgment and
Decree/Order dated 31-10-67 of the Allahabad High Court in Special Appeal No.
238 of 1966.
R. K. Garg, S. C. Agarwal and V. J. Francis
for the Appellant.
B. P. Singh for Respondents Nos. 2-3.
The Judgment of the Court was delivered by
JASWANT SINGH, J. The litigation culminating in this appeal by special leave
has a long and chequered history which may be summarised thus By deed dated
July 20, 1945, registered on July 30, 1945, Chaudhary Vijay Kunwar singh and
virendra kunwar Singh, Zamin- dars of Mithanpur (U.P) leased out ten plots of
land admeasuring 6.63 acres situate in Mahal Safed Mouza Mahendri Sikandarpur
Pargana Amroha District Moradabad which were in their possession as khudkhast'
(self-cultivating possession) to Sher Singh the original appellant, for a
period of ten years beginning from the year 1353 Fasli to the end of the year
1362 Fasli. Nearly a month and a half later i.e. on September 6, 1945 the said
Chaudhary, Vijay Kunwar Singh 985 and Virendra Kunwar Singh alongwith their
mother, Smt.
Savitri Kunwar Singh, executed a sale deed in
respect of their proprietary right and interest in the aforesaid plots of land
in favour of Kaley Singh, Harbans Singh and Nihal Singh, brothers of Sher
Singh, and one Chajju Singh. On the basis of this lease deed, Sher Singh,
claimed to have obtained possession of the aforesaid plots of land and was
recorded as a hereditary tenant in respect thereof in the revenue record.
Asserting their right of pre-emption in respect of the aforesaid transaction of
sale on the ground of their being co-sharers in the Mahal in which the said plots
of land are, situate, Jai Kumar Singh and Roop Kumar Singh, respondents 2 and 3
herein, brought four suits in the Court of the Munsif, Moradabad against the
aforesaid vendors and vendees and Sher Singh for possession of the land as also
for cancellation of the aforesaid lease deed in favour of Sher Singh on the
ground that it was fictitious and fraudulant and was executed with a view to
defeat their right of pre-emption. These suits were decreed by the Munsif in
favour of respondents 2 and 3 on April 26, 1947.
On appeal, the Civil Judge, Moradabad, by Ms
judgment dated November 9, 1948 affirmed the judgment and decree passed by the
trial court. Although the vendors, Kaley Singh and others did not prefer an
appeal from the pre-emption decree passed against them, Sher Singh did not rest
content and took the matter in further appeal to the High Court of Judicature
at Allahabad in so far as his right to and ejectment from the plots of land in
question and cancellation of the aforesaid lease deed in his favour were
concerned. By its judgment and decree dated April 13, 1953, the High Court
allowed' the appeal of Sher Singh holding that the revenue courts alone had
jurisdiction to entertain the suit seeking relief of ejectment of the lessee
(Sher Singh) and the civil courts had no such jurisdiction. The High Court
accordingly set aside the decree passed against Sher Singh. Meanwhile the Uttar
Pradesh Legislature passed the U.P. Zamindari Abolition and Land Reforms Act,
1950 (U.P. Act No. 1 of 1951) (hereinafter referred to as 'the Act'). 'though
the Act came into force in the State on January 26, 1951, the issue of
notification under section 4 thereof was made to coincide with the commencement
of 1360 Fasli i.e. July 1, 1952. Pursuant to the observations made by the High
Court in its aforesaid judgment dated April 13, 1953, disposing of the appeal
of Sher Singh, respondents 2 and 3 filed ejectment suits against Sher Singh
under section 209 of the Act which were dismissed on November 20, 1953.
The first appeals preferred against the
dismissal of these suits also proved abortive as they were dismissed on
September 1, 1959. Respondents 2 and 3 thereupon took the matter in second
appeal to the High Court which was stayed on account of the commencement of the
consolidation operations in the village. in which the plots of land in question
are situate. Thereafter respondents 2 and 3 filed objections under section 9(2)
of the U.P. Consolidation of Holdings Act, 1953 (hereinafter called 'the 1953
Act') disputing the correctness of the entries in the records showing Sher
Singh as 'Bhumidar' of the plots of land in question and praying that the
latter's name be expunged from the records and in his place, their names be
substituted as Bhumidars but the same were rejected by the Consolidation
Officer IV at Kanth vide his orders dated December 24, 1961.
