Azad Singh & Ors Vs. Barkat Ullah
Khan & Ors [1983] INSC 51 (26 April 1983)
DESAI, D.A.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION: 1983 AIR 1139 1983 SCR (2) 927 1983
SCC (3) 111 1983 SCALE (1)469
CITATOR INFO :
D 1988 SC 587 (14)
ACT:
U.P. Zamindari Abolition and Land Reforms
Act, 1950-s. 12(1)-Interpretation of-Hereditary tenant-Thekedar under a Theka
for personal cultivation necessary.
U.P. Land Reforms (Supplementary) Act,
1952-S. 3- Interpretation of-Adhivasi-Cultivatory possession must be lawful.
Words and Phrases-Cultivatory possession.
HEADNOTE:
The plaintiffs, who were Thekedars, filed two
suits for possession of land Leased out by the Zamindars to the
defendants-lessees on the ground that since the Thekedars had become hereditary
tenants under s. 12 of the U.P. Zamindari Abolition and Land Reforms Act, 1 950
and were in possession of that land on 1st day of May, 1950, the Zamindars had
no right to grant lease and the lessees had no right to enter and remain in
possession of that land after that date. The lessees pleaded that they were in
cultivatory possession of the land during the year 1359 Fasli and were entitled
to all the rights of adhivasis under the U.P. Land Reforms (Supplementary) Act,
1952. The trial court dismissed the suits observing that the Thekedars had
acquired rights of hereditary tenants but the lessees were in cultivatory
possession in 1359 Fasli who had therefore acquired the right of adhivasi. The
first appellate court dismissed the appeals. The High Court in second appeal
reversed the decision of the trial court and the first appellate court and
decreed the suits. On appeal, it was contended that since there was no
authority given to the Thekedars for personal cultivation of the lands
comprised in the Theka the Thekedars did not acquire the right of hereditary
tenants under s. 12 of the 1950 Act.
Dismissing the appeals, ^
HELD: Section 12 of the 1950 Act provides
that if any land was given to a person for personal cultivation by him on the
1st day of May 1950, as a Thekedar thereof, then because of the non-obstante
clause occurring in sub-section (I) of section 12 the Thekedar would be deemed
to be a hereditary tenant of the land entitled to hold the land as such and
liable to pay rent at hereditary rates. If such hereditary tenant has lost
possession he is entitled to regain his possession. If, however, the land was
in the personal cultivation of the Thekedar who was appointed merely 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 13 928 of the Act. Before a Thekedar can claim the status of a
hereditary tenant, A he must not only be a Thekedar but the Theka must be
specifically granted for personal cultivation of the land included in the Theka
by the Thekedar.
[931 H, 932 A-C] Babu Noorul Hasan Khan v.
Ram Prasad Singh and Ors [1980] I SCR 977 and Raghunandan Singh and Ors v. Brij
Mohan Singh and Ors., [1980] 2 SCR 1063, referred to.
In the instant case the Theka was created
exclusively for personal cultivation of the land involved in the Theka be the
Thekedars and not as a consideration for some other duties to be performed by
the Thekedars to the Zamindars.
The Thekedars were in possession of the land
and were personally cultivating the land on the 1st day of May, 1950.
The Thekedars acquired the status of
hereditary tenants under section 12 of the 1950 Act. [933 C-E] Section 3 of the
1952 Act provides that any person who has not become a bhumidar, sirdar,
adhivas. Or asami under the 1950 Act if he is in cultivatory possession of any
land during the year 1359 Fasli and if the bhumidar or sirdar was not such a
person, such person in cultivatory possession would acquire the status of an
adhivasi. To obtain the benefit of section 3 the person claiming to be in
cultivatory possession must show that his or her possession was lawful. [933
F-G, 934 F] Sonawati and Ors. v. Sri Ram and Anr., [1968] I SCR 617, referred
to.
In the instant case since the Thekedars had
acquired the status of hereditary tenants as Theka was up to and inclusive of
the year 1359 Fasli, the Zamindars had no right to induct lessees in possession
after depriving the Thekedars of their possession and therefore possession of
the lessees in 1359 Fasli was not lawful. Therefore the lessees did not acquire
the right of adhivasi. [933 H, 935 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 282-283 of 1969.
