Full Judgment Text
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PETITIONER:
THE UPPER GANGES SUGAR MILLS LTD.
Vs.
RESPONDENT:
KHALIL-UL-RAHMAN AND OTHERS.
DATE OF JUDGMENT:
06/09/1960
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1961 AIR 143 1961 SCR (1) 564
CITATOR INFO :
RF 1965 SC 54 (18)
F 1968 SC1351 (8,9,10)
RF 1981 SC1005 (3)
E 1990 SC 471 (5,8,9,10,13,14)
ACT:
Tenancy-Adhivasi right, acquisition of-Possession continued
under stay orders of courts-Whether such Possession is on
behalf of courts-Person recorded in possession as thekadar-
Whether an occupant in his own right U. P. Zamindari
Abolition and Land Reforms Act, 1950, (U. P. 1 of 1950), S.
20(b).
HEADNOTE:
The landlord granted a theka to the company for 10 years
ending with 1356 F which was renewed up to 1355 F (June
1948). On the company’s refusal to vacate on the expiry of
the theka the landlord filed a suit for ejectment under the
U. P. Tenancy Act, 1939. The suit was resisted by the
company on the ground that it has become a hereditary tenant
under S. 29 of that Act. The suit was decreed on November
3,- 1948, and an appeal and a second appeal against the
decree also failed, but the company remained in possession
of the land on account of stay orders granted by the
appellate courts. In execution the landlord obtained formal
possession on October 13, 1950, but the company resisted
actual ejectment., on July 1, 1953, the company instituted
proceedings to recover actual possession of the land under
S. 232 of the U. P. Zamindari Abolition and Land Reforms
Act, 1950, claiming to have become an Adhivasi under S. 20
thereof. Section 20 provided that every person who was
recorded as occupant of any land in the Khasra or Khatauni
of 1356 F shall be called an adhivasi of the land and shall
be
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entitled to take or retain possession thereof. The company
was recorded in 1356 F in possession of the land in dispute
as thekedar. The landlord contended that the company had
not acquired the rights of an adhivasi : (i) as it being in
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possession in 1366 F under the stay orders of the courts it
Was in occupation not on its own behalf but on behalf of the
court, and (ii) as it was A recorded as a thekedar in 1356 F
its possession was not on its own behalf but on behalf of
the landlords, whose thekedar it was.
Held, (per Sinha C. J., Gajendragadkar, Wanchoo and Shah,
JJ.), that the company had acquired adhivasi rights in the
land and was entitled to the possession thereof. Simply
because there were stay orders which enabled the company to
remain in possession, the possession was not on behalf of
the court. It remained in possession in the same right in
which. it was in possession before the decree was passed on
November 3, 1948. Though the company was recorded in
possession as a thekedar it was an occupant in its own right
and not on behalf of the landlord. It was open to the court
to look beyond the entry of the company as a thekedar in the
Khasra.
Swami Prasad v. Board of Revenue, U. P., 1960 A.L. T. 24 1,
Parshotam Das v. Prem Narain, A.I.R. 1956 All. 665, Birjlal
V. Murli Pd., 1954 R. D. 175 and Lala Nanak Chand v. The
Board of Revenue, U. P., 1955 A.L.J. 408, referred to.
DAs GUPTA, J.-The company did not acquire the rights of an
adhivasi. The word " occupant " means a person in posses-
sion in his own right and not on behalf of someone else.
The benefit under the section is available only to those "
recorded as " occupants ". It is not permissible to look
beyond the record to ascertain whether the claimant has been
"recorded as occupant ". The record in the khasra of the
possession " as thekedar " amounts to record of " possession
on behalf of thekedar’s lessor ".
Swamy Prasad v. Board of Revenue, U. P., 1960 A.L.J. 241,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 196 of 1952.
Appeal from the judgment and order dated October 3, 1950,
of the Court of Board of Revenue, U. P., Allahabad, in
Review Application No. 161 of 1949-50.
And
Appeal by special leave from the judgment and order dated
January 21, 1956, of the Court of the Board of Revenue, U.
P., Allahabad, in Petition No. 22/1954-55.
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C.B. Aggarwala and C. P. Lal, for the Appellants (In C.
A. No. 196 of 1952) and respondent No. 1 (in C. A. No. 4
of 1959).
Achhru Ram and Naunit Lal, for the appellants (in C. A. No.
