Full Judgment Text
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PETITIONER:
STATE OF U.P.
Vs.
RESPONDENT:
SMT. SARJOO DEVI & ORS.
DATE OF JUDGMENT27/07/1977
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
GOSWAMI, P.K.
CITATION:
1977 AIR 2196 1978 SCR (1) 181
1977 SCC (4) 2
ACT:
U.P. Zamindari Abolition & Land Reforms Act, 1950-ss. 3(14),
212 and 212A-Scope of-Land settled on the respondent with
hereditary tenancy rights-Sabhapati of Gaon claimed the land
to be common pasture land-No evidence to show the land to be
pasture land-Sub Divisional Officer ordered ejectment of the
tenant-Legality of the order.
Words and phrases-"Held" meaning of.
HEADNOTE:
Under section 3 of the, U.P. Land Utilisation Act, the
Collector served a notice on two intermediaries under the
U.P. Zamindari Abolition and Land Reforms Act, 1950, calling
upon them either to cultivate the land belonging to them or
to let it out to other persons for cultivation. Thereupon
in 1950 the land was settled on respondent No. 1 with
hereditary tenancy rights. In 1954, a notification was
issued under the Indian Forest Act, 1927 declaring that
certain lands, including the land in dispute, would be
constituted as reserve forest. Respondent No. 1 preferred
her claim before the Forest Settlement Officer. In the
meantime respondent No. 5, Sabbapati of the Gaon Samaj,
filed an application before the Sub-Divisional Officer
claiming that the land was customary pasture land and that
respondent No. 1, who had encroached upon the land, should
be ejected. That application having been granted,
respondent No. 1 filed a suit against the appellant and
others for a declaration that the Sub-Divisional Officer’s
order was null and void and was not binding on her because
she was the Sirdar in possession of the land.
The trial Court held that the suit land was never recorded
in the revenue papers as customary pasture land but as
’Parti’ land fit for cultivation and declared the order of
the Sub-Divisional Officer to be null and void. The
District Court and the High Court upheld the order of the
trial Court.
In appeal before this Court, it was contended that (i) the
trial court was wrong in holding that the Sub-Divisional
Officer’s order was null and void; (ii) the impugned order
was final and (iii) the land not having been ever occupied
for the purpose connected with agriculture respondent No. 1
could not be said to be a hereditary tenant.
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Dismissing the appeal,
HELD : (1) (a) The Courts below were right in holding that
the land in question was not customary common pasture land
nor it ever been used as customary pasture land or pasture
land in any year. The Sub-Divisional Officer acted without
jurisdiction and the impugned order was wholly illegal,
ineffective, null and void and not binding on respondent No.
1. [186 B]
(b) A conjoint reading of the provisions of ss. 212-A and
212 of the 1950 Act would show that the Chairman, member or
society of a committee referred to in s. 121 can make an
application to the Collector for ejectment of a person only
if the land of which he is in possession is of the
description specified in s. 212, that is, (i) if it was
recorded as customary pasture land or (ii) if it was a
customary common pasture land. The evidence adduced in the
case does not at all show that the suit land was recorded as
customary pasture land nor does it show that it was in fact
customary common pasture land. On the contrary the relevant
revenue records showed that the/ land in question was "Parti
fit for cultivation." [185 H]
(2)The Sub-Divisional Officer’s order cannot be held to be
final and the suit of respondent No. 1 to establish her
right was clearly maintainable. The impugned order passed
under s. 212-A is not final and it is open to the party
182
against whom the order of ejectment was passed to institute
a suit to establish the right claimed by it. It is only
when the suit instituted by the person sought to be ejected
fails that the order of the, ejectment becomes conclusive.
[186 G]
(3)(a) This Court in Budhan Singh & Anr. v. Nabi Bux & Anr.
