{"id":159279,"date":"1962-08-31T00:00:00","date_gmt":"1962-08-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sham-kartik-singh-vs-mathura-on-31-august-1962"},"modified":"2017-06-17T01:20:42","modified_gmt":"2017-06-16T19:50:42","slug":"sham-kartik-singh-vs-mathura-on-31-august-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sham-kartik-singh-vs-mathura-on-31-august-1962","title":{"rendered":"Sham Kartik Singh vs Mathura on 31 August, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sham Kartik Singh vs Mathura on 31 August, 1962<\/div>\n
Equivalent citations: 1967 AIR 732, \t\t 1963 SCR (3) 904<\/div>\n
Author: R Dayal<\/div>\n
Bench: Dayal, Raghubar<\/div>\n
           PETITIONER:\nSHAM KARTIK SINGH\n\n\tVs.\n\nRESPONDENT:\nMATHURA\n\nDATE OF JUDGMENT:\n31\/08\/1962\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nGAJENDRAGADKAR, P.B.\nGUPTA, K.C. DAS\n\nCITATION:\n 1967 AIR  732\t\t  1963 SCR  (3) 904\n\n\nACT:\nTenancy\t Law-Sir  lands-Suit  for  ejectment  of   tenants--\nDecree-Appeal-Pending  appeal  provision  made\tfor   filing\nparticulars in suits for ejectment-Statute providing penalty\nof  dismissal  of  suit for  failure  to  file\tparticulars-\nRetrospectivity If  substantial\t compliance   sufficient-\nU.P.Tenancy  Act. 1939 (U.P. 27 of 1939), 88. 6.16,19-U,  P.\nTenancy(Amendment)Act 1947(U.P. 10 of 1947),s.31.\n\n\n\nHEADNOTE:\nThe  appellants filed suit under the U.P Tenancy Act,  1939.\nfor  the  ejectment of the respondents who were\t tenants  of\nsir.  The appellants filed the necessary extracts of  papers\nin support of their case.  The trial court decreed the suits\n\t\t\t    905\nholding\t the land in suit was sir, that the appellants\twere\nsirholders,  that  each\t of them did not pay  a\t local\trate\nexceeding Rs 25, that he did not hold more then 50 acres  of\nsir  land  or more than 50 acres of sir\t and  khudkast\tland\nwhich  had not been sublet and that the respondents had\t not\nbecome\t hereditary  tenants.\tThe  respondents   preferred\nappeals before the Commissioner.  During the pendency of the\nappeals\t the U.P Tenancy (Amendment) Act.1947, amended\ts.19\nof  the\t Act  Amended  s. 19  provided\tthat  in  suits\t for\nejectment of tenants of sir the sir holder shall, before the\nfirst  day  fixed  for\trecording  evidence,  furnish\tsuch\nparticulars  as may be prescribed and further provided\tthat\nfor  failure  to  file such particulars the  suit  shall  be\ndismissed.  Section 31 of the Amending Act provided that its\nprovision  shall apply to pending suits, appeals  etc.\t The\nrespondents  contended\tthat the appellants  had  failed  to\ncomply\twith  the provisions of amended s. 19 and  that\t the\nsuits  should be dismissed.  The Commissioner confirmed\t all\nthe findings of the trial court and held that there had been\nsufficient  compliance with the provisions of amended s.  19\nand  according\tdismissed  the\tappeals.   The\t respondents\npreferred  second appeals before the Board of Revenue.\t The\nBoard  held that the provisions of amended s. 19 and of\t the\nrules  framed  thereunder  had not been\t complied  with\t and\nremanded  the  case  to\t the  trial  court  for\t  compliance\ntherewith and retrial.\nHeld,  that  there had been sufficient compliance  with\t the\nprovisions of amended s. 19 and the rules framed  thereunder\nand that the Board was riot justified in remanding the cases\nfor retrial.  Section 19 did not bring about any real change\nin  the substantive law affecting the question whether\tland\nwas sir or not.\t Even after the amendment, a sir-holder,  in\norder  to  succeed in his suit, had to\testablish  the\tsame\nfacts which he had to establish prior to the amendment.\t The\nonly  difference  brought  about by  the  amendment  was  in\nprocedure  and whereas prior to the amendment  a  sir-holder\ncould  lead his evidence without informing the Court  before\nhand  about  the  material  he\twould  produce,\t after\t the\namendment  it  was  incumbent  upon  him  to  furnish\tsuch\ninformation to the Court before the date fixed for recording\nevidence, The necessary particulars had been furnished\teven\nprior to the amendment and the Commissioner could decide the\nappeals\t in  accordance with the provisions of\tthe  Act  as\namended by the amending Act.  The attention of the Board was\nnot drawn to the relevant documents filed by the  appellants\nand  it erred in stating that there had been no\t substantial\ncompliance  with the provisions of amended s. 19 and of\t the\nrules framed thereunder.\n906\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 484 to\t 489
\nof 1958.\n<\/p>\n
Appeals by special leave from the judgement and order  dated
\nAugust 6, 1954, of the U.P. Board of Revenue, Allahabad,  in
\npetitions Nos. 203 to 208 of 1947-48.\n<\/p>\n
G.   C. Mathur, for the appellants.\n<\/p>\n
M.   L.Agarwala,  for the respondents (in.  C. As. Nos.\t 484
\n&485 of 1958) and respondent No.3 (In C.A No. 488. of 1958).