4 of 59) and respondents (in C. A. No. 196 of 52).
1960. September 6. The Judgment of Sinha C. J.,
Gajendragadkar, Wanchoo and Shah, JJ. was delivered by
WANCHOO J.-These two connected appeals will be disposed of
by one judgment. Appeal No. 196 of 1952 is by the Upper
Ganges Sugar Mills Ltd. (hereinafter called the Company)
while appeal No. 4 of 1959 is by Mohd. Khalilul Rehman and
others (hereinafter called the landlords). The brief facts
necessary for present purposes are these. Mukhtiar Ahmed,
father of the landlords, granted a theka to the Company in
August 1933 (corresponding to 1341 F) of the lands in
dispute for a period of ten years ending with 1350 F (June
1943). The theka contained a clause giving option to the
Company to get it renewed for five years and in consequence
the theka was renewed for five years from 1351 F to 1355 F
(that is upto June 1948). Thereafter the theka provided for
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option to renew the lease with the lessor. In March 1948,
the landlords gave notice to the Company to the effect that
the theka would not be renewed after 1355 F. The Company,
however’ did not agree to hand over possession to the
landlords and consequently a suit was filed by the landlords
for ejectment of the Company under the U. P. Tenency Act,
1939. It was resisted by the Company on the ground that it
was not a thekadar but a tenant and had become hereditary
tenant under s. 29 of the U. P. Tenancy Act. This plea
failed and the suit was decreed on November 3, 1948. There
was an appeal by the Company against the decree. This
appeal also failed. Then the Company went up in second
appeal to the Board of Revenue and eventually the second
appeal was
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dismissed on July 22, 1950. During all this period from
November 1948 to July 1950, the Company remained in
possession of the land in dispute on account of stay orders
obtained from the appellate courts. Execution began in
October 1950 and it is said that possession was delivered to
the landlords on October 13, 1950 and a Dakhalnama was filed
on October 15, 1950. It appears, however, that the Company
offered resistance to actual ejectment and this led to
proceedings under s. 145 of the Code of Criminal Procedure
and the magistrate ordered the attachment of the land in
November 1950 and appointed two superdars (caretakers). The
Company applied to the Board for a certificate which was
granted; and that is how appeal No. 196 has come to this
Court.
In the meantime, U. P. Zamindari Abolition and Land Reforms
Act, 1950 (U. P. I of 1951), (hereinafter called the Act)
came into force on July 1, 1953. The Company thereupon
instituted proceedings to recover actual possession of the
land under s. 232 of the Act read with ss. 12 and 20
thereof. The Sub-Divisional Officer decided in January 1954
in favour of the Company and ordered delivery of possession
to it holding that the Company was entitled to possession
both under s. 12 as well as under s. 20 of the Act. The
landlords went up in appeal, which was dismissed in January,
1955. The appellate court held that the Company was
entitled to recover possession under s. 12 but did not
decide the case put forward by the Company under s. 20.
Thereupon there was a second appeal to the Board of Revenue
which was dismissed in January, 1956. The Board also
decided the appeal on the basis of s. 12 and did not
consider the case as put forward under s. 20. The landlords
then came to this Court and were granted special leave to
appeal in May 1956; and that is how appeal No. 4 became
pending in this Court.
These appeals were heard on November 18, 1959, and this
Court remanded the matter and called for a finding from the
Board whether the Company had acquired any rights under s.
20 of the Act. The finding has been submitted by the Board
and is to the 73
568
effect that the Company is entitled to the benefit of s. 20
of the Act and has acquired Adhivasi rights thereunder.
It is conceded by learned counsel for the landlords that if
appeal No. 4 fails and the right of the Company either under
s. 12 or under s. 20 is upheld, it would not be necessary to
go into appeal No, 196. On this view the Company would have
acquired a new right under the Act, which would not be
affected by the decision in appeal No. 196, even if it goes
against the Company. We shall therefore first deal with
appeal No. 4.
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Taking the case of the Company under s. 20 first, we have to
see whether the Company has acquired Adhivasi rights
thereunder. The relevant part of s.20 for our purposes is
as follows
" Every person who-
(a).........................................................
....
