PETITIONER: SHAM KARTIK SINGH Vs. RESPONDENT: MATHURA DATE OF JUDGMENT: 31/08/1962 BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS CITATION: 1967 AIR 732 1963 SCR (3) 904 ACT: Tenancy Law-Sir lands-Suit for ejectment of tenants-- Decree-Appeal-Pending appeal provision made for filing particulars in suits for ejectment-Statute providing penalty of dismissal of suit for failure to file particulars- Retrospectivity If substantial compliance sufficient- U.P.Tenancy Act. 1939 (U.P. 27 of 1939), 88. 6.16,19-U, P. Tenancy(Amendment)Act 1947(U.P. 10 of 1947),s.31. HEADNOTE: The appellants filed suit under the U.P Tenancy Act, 1939. for the ejectment of the respondents who were tenants of sir. The appellants filed the necessary extracts of papers in support of their case. The trial court decreed the suits 905 holding the land in suit was sir, that the appellants were sirholders, that each of them did not pay a local rate exceeding Rs 25, that he did not hold more then 50 acres of sir land or more than 50 acres of sir and khudkast land which had not been sublet and that the respondents had not become hereditary tenants. The respondents preferred appeals before the Commissioner. During the pendency of the appeals the U.P Tenancy (Amendment) Act.1947, amended s.19 of the Act Amended s. 19 provided that in suits for ejectment of tenants of sir the sir holder shall, before the first day fixed for recording evidence, furnish such particulars as may be prescribed and further provided that for failure to file such particulars the suit shall be dismissed. Section 31 of the Amending Act provided that its provision shall apply to pending suits, appeals etc. The respondents contended that the appellants had failed to comply with the provisions of amended s. 19 and that the suits should be dismissed. The Commissioner confirmed all the findings of the trial court and held that there had been sufficient compliance with the provisions of amended s. 19 and according dismissed the appeals. The respondents preferred second appeals before the Board of Revenue. The Board held that the provisions of amended s. 19 and of the rules framed thereunder had not been complied with and remanded the case to the trial court for compliance therewith and retrial. Held, that there had been sufficient compliance with the provisions of amended s. 19 and the rules framed thereunder and that the Board was riot justified in remanding the cases for retrial. Section 19 did not bring about any real change in the substantive law affecting the question whether land was sir or not. Even after the amendment, a sir-holder, in order to succeed in his suit, had to establish the same facts which he had to establish prior to the amendment. The only difference brought about by the amendment was in procedure and whereas prior to the amendment a sir-holder could lead his evidence without informing the Court before hand about the material he would produce, after the amendment it was incumbent upon him to furnish such information to the Court before the date fixed for recording evidence, The necessary particulars had been furnished even prior to the amendment and the Commissioner could decide the appeals in accordance with the provisions of the Act as amended by the amending Act. The attention of the Board was not drawn to the relevant documents filed by the appellants and it erred in stating that there had been no substantial compliance with the provisions of amended s. 19 and of the rules framed thereunder. 906 JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 484 to 489
of 1958.
Appeals by special leave from the judgement and order dated
August 6, 1954, of the U.P. Board of Revenue, Allahabad, in
petitions Nos. 203 to 208 of 1947-48.
G. C. Mathur, for the appellants.
M. L.Agarwala, for the respondents (in. C. As. Nos. 484
&485 of 1958) and respondent No.3 (In C.A No. 488. of 1958).
1962. August 31. The Judgment of the Court was delivered
by
RAGHUBAR DAYAL, J.-These appeals, by special leave, against
the orders of the Board of Revenue, Utter Pradesh, arise in
the following circumstances :
The appellants presented applications against each set of
the respondents in these six appeals under s.175, U.P.
Tenancy Act, 1939 U.P. XVII of 1939, hereinafter called the
Act, for ejectment stating that they were the sir-bolders of
the land occupied by the respondents as non-occupancy
tenants and that the period of five years during which the
respondents were entitled to retain possession under s.20 of
the Act had expired. The respondents contested the notice
of ejectment alleging that the land in suit was not air,
that the appellants were not sir-holders, that appellants
paid local rate exceeding Rs. 25/-in the United Provinces,
Agra and Oudh, and held more than 50 acres of sir land.