\n1962.\tAugust 31.  The Judgment of the Court was  delivered
\nby
\nRAGHUBAR DAYAL, J.-These appeals, by special leave,  against
\nthe orders of the Board of Revenue, Utter Pradesh, arise  in
\nthe following circumstances :\n<\/p>\n
The  appellants presented applications against each  set  of
\nthe  respondents  in  these six appeals\t under\ts.175,\tU.P.
\nTenancy Act, 1939 U.P. XVII of 1939, hereinafter called\t the
\nAct, for ejectment stating that they were the sir-bolders of
\nthe  land  occupied  by\t the  respondents  as  non-occupancy
\ntenants\t and that the period of five years during which\t the
\nrespondents were entitled to retain possession under s.20 of
\nthe  Act had expired.  The respondents contested the  notice
\nof  ejectment  alleging that the land in suit was  not\tair,
\nthat  the appellants were not sir-holders,  that  appellants
\npaid  local rate exceeding Rs. 25\/-in the United  Provinces,
\nAgra  and  Oudh, and held more than 50 acres  of  sir  land.
\nThey  claimed  to  be  hereditary tenants  of  the  land  in
\ndispute,  in accordance with ss. 14, 15 and 16 of  the\tAct.
\nThe paper were thereafter forwarded by the Tehsilder to\t the
\nAssistant  Collector  in  charge  of  the  sub-division,  in
\naccordance with the provisions of s. 179 of the Act
\n\t\t\t    907<\/span>
\nThe  applications which were presented for the ejectment  of
\nthe   respondents  were\t deemed\t to  be\t plaints   and\t the
\nproceedings continued as suits, in view of sub-s. (2) of  a.
\n179 of the Act.\n<\/p>\n
The  Court  called  upon the appellants\t to  file  necessary
\nextracts  of  papers  and  to join all\ttenants\t of  air  as
\nparties.   The\tsub-Divisional Officer did  not\t accept\t the
\ncontention  of\tthe  respondents and decreed  the  suits  on
\nFebruary  28, 1946, holding that the land in suit  was\tair,
\nthat the appellants were air-holders, that each of them\t did
\nnot pay a local rate exceeding Rs. 25\/- either in 1938 or in
\n1940, that he did not hold more than fifty acres of air land
\nor more than fifty acres of air and khudkasht land which had
\nnot been sublet in 1317 F., corresponding to the period from
\nJuly 1, 1939 to June 30,1940.\n<\/p>\n
The   respondents  appealed  against  the  decree   to\t the
\nAdditional   Commissioner,  Benaras,  and   repeated   their
\ncontentions  which had not found favour in the Trial  Court.
\nThey  also  contended that the appellants had  not  complied
\nwith the requirements of s, 19 of the Act as amended by\t the
\nU.P.  Tenancy (Amendment) Act, 1947 (U.P. X of\t1947)  which
\ncame in to force on June 14. 1947 after the appeals had been
\ninstituted.\n<\/p>\n
The  Additional Commissioner confirmed the findings  of\t the
\nSub-Divisional Officer and further hold that there had\tbeen
\nsubstantial compliance with the spiritof  the law as  laid
\ndown in the amended a. 19     of  the Act.   He\t accordingly
\ndismissed the appeals.\n<\/p>\n
The respondents then instituted second appeals in the  Board
\nof  Revenue.   The Board of Revenue did not agree  with\t the
\nadditional  Commissioner about there having been  sufficient
\ncompliance with the provisions of amended a. 19 of
\n908<\/span>
\nthe  Act and of the rules framed thereunder.   It  therefore
\nset  aside the decree against the respondents  and  remanded
\nthe  cases  for fresh disposal in accordance  with  law\t and
\nfurther\t directed  the\tTrial Court to\tdecide\tthe  further
\ncontention raised by the respondents before the Board to the
\neffect that they had acquired adivasi rights in the land  in
\nsuit  after  the coming into force of the  U.  P.  Zamindari
\nAbolition and Land Reforms Act, 1950 (U. P. 1 of 1951).\t  It
\nis  against these orders of the Board of Revenue that  these
\nsix  appeals have been filed after obtaining  special  leave
\nfrom this Court.\n<\/p>\n
It appears that there was no particular procedure laid\tdown
\nfor  the progress of the proceedings in the suit before\t the
\nSub-Divisional Officer after the papers had been sent to him
\nin accordance with the provisions of s. 179 of the Act.\t The
\nordinary  procedure for the conduct of suits  was  followed.