(b) was recorded as occupant,-
(i)of any land (other than grove land or
land to which s. 16 applies) in the Khasra or
khatauni of 1356 F, prepared under ss. 28 and
33 respectively of the U. P. Land Revenue Act,
1901, or who was on the date immediately
preceding the date of vesting entitled to
regain possession thereof under el. (e) of
sub-s. (1) of s. 27 of the United Provinces
Tenancy (Amendment) Act, 1947, or
(ii)........................................................
...
shall unless he’ has become a bhumidar of the
land under sub-s. (2) of s-18 or an asami
under el. (h) of s. 21, be called adhivasi of
the land and shall, subject to the provisions
of this Act, be entitled to take or retain
possession thereof"
Section 232 of the Act gives right to an Adhivasi to whom
cl. (b) of s. 20 applies to apply within thirty months from
the date of vesting to the Assistant Collector in-charge of
the Sub-Division for putting him in possession of the land
of which he is the Adhivasi.
The question therefore that arises is whether the Company
was recorded as occupant of the land in dispute which is
undoubtedly not grove land or land
569
to which s. 16 applies. The word I occupant’ used in this
part of the Act is not a term of art and has not been
defined anywhere in the Act or in the U. P. Tenancy Act or
in the Land Revenue Act. It must therefore be given its’
ordinary dictionary meaning which is " a person in
occupation ". In order therefore that the Company can take
the benefit of s. 20 it should have been recorded in
occupation of the land in dispute in the year 1356 F. The
only limitation that has been placed by judicial decisions
on this meaning of the word " occupant " is that the person
should be in occupation in his own right and not on behalf
of someone else. (See Swami Prasad and another v. Board of
Revenue, U. P. (1) ). So long therefore as a person has been
in occupation in the relevant year in his own right (and not
on behalf of someone else) he will be entitled to the rights
conferred under s. 20 of the Act. Learned counsel for the
landlords however contends that the Company was not in
possession in its own right and his argument in this
connection is two-fold. Firstly, it is submitted that the
Company was ordered to be ejected on November 3, 1948, which
was in 1356 F. Thereafter it remained in possession because
of the stay orders passed by the appellate courts to which
it went in appeal successively. Therefore even though the
Company was in occupation throughout 1356 F its possession
after November 3, 1948 was not on its own behalf but on
’behalf of the Court. Secondly, it is urged that as the
Company was recorded as a thekadar in 1356 F, its possession
was not on its own behalf but on behalf of the landlords,
whose thekadar it was.
We are of opinion that there is no force in either of these
contentions. So far as the first contention is concerned,
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all that had happened after November 3, 1948, is that the
Company got stay orders from the appellate courts and
remained in possession as before till July 1950, when its
second appeal before the Board of Revenue was finally
dismissed. It cannot, however, be said simply because there
were stay orders as a result of which the Company continued
to
(1) 1960 A.L.J. 241.
570
remain in possession that it was in possession on behalf of
the court. In such circumstances the possession of the
Company, though it continued because of the stay orders,
cannot be held to be on behalf of the court; and it must be
in occupation in the right asserted by it, even though if it
had not obtained the stay orders it would not have remained
in possession. Learned counsel for the landlords in this
connection relied on Parshotam Das v. Prem Narain (1). That
case, however, is distinguishable because in that case a
receiver had been appointed and the person recorded in
occupation of the land was held to be the agent of the
receiver. Reliance was also placed on a decision of the
Board of Revenue in Birjlal v. Murli’ Pd. (2), where it was
held that where a person is recorded as occupant in 1356 F,
because of possession acquired on the basis of a stay order
issued by a court, his possession will be deemed to be on
behalf of the court and will therefore not qualify him for
acquisition of the rights of ’an Adhivasi under s. 20. The
facts in that case were somewhat different inasmuch as there
was redelivery of possession and that is how the person to
whom possession was redelivered was recorded in the revenue
records in 1356 F as occupant. But if that case means to
lay down that a person who remains in possession because a
stay order has been passed by an appellate court must be
deemed to be in possession on behalf of the court, it is
incorrect. In this case the Company was in possession from
before November 3, 1948, and remained in possession
thereafter because certain stay orders were passed by the
appellate courts. In the circumstances it must be held to
have remained in possession in the same right in which it
was in possession before November 3, 1948, and its
possession thereafter cannot be said to be on behalf of the
court.
The next argument on behalf of the landlords is that as the
Company was recorded as a thekadar in 1356 F in the revenue
records it must be held to have remained in possession on
behalf of the landlords whose thekadar it was. In this
connection reliance
(1) A.I.R. 1956 All. 665.