They claimed to be hereditary tenants of the land in
dispute, in accordance with ss. 14, 15 and 16 of the Act.
The paper were thereafter forwarded by the Tehsilder to the
Assistant Collector in charge of the sub-division, in
accordance with the provisions of s. 179 of the Act
907
The applications which were presented for the ejectment of
the respondents were deemed to be plaints and the
proceedings continued as suits, in view of sub-s. (2) of a.
179 of the Act.
The Court called upon the appellants to file necessary
extracts of papers and to join all tenants of air as
parties. The sub-Divisional Officer did not accept the
contention of the respondents and decreed the suits on
February 28, 1946, holding that the land in suit was air,
that the appellants were air-holders, that each of them did
not pay a local rate exceeding Rs. 25/- either in 1938 or in
1940, that he did not hold more than fifty acres of air land
or more than fifty acres of air and khudkasht land which had
not been sublet in 1317 F., corresponding to the period from
July 1, 1939 to June 30,1940.
The respondents appealed against the decree to the
Additional Commissioner, Benaras, and repeated their
contentions which had not found favour in the Trial Court.
They also contended that the appellants had not complied
with the requirements of s, 19 of the Act as amended by the
U.P. Tenancy (Amendment) Act, 1947 (U.P. X of 1947) which
came in to force on June 14. 1947 after the appeals had been
instituted.
The Additional Commissioner confirmed the findings of the
Sub-Divisional Officer and further hold that there had been
substantial compliance with the spiritof the law as laid
down in the amended a. 19 of the Act. He accordingly
dismissed the appeals.
The respondents then instituted second appeals in the Board
of Revenue. The Board of Revenue did not agree with the
additional Commissioner about there having been sufficient
compliance with the provisions of amended a. 19 of
908
the Act and of the rules framed thereunder. It therefore
set aside the decree against the respondents and remanded
the cases for fresh disposal in accordance with law and
further directed the Trial Court to decide the further
contention raised by the respondents before the Board to the
effect that they had acquired adivasi rights in the land in
suit after the coming into force of the U. P. Zamindari
Abolition and Land Reforms Act, 1950 (U. P. 1 of 1951). It
is against these orders of the Board of Revenue that these
six appeals have been filed after obtaining special leave
from this Court.
It appears that there was no particular procedure laid down
for the progress of the proceedings in the suit before the
Sub-Divisional Officer after the papers had been sent to him
in accordance with the provisions of s. 179 of the Act. The
ordinary procedure for the conduct of suits was followed.
The Sub-Divisional Officer therefore called upon the
appellants to file necessary extracts of documents.
Naturally evidence had to be led, documentary or oral, to
substantiate the allegations made by the parties and,
especially by the appellants, who bad to prove their right
to eject the respondents. They had to prove that the land
in suit was sir and that they were sir holders.
Section 6 of the Act defines `sir’. This section reads:
“Sir” means
(a) land which immediately before the
commencement of this Act was air under the
provisions of the Agra Tenancy Act, 1926, or
the Oudh Rent Act, 1886:
Provided that if at the commencement of this
Act, the sir holder is assessed in the United
Provinces to a local rate of more than
909
twenty-five rupees, land which was sir, under
the provisions of clause (d) or clause (e) of
Section 4 of the Agra Tenancy Act, 1926, or of
clause (c) or clause (d) of sub-Section (17)
of Section 3 of the Oudh Rent Act, 1886,
,shall on this Act coming into force cease to
be sir unless it was
(i)before the first day of July, 1938,
received otherwise than in accordance with the
provisions of Section 122 of the United
Provinces Land Revenue Act, 1901, or
(ii)before the commencement of this Act,
received in accordance with the provisions of
that section, in exchange for land which was
sir under the provisions of clause (a) or
clause (b) or clause (c) of Section 4 of the
Agra Tenancy Act, 1926, or of clause (a) or
clause (b) of sub-Section (17) of Section 3 of
the Oudh Rent Act, 1886.