\nThe   Sub-Divisional  Officer  therefore  called  upon\t the
\nappellants   to\t file  necessary  extracts   of\t  documents.
\nNaturally  evidence had to be led, documentary or  oral,  to
\nsubstantiate  the  allegations\tmade  by  the  parties\tand,
\nespecially  by the appellants, who bad to prove their  right
\nto  eject the respondents.  They had to prove that the\tland
\nin suit was sir and that they were sir holders.
\nSection 6 of the Act defines `sir’.  This section reads:
\n“Sir” means\n<\/p>\n
\t      (a)   land   which  immediately\tbefore\t the
\n\t      commencement  of\tthis Act was air  under\t the
\n\t      provisions  of the Agra Tenancy Act, 1926,  or
\n\t      the Oudh Rent Act, 1886:\n<\/p>\n
\t      Provided\tthat if at the commencement of\tthis
\n\t      Act, the sir holder is assessed in the  United
\n\t      Provinces to a local rate of more than
\n\t\t\t\t   909<\/span>
\n\t      twenty-five rupees, land which was sir,  under
\n\t      the provisions of clause (d) or clause (e)  of
\n\t      Section 4 of the Agra Tenancy Act, 1926, or of
\n\t      clause  (c) or clause (d) of sub-Section\t(17)
\n\t      of  Section  3  of the Oudh  Rent\t Act,  1886,
\n\t      ,shall on this Act coming into force cease  to
\n\t      be sir unless it was\n<\/p>\n
\t      (i)before\t the  first day\t of  July,  1938,
\n\t      received otherwise than in accordance with the
\n\t      provisions  of  Section  122  of\tthe   United
\n\t      Provinces Land Revenue Act, 1901, or\n<\/p>\n
\t      (ii)before  the  commencement  of\t this\tAct,
\n\t      received in accordance with the provisions  of
\n\t      that  section, in exchange for land which\t was
\n\t      sir  under  the provisions of  clause  (a)  or
\n\t      clause  (b) or clause (c) of Section 4 of\t the
\n\t      Agra  Tenancy Act, 1926, or of clause  (a)  or
\n\t      clause (b) of sub-Section (17) of Section 3 of
\n\t      the Oudh Rent Act, 1886.\n<\/p>\n
\t      Provided\tfurther that the provisions  of\t the
\n\t      first proviso shall apply to a sir holder\t who
\n\t      was  not\tat  the\t commencement  of  this\t Act
\n\t      assessed\tin the United Provinces to  a  local
\n\t      rate of more than twenty-five rupees if be  or
\n\t      his predecessor-in-interest was so assessed on
\n\t      the  30th\t June, 1938 unless  the\t local\trate
\n\t      assessed\t on  him  has  been   decreased\t  by
\n\t      resettlement  or by revision of settlement  or
\n\t      unless  since  that day-he  obtained  his\t sir
\n\t      rights by succession or survivorship
\n\t       Provided\t also that if the land to which\t the
\n\t      provisions  of  the first\t proviso  apply\t was
\n\t      joint air of several air holders and all, such
\n\t      joint air holders are not air holders to\twhom
\n\t      such provisions apply, such land shall not
\n\t      910<\/span>
\n\t      cease  to be sir at the commencement  of\tthis
\n\t      Act,  but shall remain sir until that  portion
\n\t      of it which is the sir of those joint  holders
\n\t      to  whom such provisions apply  is  demarcated
\n\t      under the provisions of this Act;\n<\/p>\n
\t      (b)   land  which was khudkasht and  which  is
\n\t      demarcated as sir under the provisions of this
\n\t      Act.\n<\/p>\n
\t      Explanation-  If\tany  portion  of  the\tland
\n\t      revenue assessed on the sir holder’s land\t has
\n\t      been remitted owing to a fall in the price  of
\n\t      agricultural  produce, the local rate  payable
\n\t      by  him  shall,  for  the\t purposes  of\tthis
\n\t      section, be deemed to have been reduced in the
\n\t      same proportion.”\n<\/p>\n
It follows from these provisions that the appellants bad  to
\nestablish  the\tfollowing facts : (i) The land in  suit\t was
\n`sir’ on January 1, 1940, when the Act came into force. (ii)
\nEach sir-holder was not assessed in the United Provinces  to
\na local rate of more than Rs. 25\/-. (iii) The sir holder  or
\nhis predecessor in interest was not assessed to a local rate
\nexceeding Rs. 25\/- on June 30, 1938.\n<\/p>\n
The  appellants proved these facts and the trial Court\theld