Appeals by special leave from the Judgment
and order dated the 15th October, 1968 of the Allahabad High Court in Second
Civil Appeals Nos. 978/58 and 11 of 1959.
S. Rangarajan, Mrs. S. Bagga and Uma Jain for
the Appellants.
K.L. Hathi, P.C. Kupur, R.S. Mehta, O.P.
Verma and S.N. Singh for the Respondents.
The Judgment of the Court Was delivered by
DESAI, J. These two appeals by special leave arise from two Suits filed by
Barkatullah and Sahfiullah for possession of land more 929 particularly set out
at the foot of the plaint against the Zamindars and Prem Kumari and Noor Mohammad.
Briefly stated the plaintiffs' A case was that they were Thekadars and the
Theka was taken for personally cultivating the land and therefore under sec. 12
of the U P. Zamindari Abolition and Land Reforms Act, 1950 ('1950 Act' for
short), they have become hereditary tenants and they were in possession of land
on Ist April 1960. It was alleged that the Zamindars had no right to lease the
land after the plaintiffs became hereditary tenants yet Prem Kumari and Noor
Mohammad took land on lease from Zamindars and entered possession after
1.4 1950. It was alleged that the lessees
from the Zamindar had no right to remain in possession as against hereditary
tenants. On this short ground the plaintiffs sought possession of the land.
The defendants were the Zamindars and two
lessees contested the suit. The averments made in para 4 of the plaint were not
controverted specifically and it was merely stated that they are subject to
additional pleas. The only plea put forward on behalf of the lessees
worth-noticing is that the lessees were in cultivatory possession during the
year 1359-F and being not a person who has become a bhumidar sirdar, Adhivasi
or Asami is entitled to all the rights of Adhivasis under U.P. Land Reforms
(Supplementary) Act, 1952 ('1952 Act' for short) The trial court dismissed the
suit observing that the plaintiffs were Thekadars of the land and under sec. 12
of the 1950 Act have acquired rights of hereditary tenants but the lessees were
in cultivatory possession in 1359-F and therefore have acquired the right of
adhivasi. Thekanama was held to be defective on the question of Theka being
given exclusively for personal cultivation. The two plaintiffs preferred two
separate appeals and both the appeals were disposed of by the First Additional
Civil and Sessions Judge, Gonda as per his judgment dated September 1, 1958.
Broadly stated, the learned Judge agreed with
the findings of the trial court and dismissed the appeals. The original
plaintiffs carried the matter in . second appeal. Two separate appeals were
preferred, by the time the appeals came up for hearing, a statement was made
that both the plaintiffs have compromised the dispute inter Se and that the
suit be treated as one and if the appeal is to be allowed, possession is to be
given jointly to two appellants as against the respondents H The learned Judge
disposed of both the appeals by common judgment reversing the decision of the
trial court and the first 930 appellate court holding that the plaintiffs had
acquired the status of A hereditary tenants and were in possession on 1.5.1950
and, therefore, the Zamindars had no right to dispossess the plaintiffs and
induct the two lessees in possession. It was further held that as the lessees
came into possession under Zamindars who had no right to grant the lease
possession of the lessees being thus unlawful against the plaintiffs, they
could not have acquired the Adivasis rights. Accordingly, the suit was decreed
and a decree for possession was granted in favour of the plaintiffs. Hence
these two appeals by special leave Both the original lessees have died and
their heirs and legal representative are prosecuting these appeals.
Mr. Rangarajan, learned counsel for the
appellants urged that in view of the finding of the trial court that there was
no specific authority given to the Thekadars for personal cultivation of the
lands comprised in the Theka, the Thekadars-plaintiffs did not acquire the
right of hereditary tenants under sec 12 of the 1950 Act. This was the
principal contention urged in these two appeals.