Provided further that the provisions of the
first proviso shall apply to a sir holder who
was not at the commencement of this Act
assessed in the United Provinces to a local
rate of more than twenty-five rupees if be or
his predecessor-in-interest was so assessed on
the 30th June, 1938 unless the local rate
assessed on him has been decreased by
resettlement or by revision of settlement or
unless since that day-he obtained his sir
rights by succession or survivorship
Provided also that if the land to which the
provisions of the first proviso apply was
joint air of several air holders and all, such
joint air holders are not air holders to whom
such provisions apply, such land shall not
910
cease to be sir at the commencement of this
Act, but shall remain sir until that portion
of it which is the sir of those joint holders
to whom such provisions apply is demarcated
under the provisions of this Act;
(b) land which was khudkasht and which is
demarcated as sir under the provisions of this
Act.
Explanation- If any portion of the land
revenue assessed on the sir holder’s land has
been remitted owing to a fall in the price of
agricultural produce, the local rate payable
by him shall, for the purposes of this
section, be deemed to have been reduced in the
same proportion.”
It follows from these provisions that the appellants bad to
establish the following facts : (i) The land in suit was
`sir’ on January 1, 1940, when the Act came into force. (ii)
Each sir-holder was not assessed in the United Provinces to
a local rate of more than Rs. 25/-. (iii) The sir holder or
his predecessor in interest was not assessed to a local rate
exceeding Rs. 25/- on June 30, 1938.
The appellants proved these facts and the trial Court held
that the land in suit did not cease to be ‘sir’. Further,
if the finding had been that the first proviso to s. 6
applied, s. 16 would have come into play and it would have
been necessary for the Court to determine whether each of
the sir holders possessed more than fifty acres of sir or of
sir and khudkasht land which had not been let. On this
point too, the finding of the Trial Court, however, is that
each sir holder bad less than fifty acres of sir and
khudkasht land.
Section 19 of the Act, before its amendment, in 1947,
provided that if a sir-bolder could apply under the
provisions of B. 15 or 16 of the Act, the
911
Court was to take action under those sections. The amended
section also repeated these provisions in its sub-s. (3).
Its sub-ss. (1) and (2) were, however new and read as
follows.
“(1) In a suit or proceeding for the ejectment of a tenant
of sir the sir holder shall before the first date fixed for
recording evidence,furnish to the court such
particulars as the Board may by rule made in
this behalf prescribe for ascertaining’-
(a) whether the sir-holder is a person to whom the
provisions of the first proviso to clause (a) of Section
6 apply; and
(b) the total area and nature of the sir-holder’s air and.
khudkasht:
Provided that if the sir-holder satisfied the Court that he
had sufficient cause for not filing the particulars before
the date fixed, it way, subject to the payment of costs to
the opposite party, extend the time.
(2)If the. sir-holder does not file the particulars
mentioned in sub-Section (1) within the time fixed
thereunder, or deliberately furnishes inaccurate
particulars, the Court shall dismiss the suit or proceeding,
as the case may be, and shall declareare the tenant to be
hereditary tenant.”
It is tobe noticed I that sub-s. (1) requires a air-holder
tofurnish particulars prescribed by the Board and’ that
the purpose -of furnishing those particulars ‘is to assist
the Court in ascertaining whether the provisions of the
first proviso to clause (a) of s. 6 apply to the sir-
holder and what is the total area and nature of the sir-
holder’s sir and khudkasht. Section 19’ therefore, did not
bring
912
about any real change in the substantive law affecting the
question whether certain land is `sir’ or not, according to
the definition of ‘sir’ in s. 6 of the Act. After the
amendment, a sir-holder, in order to succeed in his suit,
had to establish the same facts which he had to establish
prior to the amendment, What proof he had to lead to support
his case, he has to give even after the amendment. The only
difference brought about by the amendment is in the
procedural conduct of the suit and is that prior to the
amendment the sir-holder had simply to lead evidence to
prove his case, without informing the Court before-hand
about the material on which he would rely to establish that
the provisions of the proviso (a) of s. 6 did not apply to
him and in case they applied how effect would be given to
the provisions of s 16. The amended Section made it
incumbent on the sir-bolder to furnish such information to
the Court and thereby to the tenant before the parties
proceeded to lead evidence. Such information has to be
furnished according to sub-s. (1) of amended s. 19, before
the first date fixed for recording evidence. The time for
furnishing such information can be extended under the
proviso to that sub-section. Great importance however, has
been attached to the new provision as sub-s. (2) of amended
s.19 provides that the consequences of not filing those
particulars, or filing those particulars inaccurately, would
be that the Court shall dismiss the suit or proceeding and
also declare the tenant to be a hereditary tenant.
