Sri Ram v. Gokul — 1963 DIGILAW 88 (ALL)

JUDGMENT M.C. Desai, C.J. - This is an appeal by the defendants from a decree passed by our brother S.D. Singh directing the respondents to be restored to possession over the land in dispute, plot No. 142B. 2. In the records of 1344F, the appellants were recorded as tenants-in-chief, and the respondents as their sub-tenants, of the land in dispute. The appellants applied in 1944 for correction of the entry alleging that they had not sublet the land to the respondents. On 19-6-1944 corresponding to 1351 Rabi the revenue Court ordered the names of the respondents to be deleted from the records on the ground that they were not sub-tenants and were also not in possession. 1351F, came to an end within a few days of the order being passed. It should have been given effect to when the papers of 1352F, were prepared, but it was not given effect to and in flagrant violation of it the patwari made the same entries in the records of the 1352 F, as in the records of 1351F. He went on repeating the entries in the records of the succeeding years including 1356F. The Zamindari Abolition and Land Reforms Act came into force on 1-7-1952. It appears that before this date there were some proceedings in the Magistrate's Court under Sec. 145, Cr.P.C., in the course of which the land in dispute was attached. The proceedings terminated in favour of the appellants and possession of the land was ordered to be delivered to them. The Zamindari Abolition and Land Reforms Act came into force on 1-7-1952 i.e., the first day of 1360F Sec. 20(b) (i) provides that every person who was recorded as occupant of any land in the Khasra or khatauni of 1356F, prepared under Secs. 28 and 33 respectively of the U.P. Land Revenue Act, 1901, will become an adhivasi. There are four Explanations to this provision and we are concerned with Explanations II and III which read as follows:- "Explanation II. - Where any entry in the record referred to in Cl. (b) has been corrected before the date of vesting under or in accordance with the provisions of the U.P. Land Revenue Act, 1901, the entry so corrected shall, for the purposes of the said clause, prevail. - Where any entry in the record referred to in Cl. (b) has been corrected before the date of vesting under or in accordance with the provisions of the U.P. Land Revenue Act, 1901, the entry so corrected shall, for the purposes of the said clause, prevail. Explanation III - For the purposes of explanation II an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent court requiring any correction in records had been made before the said date and had become final even though the correction may not have been incorporated in the records." Since the respondents were recorded in the records of 1356F. as in occupation as sub-tenants, they could claim that they had become adhivasis with effect from 1-7-1952. On 17-10-1952 they instituted the suit giving rise to this appeal for possession claiming ; that they had become sirdars. Sirdari rights accrued under section 19 of the Zamindari Abolition and Land Reforms Act to persons who on 30-6-1952 held the land as occupancy tenants or hereditary tenants or sub-tenants referred to in Sec. 47(4) of the U.P. Tenancy Act. The respondents did not explain how they claimed sirdari rights over the land; presumably they did so on the ground that they were sub-tenants referred in Sec. 47(4). Later, on 18 1-1954 they got the plaint amended and claimed adhivasi rights in the alternative. They did not allege the facts on the basis of which they claimed adhivasi rights; they did not plead that they were recorded as occupants in the records of 1356F, within the meaning of Sec. 20(b) (i). The suit was dismissed by the Munsif and by the District Judge on appeal. On second appeal it has been decreed by our learned brother, who held that the respondents became adhivasis on 1-7-1952 because they were recorded as occupants in the records of 1356F. He overruled the contention of the appellants that in 1351F, a revenue Court had ordered the entry in respect of the `respondents' occupation as sub-tenants to be deleted. He held that Explanation II and III relate to correction of an entry in a record of 1356F, and not to correction of an entry in a record of any previous year. He overruled the contention of the appellants that in 1351F, a revenue Court had ordered the entry in respect of the `respondents' occupation as sub-tenants to be deleted. He held that Explanation II and III relate to correction of an entry in a record of 1356F, and not to correction of an entry in a record of any previous year. There had been no order passed for correction of the entry in the records of 1356F, and, therefore, our learned brother held that the appellants could not claim the benefit of Expiation II and III. The entry in the records of 1356F, had never actually been and had never been awarded to be corrected, and, therefore, our learned brother gave the benefit of it to the respondents. 3. It has been held by this Court that what is required under Sec. 20(b) (i) is simply an entry of occupation in a record of 1356F, and that the entry is not required to be correct and the person who was recorded as occupant is not required to prove that he was actually in occupation in 1356F. The recorded person would get adhivasi rights regardless of whether he was in occupation or not and whether the entry recording him to be an occupant was correct or not. See Bhal Singh v. Bhop, 1963 A.L.J. 288 and Lala Nanak Chand v. The Board of Revenue, 1955 A.L.J. 408. The Legislature when enacting Sec. 20(b) (i) might have intended to ban an enquiry into the correctness of the entry, but it does not follow that it also intended to ban an enquiry into the authority for making an entry. An enquiry into the correctness of an entry is distinct from an enquiry into the authority for making an entry and a ban on making an enquiry into the correctness of an entry does not involve a ban on an enquiry into the authority behind an entry. The Legislature undoubtedly contemplated that the entry