\nthat  the land in suit did not cease to be ‘sir’.   Further,
\nif  the\t finding  had been that the first proviso  to  s.  6
\napplied,  s. 16 would have come into play and it would\thave
\nbeen  necessary for the Court to determine whether  each  of
\nthe sir holders possessed more than fifty acres of sir or of
\nsir  and  khudkasht land which had not been  let.   On\tthis
\npoint too, the finding of the Trial Court, however, is\tthat
\neach  sir  holder  bad less than fifty\tacres  of  sir\tand
\nkhudkasht land.\n<\/p>\n
Section\t 19  of\t the Act, before  its  amendment,  in  1947,
\nprovided  that\tif  a  sir-bolder  could  apply\t under\t the
\nprovisions of B. 15 or 16 of the Act, the
\n911<\/span>
\nCourt was to take action under those sections.\tThe  amended
\nsection\t also repeated these provisions in its\tsub-s.\t(3).
\nIts  sub-ss.  (1)  and (2) were, however  new  and  read  as
\nfollows.\n<\/p>\n
“(1)  In a suit or proceeding for the ejectment of a  tenant
\nof sir the sir holder shall before the first date fixed\t for
\n\t      recording\t evidence,furnish to the court\tsuch
\n\t      particulars  as the Board may by rule made  in
\n\t      this behalf prescribe for ascertaining’-\n<\/p>\n
(a)  whether  the  sir-holder  is  a  person  to  whom\t the
\nprovisions of the first proviso to clause (a)\t  of Section
\n6 apply; and\n<\/p>\n
(b)  the total area and nature of the sir-holder’s air\tand.
\nkhudkasht:\n<\/p>\n
Provided that if the sir-holder satisfied the Court that  he
\nhad  sufficient cause for not filing the particulars  before
\nthe  date fixed, it way, subject to the payment of costs  to
\nthe opposite party, extend the time.\n<\/p>\n
(2)If\tthe.  sir-holder  does\tnot  file  the\t particulars
\nmentioned   in\tsub-Section  (1)  within  the\ttime   fixed
\nthereunder,    or    deliberately    furnishes\t  inaccurate
\nparticulars, the Court shall dismiss the suit or proceeding,
\nas the case may be, and shall declareare the tenant to be
\nhereditary     tenant.”\n<\/p>\n
It is tobe noticed I that sub-s. (1) requires a air-holder
\ntofurnish  particulars prescribed by the Board and’  that
\nthe  purpose -of furnishing those particulars ‘is to  assist
\nthe  Court  in ascertaining whether the\t provisions  of\t the
\nfirst proviso to clause (a)   of  s.  6 apply  to  the\tsir-
\nholder\tand  what is the total area and nature of  the\tsir-
\nholder’s sir and khudkasht.  Section 19’ therefore, did\t not
\nbring
\n912<\/span>
\nabout  any real change in the substantive law affecting\t the
\nquestion whether certain land is `sir’ or not, according  to
\nthe  definition\t of  ‘sir’ in s. 6 of the  Act.\t  After\t the
\namendment,  a sir-holder, in order to succeed in  his  suit,
\nhad  to establish the same facts which he had  to  establish
\nprior to the amendment, What proof he had to lead to support
\nhis case, he has to give even after the amendment.  The only
\ndifference  brought  about  by\tthe  amendment\tis  in\t the
\nprocedural  conduct  of the suit and is that  prior  to\t the
\namendment  the\tsir-holder had simply to  lead\tevidence  to
\nprove  his  case, without informing  the  Court\t before-hand
\nabout the material on which he would rely to establish\tthat
\nthe  provisions of the proviso (a) of s. 6 did not apply  to
\nhim  and in case they applied how effect would be  given  to
\nthe  provisions\t of  s\t16.  The  amended  Section  made  it
\nincumbent  on the sir-bolder to furnish such information  to
\nthe  Court  and\t thereby to the tenant\tbefore\tthe  parties
\nproceeded  to  lead evidence.  Such information\t has  to  be
\nfurnished  according to sub-s. (1) of amended s. 19,  before
\nthe  first date fixed for recording evidence.  The time\t for
\nfurnishing  such  information  can  be\textended  under\t the
\nproviso to that sub-section.  Great importance however,\t has
\nbeen attached to the new provision as sub-s. (2) of  amended
\ns.19  provides\tthat the consequences of  not  filing  those
\nparticulars, or filing those particulars inaccurately, would
\nbe  that the Court shall dismiss the suit or proceeding\t and
\nalso declare the tenant to be a hereditary tenant.
