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1961 DIGILAW 387 (ALL)

Dularey v. Rajeshwari

1961-12-12

M.C.DESAI, S.D.SINGH

body1961
JUDGMENT M. C. Desai, C.J. - This is a petition for certiorari to quash orders passed by an Additional Commissioner, Opposite party No. 3, and Board of Revenue, Opposite party No. 4 in a suit instituted against the petitioner for his ejectment under Sec. 202 of the U.P. Zamindari Abolition and Land Reforms Act, by Phulbasa predecessor-in-title of opposite parties Nos. 1 and 2. The case of Phulbasa was that the petitioner was an asami by virtue of the provision in Sec. 21 (1) (h) (a) of the Act and hence liable to be ejected by her. The petitioner contested the suit denying that he was an asami under that provision. The facts are that the land in dispute was previously in the join tenancy of Phulbasa and her sister Bitto; she was a widow whereas Bitto's husband was alive and was not alleged to be a disabled person himself. This was the status of each of them in 1943 when the land in dispute was let out to the petitioner as a sub-tenant. In 1948 the joint holding including the land in dispute was partitioned between Phulbasa and Bitto and the land in dispute fell in the share of Phulbasa. Sec. 157(1) refers to the class of sirdars who are unmarried women, or if married women, divorced or separated from their husbands, or whose husbands suffer from certain of the disqualifact ions, widows, minors etc. In 1943 as well as on the 9th of April, 1946, Phulbasa was a person belonging to a class mentioned in Sec. 157 (1) but not Bitto. 2. On the coming into force of the U.P. Zamindari Abolition and Land Reforms Act certain consequences arose directly on the vesting of the estates of inermediaries in the State and one of them is, as laid down in Sec. 21 (1) (h) (a), that every person who on the date immediately preceding the date of vesting occupied or held land as a sub-tenant referred to in Sec. 20(a) (ii), where "the land-holder or if there or more than one land holder, all of them were person or persons belonging- (a) if the land was let out ...... both on the date of letting or occupation, as the case may be, and on the ninth day of April, 1946" - to any one or more of the classes mentioned in sub-Sec. (1) of Sec 157, was deemed to be an asami thereof. Thus a person became an asami, if he fulfilled these conditions, immediately and automatically on the date of the vesting. The case of the contesting opposite parties (opposite parties 1 and 2) is that the petitioner was a sub-tenant referred to in Sec. 20 (a) (ii), that Phulbasa was his land-holder on the date of the vesting and that she was on the date of letting as well as on ninth day of April, 1946, a person belonging to one of the classes mentioned in Sec. 157(1) and that con sequently he became an asami with effect from the date of the vesting. It was contended on behalf of the petitioner that there were two land-holders, Phulbasa and Bitto, who had let out the land to him and that only one of them belonged to a class mentioned in Sec. 157(1) and not the other and that consequently he did not become an asami with effect from the date of the vesting. The revenue courts held that there were in fact two land-holders, that however by a arrangement Phulbasa was doing all the work of letting out land, collecting rents, filing suits etc., that consequently for all practical purposes she was the sole landholder and that as she admittedly belonged to a class mentioned in Sec. 157(1) the petitioner became an asami and decreed the suit for ejectment. 3. The petitioner wants the order of the revenue courts to be quashed by certiorari. It is not in dispute that the petitioner was a sub-tenant referred to in Sec. 20(a) (ii). It is a finding of fact, (and it is not assailed before us) that there was a partition between Phulbasa and Bitto in 1948, that since then only Phulbasa was the land-holder and that she alone was the land-holder on the date of the vesting. In order to decide whether the petitioner became an asami under Sec. 21(1) (h) (a) it has first to be determined who was his land-holder immediately preceding the date of the vesting. In order to decide whether the petitioner became an asami under Sec. 21(1) (h) (a) it has first to be determined who was his land-holder immediately preceding the date of the vesting. Since he acquired asami rights, if at all, on account of the vesting and with effect from the date of vesting, the provision has to be read as on the date of vesting. In other words it has to be determined, as on the date of vesting, who was the land-holder. This is made clear by the use of the italicised word in the clause "if there are more than one landholder". Since Sec. 21 is to be read as on the date of vesting, the use of the word "are" indicates that it has to be seen who was the land-holder on the date of vesting. If there was one land-holder on that date he should have been a person belonging to any of the classes mentioned in Sec. 157(1) on the date of the letting and also on the ninth day of April, 1946. If, on the other hand, there were two or more land-holders on the date of vesting both or all should have belonged to any of the clauses at both the times. Now admittedly on the date of vesting there was only one land-holder, viz., Phulbasa, Bitto the previous land-holder having ceased to be a land-holder since the partition of 1948. Phulbasa admittedly belonged to one of the classes mentioned in Sec. 157(1) on both the relevant dates and consequently the petitioner acquired asami rights. We do not accept the contention advanced by Sri N. Banerji that what has to be considered is how many persons were land-holders at the time of the vesting. What is laid down in the provision is that whoever was the land-holder should have been a person belonging to a class mentioned in Sec. 157(1) on the date of letting and on the ninth day of April, 1946, and not that whoever was the land-holder on the date of letting and on the 9th of April, 1946, should have belonged to such a class. What has to be seen first according to the provision is who was the land-holder at the time of the vesting and then it has to be considered whether he belonged to such a class on the relevant dates or not. 4. What has to be seen first according to the provision is who was the land-holder at the time of the vesting and then it has to be considered whether he belonged to such a class on the relevant dates or not. 4. Since we hold that whoever was the land-holder on the date of vesting should have belonged to a class mentioned in Sec. 157(1) on the two dates it is unnecessary to go into the question whether Phulbasa was for all practical purposes the sole land- holder at the time of the letting and on the 9th of April, 1946, or not. In view of our interpretation of the provision under consideration this question does not arise at all. 5. In the result we dismiss this petition with costs. Petition dismissed.