Harnam
Singh Vs. Khema Kunwar [1994] INSC 277 (2 May 1994)
Venkatachala
N. (J) Venkatachala N. (J) Ramaswamy, K.
CITATION:
1994 AIR 2755 1994 SCC (4) 589 JT 1994 (3) 486 1994 SCALE (2)766
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by VENKATACHALA, J.- In these appeals by
special leave directed against the common judgment and order dated 8-12-1972 of
a Division Bench of the High Court of Allahabad, rendered in Special Appeal
Nos. 948-949 of the a question of somewhat importance, which arises for our
decision, is as to whether a widow belonging to a class of disabled persons
under Section 157 591 of the Uttar Pradesh Zamindari Abolition and Land Reforms
Act, 1950 'the UPZA & LR Act' could be regarded as a landholder envisaged
under Section 21(1)(h) respecting her Sir lands, which a 'thekedar' under a 'thekanama'
executed by her had let out for occupation and cultivation by tenants prior to
9-4-1947 and which were allowed by the 'thekedar' to continue in such
occupation and cultivation on 9-8-1947, by receiving yearly rents from the
tenants.
2.
Material facts which have led to the need to decide the said question in the
present appeals, could be stated thus.
That
on 18-11-1933, Smt Khema Kunwar, Respondent 1 in
these appeals, as the widow of Nathu Singh succeeded to his Sir lands - Plot
Nos. 1, 6 and 1063 among others, of Village Barai M. Khara, Pargana Ujhani, District
Budaun. That on 12-12-1939, she executed a 'thekanama' in favour of one Ganga
Singh, by which he was put in physical possession of the said Sir lands,
enabling him as a 'thekedar' not only to cultivate those lands personally for
over a period of twenty years subject to payment to her theka money of Rs 355
per annum, but also to lease them for cultivation to tenants and receive annual
rents from them during that period. No sooner Ganga Singh got possession of the
said Sir lands under the 'thekanama' from Smt Khema Kunwar, he as 'thekedar',
leased Plot Nos. 1 and 6 to Harnam Singh, the appellant in CA No. 142 of 1976
and Plot No. 1063 to Mohar Singh, the appellant in CA No. 143 of 1976, on
yearly rents and put them in possession of those plots in the year 1940 for
their cultivation. Ever since the 'thekedar' received yearly rents from Harnam
Singh and Mohar Singh, as they were his tenants or lessees. In the year 1960,
when Harnam Singh, who was in occupation of Plot Nos. 1 and 6 and Mohar Singh,
who was in occupation of Plot No. 1063, from the year 1940 paying annual rents
as tenants to 'thekedar', Ganga Singh, found that they were shown as 'Asamis'
in respect of the said plots in the Basic Years Records, they filed objections
under Section 9 of the Uttar Pradesh Consolidation of Holdings Act, 1953 - 'the
UPCH Act' before tile jurisdictional Consolidation Officer, claiming that they
should be shown in Basic Years Records as 'Adhivasis' respecting plots in their
occupation. Smt Khema Kunwar, who did not dispute the fact that Harnam Singh
and Mohar Singh were occupants of the Plot Nos. 1, 6 and 1063 contested their
claim for recording them as 'Adhivasis' of those lands in Basic Years Records.
The Consolidation Officer by his judgment and order dated 26-9-1961 dismissed the objection raised by Hamam Singh and Mohar
Singh. That order, when was carried in appeals by Harnam Singh and Mohar Singh
before the Assistant Settlement Officer, their claim for recording their names
in the Basic Years Records as 'Adhivasis' was upheld by his Judgment and order
dated 13-6-1963. Smt Khema Kunwar, although impugned the order of the Assistant
Settlement Officer in her appeal filed before the Deputy Director of
Consolidation, and in her revision filed before the Joint Director of
Consolidation, she did not succeed.
So
also she did not succeed in her writ petitions filed in the matter before the
High Court of Allahabad, in that a learned Single Judge of that Court dismissed
those writ petitions by his 592 common judgment and orders dated 4-9-1967. But her special appeals file against the said
common judgment and orders of the learned Single Judge before the same High
Court were allowed by a common judgment and order dated 8-12-1972 of a Division
Bench of that Court, upholding her contention that the appellants herein were 'Asamis'
under Section 2 1(1)(h) of the UPZA & LR Act and not 'Adhivasis' under
Section 20(1)(b) thereof. It is that common judgment and order of the Division
Bench of the High Court which has been impugned by Hamam Singh and Mohar Singh
by filing the present appeals by special leave.