\nNow, it is contended for the appellants, that the provisions
\nof  amended s.19 do not apply to the facts of this  case  as
\nthe amended section was enacted long after the first date of
\nrecording evidence and that therefore it could not have been
\npossible   for\tthe  appellant\tto  furnish  the   necessary
\nparticulars  in accordance with its provisions and  that  if
\nits provisions apply to the facts of this case
\n\t\t\t    913<\/span>
\nthe  appellants\t have  substantially  complied\twith   those
\nprovisions  inasmuch  as they had actually  filed  in  Court
\ndocuments  which  gave the  necessary  particulars  required
\nunder  rr. 239A and 239B made by the Boara of Revenue  under
\ns-  19.\t The contention for the respondents is that  amended
\nsection 19 is retrospective in view of the provisions of  s.
\n31  of the Amendment Act of 197 and that the appellants\t had
\nnot complied with requirements of s.\t19  (1)\t and   rules
\nframed thereunder.\n<\/p>\n
\t      The aforesaid s. 31 reads :\n<\/p>\n
\t      “Disposal of pending suits and appeals
\n\t      (1)All  proceedings,  suits;  appeals   and
\n\t      revisions\t pending under the said Act  on\t the
\n\t      date  of the commencement of this Act and\t all
\n\t      appeals  and revisions filed after  that\tdate
\n\t      against  orders or decrees passed\t under\tthat
\n\t      Act and all decrees and ‘orders passed  there-
\n\t      under  which have not been satisfied in  full,
\n\t      shall be decided or executed, as the case\t may
\n\t      be,  and\twhere  necessary  such\tdecrees\t and
\n\t      orders  shall be amended, in  accordance\twith
\n\t      the  provisions of the said Act as amended  by
\n\t      this Act:\n<\/p>\n
\t      Provided-\t firstly  that if such a  decree  or
\n\t      order  cannot be so amended, or the  execution
\n\t      of  or  the appeal or revision  from  such  an
\n\t      amended  decree or order cannot  be  proceeded
\n\t      with, it shall be quashed.  In such a case the
\n\t      aggrieved party shall, notwithstanding any law
\n\t      of limitation be entitled to claim, within six
\n\t      months  from the date on which such decree  or
\n\t      order  is quashed such rights and remedies  as
\n\t      he  had on the date of the institution of\t the
\n\t      suit  or proceedings in which such  decree  or
\n\t      order  was  passed, except in so far  as\tsuch
\n\t      rights or remedies are, inconsistent with
\n\t      914<\/span>
\n\t      the  provisions of the said Act as amended  by
\n\t      this Act:\n<\/p>\n
\t      Provided\tsecondly that the proceedings  under
\n\t      Section  53 between a landlord and his  tenant
\n\t      and all proceedings under section 54 shall  be
\n\t      quashed:\n<\/p>\n
\t      Provided\tthirdly that appeals  and  revisions
\n\t      arising  out of the proceedings under  Section
\n\t      53 between a landholder and his tenant or\t out
\n\t      of those under section 54 shall be so  decided
\n\t      as  to place the parties in the same  position in\t which\tth
\ney were immediately  before  the
\n\t      institution of such proceedings
\n\t      Provided fourthly that all suits, appeals\t and
\n\t      revisions\t pending  under Section 180  of\t the
\n\t      said  Act, on the date of the commencement  of
\n\t      this  Act for the ejectment of any person\t who
\n\t      was  recorded as an occupant on or  after\t the
\n\t      first  day  of  January,\t1938,  in  a  record
\n\t      revised\tunder  Chapter\tIV  of\tthe   United
\n\t      Provinces Land Revenue Act, 1901, or corrected
\n\t      by  an  officer specialty\t appointed  for\t the
\n\t      correction  of annual registers in  any  tract
\n\t      shall be dismissed, and all decrees and orders
\n\t      for the ejectment of such persons, which\thave
\n\t      not been satisfied in full on the date of\t the
\n\t      commencement of this Act shall be quashed-.