The order passed by the 12-329SCI/78 986
Consolidation Officer, Kanth, rejecting the objections of respondents 2 and 3
to the entries in the records was upheld by the Settlement Officer,
Consolidation, Amroha, in first appeal as also by the Deputy Director,
Consolidation, U.P., Lucknow in second appeal by orders made on April 16, 1961
and August 21, 1962 respectively. Dissatisfied with these orders of the
Consolidation authorities, respondents 2 and 3 took the matter in revision
under section 48 of the 1953 Act to the Joint Director of Consolidation, U.P.
who allowed the same and set aside the concurrent orders of the Consolidation
Officer,, the Settlement Officer and the Deputy Director, Consolidation,
holding that the lease in favour of Sher Singh was fictitious; that the basis
of Sher Singh's title viz. the aforesaid lease being fictitious intended to
defraud the preemptors, the recorded entries in favour of Sher Singh could confer
no title upon him; that Sher Singh's position could be deemed to be only that
of an agent carrying on cultivation on behalf of his brothers, the vendees, who
were entitled to the land in view of the sale in their favour till it was
pre-empted and that 'the effect of his finding would be that the possession of
Sher Singh after execution of the Patta shall be deemed to be the possession of
the vendees as Sher Singh bad himself no title to the land.' Finally holding
that the case of respondents 2 and 3 was covered by section 18 of the Act and
that the possession of the vendees would ensure to the benefit of the
pre-emptors, the Joint Director ordered their names to be substituted in the
relevant records observing that they would be deemed to be holders of the land
as 'kbudkbast'.
It is this order of the Joint Director which
was challenged before the High Court by Sher Singh in writ proceedings under
Article 226 of the Constitution and on the failure thereof has been impugned
before us.
Appearing for the appellants, Mr. Garg has
contended that since the jurisdiction exercisable by the Joint Director,
Consolidation, under section 48 of the 1953 Act as it stood on the relevant
date was limited to cases of errors of jurisdiction and the orders passed by
the Consolidation Officers subordinate to him did not suffer from any such in-
firmity the Joint Director, Consolidation, clearly exceeded the limits of his
power by reversing the concurrent findings of fact arrived at and the orders
passed by them. He has further urged that the finding of the Joint Director
that the lease in favour of Sher Singh was fictitious cannot also be upheld as
there is no material on the record to sustain that finding and all the
authorities below the Joint Director bad concurrently held that the lease in
favour of Sher Singh was valid and that he had not merely been recorded in the
revenue records as being in possession of the land in question but was found to
be in actual possession thereof pursuant to the lease deed. He has further urged
that as Sher Singh actually held the land as a hereditary tenant on the date
immediately preceding the date of vesting he became sirdar of the land under
section 19 of the Act and on deposit to the credit of the State Government an
amount equal to ten times the land revenue, in terms of section 134 of the Act
he became a Bhumidar. He has in the alternative urged that as Sher Singh was in
self-cultivating occupation of the land on the date immediately preceding the
date of vesting 987 and was recorded as such in the relevant records, he at any
rate acquired the right of an adhivasi under section 20(b) (ii) of the Act.
Mr. Lalnarayan Sinha has, on the other hand,
urged that the subordinate consolidation officers having omitted to determine
the vital question of the validity of the lease deed in favour of Sher Singh,
the Joint Director of Consolidation was justified in going into the same and
coming to the conclusion (on the basis of the close relationship of Sher Singh
with the vendees and the subsequent transfer by him of the plots of land in
question in favour of his nephew) that the transaction of the lease was sham
and fictitious. He has further urged that actual physical occupation of the
land is not essential to attract the applicability of section 18 of the Act and
the requirement of the section is satisfied even. when subsisting right and
title to possession over the land on the date of vesting on the basis of decree
of pre-emption as in the instant case is established. He has further urged that
the entries in the revenue records in favour of Sher Singh being fictitious and
his possession of the plots of land in question being merely on behalf of the
vendees, Sher Singh could neither acquire sirdari rights under section 19 nor
adhivasi rights under section 20(b) (ii) of the Act., The principal question
that falls for our determination in this case is whether in passing the
impugned order, the Joint Director of Consolidation, exceeded the limits of the
jurisdiction conferred on him under section 48 of the 1953 Act. For a proper
decision of this question, it is necessary to advert to section 48 of the 1953
Act is it stood on the relevant date before its amendment by Act No. VIII of
1963 "Section 48 of the U.P. Consolidation of Holdings Act: The Director
of Consolidation may call for the record of any case if the Officer (other than
the Arbitrator) by whom the case was decided appears to have exercised a
jurisdiction not vested in him by law or to have failed to exercise
jurisdiction so vested, or to have acted in the exercise of his jurisdiction
illegally or with substantial irregularity and may pass such orders in the case
as it thinks fit." As the above section is pari materia with section 115
of the Code of Civil Procedure, it will be profitable to ascertain the scope of
the revisional jurisdiction of the High Court.