referred to in Sec. 20(b) (i) must be an entry made in accordance with the rules by a duly authorised person. Some indication of this is given by the words "prepared under Secs. The Legislature undoubtedly contemplated that the entry referred to in Sec. 20(b) (i) must be an entry made in accordance with the rules by a duly authorised person. Some indication of this is given by the words "prepared under Secs. 28 and 33 respectively of the U.P. Land Revenue Act, 1901"; it is not enough that a person is recorded as in occupation in a record; the energy of occupation must have been made in accordance with the rules relating to preparation of the record. It follows that the entry must have been made in accordance with the rules relating to the making of entries in the particular record. The question of an entry in a record of 1356F, would arise more than three years after and in this period of three years there were many opportunities for forged and unauthorised entries being made in the records of 1356Fasli. The Legislature went quite far in laying down that an entry made in a record of 1356F, would suffice for conferment of adhivasi rights even if it was incorrect, but certainly did not intend to go farther and lay down that it sufficed even if it was forged or made by an absolute unauthorised person. There could be a reason for its giving effect to an entry even if it was incorrect but there could not be any reason for its giving effect to it if it was forged or made by an unauthorised person. Therefore, forged entries or entries made by unauthorised persons could not be said to be entries of occupation within the meaning of Sec. 20(b) (i). An entry-made by a patwari in the records of 1356F, in flagrant contravention of an order passed by a competent authority cannot be distinguished from an entry made by an unauthorised person or a forged entry and it must be held that the Legislature did not contemplate an entry made in a record of 1356F, in flagrant violation of an order of a competent authority to be an entry made in a record prepared under Secs. 28 and 33 of the Land Revenue Act. In other words, no person can claim a benefit on the basis of such an entry. 4. 28 and 33 of the Land Revenue Act. In other words, no person can claim a benefit on the basis of such an entry. 4. Explanation III is by way of an exception to Explanation II and the effect of the two Explanations read together is that when an entry in a record of 1356F, has been corrected before 1-7-1952 or in accordance with the provisions of the Land Revenue Act, it will not be deemed to be an entry of occupation and that if an order for correcting an entry in such a record has been passed before 1-7-1952, the entry will not be deemed to be an entry of occupation even though the correction has not been actually carried out in record. There is no doubt that these Explanations specifically refer to correction of an entry in a record of 1356 F, and not to correction of an entry in a record of an earlier year, but the principle under-lying them is that if an entry is adjudged by a competent Court to be incorrect, it must not be given effect to. The Legislature distinguished between incorrect entries already found to be incorrect by a competent Court, and other incorrect entries, and took notice of the incorrectness of only the former entries and decided that they should not be a source of adhivasi rights. This principle would apply to an order in respect of an entry in a record of any year. There was nothing peculiar in the year 1356F. and it cannot be said that the principle was especially applicable to correction of an entry of a record of that year. Since the Legislature conferred adhivasi rights only on the basis of an entry in a record of 1356 F., it dealt with correction of only such an entry and did not expressly provide for the effect of an order of correction of an entry in a record of an earlier years, but the principle, on which the Explanations are based, applies with equal force to correction of such an entry. There was a specific order of a competent Court correcting the entry in the records of 1351 F. and even though the entry was not actually corrected in the records of 1351 Fasli, it must be deemed to have been corrected and the entry of occupation of the respondents must be deemed to have been nonexistent in 1351 Fasli. If it did not exist in the record of 1351 Fasli, it could not be expected in the record of 1352 Fasli, when no change in the circumstances i.e., the relationship between the parties and possession, has been alleged on behalf of the respondents. They claimed to have been in occupation continuously from before 1351 Fasli; they did not allege that after the order was passed by the revenue Court on 19-6-1944, there was a change in the circumstances and that they again became sub-tenants of the appellants and again got into possession. When the patwari repeated the entry of their being sub-tenants and being in possession in the records of 1352 Fasli, he did it simply because of the entry made in the records of 1351 Fasli and not because of any change in the circumstances after the passing of the order of 19-6-1944. When there was no change, he was bound by the order not to make an entry of the respondents being in occupation as sub-tenants. If he had corrected the entry in the records of 1351 Fasli (as he was bound to do) he would not have repeated the entry in the records of 1352 Fasli. If he had not repeated the en-cry in the records of 1352 Fasli, he would not have repeated it in the records of the next year And so or and there should have been no such entry in the records of 1356 Fasli. The order of 19-6-1944 was not an order merely deleting the names of the respondents from the records; it involved an order that the entry should not be repeated unless there was a change in the circumstances. There would have been no sense in the entry. being deleted if it was followed by an entry of the same contents without any change in the circumstances. An order deleting an entry involves a direction not to make an entry of the