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Allahabad High Court
Shiv Dayal & Others vs D.D.C. & Others on 29 January, 2010
                                                              Reserved
                     Writ Petition No. 612 of 1974
Shiv Dayal and others................................Petitioners
                                   Vs.
Deputy Director of Consolidation,
Kanpur and others.....................................Respondents

                     __________




Hon'ble Rakesh Sharma, J.

Heard Sri V.K.S. Chaudhary, learned Senior Advocate, assisted
by Sarvasri Kunal Ravi Singh, Ramesh Singh and R.S. Maurya,
learned counsel for the petitioners. Learned Standing Counsel
appears for Respondent nos. 1 to 3. Respondent nos. 4 to 7 are
represented by Sarvasri O.P. Misra and Pradeep Chandra.

Through this writ petition, the petitioners have assailed the
orders passed by the three Consolidation authorities, that is, the
Deputy Director of Consolidation, rendered on 24.12.1973,
disposing of the Revision, order of the Settlement Officer, Kanpur,
dated 9.7.1973, dismissing the Appeal of the petitioners and the
order passed by the Consolidation Officer, Kanpur, dated 21.4.1973,
allowing the Suit preferred by Rajendra etc. sons of Kanhaiya Lal.
All the three Consolidation courts have recorded concurrent findings
of fact allowing claim put-froth by the respondent nos. 4 to 7, sons
of Kanhaiya Lala.

In the present case, initially the proceedings were initiated
under Section 9-A of the U.P. Consolidation of Holdings Act in
respect of Plot Nos. 1110, 1206, 1209, 1216 and 1217, having an
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area of 4 Bigha 11 Biswa in Khata No. 251, situate in Village
Hiraman, Sibali, Pargana Akbarpur, District Kanpur.

The petitioners claim that as a consequence of consolidation
proceedings, the aforementioned land has become as part of their
Chak, while three Consolidation courts have held that the said land
is Sirdari land of Respondent nos. 4 to 7, the sons of original
tenure-holder, Kanhaiya Lal.

Sri V.K.S. Chaudhary, learned Senior Advocate, appearing for
the petitioners, has reiterated the submissions put-forth before the
three Consolidation Courts and taken this Court to the history of the
dispute right from 1942 till date and read the judgments rendered
by various courts. Much stress has been laid by him that the
consolidation scheme has been confirmed and possession was
delivered in pursuance thereof to the Chakholders in the Village.
According to him, right, title and interest of Kanhaiya Lal, who was
said to be a sub-tenant were extinguished on 27.6.1944, when he
was ejected from the plots in Suit, in pursuance of the decree of the
Sub Divisional Officer. According to the learned Senior Advocate, no
Adhiwasi right could accrue under Section 20(a)(ii) of the U.P.
Zamindari Abolition & Land Reforms Act, 1952, as Kanhaiya Lal was
not a sub-tenant on the date immediately preceding the date of
vesting.

As per learned counsel for the petitioners, admittedly,
Kanhaiya Lal was not recorded in any Khasra or Khatauni of 1356
Fasali and could not have been treated to be having Adhiwasi rights.
It was stressed before the Court that he was merely a licensee of
the plots and his license came to an end when he failed in Suit or
when the possession was obtained by the predecessors-in-interest
3

of the petitioners over the land in dispute. The land was given to
Kanhaiya Lal etc. for their sustenance and to cultivate the same for
a specified period. They were not having any right, title or interest
in the land. The sons of Kanhaiya Lal could not have been
permitted to change their pleas before the Consolidation authorities
that Kanhaiya Lal became Adhiwasi as he was a sub-tenant of the
plot in question. All the three Consolidation courts have erred in
holding that he became Adhiwasi and thereafter Sirdar of the land in
dispute after advent of U.P. Zamindari Abolition & Land Reforms Act
and issuance of notification of 1954.