It is now well settled that the revisional
jurisdiction of the High Court is confined to cases of illegal or irregular
exercise or non-exercise or illegal assumption of the jurisdiction by the
subordinate courts. If a subordinate court is found to possess the jurisdiction
to decide a matter, it cannot be said to exercise it illegally or with material
irregularity even if it decides the matter wrongly.
In other words, it is not open to the High
Court while exercising its jurisdiction under section 115 of the Code of Civil
Procedure to correct errors of fact howsoever gross or even errors of law
unless the errors have relation to the jurisdiction of the- court to try the
dispute itself.
988 The legal position was succinctly laid
down by the Privy Council as early as 1884 in Rajah Amir Hassan Khan v. Sheo
Baksh Singh(1) in the following words :- "The question then is, did the
judges of the lower Courts in this case, in the exercise of their jurisdiction,
act illegally or with material irregularity. It appears that they had perfect
jurisdiction to decide the question which was before them, and they did decide
it. Whether they decided rightly or wrongly, they had jurisdiction to decide
the, case; and even if they decided wrongly, they did not exercise their
jurisdiction illegally or with material irregularity." Again in
Balakrishna Udayar v. Vasudeva Aiyar(2) the Privy Council while discussing the
scope of section 115 of the Code of Civil Procedure observed :
"It will be observed that the section
applies to jurisdiction alone, the irregular exercise or non-exercise of it, or
the illegal assumption of it. The section is not directed against conclusions
of law or fact in which the question of jurisdiction is not involved." In
N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras(3), the
Privy Council observed that "section 115 empowers the High Court to
satisfy itself on three matters, (a) that the order of the subordinate court is
within its jurisdiction; (b) that the case is one in which the Court ought to
exercise jurisdiction and (c) that in exercising jurisdiction the Court has not
acted illegally, that is, in breach of some provision of law, or with material
irregularity, that is, by committing some error of procedure in the course of
the trial which is material in that it may have affected the ultimate decision.
And if the High Court is satisfied on those three matters, it has no power to
interfere because it differs from the conclusions of the subordinate court on
questions of fact or law." The above quoted observations made by the Privy
Council have been approved and affirmed by this Court in a number of cases. In
Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors. (4)
Vora Abbashhal Ali-mohomed v. Haji Gulamnabi Haji Safibhai(5) and D.L.F.
Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh &
Ors.(6), this Court, however, draw a distinction between the errors committed
by subordinate courts in deciding questions of law which have relation to, or
are concerned with, question of jurisdiction of the said court, and errors of
law which have no such relation or connection.
(1) (1884) LR. 11 LA. 237.
(2) (1917) LR 44 I.A. 261.
(3) (1948-49) LR 76 I.A. 67.
(4) [1964] 3 S.C.R. 495.
(5) AIR 1964 SC 1341.
(6) [1970] 2 S.C.R. 368.