(2) [1954] R.D. 175.
571
was placed on Lala Nanak Chand v. The Board of Revenue, U.
P. (1), where it was held that what s. 20(b) requires is
that there should be an entry of a person’s name as an
occupant in the khasra or khatauni of 1356 F; but it is not
necessary that the person recorded as an occupant should
also have been in actual possession. It is not necessary to
consider the correctness of that decision in this case for
it is not in dispute here that the Company was not only
recorded in possession but was in actual possession in 1356
F. What is contended on behalf of the landlords is that as
the Company was recorded as a thekadar in 1356 F it is not
open to the court to go behind that entry and therefore it
must be held that the company was in occupation as a
thekadar in that year and thus was in occupation on behalf
of the landlords and not on its own behalf In this
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connection we may point out that the Company claimed that it
was entitled to possession not only as an Adhivasi under s.
20 but also as a hereditary tenant under s. 12, which
provides that a thekadar under certain circumstances becomes
a hereditary tenant. To meet the Company’s case under s. 12
the landlords contended that the Company was not a thekadar
in 1356 F because the theka expired on June 30, 1948. The
landlords were thus taking contradictory positions for the
purposes of ss. 12 and 20; in opposition to the claim under
s. 12 they said that the Company was not their thekadar in
1356 F while in opposition to the claim under s. 20, they
said that the Company was not in possession on its own
behalf but as their thekadar. It is argued on their behalf
that for the purpose of s. 20 all that has to be looked into
is the entry and nothing more and they rely on Lala Nanak
Chand’s case (1). That case, however, was concerned only
with the question whether a person recorded in the revenue
records had also to prove actual possession and it was held
therein that it was enough that a person should be recorded
in the revenue records as an occupant and it was not neces-
sary that he should also be actually in possession in the
relevant year. We need say nothing about the
(1) 1955 A.L.J.408.
572
correctness of that decision in the present case. But that
case was not concerned with the nature of possession,
namely, whether it was on a person’s own behalf or on
behalf of someone else. The words in s. 20(b)(i) man Only
speak of a person being recorded as occupant and there is
nothing in that section as to the nature of the occupancy,
namely whether it is on behalf of the person recorded or on
behalf of somebody else. That is a matter which in our
opinion must always be decided on other evidence for the
entry does not contemplate recording the nature of the
possession in the sense of its being on behalf of the person
recorded or on someone-else’ behalf We have already observed
that the expression " occupant " is not defined in the Act
and it is clear that neither the Act nor the Rules made
under it prescribe the form in which the entry specified by
s. 20(b) should be made. Besides the reference to the theka
was bound to be continued even after its termination so long
as the Company remained in possession and the lekhpal
received no order to change it. Therefore the contention on
behalf of the landlords that we cannot look beyond the entry
of the Company as a thekadar and must hold on that basis
that it was in possession on behalf of the landlords, is
incorrect. On the landlords’ own showing in this case, the
Company was not in possession as a thekadar as the theka had
expired before 1356 F. Under the circumstances we are of
opinion that the company was recorded as an occupant in 1356
F and that the nature of that occupation was on its own
behalf and was not either on behalf of the court or on
behalf of the landlords. Therefore the Company would be
entitled to Adhivasi rights. On this view it is not neces-
sary to decide whether the Company, is also entitled to the
benefit of s. 12. Appeal No. 4 therefore fails.
As appeal No.4 fails, it is not necessary to decide appeal
No. 196 and that appeal must under the circumstances be
dismissed as infructuous.
In the circumstances of these two appeals we are of opinion
that parties should bear their own costs of the two appeals
in. this Court. We therefore dismiss the appeals and pass
no order as to costs.
573
DAS GUPTA J.-I have had the advantage of reading the
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judgment prepared by my brother Mr. Justice Wanchoo; but I
regret my inability to agree that the Upper Ganges Sugar
Mills Ltd the respondent in Civil Appeal No. 4 of 1959 is
entitled to the benefit of s. 20(b)of the U. P. Zamindari
Abolition Act.
The facts have been fully stated by Mr. Justice Wanchoo and
it is unnecessary to repeat them.
It is common ground that if the Company, the Upper Ganges
Sugar Mills Ltd., can get the benefit of s. 20(b) or s. 12
of the U. P. Zamindari Abolition Act the Civil Appeal No. 4
of 1959 must be dismissed and consequently Civil Appeal No.