The petition was resisted by the respondents on various
grounds. Learned counsel for the respondent no.s 4 to 7 have
submitted that all the three Consolidation courts have recorded
concurrent findings of fact. It was highlighted that in 1346 Fasali
and 1347 Fasali revenue entries, the father of respondent nos. 4 to
7 was recorded as a sub-tenant for very long and substantial period
of about 52-53 years and, therefore, in the year 1948 because of
53 years of cotenancy his name was also recorded in Khatauni 1311
Fasali wherein he was recorded as sub-tenant. In other revenue
entries, name of Kanhaiya Lal had remained recorded throughout
being a sub-tenant. He became Adhiwasi and consequently
acquired Sirdari rights by operation of law. These relevant revenue
entries remained unchallenged and uncontroverted and Kanhaiya
Lal continued to cultivate the land in dispute for a long period of 58
years which fact regarding cultivation of land by Kanyhaiya Lal for
about 58 years cannot be ignored by the Courts.

Having heard learned counsel for the parties and perused the
materials available on record including the judgments of courts
below.

4

It emerges from the record that Sadhoram and Devi Prasad
being real brothers were recorded as tenants of an holding having
an area of 19 Bighas. Kanhaiya Lal, who was father of Babu Ram,
Ram Sanehi, Rajendra and Vijai Narain, Respondent nos. 4 to 7,
was in possession of 4 Bigha, 11 Biswa land for a long time. The
litigation between the contesting parties started at the instance of
Devi Prasad, father of Sheo Dayal and Mohan Lal, petitioner nos. 1
and 2, in the present case, on 13th July, 1942 by filing a formal
application, under Section 175 of the U.P. Tenancy Act seeking
ejectment of Kanhaiya Lal, father of respondent nos. 4 to 7, who
was recorded as a sub-tenant in respect of land in dispute. It was
also alleged in the said application that a private partition had taken
place between Devi Prasad and Sadho Ram, father of petitioner nos.
3, 4 and 5, Shanker Lal, Sunder Lal and Sheo Kumar. The land,
upon which Kanhaiya Lal was in possession as a sub tenant, had
fallen in the share of Devi Prasad. Sadho Ram was given other
plots due to which Sadho Ram had refused to join Devi Prasad in
the litigation and, therefore, he was impleaded as a Defendant.
But, in the present case, as indicated above, Sadho Ram’s sons are
indicated as petitioners. Lateron, Sadho Ram came forward and
supported the case of Devi Prasad.

Kanhaiya Lal filed objections to the said application and
pleaded cotenancy with Devi Prasad. The said application was
converted into a Suit and was dealt with by the Sub Divisional
Officer for adjudication. On 11th September, 1942, Devi Prasad
changed his stand by filing an application indicating therein that
Kanhaiya Lal was not sub tenant, but only a ‘licensee’. He withdrew
his Suit, filed under Section 175 of the U.P. Tenancy Act, but no
permission was accorded to him to file another Suit on the same
cause of action. Devi Prasad again initiated litigation by filing
5

another suit in the month of September, 1942, under Section 180 of
the U.P. Tenancy Act. He had taken a plea that license given to
Kanhaiya Lal had been withdrawn and, therefore, he was a tress
passer and as such he could be ejected from the land in dispute.

Kanhaiya Lal had contested the said Suit urging that his
ancestors were cotenants with the ancestors of Devi Prasad and
Sadho Ram . A private partition had taken place between them and
the impunged holding of 4 Bigha 11 Biswa had fallen in his share.
He had been cultivating his own share. Even if he was a tress
passer, he was in adverse possession without any challenge for
more than 12 years at the time of initiation of litigation, that is, in
the year 1942. According to him the Suit was barred by law of
limitation. Kanhaiya Lal claimed that he was a sub-tenant and as
such he could be ejected. The said Suit was not maintainable as the
plaintiff-Devi Prasad had withdrawn previous Suit, filed under
Section 175 of the U.P. Tenancy Act on 13th July, 1942 without
having any permission of any competent court to institute a fresh
Suit for the same cause of action.

On 25th March, 1943, the Suit filed by Devi Prasad was
dismissed by the Sub Divisional Officer. An appeal was preferred by
Devi Prasad before the Additional Commissioner claiming that if
Kanhiaya Lal was not a tress passer and could not be ejected under
Section 180 of the U.P. Tenancy Act, he could be ejected under
Section 175 of the said Act as he was a sub tenant. This appeal was
allowed by the Additional Commissioner on 27.10.1943, remanding
the Suit for retrial to the Sub Divisional Officer/Deputy Collector.
The Additional Commissioner had also directed that the Zamindar of
the Village and the sons of Sadho Ram be also impleaded as
plaintiffs.