989 Again in Pandurang Dhoni Chougate v.
Maruti Hari Jadhav(1) this Court held :
"The provisions of s. 115 of the Code
have been examined by judicial decisions on several occasions. While exercising
its jurisdiction under s. 115, it is not competent to the High Court to correct
errors of fact however gross they may be, or even errors of law, unless the
said errors have relation to the jurisdiction of the Court to try the dispute
itself. As clauses (a), (b) and (c) of s. 115 indicate, it is only in cases
where the subordinate Court has exercised a jurisdiction not vested in it by
law, or has failed to exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material irregularity that the
revisional jurisdiction of the High Court can be properly invoked. It is
conceivable that points of law may arise in proceedings instituted before
subordinate courts which are related to questions of jurisdiction. It is well
settled that a plea of limitation or a plea of res judicata is a plea of law
which concerns the jurisdiction of the court which tries the proceedings. A
findings on these pleas in favour of the party raising them would oust the
jurisdiction of the court and so, an erroneous decision on these pleas can be
said to be concerned with questions of jurisdiction which fall within the
purview of s. 115 of the Code. But an erroneous decision on a question of law
reached by the subordinate court which has no relation to questions of
jurisdiction of that court cannot be corrected by the High Court under S.
115." Again in M. L. Sethi v. R. P. Kapur(2), this Court observed
"The 'jurisdiction' is a verbal coat of many colours. Jurisdiction originally
seems to have had the meaning which Lord Reid ascribed to it in Anisminic Ltd.
v. Foreign Compensation Commissioner (1969) 2 A.C. 147, namely, the entitlement
'to enter upon the enquiry in question'. If there was an entitlement to enter
upon an enquiry into the question, then any subsequent error could only be
regarded as an error within the jurisdiction." The position that emerges
from these decisions is that section 115 of the Code of Civil Procedure
empowers the High Court to satisfy itself on three matters : (a) that the order
of the subordinate court is within its jurisdiction;
(b) that the case is one in which the court
ought to have exercised jurisdiction; and failed to do so (c) that in
exercising jurisdiction the Court has not acted illegally, that is, in breach
of some provisions of law, or with material irregularity by committing some
error of procedure in the course of the trial which is material in that it may
have affected the) ultimate decision. And if the High Court is satisfied that
there is no error in regard to any of these three matters, it has no power to
interfere merely because it differs from (1) [1956] 1 S.C.R. 102.
(2) [1973] 1 S.C.R. 697.
990 the conclusions of the subordinate court
on questions of fact or law. A distinction must be drawn between the errors
committed by subordinate courts in deciding question of law which have relation
to, or are concerned with, questions of jurisdiction of the said courts, and
errors of law which have no such relation or connection. An erroneous decision
on a question of fact or of law reached by the subordinate court which has no
relation to question of jurisdiction of that court, cannot be corrected by the
High Court under section 115.
Applying the tests as extracted above to the
facts of the instant case, we have no hesitation in holding that the Joint
Director of Consolidation ignored the limitation that existed on his power
under section 48 of the 1953 Act as it stood on the relevant date and illegally
assumed jurisdiction which he did not possess.
It is not and cannot be disputed that the
consolidation authorities subordinate to the Joint Director of Consolidation
possessed plenary jurisdiction and competence to go into the question of the
correctness or otherwise of the entries in the revenue records relating to Sher
Singh's possession over the plots of land in question. That they arrived at a
concurrent finding of fact that Sher Singh, was in actual possession of the
land on his own behalf on the relevant date on the basis of the aforesaid valid
lease deed is also evident from the following observations made by the
Settlement Officer, Consolidation, Amroha in his aforesaid decision dated April
16, 1962 :- "I have carefully gone through the record and also heard the
learned counsels for the parties at length and also perused the case law. It is
admitted that the appellants have never been able to obtain possession over the
disputed land. In the revenue records name of respondent Sher Singh exists
throughout from 1353 F upto the date of vesting and onwards also. Appellant's
allegation is that actually the brothers of Sher Singh who purchased the land
in dispute are in possession but there is absolutely no oral or documentary
evidence in support of this contention. Appellant Jai Kumar Singh himself
admits that in the. land purchased by Kaley Singh, Chajjoo Singh and others,
Sher Singh has no interest and these brothers also take food separately. I
agree with the learned Consolidation Officer that the simple fact that the
proprietary rights have been transferred to the brothers of Sher Singh is not
at all sufficient to prove that the lease was a fictitious document executed
simply to deprive the appellants of their rights of pre-emption. It is worth
mentioning that the lease was executed in 1945 and zamindari abolished in 1952.
It does not appeal to me that any one could have an idea that the interests of
the landlords will be extinguished in this manner and therefore the vendors
executed a fictitious deed to deprive the appellant of his rights of
pre-emption. ..