196 of 1952 which is by the Company against the decree of
ejectment made in favour of the superior landlords must be
dismissed as infructuous. The relevant portion of s. 20 is
in these words:-
" Every person who (a)
(b) was recorded as occupant
(i) of any land (other than grove land or
land to
which s. 16 applies) in the Khasra or Khatauni
of 1356 F, prepared under ss. 28 and 33
respectively of the U. P. Land Revenue Act,
1901
(ii)
shall unless he has become Bhumidhar of the
land under sub-s. (2) of s. 18 or an asami
under cl. (h) of s. 21 be called Adhivasi of
the land and shall, subject to the provision
of this Act, be entitled to take or retain
possession thereof."
The Khasra and Khatauni have been produced before us and
they show that the Upper Ganges Sugar Mills Ltd., has been
recorded as in possession of the land in dispute. They also
show however that the possession was as a " Thekadar ". What
we have to ask ourselves is, whether these entries in the
Khasra or Khatauni justify the conclusion that the Company
has been recorded as an " occupant " within the meaning of
a. 20(b).
The word " occupant " has not been defined in the Act and it
has to be properly interpreted on a consideration of the
entire scheme and the purpose of the
574
legislation. It was suggested on behalf of the landlords
(Appellants in C. X. No. 196 of 1952) that " occupant "
connotes a person who is in possession in his own right and
not on behalf of someone else. This was the view taken by
the Allahabad High Court in Swami Prasad v. Board of
Revenue, U. P. (1). The correctness of this view has not
been challenged before us.
Bearing in mind this connotation of the word ,,occupant " we
have to examine the entries in the Khasra and Khatauni to
see whether they amount to the recording of the Company as
an " occupant ". It has to be noticed that this benefit
under s. 20(b) is under the provisions of the section
available to those who are " recorded " as " occupants " and
not to all those who are "occupants ". If the fact of being
occupants was what was necessary, and reference to the
records was to be made only in supporting or resisting any
claim on that basis, we could certainly look-beyond the
record to decide the question. The Legislature has thought
fit to correlate the benefit to the record as an occupant
and not merely to the-fact of being an occupant. The Khasra
or Khatauni as prepared in the Uttar Pradesh does not in
any, case record any person as an " occupant "; that is why
we have to examine the entries in the record to show whether
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they record the facts which are necessary to satisfy the
connotation of the word " occupant ". Looking at the entries
before us I find that they record the Upper Ganges Sugar
Mills’ possession as a Thekadar. Chapter XI of the U. P.
Tenancy Act (U. P. XVII of 1939) deals with a Thekadar. It
seems reasonable to hold that in this Chapter, Thekadar is
equated to a farmer of rents, and Thekadar’s possession
ordinarily is contemplated to be possession on behalf of his
lessor. The record in the Khasra of possession " as a
Thekadar " appears to me therefore to amount to record of "
possession on behalf of the Thekadar’s lessor ". On the
accepted interpretation of the word " occupant " in s. 20
that it means a person in possession in his own right and
not on
(1) 1960 A.L.J. 241
575
behalf of somebody else, these entries in my opinion must be
held to record the Upper Ganges Sugar Mills Ltd., as an "
occupant ". The fact that the Theka had come to an end, and
yet, the Khasra continued to record the possession as "
Thekadar " is, I apprehend, wholly beside the question.
I cannot see how we can look beyond the actual record to
ascertain whether the claimant has been " recorded as
occupant " ; nor can I find any way of holding that
possession as " Thekadar " in the record, may or may not
mean " possession on behalf of the lessor ". Nor do I think
it possible to say that " occupant " should be interpreted
to include even one in possession on behalf of another
person. I therefore find it difficult to agree that the
Upper Ganges Sugar Mills is entitled to the benefit of is.
20(b) of the U. P. Zamindari Abolition Act.
As my learned brethren have taken the view that the Company
is so entitled to the benefit, full arguments have not been
heard on the question whether the Company is entitled to the
benefit of s. 12 and no arguments were heard in the other
appeal, viz., Civil Appeal No. 196/52. I am therefore
unable to come to any conclusion as to how these appeals
should be disposed of.
ORDER OF COURT. In view of the majority Judgment the
appeals are dismissed. No order as to costs.
Appeals dismissed.
74
576