6

Sub Divisional Officer/Deputy Collector had again held that
Kanhaiya Lal was a sub-tenant and not a tress passer and,
therefore, granted decree for ejectment on 31st May, 1944, under
Section 175 of the U.P. Tenancy Act. Kanhaiya Lal preferred an
Appeal, which was dismissed. However, it was held in the order
dated 10th January, 1946 that he was a sub-tenant, not a tress
passer. A Second Appeal was filed before the Board of Revenue,
which was also dismissed on 8.9.1956. While the Appeal had
remained pending before the Board of Revenue, in the meantime,
U.P. Zamindari Abolition & Land Reforms Act came into force with
effect from 1st July, 1952.

Aggrieved by the decision of the Board of Revenue, dated 8th
September, 1956, Kanhaiya Lal filed a writ petition, that is, Writ
Petition No. 1335 of 1957, Kanhaiya Lal Vs. Devi Prasad and others
represented by Legal Heirs and Legal Representatives in this Court.
In the said writ petition, two main questions were raised, which
were also raised before the Board of Revenue, (i) whether the
second Suit decreed, under Section 175 of the U.P. Tenancy Act
could have been decreed as it was clearly hit by the provisions of
Order 23, Rule 1 of the Code of Civil Procedure? and (ii) whether
Kanhaiya Lal, who had been found to be a sub-tenant by the court
below had by virtue of the provisions of Section 20(a)(ii) of the U.P.
Zamindari Abolition & Land Reforms Act, 1952 acquired Adhiwasi
rights? This Court has also observed on merits of the case that it
could be possible to say that the provision of Order 23, Rule 1 of the
Code of Civil Procedure could be interpreted in the manner in which
that provision had been interpreted by the courts below and two
opinions were possible to be formed by the courts below. It was
also observed by the Court that the petitioner, Kanhaiya Lal, was
7

held to be a sub-tenant on the date of Suit. His status, while
pursuing the litigations, throughout was of a sub-tenant. The Board
of Revenue was required to record reasons as to why Kanhaiya Lal
could not acquire Adhiwasi rights as per Section 20(a) (ii) of the
U.P. Zamindari Abolition & Land Reforms Act. This Court vide this
judgment dated 17th October, 1962 had allowed the writ petition
and directed the Board of Revenue to restore the Appeal and
reconsider the matter afresh. A Special Appeal was preferred
against this judgment by Sheo Dayal and Devi Prasad etc. In the
Special Appeal judgment rendered by the learned Single Judge
dated 17th October, 1962 was upheld, remanding the matter to the
Board of Revenue for taking a fresh look.

It is relevant to mention here that, while this litigation was
going on, consolidation proceedings were initiated in the concerned
Village and the proceedings pending in the Suit including execution
proceedings stood abated under Section 5(2) of the U.P.
Consolidation of Holdings Act. It is borne out of the record that
Kanhaiya Lal was treated to be a sub-tenant right from 1943 to
1947 by the Revenue courts, Board of Revenue and thereafter by
this Court. Therefore, on commencement of U.P. Zamindari
Abolition & Land Reforms Act on 1st July, 1952, at the time vesting,
Kanhaiya Lal was to be treated as a sub-tenant. Thus, a dispute
arose before the Consolidation courts as to whether sub-tenancy
could accrue to Kanhaiya Lal or he became Adhiwasi and therafter a
Sirdar as per the relevant provisions as contained in U.P. Zamindari
Abolition & Land Reforms Act.

In the consolidation proceedings, the sons of Kanhaiya Lal,
that is, Rajendra etc. filed objections under Section 9-A of the U.P.
Consolidation of Holdings Act before the Consolidation Officer,
8

Kanpur claiming themselves to be Sirdars of 4 Bigha 11 Biswa of
land and sought parity with Devi Prasad etc., who were recorded as
Sirdars of Khata No. 251.

After going through the chronology of above events, the sons
of Kanhaiya Lal claimed that the original tenureholder, that is, their
father became an Adhiwasi under Section 20(a)(ii) of the U.P.
Zamindari Abolition & Land Reforms Act. As he was a Shikmi
Kashtkar, by virtue of notification of 1954, Kanhaiya Lal now his
sons became Sirdars of the land (that is 4 Bigha 11 Biswa).
During pendency of the litigation, the tenureholder Kanhaiya Lal had
died and in his place his sons, Babu Ram, Ram Sanehi, Rajendra
and Vijai Narain could claim Sirdari rights over the land in dispute.