[1970] 2 S.C.R. 10, interpreted the word "held" in s. 9 of
the 1950 Act as meaning possession by "legal title". [187 E]
(b)A perusal of the definition of the word ’land’ in the
Act would show that it is not necessary for the land to fall
within the purview of this definition, that it must be
actually under cultivation or be occupied for purposes
connected with agriculture. The requirement of the
definition is amply satisfied if the land is either- held or
occupied for purposes connected with agriculture. The word
"held" in the definition is of wide import. [187 A]
In the instant case, it has been concurrently found by the
Courts below on the basis of evidence adduced in the case
that the land in question was let out to respondent No. 1 by
the intermediaries in May 1950 for growing crops; that she
brought a substantial portion thereof under cultivation,
paid rent to the intermediaries, had been regularly paying
revenue to the State and that she had all along lawfully
continued to hold the land" for purposes connected with
agriculture. From the appellant’s own revenue record it is
clear that respondent No. 1 was holding the land as a
hereditary tenant on the date immediately preceding the-date
of vesting. She has, therefore, fulfilled all the requisite
conditions and become a sirdar of the land on the date of
vesting under S. 19 of the Act. L187 E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2334 of
1968.
Appeal by Special Leave from the, Judgment and Order dated
5-2-1968 of the Allahabad High Court in Second Appeal No.
3257 of 1960.
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G. N. Dikshit, and O. P. Rana for the Appellant.
Fauidar Rao, Jagdish Misra and U. D. Prasad for Respondent
No. 1.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave which is
directed against the judgment and decree dated February 5,
1968 of the High Court of Judicature at Allahabad affirming
the decisions of the District Judge and the Civil Judge,
Basti, dated May 20, 1960 and July 27, 1959 respectively
decreeing the suit instituted by respondent No. 1 herein
under sub-section (7) of section 212A of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of
1951) (hereinafter referred to as ’the U.P. Z.A. and L.R.
Act’), which came into force on January 26, 195 1, arises in
the following circumstances:
The land in dispute measuring 142 bighas, 1 biswas and 18
dhurs situate in village Baudhara, Tappa Menhdawal, Pargana
Maghar East, Tehsil Khalilabad, District Basti, belonged in
1950 A.D. to Girdhar Das and Purshottam Das, Zamindars of
Gorakhpur City, who became intermediaries under the U.P.
Z.A. and L.R. Act. Finding that the said land was lying
uncultivated, the Collector, Gorakhpur, served the aforesaid
Zamindars with a notice under section 3 of-the U.P. Land
Utilisation Act calling upon them either to cultivate the
land themselves or to let out the same to other persons for
cultivation. The said Zamindars thereupon settled the land
in May 1950 (1357 Fasli) with respondent No. 1 by executing
’pattas’ in her. favour for growing crops i.e. for
cultivation and conferred hereditary tenancy rights on her.
On May 1, 1954, a notification under section 4 of the Indian
183
Forest Act, 1927 was published in the U.P. Gazette in
respect of 342 acres of land of village-, Baudhara including
the land in question declaring that it had been decided to
constitute the said land as a reserved forest. This was
followed in June, 1954 by a proclamation as required by
section 6 of the Forest Act. Respondent No. 1 thereupon
preferred her claim in respect of her rights to the land in
question before the, Forest Settlement Officer. On January
22, 1955, when the said claim preferred by respondent No. 1
was still pending, Ram Naresh Tewari, father of respondent
No. 5, describing himself as Sabhapati of Gaon Samaj,
Baraipur, filed an application purporting to be under
section 212A, (1) of the U.P. Z.A and L.R. Act before the
Sub Divisional Officer, Khalilabad (who was empowered by the
State Government to discharge the functions of a Collector)
for ejectment from the land in question of respondent No. 1
on the ground that it was a customary common pasture land
and as such had vested in the Gaon Samaj and that the said
respondent had encroached upon the same. By his order dated
August 16, 1955, the Sub Divisional Officer, Khalilabad,
allowed the aforesaid application of Ram Naresh Tewari and
ordered the ejectment of respondent No. 1. After
unsuccessfully trying by means of a review petition to have
the aforesaid order of her ejectment quashed, respondent No.
1 filed the aforesaid suit, being suit No. 7 of 1956, on
February 15, 1960 under sub-section (7) of section 212-A of
the U.P. Z.A. and L.R. Act against the State of U.P., the
appellant herein, and four others including Ram Naresh
Tewari, the father of respondent No. 5, for declaration that
the aforesaid order passed by the Sub Divisional Officer,
Khalilabad, was illegal, ineffective, null and void and was
not binding on her and that she was a sirdar in possession
of the land in question. She also prayed for a
perpetual injunction restraining the defendants from
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interfering with her possession and enjoyment of the land.