\n\t      Provided\t fifthly   that\t nothing   in\tthis
\n\t      subsection shall affect the forum of appeal or
\n\t      revision\tfrom a decree or order passed  by  a
\n\t      Civil Court under the said Act.\n<\/p>\n
\t      (2)In counting the period of limitation  in
\n\t      respect of an application for the execution of
\n\t      a\t decree or order which was passed under\t the
\n\t      said Act and the execution of which was
\n\t      915<\/span>
\n\t      stayed  pending the enactment of this Act, the
\n\t      period  during which execution was  so  stayed
\n\t      shall be excluded.”\n<\/p>\n
In  view  of this section, the appeals which.  were  pending
\nbefore\tthe additional Commissioner when the  amendment\t Act
\ncame  into  force bad to be decided in accordance  with\t the
\nprovisions of the Act as amended.  It has been stated  above
\nthat  no change in the substantive law affecting the  rights
\nof the parties has been brought about by the Amendment\tAct.
\nThe  only  provision which could affect the  rights  of\t the
\nparties\t is  contained\tin sub-s.(2)  of  amended  s.19\t and
\nprovides  the consequences of the failure of the  sir-holder
\nto furnish the necessary particulars.  It follows  therefore
\nthat if the necessary particulars had been furnished in this
\ncase  even  prior to the Amendment Act\tcoming\tinto  force,
\nthere could be no difficulty in deciding the appeals by\t the
\nAdditional Commissioner in accordance with the provisions of
\nthe  Act  as amended by the Amending Act.  This\t is  exactly
\nwhat  the Additional Commissioner did.\tHe held\t that  subs-
\ntantial compliance has been made with the provisions of\t the
\namended section and the rules framed thereunder.  The  Board
\nof  Revenue  is itself of the opinion  that  if\t substantial
\ncompliance bad been made of those provisions that would have
\nbeen  sufficient.   It\thowever\t did  riot  agree  with\t the
\nAdditional  Commissioner’s-  view that\tthe  appellants\t had
\nsufficiently  complied with the provisions of  amended\ts.19
\naid the rules framed thereunder.  We are of opinion that  in
\nthis the Board of Revenue was wrong.\n<\/p>\n
\t      Rules 239A and 239B framed by the Board are:
\n\t      “239A.   In  a  suit  or\tproceeding  for\t the
\n\t      ejectment\t of a tenant of sir, the  sir-holder
\n\t      shall   before  the  first  date\t fixed\t for
\n\t      recording
\n\t      916<\/span>
\n\t      evidence,\t furnish to the Court the  following
\n\t      particulars:\n<\/p>\n
\t      (1)The  amount of local rate to  which  the
\n\t      sir-holder was assessed on 1st January,  1940,
\n\t      in the United Provinces.\n<\/p>\n
\t      (2)   If the amount shown under the  preceding
\n\t      subclause (1) is Rs. 25, or less, then-\n<\/p>\n
\t      (a)   the\t amount of local rate to  which\t the
\n\t      sir-holder or his predecessor-in-interest\t was
\n\t      assessed on June 30, 1938.\n<\/p>\n
\t      (b)Whether  the  local rate assessed  on\t30th
\n\t      June, 1938, was decreased before 1st  January,
\n\t      1940, as a result of resettlement or  revision
\n\t      ‘of settlement, and if so, the amount by which
\n\t      it was decreased;\n<\/p>\n
\t      (c)Whether  the  sir-holder obtained  his\t sir
\n\t      rights  by succession or survivorship  between
\n\t      30th June, 1938, and 1st January, 1940.
\n\t      II.  (1)The  area and khasra  numbers  of\t the
\n\t      plots,  if  any, held by him in  severally  or
\n\t      jointly  with others, on 31st December,  1939,
\n\t      as  sir  in  the United  Provinces  under\t the
\n\t      provisions  of  clause (d) or  clause  (e)  of
\n\t      section 4 of the Agra Tenancy Act 1926, or  of
\n\t      clause  (c) or clause (d) of sub-section\t(17)
\n\t      of section 3 of the Avadh Rent Act, 1886.