same contents on the existing facts. There would have been no sense in the entry. being deleted if it was followed by an entry of the same contents without any change in the circumstances. An order deleting an entry involves a direction not to make an entry of the same contents on the existing facts. Therefore, the order of 19-6-1944 meant that no similar entry should be made in the subsequent years if there was no change in the circumstances. An order banning an entry is as good as one deleting or correcting an entry; consequently an order that no entry should be made in the records of 1356 Fasli regarding the respondents being in occupation is as good as an order correcting such an entry if made, and the Explanations apply, with the result that the entry, if made, must be deemed to be non-existent. The Explanations expressly refer to an order for correction of an entry after it is made and not in anticipation of it, but we see no reason to distinguish between an order applying prospectively and an order applying retrospectively. An order declaring an entry to be incorrect can be passed in advance also. So long as an order is passed before 1-7-1952, even if it is passed be fore 1-7-1948, if it has the elect of banning an entry in a record of 1356F., it is as good as an order directing correction of such an entry passed after it was made. 5. No case completely parallel to the instant case was cited before us. There are some decisions containing suggestions as to what is to be read is Sec. 20(b) (i) and the Explanations following it. For instance in Ram Kishore Pande v. State of U.P., 1962 R.D. 280 it was said that an order necessitating a correction of any entry is an order requiring correction within the meaning of Explanation III even though it does not expressly require correction. So the order passed on 19-6-1944 necessitating a correction in the records of 1332F. and thereafter in the records of succeeding years may be said to be or order requiring correction of the entry in the records of succeeding years. Similarly, in Sri Jagdish Prasad v. The Board of Revenue, U.P., 1959 A.L.J. 860 it was held that Explanation III applies if correction becomes compulsory. and thereafter in the records of succeeding years may be said to be or order requiring correction of the entry in the records of succeeding years. Similarly, in Sri Jagdish Prasad v. The Board of Revenue, U.P., 1959 A.L.J. 860 it was held that Explanation III applies if correction becomes compulsory. These two cases accept the principle that passing an order showing that an entry is incorrect amounts to passing an order requiring the correction. Though the principle was laid down for correction of entries in the records of 1356F., it can equally strongly apply to correction of entries in other year's records also. Lala Pande v. Mahendra Nath Pande, 1963 A.L.J. 190 was considered by this Court in the case of Bhal Singh, 1963 A.L.J. 288 and was expressly dissented from; also it does not deal with the precise question considered by us. In Fatta v. Board of Revenue U.P., 1956 A.L.J. 351 it was observed by a Bench of this Court that an entry contemplated by Sec. 20(b) (i) must have been made in the ordinary course of business by the patwari; this supports the view that a forged entry, or one made by an unauthorised person or in contravention of an order of a competent authority is not an entry within the meaning of Sec. 20 (b) (i). 6. It was contended on behalf of the respondents that this Court can not go behind the entry in the records of 1356F. In Lala Nanak Chand's case, 1955 A.L.J. 408 it was not stated that is no circumstance can a Court go behind an entry. Explanations II and III permit a Court to go behind an entry in certain circumstances. For the reasons that we have given above, we do not think that they deal exhaustively with the circumstances in which a Court can go behind an entry. There are some obvious circumstances in which it can go behind an entry such as when it is forged or made by an unauthorised person or in flagrant contravention of an order passed by a competent authority. The facts in Sri Jagdish Prasad v. Board of Revenue, U.P., 1959 A.L.J. 860 were quite different and what it did was only to interpret the words "an order or decree of a competent Court requiring any correction in records" used in Explanation III. 7. The facts in Sri Jagdish Prasad v. Board of Revenue, U.P., 1959 A.L.J. 860 were quite different and what it did was only to interpret the words "an order or decree of a competent Court requiring any correction in records" used in Explanation III. 7. The question is certainly nor free from difficulty and while much can be said for the other view, we think that the sound view would be to hold that the entry in the records of 1356F. relied upon by the respondents was not an entry of the nature contemplated by the Legislature in Sec. 20(b) (i). 8. It is noteworthy that the respondents did not originally claim adhivasi rights. They claimee sirdari rights under Sec. 19. Adhivasi rights conferred by Sec. 20 had not by then matured into sirdari rights. Even when the respondents claimed adhivasi rights through the amendment they did not plead the necessary facts en which they claimed them. Apparently, they did not rely upon the Entry of their occupation in the records of 1356 Fasli. It seems that they themselves realised that the entry having been made in direct contravention of the order, dated 19-6-1944, could not be set up by them as a basis of their title. The learned Munsif, who heard the suit, should have seen that only facts were pleaded in the plaint and not conclusions of law. He should not have allowed the respondents through the amendment to plead that they had acquired adhivasi rights and should have insisted upon their giving the facts on ,the basis of which they claimed them. If they had then claimed them on the basis of the entry in the records of 1356F., all the trouble that has arisen in the care would not have arisen. 9. We allow this appeal ale dismiss the suit. Let the party bear the costs themselves.