The vendees Kaley Singh and others had only
purchased proprietary interest in the disputed land and they were not its khud
kasht holders...... It is obvious that Kaley Singh and other the original
vendees purchased the land subject to 991 the possession of respondent Sher
Singh and their proprietary interest would have come to an end at the date of
vesting.......
Considering the entire evidence on record, I
hold that the land in dispute could not have been the khudkasht of the original
vendees and they could not have acquired Bhumidhari rights u/s 18 of the Z.A.
& L.R. Act and therefore the appellants who stepped into their shoes cannot
have better rights...... It may also be mentioned that respondent Sher Singh
has not been in possession as a trespasser but on the basis of a valid
lease." It may also be noted that the Deputy Director of Consolidation
after discussing the entire evidence and holding that Sher Singh was lessee in
possession of the land and neither the vendees had ever held the land in
question as khudkhast holders nor could they be deemed to be the khudkhast
holders thereof dismissed the appeal preferred by respondents 2 and 3 with the
following observations :- "The concurrent finding of the lower courts was
therefore correct and justified." Thus the subordinate Consolidation
authorities not having acted illegally in exercising their jurisdiction, the
Joint Director of Consolidation was not competent to interfere with their
decisions.
It would be appropriate at this stage to
observe that were relationship of Sher Singh with three out of four vendees on
which the Joint Director of Consolidation has relied was not enough to warrant
the finding that the aforesaid lease granted in his favour was fictitious. Even
the subsequent transfer of the land in question in favour of his nephew to
which reference has been made in a casual and laconic manner by the Joint
Director of Consolidation cannot lead to the conclusion that the lease was
fictitious. Our attention has not been drawn to any evidence which may indicate
as to when the said transfer was made nor has any material been placed before
us to show that the nephew in whose favour the land was transferred was the son
of any one of Sher Singh's three brothers who were co-vendees with Chajju
Singh. The nature and character of the so called transfer by Sher Singh in
favour of his nephew is also shrouded in mystery. In the circumstances, the
finding of the Joint Director of Consolidation that the aforesaid lease in
favour of Sher Singh was fictitious cannot be sustained.
Let us now see whether Sher Singh acquired
the rights of a Bhumidhar, or a sirdar or an Adhivasi under the Act. It would
be apposite for this purpose to refer to the object and a few relevant
provisions of the Act. As apparent from its preamble, the Act was designed by
the State Legislature principally to do away with the Zamindari system which
involved intermediaries between the tiller of the soil and the State in Uttar
Pradesh, to provide for the acquisition of their rights, title and interest and
to reform the law relating to land tenure consequent upon the aforesaid
abolition and acquisition. To attain this object, the Legislature empowered
the, State Government to declare by 992 means of a notification that as from a
specified date, all estates situate in Uttar Pradesh or in specified area or
areas thereof shall vest in the State and as from the beginning of that date
(which would be called the date of vesting), all such estates shall stand
transferred to and vest except as provided in the, Act in the State free from
all encumbrances. As already stated, though the Act came into force on January
25, 1951, the notification alluded to in section 4 was issued and published in
the Extraordinary issue of the State Gazette on July 1, 1952 which coincided
with the commencement of 1360 Fasli.
The consequences of the vesting of an estate
ensuing from the notification issued under section 4 are detailed in section 6
of the Act which, in so far as it is relevant for the purpose of the case,
provides as under "6. Consequences of the vesting of an estate in the
State.When the notification under section 4 has been published in the Gazette
then, notwithstanding anything contained in any contract or document or in any
other law for the time being in force and save as, otherwise provided in this
Act, the con- sequences as hereinafter set forth shall, from the beginning of
the date of vesting, ensure in the area to which the notification related,
namely- (a) all rights, title and interest of all the intermediaries- (i) in
every estate in such area including land (cultivable or barren), grove-land,
forests whether within or outside village boundaries, trees (other than trees
in village abadi, holding or grove), fisheries, tanks, ponds, water channels,
ferries, pathways, abadi sites, hats, bazars and melas [other than hats, bazars
and melas held upon land to ,Which clauses (a) to (c) of sub-section (1) of
section 18 apply.], and (ii) in all sub-soil in such estates including rights,
if any, in mines and minerals, whether being worked or not;
shall cease and be vested in the State of
Uttar Pradesh free from all encumbrances;........