The Consolidation Officer had considered the rival claims and
recorded his findings running into 16 pages. The Consolidation
Officer, after taking note of chronology of events, history of the
title, settlement of the land right from 1942, during Zamindari
regime, during the course of litigation in various courts, that is,
Deputy Collector’s court, Additional Commissioner’s court, Board of
Revenue and High Court has held that Kanhaiya Lal was not mere a
licensee, rather a Shikmi Kashtkar. He has taken note of Intkhabs
of 1347 and 1348 Fasali. It was recorded by the Consolidation
Officer that Kanhaiya Lal was a Shikmi Kashtkar for 59 years,
paying rent (Lagan) of 21 Rupees. The Consolidation Officer has
relied upon old, unchallenged and uncontroverted revenue entries of
1347 and 1348 Fasali. Neither Sheo Dayal and Sadho Ram had
challenged these entries. In fact, they were only interested in
ejectment of Kanhaiya Lal from the land in dispute. Even in the
First and Second Appeals, Kanhaiya Lal was treated as Shikmi
Kashtkar.

9

The Consolidation authorities on applying the provisions
contained in Section 295 of the U.P. Tenancy Act had held that after
1947, Kanhaiya Lal was entitled to continue with the possession of
the land in dispute. Even after enforcement of U.P. Zamindari
Abolition & Land Reforms Act, he became Adhiwasi and as such
Kanhiaya Lal was entitled for restoration of possession of the land in
dispute. The Consolidation courts had taken note of various
decisions to record a finding that a Shikmi Kashtkar, even if he was
dispossessed before 1947 and the First or Second Appeals were
pending in respect of the land, such cultivator/tenureholder shall be
treated as Shikmi Kashtkar and his possession shall be restored
back.

In the present case also, the litigation was going on right from
1942 to 1971, various litigations were filed in the courts of Deputy
Collector, Additional Commissioner, Board of Revenue and in this
Court, but the dispute could not be resolved. Admittedly, the
Second Appeal was filed by Kanhaiya Lal in the Board of Revenue in
the year 1946, which was dismissed on 8.9.1956. Thus, in view of
this, all the thee Consolidation courts have held that Kanhaiya Lal
was entitled for possession under Section 295 of the U.P. Tenancy
Act, as amended in 1947. He was held entitled to be delivered
possession of the land in dispute treating him to be a Shikmi
Kashtkar. The Consolidation courts have held that as per the
various provisions contained in Section 20(a)(ii) of the U.P.
Zamindari Abolition & Land Reforms Act, Kanhaiya Lal being a
Shikmi Kashtkar became Adhiwasi. He was entitled for the benefit
arising out of notification of 1954, declaring such Shikmi Kashtkars
(Cultivators) as Sirdars having substantial legal rights. Even if the
possession was taken from Kanhaiya Lal, his status as Shikmi
10

Kashtkar and thereafter as Sirdar would not stand changed. Law is
well settled that till pendency of the litigation, even if a person is
dispossessed, it cannot be said that it will adversely affect his rights
since the possession or such rights were subject to final outcome of
adjudication.

As per chronology of events, litigations were pending and
Kanhaiya Lal and other contesting parties were awaiting decision of
the competent courts, which would have affected their rights in
respect of the agricultural land in dispute. The appeal filed by
Kanhaiya Lal was disposed of on 8.9.1956. Initially, he was a Shikmi
Kashtkar, while by efflux of law, he became Adhiwasi and thereafter
by virtue of notification of 1954 became Sirdar of the land in dispute
and after the death of Kanhaiya Lal, his sons, respondent nos. 4 to
7, herein, became Sirdars. The Consolidation courts have held that
Section 232 of the U.P. Zamindari Abolition & Land Reforms Act
would not applicable in the present set of circumstances as it was a
case where a Shikmi Kashtkar became an Adhiwasi and lateron
became Sirdar of the land by efflux of law, that is, U.P. Tenancy Act
as amended in 1947 and the U.P. Zamindari Abolition & Land
Reforms Act and the notification issued in 1954.