Now, it is contended for the appellants, that the provisions
of amended s.19 do not apply to the facts of this case as
the amended section was enacted long after the first date of
recording evidence and that therefore it could not have been
possible for the appellant to furnish the necessary
particulars in accordance with its provisions and that if
its provisions apply to the facts of this case
913
the appellants have substantially complied with those
provisions inasmuch as they had actually filed in Court
documents which gave the necessary particulars required
under rr. 239A and 239B made by the Boara of Revenue under
s- 19. The contention for the respondents is that amended
section 19 is retrospective in view of the provisions of s.
31 of the Amendment Act of 197 and that the appellants had
not complied with requirements of s. 19 (1) and rules
framed thereunder.
The aforesaid s. 31 reads :
“Disposal of pending suits and appeals
(1)All proceedings, suits; appeals and
revisions pending under the said Act on the
date of the commencement of this Act and all
appeals and revisions filed after that date
against orders or decrees passed under that
Act and all decrees and ‘orders passed there-
under which have not been satisfied in full,
shall be decided or executed, as the case may
be, and where necessary such decrees and
orders shall be amended, in accordance with
the provisions of the said Act as amended by
this Act:
Provided- firstly that if such a decree or
order cannot be so amended, or the execution
of or the appeal or revision from such an
amended decree or order cannot be proceeded
with, it shall be quashed. In such a case the
aggrieved party shall, notwithstanding any law
of limitation be entitled to claim, within six
months from the date on which such decree or
order is quashed such rights and remedies as
he had on the date of the institution of the
suit or proceedings in which such decree or
order was passed, except in so far as such
rights or remedies are, inconsistent with
914
the provisions of the said Act as amended by
this Act:
Provided secondly that the proceedings under
Section 53 between a landlord and his tenant
and all proceedings under section 54 shall be
quashed:
Provided thirdly that appeals and revisions
arising out of the proceedings under Section
53 between a landholder and his tenant or out
of those under section 54 shall be so decided
as to place the parties in the same position in which th
ey were immediately before the
institution of such proceedings
Provided fourthly that all suits, appeals and
revisions pending under Section 180 of the
said Act, on the date of the commencement of
this Act for the ejectment of any person who
was recorded as an occupant on or after the
first day of January, 1938, in a record
revised under Chapter IV of the United
Provinces Land Revenue Act, 1901, or corrected
by an officer specialty appointed for the
correction of annual registers in any tract
shall be dismissed, and all decrees and orders
for the ejectment of such persons, which have
not been satisfied in full on the date of the
commencement of this Act shall be quashed-.
Provided fifthly that nothing in this
subsection shall affect the forum of appeal or
revision from a decree or order passed by a
Civil Court under the said Act.
(2)In counting the period of limitation in
respect of an application for the execution of
a decree or order which was passed under the
said Act and the execution of which was
915
stayed pending the enactment of this Act, the
period during which execution was so stayed
shall be excluded.”
In view of this section, the appeals which. were pending
before the additional Commissioner when the amendment Act
came into force bad to be decided in accordance with the
provisions of the Act as amended. It has been stated above
that no change in the substantive law affecting the rights
of the parties has been brought about by the Amendment Act.
