PETITIONER:
AZAD SINGH & OTHERS
Vs.
RESPONDENT:
BARKAT ULLAH KHAN & OTHERS
DATE OF JUDGMENT26/04/1983
BENCH:
DESAI, D.A.
BENCH:
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]
JUDGMENT:
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.
936