1950 Act was a measure of agrarian reform
enacted with a view to abolishing the Zamindari system and for acquisition of
intermediaries' rights. Section 4 provided for vesting of estates in the State
free from all encumbrances with effect from the date to be specified by the
State Government in a notification. Sec. 6, inter alia, provided the
consequences of the vesting of an estate in the State, one such being that all
rights, title and interest of all the intermediaries shall cease and be vested
in the State. Sec. 1 2 provides that the Thekadars would acquire the rights of
hereditary tenants in certain circumstances.
It reads as under;
"(1) Where any land was in personal
cultivation of a person on the 1st day of May, 1950 as a Thekadar 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.
931 (2) The fact that the land comprised in
the theka has been in the personal cultivation of the thekedar since the commencement
of the theka shall, notwithstanding anything contained in section 91 and 92 of
the Indian Evidence Act, 1872 (I of 1872), be receivable in evidence for
showing that the theka was of the nature referred to in sub-section (1)".
1952 Act enacted certain supplementary
provisions in respect of the 1950 Act. Sec. 3 of 1952 Act provided that every
person who was in cultivatory possession of any land during the year 1359-Fasli
but is not a person who as a consequence of vesting under s. 4 of the 1950 Act has
become a bhumidar, sirdar, adhivasi or asami under s. 18 to 21 of the said Act
shall be and is hereby declared to be, with effect from the appointed date (b)
if the bhumidar or sirdar was not such a person, an adhivasi, and shall be
entitled to all the rights and be subjected to all the liabilities conferred or
imposed upon an asami or an adhivasi. There is an explanation to the section
which is not material. Original lessees claimed that they have acquired the
status of Adhivasi under s. 3 of 1952 Act.
It is not in dispute that the original
plaintiffs were Thekedars. It was however contended that unless the Theka was
exclusively far personal cultivation of the land comprised in the Theka, the
Thekedars would not acquire the status of hereditary tenants. Sec. 12 which has
been extracted herein before specifically provides that where any land is in
personal cultivation of a person on the 1st 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 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. This section came in for interpretation in Babu Noorul Hasan Khan v. Ram
Prasad Singh & Ors (1) wherein it was held 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. But this is subject to two
exceptions; one such being as enacted in 5. l 2 which provides that if such
land was in personal cultivation of a person on the 1st day of May, 1950, as a
932 thekedar thereof and if the theka was made with a view to the A cultivation
of land by such thekedar personally, then because of the non-obstante clause
occurring in sub-sec. (I) of s. 12 of the Act, the Thekedar would be deemed to
be a hereditary tenant of the land entitled to hold land as such and liable to
pay rent at hereditary rates. If such hereditary tenant has lost possession he
is entitled to regain his possession. It was further held that 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 sec. 13(2) of the Act. This interpretation of sec. 12 was re-affirmed in
Raghunandan Singh & Ors. v.
Brij Mohan Singh & Ors(1) It would thus
appear well-settled that before a Thekedar can claim the status of a hereditary
tenant, he must not only be a Thekedar but the Theka must be specifically
granted for personal cultivation of the land included in the Theka by the
Thekedar.
The question therefore, is whether in this
case the land included in the Theka of the original plaintiffs provided for
personal cultivation of the land by the Thekedar or personal cultivation was
incidental to other rights and obligations such as collection of rent . from
the other tenants ? This would necessitate examination of the original document
creating Theka. That was not read to us, but Mr. Rangarajan relied upon the
following observation in the judgment of the learned trial Judge:
"I have read the context (sic) (possibly
contract, of the Thekanama. There is no authority given specifically or
impliedly for personal cultivation by the Thekedars of the land comprised in
the Theka unless there was such a provision. I fear no rights of hereditary
tenancy could have been acquired by the plaintiffs." It was urged that the
learned Judge specifically came to the conclusion that the Theka was not
created exclusively and specifically for personal cultivation of the lands
involved in the Theka. The learned appellate Judge found that the Thekedars
were in actual possession and personal cultivation of the land for a period of
11 years. He further found that the Theka would be deemed to have been granted
for 933 personal cultivation and if the plaintiffs (Thekedars) have been found
to be in personal cultivation of the suit on 1st May, 1950 as Thekedars, they
would be entitled to the benefit of sec. 12 of 1950 Act. The learned appellate
Judge then concluded that it is satisfactorily proved that the
plaintiffs-Thekedars were in possession on 1st May, 1950.