The only provision which could affect the rights of the
parties is contained in sub-s.(2) of amended s.19 and
provides the consequences of the failure of the sir-holder
to furnish the necessary particulars. It follows therefore
that if the necessary particulars had been furnished in this
case even prior to the Amendment Act coming into force,
there could be no difficulty in deciding the appeals by the
Additional Commissioner in accordance with the provisions of
the Act as amended by the Amending Act. This is exactly
what the Additional Commissioner did. He held that subs-
tantial compliance has been made with the provisions of the
amended section and the rules framed thereunder. The Board
of Revenue is itself of the opinion that if substantial
compliance bad been made of those provisions that would have
been sufficient. It however did riot agree with the
Additional Commissioner’s- view that the appellants had
sufficiently complied with the provisions of amended s.19
aid the rules framed thereunder. We are of opinion that in
this the Board of Revenue was wrong.
Rules 239A and 239B framed by the Board are:
“239A. In a suit or proceeding for the
ejectment of a tenant of sir, the sir-holder
shall before the first date fixed for
recording
916
evidence, furnish to the Court the following
particulars:
(1)The amount of local rate to which the
sir-holder was assessed on 1st January, 1940,
in the United Provinces.
(2) If the amount shown under the preceding
subclause (1) is Rs. 25, or less, then-
(a) the amount of local rate to which the
sir-holder or his predecessor-in-interest was
assessed on June 30, 1938.
(b)Whether the local rate assessed on 30th
June, 1938, was decreased before 1st January,
1940, as a result of resettlement or revision
‘of settlement, and if so, the amount by which
it was decreased;
(c)Whether the sir-holder obtained his sir
rights by succession or survivorship between
30th June, 1938, and 1st January, 1940.
II. (1)The area and khasra numbers of the
plots, if any, held by him in severally or
jointly with others, on 31st December, 1939,
as sir in the United Provinces under the
provisions of clause (d) or clause (e) of
section 4 of the Agra Tenancy Act 1926, or of
clause (c) or clause (d) of sub-section (17)
of section 3 of the Avadh Rent Act, 1886.
(2) Such of the plots, if any shown under
the preceding sub-clause (1) along with their
areas, as were received by him in exchange for
the land which was his sir under the provi-
sions of clause (a) or clause (b) or
917
clause (c) of Section 4 of the Agra Tenancy
Act, 1926, or clause (a) or clause (b) of,
subsection (17) of the Avadh Rent Act, 1886-
(a) before the first day of July 1938
otherwise than in accordance with the
provisions of Section 122 of the United
Provinces Land Revenue Act, 1901, or
(b) before the first day of January, 1940,
in accordance with the provisions of that
section.
(3) The area and: khasra numbers of the
plots, if any, held by him in severally or
jointly with others and khudkasht in the
United Provinces, along with the period of
cultivation and nature of khudkasht of each
such plot.
(4) The extent of his share in the joint air
and khudkasht, if any shown under the
preceding sub-clauses (1) and (3).
239B. The particulars furnished in accordance
with rule 239A shall be accompanied by the
following documents:
(1) If the local rate payable by the sir-
holder in the United Provinces is claimed to
be Rs.25 or less, copies of the khewat khatas
of 1345 Fasli and of 1347 Fasli, in which he
was recorded as a co-sharer;
918
(2) a certified copy of the khatauni khatas
of his air and khudkasht;
(3) a certified copy of the khewat to which
such sir or khudkasht appertains, unless such
copy is filed under sub-rule (1);
(4) a list giving the amount of local rate
to which each co-sharer of the sir-holder in
the joint sir and khudkasht, if any, is
assessed;
(5) in the case of sir or khudkasht of a
joint Hindu family, a genealogical table and a
list showing the share of each living member
of the family having an interest in such sir
or khudkasht and the share of local rate which
each member would be liable to pay on ratable
distribution.”
The documents filed by the appellants in the Trial Court
consisted of (1) khewats of the various villages for the
years 1345, 1346 and 1347 Fasli, i.e. for the periods
between July 1, 1937 to June 30, 1940 (2) khatauni
jamabandis of the various villages for the years 1345 and
1347 Fasli, corresponding to July 1, 1937 to June 30, 1938
and July 1, 1939 to June 30, 1940, respectively; (3) (a) a
statement showing the shares of the appellants as recorded
in the khewats and khataunis of 1347 Fasli, this statement
showed the total of the air area held by the appellants to
be 152.33 acres, their khudkasht area to be 19.93 acres and
the total of the local rate payable by them to be Rs.