The case as set up by respondent No. 1 was that in 1357
Fasli (1950 A.D.), the zamindars viz. Girdhar Das and
Purshottam Das who were in possession of the land in
question duly executed pattas conferring hereditary tenancy
rights in the land in her favour; that the said tenancy
rights were confirmed by virtue of the decrees passed by the
competent revenue courts in suits brought by her under
sections 59 ,and 61 of the U.P. Tenancy Act, 1939 (U.P. Act
No. XVII of 1939) (hereinafter referred to as ’the U.P. T.
Act); that on the notified date viz. July 1, 1952, she
became a sirdar of the land in question under section 19 of
the U.P. Z.A. and L.R. Act; that since 1357 Fasli (1950
A.D.) she had been in actual possession of the land and
using it for agricultural purposes or for purposes connected
with agriculture and had been appropriating its produce and
regularly paying rent to the aforesaid zamindars and since
July 1, 1952, she had been continuously paying revenue to
the State Government; that as the land in question could not
and did not vest in the Gaon Samaj, neither the Gaon Samaj
nor Ram Naresh Tewari had any right to make an application
under section 212-A (1) of the U,P. Z.A. and L.R. Act and
that the land not having been a common pasture land or a
customary common pasture land before or after August 8,
1946, but having been in exclusive possession and ownership
of the aforesaid zamindars till the execution by them of the
aforesaid pattas and after their execution in her exclusive
possession, it was not land of the nature which could
legitimately be said to fall within the purview of section
212 of the
184
U.P. Z.A. and L.R. Act and that the proceedings taken by the
Sub, Divisional Officer, Khalilabad, under section 212-A of
the U.P. Z.A. and L.R. Act were illegal, null and void. The
appellant herein alone contested the suit. The rest of the
defendants having chosen to remain absent despite service of
summons, the case proceeded ex-parte against. them. The
appellant pleaded inter alia that as the land had never been
in the actual possession of the aforesaid zamindars before
or after the enforcement of the U.P. Z.A. and L.R. Act, it
vested in the State Government; that the land had always
remained a customary pastureland of public utility in which
no tenancy or other right could be conferred by the
zamindars in favour of respondent No. 1; that the trans-
action of lease relied upon by respondent No. 1 was invalid
and unenforceable; that the suit land legally vested in the
Gaon Samaj and that the impugned ejectment order dated
August 16, 1955 passed by the Sub Divisional Officer,
Khalilabad was binding on respondent No. 1 and the suit
brought by her was not maintainable.
On a consideration of the oral and documentary evidence, the
trial court came to the conclusion that the suit land was
never recorded in the revenue papers as customary pasture
land but was recorded in the Khatoni relating to 1357 Fasli
(1950 A.D.) as "Parti land fit for cultivation"; that there
was also no evidence to support the contention of the
appellant that the suit land was used in any year as common
pastures land or as pasture land; that even the appellant
had to concede that some 10 or, 12 bigha of the suit land
had been brought under cultivation by respondent No. 1; that
the suit land had been let out to respondent No. 1 in May
1950 when she became a hereditary tenant of the same; that
the suit land not being a customary pasture land, the order
dated August 16, 1955 passed by the Sub-Divisional Officer,
Khalilabad was illegal, null and void and was not binding on
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the plaintiff. The trial court further held that the oral
and documentary evidence adduced by respondent No. 1
established that she had been recorded in the revenue papers
as hereditary tenant of the land; that respondent No. 1 had
also been held by the competent revenue courts in suits Nos.