3. The
contention raised before us by Mrs Rachna Gupta, the learned counsel appearing
for the appellants was that even if Smt Khema Kunwar widow of Nathu Singh
belonged to a class of disabled persons under Section 157 of the UPZA & LR
Act, the judgment and order of the Division Bench of the High Court cannot be
sustained since it was based on its wrong view that Smt Khema Kunwar was
landholder envisaged under Section 2 1 (1)(h) of that Act. Her contention, in
other words, was that Smt Khema Kunwar, when had under a 'thekanama' executed
by her in the year 1933 in favour of Ganga Singh had granted to him as her 'thekedar'
the right to lease out her Sir lands in favour of the tenants and receive rents
from them and when accordingly her Sir lands, the said plots had been leased
out by that 'thekedar' in favour of the appellants and given for their
occupation and cultivation long prior to 9-4-1947 and the appellants were
allowed to continue in occupation of such lands by the 'thekedar' on receiving
rents from them even on 9-4-1947, she (Smt Khema Kunwar) could not have been
the landholder of such lands, envisaged under Section 21 (1)(h) of the UPZa
& LR Act as has been held by the Division Bench. Whether the said
contention of the learned counsel for the appellants in the present appeals
calls to be upheld, is indeed the question which now needs our consideration
and decision.
4. On
12-12-1939 Smt Khema Kunwar, who was the Sirdar of the aforesaid Sir lands
(plots), it is not disputed, executed a 'thekanama' of even date in favour of Ganga
Singh, making him 'thekedar' in respect of them Under that 'thekanama', it is
also not disputed, the 'thekedar' was given the right to cultivate the said
plots for a period of 20 years, on payment of 'theka' money of Rs 355 per
annum.
Under
that very 'thekanama' it is again not disputed, that the 'thekedar' was given
the further right to lease the said plots for cultivation to tenants of his
choice and to receive rents from such tenants. It transpires that on the
execution of that 'thekanama' the 'theked who got possession of the said plots
from Smt Khema Kunwar, leased them to the appellants herein for cultivation as
his tenants and received annual rents from them ever since. The right of
leasing the said plots in favour of tenants and the right of receiving rents
from them were the rights conferred by Smt Khema Kunwar in favour of the 'thekedar'
Ganga Singh under 'thekanama' executed and registered by her, stood unrebutted
before the consolidation authorities who have concluded accordingly, The
English 593 officially translated copy of 'thekanama' produced for our perusal
fully supports such conclusion.
5. The
United Provinces Tenancy Act, 1939 - 'the UPT Act' when came into force on 19-1-1940 the appellants were in occupation of those plots of
lands as tenants and cultivating them by paying rents to the 'thekedar'. The
said tenancies created by 'thekedar' in favour of the appellants being
agricultural tenancies, came to be regulated by the UPT Act. While under clause
(7) of Section 3 of the UPT Act 'holding' is defined to include the 'theka
area' held by a 'thekedar', under clause (24) thereof the 'thekedar' is defined
to mean a farmer or other lessee of the rights in land of a proprietor, who has
also, in particular the right to receive rents or profits. Section 209 of the
UPT Act declares that the farm or lease of a thekedar is a 'theka', the person
who grants it is the 'lessor, and the area to which it relates is the 'theka
area'. Section 21 1 of that Act declares that the thekedar may exercise, during
the period of his 'theka' all rights of the lessor under the Act even if such
rights were not conferred upon him under the terms of the 'thekanama'. So also
Sections 212 to 222 thereof refer to regulation of the relationship of 'thekedar'
with his lessor and his lessee.
Further,
under clause (11) thereof a 'landholder' is defined to mean a person to whom
rent is payable while under clause (23) thereof 'tenant' is defined to mean a
person by whom rent is payable. Furthermore, under clause (18) thereof ,rent'
is defined to mean whatever is, in cash or kind, payable on account of the use
or occupation of land.
6.
From the said definition clauses and provisions of the UPT Act, it becomes
clear that Ganga Singh, in whose favour the aforesaid 'thekanama' was executed
by Smt Khema Kunwar, respecting the aforesaid plots, was not only the 'thekedar'
under that Act but also a 'landholder' in respect of those plots in that he was
receiving rents from the tenants who were occupying those plots and cultivating
them.
7.
But, after the coming into force of the UPZA & LR Act when a notification
referred to in Section 4 thereof was published in the Gazette all rights,
titles and interest of all intermediaries in every estate including the
aforesaid plots of lands ceased and vested in the State of U.P. free from encumbrances. 'Intermediary' is defined
under clause (12) of Section 3 thereof to mean with reference to any estate, a
proprietor, as well as, a 'thekedar'. Section 12 thereof declares that 'thekedars'
would become hereditary tenants where the lands were in their personal
cultivation on 1-5-1950. Under sub-section (2) of Section
13 thereof, it entitles such 'thekedar' to become 'Asami' to the Sir lands or khudkasht
of the lessor on the date of the grant of the 'theka'. However, Section 20(b)
thereof says that every person who was recorded as a tenant of any land, shall,
unless he has become an 'Asami' under clause (h) of Section 21(1), be called an
'Adhivasi' of the land. In Udai Ram Lakhan v. Dy. Director of Consolidation',
this Court has held that a person shown in actual possession 1 1989 Supp (2)
SCC 722 (2): 1990 RD 9 594 in Khasra also shall be regarded as tenant. From
this it follows that a tenant shown to be in occupation of a plot of land under
Record of Rights has to be regarded as a recorded occupant of such land.