(i) all suits and proceedings of the nature
to be prescribed pending in any court at the date of vesting, and all
proceedings upon any decree or order passed in any such suit or proceeding
previous to, the date of vesting, shall be stayed.........." Section 7 of
the Act which deal with saving in respect of certain rights inter alia lays
down that nothing contained in Chapter 11 shall in any way affect the right of
any person-(aa) being a bhumidhar, sirdar, adhivasi, or asami of any land, to
continue to enjoy any assessment or any similar right for the more beneficial
enjoyment of the land, as he was enjoying on the date immediately preceding the
date, of vesting.
993 It would be convenient at this stage to
notice sections 18, 19 and 20 of the Act which are couched in the following
terms :- "18. Settlement of certain lands with intermediaries or
cultivators as bhumidhars.- (1) Subject to the provisions of Sections 10, 15,
16 and 17, all lands- (a) in possession of or held or deemed to be held by an
intermediary as sir, khudkasht or an intermediary's grove, (b) held as a grove
by, or in the personal cultivation of a permanent lessee in Avadh.
(c) held by a fixed-rate tenant or a rent-
free grantee as such, or (d) held as such by- (i) an occupancy tenant, (ii) a
hereditary tenant, (iii) a tenant on patta dawami or to transfer the
holdinstamrari referred to in section 1 7 (e) held by a grove-holder possessing
the right to transfer the holding by sale on the date immediately preceding the
date of vesting shall be deemed to be settled by the State Government with such
intermediary, lessee, tenant, grantee or grove holder, as the case may be, who
shall, subject to the provisions of this Act, be entitled to take or retain
possession as bhumidhar thereof.
(2) Every person belonging to the class
mentioned in Section 3 or sub-section (2) of Section 3-A of the United Provinces
Agricultural Tenants (Acquisition of Privileges) Act, 1949, who has been
granted the declaration referred to in section 6 of the said Act in respect of
any holding or share thereof shall, unless the declaration is subsequently set
aside, be deemed to be the bhumidhar of the holding or the share in respect of
which the declaration has been made :-and continues in force.
(3) Notwithstanding anything contained in the
United Provinces Agricultural Tenants (Acquisition of Privileges) Act, 1949,
any declaration granted under section 6 of the said Act in favour of a tenant
to whom sub- section (2) of 'Section 10 applies, shall be and is hereby
cancelled and the amount deposited by him under Section 3 or 6 of the said Act
shall, after deducting the amount which might have been paid or be payable by
the State Government to his landholder under Sections 7 and 8 of the said Act,
be refunded to the person entitled in such manner as may be prescribed."
994 19.Land in the holding to be settled with the tenants thereof as
sirdar.-All land, held or deemed to have been held on the date immediately
preceding the date of vesting by any person as- (i) a tenant holding on special
terms in Avadh (ii) an ex-proprietary tenant (iii) an occupancy tenant (iv) a
hereditary tenant (v) a grantee at favourable rate of rent (vi) a non-occupancy
tenant of tea estates notified as such in a notification issued under
sub-section (5) of section 30 of the United Provinces Tenancy Act, 1939, (vii)
a sub-tenant referred to in sub-section (4) of section 47 of the United
Provinces Tenancy Act, 1939 and (Viii)...
(ix) all land referred to in section 17 held
on the said date by any person on patta dawami or istamrari, shall, save in
cases Provided for in clause (d) of sub- section (1) of Section 18, be deemed
to be settled by the State Government with such person, who shall, subject to
the provisions of this Act, be entitled, except as provided in sub-section (2)
of section 18, to take or retain possession as a sirdar thereof.