All the courts below have recorded concurrent findings of fact
and law and dealt with the submissions. All the courts below,
including the Deputy Director of Consolidation, who while exercising
powers under Section 48 of the U.P. Consolidation of Holdings Act,
has affirmed the findings of the Consolidation Officer and the
Settlement Officer, Consolidation. The Revisional court, after taking
note of the chronology of events and appreciating the law on the
subject as well as the materials available on record has held that
Kanhaiya Lal and thereafter his sons were Sirdars of the land in
11

dispute and they were entitled for possession over the land in
dispute.

This Court has taken note of the above chronology of events,
rival submissions put forth by the learned counsel of rival parties
and is of the view that Kanhaiya Lal and after his death his sons
shall be deemed to be in possession as a sub-tenant on the date of
vesting. The litigation between the contesting parties had all along
remained pending during which Kanhaiya Lal was recorded as a
sub-tenant in the revenue entries, as indicated above, and was
cultivating the land in dispute for about 52 to 53 years and as such
he could have been deprived of his legal rights. All the three
Consolidation courts had rightly taken note that sub tenancy rights
of Kanhaiya Lal could not have come to an end as he became
Adhiwasi on the date of vesting and lateron he acquired Sirdari
rights by efflux of law. At the time of vesting, being a Shikmi
Kashtkar, he became Adhiwasi and thereafter had rightly been held
by the Consolidation courts that as a result of application of
provisions contained in the notification of 1954, he became Sirdar of
the land in dispute.

The Consolidation Officer has recorded a detailed finding
running in about15-16 pages. The Appellate authority has also
dealt with the case in detail and recorded findings and conclusions
adjudging all the facts and legal points pleaded by the parties. Oral
and documentary evidence and the materials available on record
were carefully considered by all the three Consolidation courts,
while setting at rest the controversy. The legal rights accrued to
Kanhaiya Lal and thereafter to his legal heirs and legal
representatives by virtue of U.P. Tenancy (Amendment) Act, 1947
and the provisions contained in U.P. Zamindari Abolitin & Land
12

Reforms Act as well as the notification of 1954 cannot be taken
away. It was found by all the three Consolidation courts that
Kanhaiya Lal was in possession over the land in dispute for about
52-53 years and as such he had acquired substantial and legal
rights. He could not have been ejected from the land in dispute for
a period of five years. Admittedly, the litigations remained pending
before various courts right from 1942 to 1971. The Board of
Revenue had concluded the case in the year 1966. By that time,
the aforementioned statutes already came into existence extending
benefits on the cultivators, like Kanhaiya Lal and his legal heirs.
Thus, Kanhaiya Lal and lateron his sons, that is, respondent nos. 4
to 7 became Sirdars of the land in dispute.

My this view finds strength from a judgment of the Hon’ble
Apex Court reported in AIR 1965 SC 54, Amba Prasad v.
Mohaboob Ali Shah and others
, where in Paragraph 16, the
Hon’ble Apex Court has observed as follows:

“Speaking generally, S. 20 says that certain persons
“recorded as occupants” of lands (other than grove lands or
lands to which Section 16 applies) shall be known as adhivasis
and shall be entitled to retain or to regain possession of them,
after the date of vesting, which was July 1, 1952. Such
persons do not include an intermediary (Explanation IV). Such
persons must be recorded as occupants in Khasra or Khatauni
for 1356F (1-748 to 30-6-49). If such a person is in
possession, he continues in possession. If he is evicted after
June 30, 1948, he is to be put back in possession,
notwithstanding anything in any order or decree. By fiction
such persons are deemed to be entitled to regain possession
(Explanation 1)……….”

13

My view further finds force from a judgment of a Division
Bench of this Court reported in 1964 ALJ 273, Jhamman Lal and
others Vs. Deputy Custodian General and others. In yet
another judgment as reported in 1955 ALJ 408, Lala Nanak
Chand v. The Board of Revenue U.P.
at Allahabad and
another similar view has been expressed by a Division Bench of
this Court.

In view of the discussions made above, the writ petition, being
devoid of merits, fails and is accordingly, dismissed.

No order as to costs.

29.1.2010
bgs/-


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