8.
Sub-section (1) of Section 21 of the UPZA & LR Act, which insofar as is
material for deciding the question under consideration may be excerpted. It reads
:
"21(1).
Notwithstanding anything contained in this Act, every person who, on the date
immediately preceding the date of vesting occupied or held land as (a)...
* * *
(h)... an occupant referred to in sub-clause (i) of clause (b) of the said
section where the landholder or if there are more than one landholders, all of
them were person or persons belonging- (a) if the land was let out or occupied
prior to the ninth day of April, 1946, both on the date of letting or
occupation as the case may be, and on the ninth day of April, 1946 and (b) if
the land was let out or occupied on or after the ninth day of April, 1946, on
the date of letting or occupation, to any one or more of the classes mentioned
in sub-section(10 of Section 157; ...
shall
be deemed to be an asami thereof."
9. The
Division Bench of the High Court in its judgment under appeal has taken the
view that the respondent herein Smt Khema Kunwar is the landholder referred to
in clause (h) of sub-section (1) of Section 21, facing within one of the
classes of disabled persons mentioned in Section 157(1) of the Act and hence the
appellants herein, who are in occupation of her aforesaid plots, are to be
regarded as 'Asamis' envisaged under the clause although they have become
tenants under the thekedar Ganga Singh, who was receiving rents from them.
10. We
find it difficult to agree with the said view taken by the Division Bench of
the High Court, which has led to the rendering of its judgment under appeals.
Section 3 of the UPZA & LR Act which contains definition clauses, in its
clause (26) states that the words and expressions 'landholder' 'thekedar' ...
'rent' ... 'tenant' ...
'holding'
... not defined in the Act and used in the United Provinces Tenancy Act, 1939
shall have the meaning assigned to them in the UPT Act. From what is contained
in the said clause (26), it becomes obvious that the word 'landholder' used in
any of the provisions of the UPZA & LR Act including the provisions in
sub-section (1) of Section 21 shall carry the meaning given to it under the UPT
Act When we have referred earlier to the definition clauses and the provisions
of the UPT Act we have clearly found that 'thekedar' under that Act would be a
'landholder' in respect of Sir lands (plots) of a proprietor if he has leased
595 them to tenants on the basis of 'thekanama' executed by the proprietor or Sirdar
in his favour, for he receives rents from such tenants. Therefore, the
landholder referred to in clause (h) of Section 2 1 (1) of the UPZA & LR
Act can only be 'thekedar' even where he had leased Sir lands of his
proprietor, because of his entitlement to receive rents from the tenants of
such lands. such being the legal position of a 'thekedar', question of
regarding a widow who had given away her Sir lands to a 'thekedar' under 'thekanama'
executed by her conferring full authority on the 'thekedar' to lease to tenants
such lands and to receive rents payable for them from the tenants, as a
landholder of such lands can never arise. Moreover, when 'thekedar' becomes a
landholder in respect of such Sir lands leased out to tenants as 'thekedar',
question of a proprietor continuing as their landholder also cannot arise.
Therefore, in the present case, when in respect of the aforesaid agricultural
lands (plots) 'thekedar' Ganga Singh was the landholder who had leased out
those lands to the appellants herein and was receiving rents from them treating
them as tenants, it ought not to have been held that Smt khema Kunwar, a person
belonging to a class of disabled persons under section 157(1) of the Act, was
the 'landholder' in respect of those plots as would make the appellants herein
the 'Asamis' under Section 21(1)(h) of the UPZA & LR Act. On the other
hand, the appellants herein, who were the tenants of those plots (lands), being
occupants of them, before, after and at the time of their vesting in the State
under the Act, are regarded very rightly by the consolidation authorities and
by the learned Single Judge of the High Court as persons recorded in the
Records of Rights, as occupants of those plots (1, 6 and 1063) and have been
rightly held to be 'Adhivasis' of those lands under Section 20(b) of the UPZA
& LR Act.
11. In
the result, we allow these appeals, set aside the judgment and order of the
Division Bench of the High Court under appeals and restore the orders of the
consolidation authorities and the learned Single Judge of the High Court which
were set aside by the judgment and order under appeal.
12.
However, in the facts and circumstances of the case, we make no order as to
costs.
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