20. A tenant of sir, sub-tenant or an
occupant to be an adhivasi-Every person who- (a) on the date immediately
preceding the date of vesting was or has been deemed to be in accordance with
the provisions of this Act (i) except as provided in sub-clause (i) of clause
(b), a tenant of sir other than a tenant referred to in clause (ix) of section
19 or in whose favour hereditary rights accrue in accordance with the
provisions of Section 10,.or (ii) except as provided in sub-clause (i) of
clause (b), a sub-tenant other than a sub- tenant referred to in proviso to
sub-section (3) of Section 27 of the United, Provinces Tenancy (Amendment) Act,
1947, or in sub- section (4) of Section 47 of the United Provinces Tenancy Act,
1939, of any land other than grove-land 995 (b) was recorded as occupant (i) of
any land other than grove-land or land to which Section 16 applies or land
referred to in the proviso to sub-section (3) of Section 27 of the U.P. Tenancy
(Amendment) Act, 1947, in the Khasra or Khatauni of 1356 F. prepared under
sections 28 and 33 respectively of the U.P. Land Reforms Act, 1901, or who was
on the date immediately preceding the date of vesting entitled to regain
possession thereof under clause (c) of sub-section (1) of section 27 of the
United Provinces Tenancy (Amendment) Act, 1947, or (ii) of any land to which
Section 16 applies, in the khasra or khatauni of 1356 Fasli prepared under
sections 28 and 33 respectively of the United Provinces Land Reforms Act, 1901
but who was hot in possession in the year 1359 F., shall, unless he has become
a bhumidhar of the land under sub-section (2) of Section 18 or an asami under
clause (h) of section 21, be called adhivasi of the land and shall, subject to
the provisions of this Act, be entitled to take or retain possession thereof.
Explanation 1-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 II 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 had 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 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 1356 Fasli."
The expression 'Khudkasht' not having been defined in the Act, we shall have,
as ordained by section 3 (26) of the Act, to refer to section 3(9) of the U.P.
Tenancy Act, 1939, to find out its meaning:
996 "Section 3(9) of the U.P. Tenancy
Act, 1939 :
"khudkasht" means land other than
sir cultivated by a landlord, and under-proprietor or a permanent tenure-holder
as such either himself or by servants or by hired labour." We may now
advert to sections 131, 134, 135, 136, 137, 139 and 09 of the Act which are
also material for our purpose :
"131. Sirdar-Every person belonging to
Any of the following classes shall be called a sirdar and shall have all rights
and be subject to all the liabilities conferred or imposed upon sirdars by or
under this Act, namely- (a) every person who., as a consequence of the
acquisition or estates, becomes a sirdar under section 19, (b) every person who
is admitted as sirdar of vacant land under the provisions of this Act, and (e)
every person who in any other manner acquires the rights of a sirdar under or
in accordance with the provisions of this Act or of any other law for the time
being in force." 134. Acquisition of bhumidhari rights by a sirdar- (1) If
a sirdar belonging to the class mentioned in clause (a) of Section 131 pays or
offers to pay to the credit of the State Government an amount equal to ten
times the land revenue payable deemed to be payable on the date of application
for the land of which he is the sirdar, he shall upon an application duly made
in that behalf to an Assistant Collector, be entitled, with effect from the
date on which the amount has been deposited, to a declaration that he has
acquired the rights mentioned in Section 137 in respect of such land :
Provided that the right to pay or offer to pay
the amount aforementioned shall cease on the expiry of three months from the
date to, be notified by the State Government.
Explanation I-In this sub-section 'land'
includes share in land.
Explanation II-For the purpose of this
section the land revenue payable shall- (a) in respect of land referred to in
the proviso to clause (a) of sub-section 246, be an amount arrived at after all
the increases have been given effect to; and (b) in respect of land to which
the proviso to section 247 applies, be an amount determined at hereditary rates
under that section.
(2) The amount referred to in-sub-section (1)
may be paid in cash or, if the State Government so prescribes, in form of bonds
or otherwise.
997 135. Treasury challan to accompany the
application under Section 134.-The application referred to in Section 134 shall
be accompanied where the amount is paid cash, by a treasury challan and in any
other case, by such document or evidence as may be prescribed showing that the
amount aforesaid has been deposited and shall briefly describe the right in
which the applicant claims the land.
136. Amount to be deposited under section
134.-Where a sirdar or his predecessor-in-interest was', on the date
immediately preceding the date of vesting, a hereditary tenant of the holding,
the amount to be deposited under section 134 shall, notwithstanding anything
contained in this Act, be equal to ten times the land revenue payable by him
or, if the said land revenue exceeds an amount double that computed at the
applicable hereditary rates, ten times such amount.
