Babu Noorul Hasan Khan Vs. Ram Prasad
Singh & Ors [1979] INSC 211 (18 October 1979)
ACT:
Uttar Pradesh Zamindari Abolition and Land
Reforms Act, 1950 Secs 11, 12, 13 (1) & 13(2)-Scope of.
HEADNOTE:
The appellants and others were the Zamindars
of a village in which certain lands were given on Theka to the Respondent and
others on 6th March, 1948, the Zamindari having vested on 30th June, 1952.
Disputes arose between the appellants and the respondents during the pendency
of proceedings under the U.P. Consolidation of Holdings Act.
The appellants and others claimed the plots
in dispute being in their exclusive Sir and Khudkast would be deemed to have
been settled with them by the State on the Abolition of Zamindari and their
name should be recorded as Bhoomidars thereof. Respondent and others on the
other hand claimed they had become the Sirdars of the plots in dispute and
resisted the claims of the Zamindars. The dispute gave rise to the question of
title. The Civil Judge sent the matter for decision to an Arbitrator appointed
under the Act. The Arbitrator held the respondents to be the Sirdars of the
plots in question. The appellants filed objections against the award before the
Civil Judge who allowed the objections, set aside the award and remitted back the
award for reconsideration. Appeals were taken to the Additional District Judge
who disagreed with the Civil Judge but affirmed the order of remand. Both sides
filed separate revisions before the High Court, the revision of Respondents was
allowed and dismissed those of the appellants. The only point argued was
whether Respondent and others have been rightly held to be the Sirdars of the
plots in question or whether the ex-landlords had become the Bhoomidars.
Dismissing the appeal.
HELD: That a Thekedar of an Estate ceases to
have any right to hold or possess any land in such Estate with effect from the
date of its vesting. This is what has been provided in sub-section (1) of
section 13. But it is subject to the exceptions-viz., one the provisions contained
in section 12 and the other engrafted in sub-section (2) of section 13.
There is no dispute between the parties that
the land in possession of the Thekedars on the date of vesting was either
covered by section 12(1) or section 13(2)(a). The land admittedly was the Sir
or Khudkasht of the lessor namely the Zamindars. If such a land was in the
personal cultivation of a person on the Ist May, 1950 as a Thekedar thereof and
if the Theka was made with a view to the cultivation of the land by such Thekedars
personally then because of the non-obstante clause occurring in sub-section (1)
of section 12 of the Act the Thekedar would be deemed to be a hereditary
tenants of the land entitled to hold as such and liable to pay rent at
hereditary rates. If, however, the land was in personal cultivation of the
Thekedar merely as a Thekedar appointed to collect rent from other tenants and
incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then
he will be a mere asami in accordance with section 13(2)(a) of the Act. The
Arbitrator on a consideration of the theka document found that the theka 978
was made with a view to cultivation of the land by the Thekedar personally. The
interpretation of the Arbitrator was not such that it could enable the Civil
Judge to take the view that there was an error of law apparent on the face by
the record. On the other hand it appears to us that the interpretation put by
the Arbitrator was correct. There is a subtle but clear dividing line between
the two types of cases one falling under section 12(1) of the Act and the other
coming within the ambit of section 13(2) (a). The High Court was right in its
that the Award of the Arbitrator was not fit to be interfered with. [980 G-H.
981 A-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1951 of 1969.
Appeal by Special Leave from the Judgment and
Order dated 7-1-69 of the Allahabad High Court in Civil Revision No. 506-510
and 548-552/65.
J. P. Goyal and S. K. Jain for the Appellant.
R. K. Garg, V. J. Francis and D. K. Garg for
Respondent No. 1.
The Judgment of the Court was delivered by
UNTWALIA, J.-This is an appeal by special leave from the judgment of the
Allahabad High Court disposing of ten connected civil revisions. Noorul Hasan
Khan and others were the Zamindars of the village in which certain lands were
given in Theka to Bhagwati Singh, Ram Prasad Singh and others on the 6th of
March, 1948. The Zamindari vested under the Uttar Pradesh Zamindari Abolition
and Land Reforms Act, 1950, hereinafter called the Act, on the 30th of June,
1952.
Disputes arose between the ex-Zamindars and
the ex-Thekadars during the pendency of the proceedings under the U.P. Consolidation
of Holding Act. When entries in the list of tenancy holders were published
under section 11 of the Consolidation of the Holdings Act relating to the lands
in dispute consisting of several plots, objections were filed by both the
parties. Noorual Hasan Khan and others claimed that the plots in dispute being
their exclusive Sir and Khudkasht would be deemed to have been settled with
them by the State on the abolition of the Zamindari and their names should be
recorded as bhumidars thereof. On the other hand Bhagwati Singh and others
claimed that they had become the Sirdars of the plots in dispute and they resisted
the claim of the ex-Zamindars. The Consolidation Officer referred the matter to
the Civil Judge of Azamgarh in accordance with section 12 of the Consolidation
of Holdings Act. The Civil Judge sent the matter for decision to an Arbitrator
appointed under the Act as the dispute gave rise to the question of title. Shri
Kailash Chandra, an Assistant Collector, was appointed as an Arbitrator. On
consideration of the oral and documentary 979 evidence adduced before him he
rejected the claim of ex- Zamindars and decided the matter in favour of the ex-
Thekedars. Bhagwati Singh and others were held to be the Sirdars of the plots
in question. Noorul Hasan and others filed objections to the Award before the
Civil Judge. He allowed the objections on the ground that the illegality of the
Award was apparent on the face of it in as much as the Arbitrator did not apply
the correct law in determining the rights of the parties. He set aside the
Award and remitted it back to the arbitrator for reconsideration in the light
of his judgment.