\n\t      (2)   Such  of the plots, if any\tshown  under
\n\t      the preceding sub-clause (1) along with  their
\n\t      areas, as were received by him in exchange for
\n\t      the  land which was his sir under\t the  provi-
\n\t      sions of clause (a) or clause (b) or
\n\t\t\t\t   917<\/span>
\n\t      clause  (c) of Section 4 of the  Agra  Tenancy
\n\t      Act,  1926,  or clause (a) or clause  (b)\t of,
\n\t      subsection (17) of the Avadh Rent Act, 1886-\n<\/p>\n
\t      (a)   before  the\t first\tday  of\t July\t1938
\n\t      otherwise\t  than\t in  accordance\t  with\t the
\n\t      provisions  of  Section  122  of\tthe   United
\n\t      Provinces Land Revenue Act, 1901, or\n<\/p>\n
\t      (b)   before  the first day of January,  1940,
\n\t      in  accordance  with the\tprovisions  of\tthat
\n\t      section.\n<\/p>\n
\t      (3)   The\t area  and: khasra  numbers  of\t the
\n\t      plots,  if  any, held by him in  severally  or
\n\t      jointly  with  others  and  khudkasht  in\t the
\n\t      United  Provinces,  along with the  period  of
\n\t      cultivation  and nature of khudkasht  of\teach
\n\t      such plot.\n<\/p>\n
\t      (4)   The extent of his share in the joint air
\n\t      and   khudkasht,\tif  any\t shown\t under\t the
\n\t      preceding sub-clauses (1) and (3).\n<\/p>\n
\t      239B.  The particulars furnished in accordance
\n\t      with  rule  239A shall be accompanied  by\t the
\n\t      following documents:\n<\/p>\n
\t      (1)   If\tthe local rate payable by  the\tsir-
\n\t      holder  in the United Provinces is claimed  to
\n\t      be Rs.25 or less, copies of the khewat  khatas
\n\t      of  1345 Fasli and of 1347 Fasli, in which  he
\n\t      was recorded as a co-sharer;\n<\/p>\n
\t      918<\/span><\/p>\n
\t      (2)   a certified copy of the khatauni  khatas
\n\t      of his air and khudkasht;\n<\/p>\n
\t      (3)   a certified copy of the khewat to  which
\n\t      such sir or khudkasht appertains, unless\tsuch
\n\t      copy is filed under sub-rule (1);\n<\/p>\n
\t      (4)   a  list giving the amount of local\trate
\n\t      to  which each co-sharer of the sir-holder  in
\n\t      the  joint  sir  and  khudkasht,\tif  any,  is
\n\t      assessed;\n<\/p>\n
\t      (5)   in\tthe  case of sir or khudkasht  of  a
\n\t      joint Hindu family, a genealogical table and a
\n\t      list  showing the share of each living  member
\n\t      of  the family having an interest in such\t sir
\n\t      or khudkasht and the share of local rate which
\n\t      each member would be liable to pay on  ratable
\n\t      distribution.”\n<\/p>\n
The  documents\tfiled by the appellants in the\tTrial  Court
\nconsisted  of  (1) khewats of the various villages  for\t the
\nyears  1345,  1346  and 1347 Fasli,  i.e.  for\tthe  periods
\nbetween\t July  1,  1937\t to  June  30,\t1940  (2)   khatauni
\njamabandis  of the various villages for the years  1345\t and
\n1347  Fasli, corresponding to July 1, 1937 to June 30,\t1938
\nand  July 1, 1939 to June 30, 1940, respectively; (3) (a)  a
\nstatement  showing the shares of the appellants as  recorded
\nin  the khewats and khataunis of 1347 Fasli, this  statement
\nshowed\tthe total of the air area held by the appellants  to
\nbe 152.33 acres, their khudkasht area to be 19.93 acres\t and
\nthe  total  of\tthe local rate payable by  them\t to  be\t Rs.