137. Grant of certificate.--(1) If the
application has been duly made and the Assistant Collector is satisfied that
the applicant is entitled to the declaration mentioned in Section 134, he shall
grant a certificate to that effect.
(2) Upon the grant of the certificate under
sub-section (1) the: sirdar shall, from the date on which the amount referred
to in sub-section (1) of section 134 has been deposited- (a) become and be
deemed to be a bhumidhari of the holding or the share in respect of which the
certificate has been granted, and (b) be liable for payment of such reduced
amount on account of land revenue for the holding or his share therein, as the
case may be, as shall be one-half of the amount of land revenue payable or
deemed to be payable by him therefor on the date of application.
Provided further that in the cases referred
to in Explanation II of Section 134 the sirdar shall, during the period a
reduced amount is payable in accordance with Section 246 or 247, be liable for
payment of one-half of the amount payable from time to time.
Explanation.-For purposes of clause (b) the
land revenue payable by a sirdar on the date aforesaid shall, where it exceeds
an amount double that computed at the hereditary rates applicable, be deemed to
be equal to such amount.
(2-A). Where the amount referred to in sub-
section (1) of section 134 is deposited on a date other than the first day of
the agricultural year, the land revenue payable by the bhumidhar under clause
(b) of sub-section (2) for the 998 remainder of the agricultural year in which
the amount is deposited shall be determined in such manner as may be
prescribed.
139. Acquisition of bhumidhari rights by a
sirdar of the class mentioned in clause (b) of Section 131.-The provisions of
Section 134 and Sections 135 and 137, shall mutatis mutandis apply to a sirdar
belonging to the class mentioned in clause (b) or (c) of section 131.
209. Ejectment of persons occupying land
without title- (1) A, person taking or retaining possession of land otherwise
than in accordance with the provisions of the law for the time being in force,
and- (a) where the land forms part of the holding of a bhumidhar, sirdar or
asami without the consent of such bhumidhar, sirdar or asami, (b) where the
land does not form part of the holding of a bhumidhar, sirdar or asami without
consent of the Gaon Sabha, shall be liable to ejectment on the suit, in cases
referred to in clause (a) above, of the bhumidhar, sirdar or asami concerned,
and in cases referred to in clause (b) above, of the Gaon Sabha and shall also
be liable to pay damages.
(2) To every suit relating to a land referred
to in clause (a) of sub-section (1) the State Government shall be impleaded as
a necessary party." A close scrutiny of the facts and circumstances of the
case in the light of the above quoted provisions of law leaves no room for
doubt in our mind that Sher Singh acquired the rights of a Bhumidhar as
hereinafter stated. As already indicated, there is nothing on the record before
us to establish that the aforesaid lease deed in favour of Sher Singh was
fictitious or that the entires made in the revenue record on the basis of that
deed were not genuine or did not conform to the true factual position and that
Sher Singh was not in possession of the fields in question on his own behalf.
Consequently as Sher Singh was holding the said fields as a hereditary tenant
on the date immediately preceding the date of vesting, he became entitled to
retain possession thereof as a Sirdar under section 19 of the Act and on
depositing to the credit of the State Government in the manner provided in
section 134 and other allied provisions of the Act an amount equal to ten times
the land revenue payable or deemed to be payable, he became entitled to a
declaration that he had acquired the rights of a Bhumidhar mentioned in section
137- of the Act in respect of the said fields and to the grant of a certificate
to that effect.
In view of our aforesaid findings, it is
unnecessary to examine the alternate contention raised on behalf of the
appellants that as Sher Singh was in self-cultivating possession of the land on
the date imme- 999 diately preceding the date of vesting and was recorded as
such in the relevant record, he in any case acquired the right of an Adhivasi
under section 20(b) (ii) of the Act or to go into the contention of Mr.
Lalnarayan Sinha that the actual physical possession of the land is not
necessary to attract the applicability of section 18 of the Act and the
requirement of the section is satisfied even when subsisting right and title to
possession over the land on the date of vesting is established.
For the foregoing reasons, we allow the
appeal, set aside the impugned judgments and orders of the High Court as also
the decision of the Joint Director of Consolidation and restore that of the
Deputy Director of Consolidation, Lucknow. In the facts and circumstances of
the case, we leave the parties to bear their own costs.
S.R.
Appeal allowed.
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