75.5.11; (b) a statement showing the air, khudkasht and
local rate of each plain in 1317 Fasli. This shows that
none of them held sir or sir and khudkasht in excess of 50
919
acres, or was assessed to local rate exceeding Rs. 25/- (4) Copy
of the pedigree.
These documents clearly furnish the particulars required by
the rules as the periods covered by these documents include
June 30, 1938, December 31, 1939 and January 1, 1940. Rule
239AI required particulars regarding the amount of local
rates on June 30, 1938 and January 1, 1940 and also about
sir-holders’ obtaining sir-rights by succession or
survivorship during the period.
The particulars required under sub-rules (3) and (4) of rule
239AII were available from these documents. Rule 239B
required copies of the khewat khatas of 1345 Fasli and of
1347 Fasli; certified copies of khatauni khatas of sir and
khudkasht; certified copies of the khewats to which that sir
or khudkasht appertained; a list giving the amount of local
rate to which each co-sharer of the sir-holder was assessed
and a genealogical table in the case of sir or khudkasht of
a joint Hindu family showing the share of each living member
of the family.
The only particulars which can possibly be not had directly
from the documents on record are those required by sub-rules
(1) and (2) of rule 239AII. These require particulars about
such sir which was the sir of the appellants under the
provisions of cls. (d) and (e) of s.4 of the Agra Tenancy
Act, 1926 i.e., land which became sir on account of the
landlord’s cultivation at the commencement of that Act,
i.e., on September 7, 1926, and had been recorded as
khudkasht in the previous agricultural year, i.e, in 1333
Fasli, or land which became air on account of the landlord’s
continuously cultivating it for a period of ten years
subsequent to the enforcement of the Agra Tenancy Act. It
is clear from the findings of the Trial Court that the land
in suit had been sir from the time of
920
the settlement, presumably, the first settlement, which took
place in the Nineties of the last Century. This seems to be
based on the fact that khatauni jamabandhis of 1345 and 1347
Fasli did not record a period of cultivation against the sir
entry, indicating thereby that the sir is not of the kind
mentioned in cls. (d) and (e) of s.4 of the Agra Tenancy
Act, 1926.
The Trial Court could and did record findings on all the
facts which had to be proved by the appellants to establish
their case. The first Appellate Court confirmed them. The
particulars required by sub-s. (1) of amended s. 19 of the
Act and the rules framed thereunder, were for the purpose of
ascertaining those facts. In the circumstances it is
reasonable to hold that there had been substantial
compliance with the provisions of amended s. 19 and the
rules framed thereunder. The Board of Revenue was therefore
in error in stating that the appellants had not given the
amount of local rate to which they were assessed in U.P. on
January 1, 1940, and that compliance did not appear to have
been made of rule 239AII of the Revenue Court Manual and
that there had not been sufficient compliance with the
mandatory provisions of rules 239A and 239B. From the
judgment of the Board it is clear that its attention was not
drawn to the several relevant documents filed by the
appellants in the trial Court. We have no doubt that if the
Board had considered the said document it would not have
held that s. 19 had not been substantially complied with.
We therefore hold that the Board of Revenue was in error in
setting aside the decree of the Additional Commissioner and
remanding the case for fresh trial on the ground that there
had not been compliance with the provisions of amended s. 19
of the Act and the rules framed thereunder.
921
We accordingly allow the appeals, set aside the order of the
Board of Revenue and remand the cases to it for decision in
accordance with law. We further direct it to decide itself
the contention raised by the respondents about their having
acquired adivasi rights under the U.P. Zamindari Abolition
and Reforms Act. In case the Board takes the view that for
deciding the said issue any finding of fact is necessary,
it. may call for the said finding from the Trial Court and,
on receiving it, proceed to deal with the appeals on the
merits.
In the circumstances of these cases, we direct that the
parties on either side bear their own costs.
Appeals allowed.