1178 of 1950, 780 of 1950 and 285 of 1952 filed by her under
sections 59 and 61 of the U.P. T. Act as hereditary tenant
and that she had become sirdar of the suit land on the date
of vesting. With these findings, the Civil Judge, Basti
decreed the suit with costs in favour of respondent No. 1 by
his judgment and decree dated July 27, 1959. Aggrieved by
this Judgment and decree, the State of U.P. went up in
appeal to the District Judge, Basti, who by his judgment and
decree dated May 20, 1960 affirmed the aforesaid judgment
and decree of the trial court holding inter alia that the
suit land had been let out to respondent No. 1 for the
purpose of growing crops; that in revenue papers (Exhibits
1, 7 and 8) which relate to the years 1358, 1359 and 1362
Faslis, she had been recorded as hereditary tenant of the
suit land and she became, sirdar thereof on the date of
vesting viz. July 1, 1952. On further appeal, the High
Court by its judgment dated February 5, 1968, upheld the
aforesaid judgments and decrees of the trial court and the
District Judge, Basti. It is against this judgment and
decree that the State of U.P. had come up in appeal to this
Court.
185
Appearing on behalf of the appellant, Mr. Dixit has urged
that the material on the record did not warrant the findings
of the courts below that the suit land not being of the
nature contemplated by section 212 of the U.P. Z.A. and L.R.
Act, the aforesaid order passed by the Sub Divisional
Officer, Khalilabad, was null and void. He has further
contended that the impugned order was final and conclusive
and the suit out of which the present appeal has arisen was
not maintainable. He has lastly submitted that it is- the
definition of "land" as contained in section 3(14) of the
U.P. Z.A. and L.R. Act and not the one contained in section
3(1) of the U.P. T. Act which is relevant for the purpose of
the instant case and that the land not having been ever
occupied for the purpose connected with agriculture,
respondent No. 1 could not be said to be a hereditary tenant
thereof and the courts below have erred in declaring her as
sirdar thereof. We shall consider these points seriatim.
Point No. 1 :-For a proper determination of this point, it
is necessary to refer to section 212-A(1) of the U.P. Z.A.
and L.R. Act under which the aforesaid application by Ram
Naresh Tewari, father of Sheo Ram Tewan, respondent No. 5
herein purported to be made as also to section 212 of the
same Act which is alluded to in section 212-A(1) :
"212-A(1). Without prejudice to the
provisions of section 212, the Chairman,
member or society of a committee referred to
in section 121, may, make an application to
the Collector for ejectment from the land of a
person in possession of a land referred to in
section 212.
(7)Where an order for ejectment has been
passed under this section, the party against
whom the order has been passed, may institute.
a suit to establish the right claimed by it,
but subject to the results of such suit
the order passed under sub-section (4) or (6)
shall be conclusive."
"212. Ejectment of persons from land of
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public utility. Any person who, on or after
the eighth day of August 1946 has been
admitted as a tenure or grove holder of, or
being an intermediary has brought under his
own cultivation or has planted a grove upon,
land which was recorded as or was customary
common pasture land, cremation or burial
ground, tank pond path way or Khalian, shall
be liable notwithstanding anything contained
in section 199, on the suit of the Gaon Sabha
to ejectment from the land, on payment of such
compensation as may be prescribed."
A conjoint reading of the provisions of these two sections
would show that the Chairman, member or society of a
committee referred to in section 121 can make an application
to the Collector for ejectment of a person only if the land
of which he is in possession is of the description specified
in section 212 i.e. (1) if it was recorded as customary
pasture land or (2) if it was a customary common pasture
land. The evidence adduced in the case does not at all show
that the suit land was recorded as customary pasture land
nor does it show that it was in fact
186
customary common pasture land. On the contrary, the
appellant’s own record clearly negatives its-case. In
Exhibits 2 and 45 which are copies of settlement Khatoni of
1323 Fasli, the land in question is clearly recorded as
’Parti’ with long thatching grass. Again in Khatoni of 1357
Fasli (1950 A.D.), the land is recorded as "Parti tit for
cultivation". The courts below were, therefore, perfectly
right in holding that there is no evidence to support the
appellant’s contention that the land in question was either
recorded as customary common pasture land or had ever been
used as customary pasture land or pasture land in any year.
Manifestly therefore, the Sub Divisional Officer, Khalilabad
acted without jurisdiction and the impugned order passed by
him directing the ejectment of the respondent No. 1 was
wholly illegal, ineffective, null and void and not it all
binding on respondent No. 1.