Appeals were taken to the learned Additional
District Judge who by order dated 8-12-1962 disagreed with the learned Civil
Judge on the main question but affirmed his order of remand on the ground that
in the Award many questions were left undetermined. Both sides filed separate
revisions before the High Court. The High Court has allowed the revisions of
the ex-Thekedars and dismissed those of the ex-Zamindars. Hence this appeal.
The only point which was argued and agitated
before us is whether Bhagwati Singh and others have been rightly held to be the
Sirdars of the plots in question or whether the ex-landlords had become the
bhumidars. The determination of this question depends upon a correct
appreciation of the provisions of law contained in sections 12 and 13 of the
Act. We shall read the relevant portions of the two sections. They are as
follows :- "12. Thekedars to be hereditary tenants in certain
circumstances.-(1) Where any land was in the personal cultivation of a person on
the Ist day of May, 1950, as a thekedar thereof and the theka was made with a
view to the cultivation of the land by such thekedar personally, then
notwithstanding anything in any law, document or order of court, he shall be
deemed to be a hereditary tenant thereof entitled to hold, and when he has been
ejected from the land after the said date, to regain possession as a hereditary
tenant thereof liable to pay rent at hereditary rates.
13. Estate in possession of a thekedar.-(1)
Subject to the provisions of Section 12 and sub-section (2) of this section a
thekedar of an estate or share therein shall, with effect from the date of
vesting, cease to have any right to or possess as such any land in such estate.
980 (2) Where any such land was in the
personal cultivation of the thekedar on the date immediately preceding the date
of vesting, the same shall- (a) if it was sir or khudkasht of the lessor on the
date of the grant of the theka, be deemed for purposes of Section 18, to be the
sir or khudkasht of the lessor on the date immediately preceding the date of
vesting and the thekedar shall, with effect from the date of vesting, become
the asami thereof liable to pay rent at hereditary rates applicable on the date
immediately preceding the date of vesting and entitled to hold the land as such
for the unexpired period of the theka or for a period of five years from the
date of vesting whichever is less;
(b) if it was not sir or khudkasht of the
lessor on the date of the grant of the theka and- (i) its area does not exceed
thirty acres, be deemed for purposes of Section 19 to have been held by the
thekedar as a hereditary tenant liable to pay rent which shall be equal to the
rent calculated at hereditary rates applicable on the date immediately
preceding the date of vesting.
(ii) its area exceeds thirty acres, be deemed
to the extent of thirty acres for purposes of Section 19 to have been held as a
hereditary tenant as aforesaid and the remainder shall be deemed to be vacant
land and the thekedar shall be liable to ejectment therefrom in accordance with
the provisions of Section 209." It would be noticed from the provisions
aforesaid that a Thekedar of an Estate ceases to have any right to hold or
possess as such any land in such Estate with effect from the date of its vesting.
This is what has been provided in sub- section (1) of section 13. But it is
subject to two exceptions-viz., one the provision contained in section 12 and
the other engrafted in sub-section (2) of section 13.
There is no dispute between the parties that
the land in possession of the Thekedars on the date of vesting was either
covered by section 12(1) or section 13(2) (a). We are not concerned in this
case with section 13(2)(b) as the land admittedly was the Sir or Khudkasht of
the lessor namely the Zamindars. If such a land was in the personal 981
cultivation of a person on the 1st day of May, 1950 as a Thekedar thereof and
if the Theka was made with a view to the cultivation of the land by such
Thekedar personally then because of the non-obstante clause occurring in
sub-section (1) of section 12 of the Act the Thekedar would be deemed to be a
hereditary tenant of the land entitled to hold as such and liable to pay rent
at hereditary rates. If, however, the land was in personal cultivation of the
Thekedar merely as a Thekedar appointed to collect rent from other tenants and
incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then
he will be a mere asami in accordance with section 13(2)(a) of the Act. The
Arbitrator on a consideration of the Theka document found that the theka was
made with a view to cultivation of the land by the Thekedar personally. The
interpretation of the Arbitrator was not such that it could enable the Civil
Judge to take the view that there was an error of law apparent on the face of
the record. On the other hand it appears to us what the interpretation put by
the Arbitrator was correct. There is a subtle but clear dividing line between
the two types of cases one falling under section 12(1) of the Act and the other
coming within the ambit of section 13(2)(a). In our opinion the High Court was
right in its view that the Award of the Arbitrator was not fit to be interfered
with.
For the reasons stated above, we dismiss this
appeal but in the circumstances make no order as to costs.
N.K.A. Appeal dismissed.
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