\n75.5.11;  (b)  a statement showing the\tair,  khudkasht\t and
\nlocal  rate  of each plain in 1317 Fasli.  This\t shows\tthat
\nnone of them held sir or sir and khudkasht in excess of 50
\n919<\/span>
\nacres, or was assessed to local rate exceeding Rs. 25\/- (4)  Copy
\nof the pedigree.\n<\/p>\n
These documents clearly furnish the particulars required  by
\nthe rules as the periods covered by these documents  include
\nJune 30, 1938, December 31, 1939 and January 1, 1940.\tRule
\n239AI  required\t particulars regarding the amount  of  local
\nrates  on June 30, 1938 and January 1, 1940 and\t also  about
\nsir-holders’   obtaining   sir-rights\tby   succession\t  or
\nsurvivorship during the period.\n<\/p>\n
The particulars required under sub-rules (3) and (4) of rule
\n239AII\twere  available\t from these  documents.\t  Rule\t239B
\nrequired  copies of the khewat khatas of 1345 Fasli  and  of
\n1347  Fasli; certified copies of khatauni khatas of sir\t and
\nkhudkasht; certified copies of the khewats to which that sir
\nor khudkasht appertained; a list giving the amount of  local
\nrate to which each co-sharer of the sir-holder was  assessed
\nand a genealogical table in the case of sir or khudkasht  of
\na joint Hindu family showing the share of each living member
\nof the family.\n<\/p>\n
The only particulars which can possibly be not had  directly
\nfrom the documents on record are those required by sub-rules
\n(1) and (2) of rule 239AII.  These require particulars about
\nsuch  sir  which  was the sir of the  appellants  under\t the
\nprovisions  of cls. (d) and (e) of s.4 of the  Agra  Tenancy
\nAct,  1926  i.e., land which became sir on  account  of\t the
\nlandlord’s  cultivation\t at the commencement  of  that\tAct,
\ni.e.,  on  September  7,  1926, and  had  been\trecorded  as
\nkhudkasht  in the previous agricultural year, i.e,  in\t1333
\nFasli, or land which became air on account of the landlord’s
\ncontinuously  cultivating  it  for a  period  of  ten  years
\nsubsequent  to the enforcement of the Agra Tenancy Act.\t  It
\nis clear from the findings of the Trial Court that the\tland
\nin suit had been sir from the time of
\n920<\/span>
\nthe settlement, presumably, the first settlement, which took
\nplace in the Nineties of the last Century.  This seems to be
\nbased on the fact that khatauni jamabandhis of 1345 and 1347
\nFasli did not record a period of cultivation against the sir
\nentry,\tindicating thereby that the sir is not of  the\tkind
\nmentioned  in  cls. (d) and (e) of s.4 of the  Agra  Tenancy
\nAct, 1926.\n<\/p>\n
The  Trial  Court could and did record findings on  all\t the
\nfacts which had to be proved by the appellants to  establish
\ntheir case.  The first Appellate Court confirmed them.\t The
\nparticulars  required by sub-s. (1) of amended s. 19 of\t the
\nAct and the rules framed thereunder, were for the purpose of
\nascertaining  those  facts.   In  the  circumstances  it  is
\nreasonable   to\t hold  that  there  had\t  been\t substantial
\ncompliance  with  the provisions of amended s.\t19  and\t the
\nrules framed thereunder.  The Board of Revenue was therefore
\nin  error in stating that the appellants had not  given\t the
\namount of local rate to which they were assessed in U.P.  on
\nJanuary 1, 1940, and that compliance did not appear to\thave
\nbeen  made  of rule 239AII of the Revenue Court\t Manual\t and
\nthat  there  had  not been sufficient  compliance  with\t the
\nmandatory  provisions  of  rules 239A and  239B.   From\t the
\njudgment of the Board it is clear that its attention was not
\ndrawn  to  the\tseveral\t relevant  documents  filed  by\t the
\nappellants in the trial Court.\tWe have no doubt that if the
\nBoard  had  considered the said document it would  not\thave
\nheld that s. 19 had not been substantially complied with.
\nWe therefore hold that the Board of Revenue was in error  in
\nsetting aside the decree of the Additional Commissioner\t and
\nremanding the case for fresh trial on the ground that  there
\nhad not been compliance with the provisions of amended s. 19
\nof the Act and the rules framed thereunder.\n<\/p>\n
921<\/span><\/p>\n
We accordingly allow the appeals, set aside the order of the
\nBoard of Revenue and remand the cases to it for decision  in
\naccordance with law.  We further direct it to decide  itself
\nthe contention raised by the respondents about their  having
\nacquired  adivasi rights under the U.P. Zamindari  Abolition
\nand Reforms Act.  In case the Board takes the view that\t for
\ndeciding  the said issue any finding of fact  is  necessary,
\nit. may call for the said finding from the Trial Court\tand,
\non  receiving  it, proceed to deal with the appeals  on\t the
\nmerits.\n<\/p>\n
In  the\t circumstances of these cases, we  direct  that\t the
\nparties on either side bear their own costs.
\nAppeals allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sham Kartik Singh vs Mathura on 31 August, 1962 Equivalent citations: 1967 AIR 732, 1963 SCR (3) 904 Author: R Dayal Bench: Dayal, Raghubar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-159279","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSham Kartik Singh vs Mathura on 31 August, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sham-kartik-singh-vs-mathura-on-31-august-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sham Kartik Singh vs Mathura on 31 August, 1962 - 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