Point No. 2 :-The second point urged by Mr, Dixit is also
devoid of substance. Even a cursory glance at sub-section
(7) of section 212-A of the U.P. Z.A. and L.R. Act
reproduced above is enough to show that the order passed by
the Sub Divisional Officer, Khalilabad, under section 212-A
is not final and it is open to the party against whom the
order of ejectment is passed to institute a suit to
establish the right claimed by it. It is only when the suit
instituted by the person sought to be ejected fails that the
order of ejectment becomes conclusive. The aforesaid order
passed by the Sub Divisional Officer, Khalilabad cannot,
therefore, be held to, be final and the suit brought by
respondent No. 1 to establish her right was clearly
maintainable.
Point No. 3 :-For a decision of this point, it is essential
to refer to sections 3(14) and 19 of the U.P. Z.A. and L.R.
Act, which read as follows :
"3 (14). Land (except in sections 109, 143
and 144 and Chapter VII means land held or
occupied for purposes connected
with agriculture, horticulture or animal
husbandry which includes pisciculture and
poultry farming."
1 9. All land held or deemed to have been held
on the data immediately preceding the date of
vesting by any person as
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(i) (ii) (iii) (iv) hereditary tenant
(v)
(vi)
(vii)
(viii)
(iX)
shall, have in cases provided for in clause
(d) of sub-section (1) of section 18, be
deemed to be settled by the State Government
with such person who shall, subject to the
provisions of this Act, be entitled except as
provided in sub-section (2) of section 18, to
take or retain, possession as a sirdar
thereof.."
187
A bare perusal of the definition of the word "land as
contained in section 3(14) of the U.P. Z.A. and L.R. Act
which is reproduced above would show that it is not
necessary for the land to fall within the purview of this
definition that it must be actually under cultivation or
occupied for purposes connected with agriculture. The
requirement of the definition is, in our opinion, amply
satisfied if the land is either held or occupied for
purposes connected with agriculture. The world "held"
occurring in the above definition, which is a pa. pple. of
the word "hold" is of wide import. In the Unabridged
Edition of "The Random House Dictionary of the English
Language", the word "hold" has been inter alia stated to
mean "to have the ownership or use of; keep as one’s own."
In ’The Dictionary of English Law’ by Earl Jowitt (1959
Edition), the word "hold" has been interpreted as meaning
"to have as tenant".
In Stroud’s Judicial Dictionary (Fourth Edition), the
distinction between holding and occupation is sought to be
brought out by quoting the following observations by
Littledale, J. in R. v. Ditcheat(1).
"There is a material difference between a
holding and an occupation. A person may hold,
though he does not occupy. A tenant is a
person who holds of another; he does not
necessarily occupy.
In Webster’s New Twentieth Century Dictionary (Second
Edition), it is stated that in legal parlance, the word
"held" means to possess by ’legal titled’. Relying upon
this connotation, this Court in Budhan Singh & Anr. v. Nabi
Bux & Anr.(2), interpreted the word "held" in section. 9 of
the U.P. Z.A. and L.R. Act as meaning possession by legal
title.
In the instant case, it has been concurrently found by the
courts below on the basis of evidence adduced in the case
that the land in question was let out to respondent No. 1 by
the aforesaid intermediaries in May, 1950 (1357 Fasli) for
growing crops; that she brought a substantial portion
thereof under cultivation, paid rent to Girdhar Das and
Purshottam Das in 1951 and 1952 against proper receipts;
that she has been regularly paying revenue to the appellant
and that she has all along lawfully continued to hold the
land for purposes connected with agriculture. It is also
established from the appellant’s own revenue record that
respondent No. 1 was holding the land as a hereditary tenant
on the date immediately preceding the date of vesting.
There is, therefore, no manner of doubt that she fulfilled
all the requisite conditions and became a sirdar of the land
on the date of vesting under section 19 of the U.P. Z.A. and
L.R. Act.
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All the contentions raised by counsel for the appellant,
therefore, fail.
For the foregoing reasons, we find no force in this appeal
which is dismissed. The appellant shall pay costs of
respondent No. 1 as directed in court’s order dated November
12, 19 8.
P.B.R. Appeal dismissed.
(1) 9 B & c 108.
(2) [1970] 2 S.C.R. 10.
188