However the learned Judge declined to grant
relief to the plaintiffs on the finding that the lessees had acquired Adhivasis
right under 1952 Act. It clearly transpires from the findings of the first
appellate court, which is the last fact finding court, that the Theka was for
personal cultivation of the land involved in the Theka and the Thekedars were
personally cultivating the land for a period of 11 years. The High Court in
second appeal noticed that the Thekedars were personally cultivating the land.
Nothing was pointed out to us to show that Thekedars had any other duty to
perform such as collecting rent from other tenants.
There is nothing in the record to show that
the Theka was as a consideration for some other duties to be performed by the
Thekedars to the Zamindars. Therefore, the conclusion is inescapable, that the
Theka was created exclusively for personal cultivation of the land involved in the
Theka by the Thekedars.
If it is clearly established that the Theka
was created exclusively for personal cultivation of the land by the Thekedars,
the ratio of the decision of this Court would lead to the conclusion that the
Thekedars acquired the status of the hereditary tenants under sec. 12 of the 1
950 Act.
The only question then remains for the
consideration is whether the original lessees acquired Adhivasis rights under
sec. 3 of the 1952 Act. Sec. 3 which has been extracted herein before provides
that any person who has not become a bhumidar, sirdar, adhivasi or asami under
1950 Act if he is in cultivatory possession of any land during the year 1359
Fasli and if the bhumidar or sirdar was not such a person, such a person in
cultivatory possession would acquire the status of an adhivasi. The High Court
then examined what is the significance of the expression 'cultivatory
possession' in sec. 3. The High Court rightly held that if the Thekedars had
acquired the status of hereditary tenants as Theka was up to and inclusive of
the year 1359 Fasli, the Zamindars had no right to induct lessees in possession
after depriving the Thekedars of their possession and therefore possession of
the lessees was not 934 lawful against the Thekedars. The High Court rightly
held that A the lessees could not be said to be in cultivatory possession of
the land on the appointed day. In reaching this conclusion, the High Court
relied upon a decision of this Court in Sonawati & ors. v. Shri Ram Anr.(1)
The Court held as under:
"The expression "cultivatory
possession" is not defined in the Act, but the Explanation clearly implies
that the claimant must have a lawful right to be in possession of the land, and
must not belong to the classes specified in the explanation. "Cultivatory
possession" to be recognized for the purpose of the Act must be lawful and
for the whole year 1359 Fasli. A trespasser who has no right to be in
possession by merely entering upon the land forcibly or surreptitiously cannot
be said to be a person in "cultivatory possession" within the meaning
of s. 3 of U.P. Act of 1952. We are of the view that the Allahabad High Court
was right in holding in Ram Krishna v.
Bhagwan Baksh Singh(2) that a person who
through force inducts himself over and into some land and succeeds in
continuing his occupation over it cannot be said to be in cultivatory
possession of that land so as to invest him with the rights of an asami or an
adhivasi, and we are unable to agree with the subsequent judgment of a Full
Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and ors.(B) that
occupation by a wrongdoer without any right to the land is 'cultivatory
possession' within the meaning of s. 3 of the U.P. Act 31 of 1952".
Therefore in order to obtain the benefit of
sec. 3 of 1952 Act, the person claiming to be in cultivatory possession must
show that his or her possession was lawful. The High Court consistent with
certain findings of the trial Court and the first appellate court held that
possession of the lessees in 1359 Fasli was not lawful and this necessarily
follows from the finding given by the courts that the Thekedars were in
cultivatory possession of the plots in dispute on the appointed day i.e. 1st
May, 1950 and thereby became entitled to acquire the rights of hereditary
tenants.
We are in agreement with the conclusion
recorded by the High Court.
935 It must therefore follow as a necessary
corollary that the lessees did not acquire the right of adhivasi and the
hereditary A tenants would be entitled to a decree for possession. Accordingly,
the appeals fail and must be dismissed. The appeals are thus dismissed with
costs.
H.S.K. Appeals dismissed.
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