Tulsi Ram v. Director of Consolidation Meerut — 1965 DIGILAW 431 (ALL)

ORDER K.B. Asthana, J. - By this petition under Article 226 of the Constitution certain orders passed by the Consolidation authorities in proceedings initiated u/s 20 of the U.P. Consolidation of Holdings Act (hereinafter called the Act) have been brought up for being quashed by a writ of certiorari. 2. Tulsiram, who is the Petitioner, claimed that the disputed holdings were his joint Sirdari along with certain other persons who are not party to this writ petition inasmuch as they were the recorded occupants in the Khasra of 1356F and acquired Adhivasi rights u/s 20(b) of the UPZA and LR. Act (hereinafter called the Abolition Act The opposite parties numbers 5 to 12 to this petition set up a rival claim that they were settled as tenants in the disputed holdings by the Zamindars and they being recorded as such in the revenue lepers and Wing in actual cultivatory possession in 1359F, acquired Adhivasi rights under the Tenancy laws and became Sirdar under the Abolition Act. The disputed holdings were the Sir of the Zamindars. It appears that the Petitioner and some other persons were the tenants of that land. The Zamindar brought a suit under 175/179 of the U.P. Tenancy Act for the ejectment of the Petitioner and others. This suit was decreed and in rectify of the decree for ejectment the Petitioner and others were ejected on 23.6. 1948 and the Zamindars got actual possession. Thereafter the Zamindars settled the disputed holdings with the contesting opposite parties Nos. 5 to 12 who came into possession of the same and immediately the date preceding the date of vesting under the Abolition Act were in actual cultivatory possession. The Petitioner appears to have filed a suit u/s 20/232 of the UPZA and LR Act for being restored to possession of the holdings as an Adhivasi and the proceedings in this suit were pending when the village in which the disputed holding stood' came under consolidation operations under the Act. Rival claims put lorwaid by the Petitioner and the contusing opposite parties were then determined by the Consolidation officer. The Consolidation Officer held that it were (he contesting opposite parties who were the Sirdars being in possession of the disputed holdings ever alter the ejectment of the Petitioner and others on 23.6.1948. Rival claims put lorwaid by the Petitioner and the contusing opposite parties were then determined by the Consolidation officer. The Consolidation Officer held that it were (he contesting opposite parties who were the Sirdars being in possession of the disputed holdings ever alter the ejectment of the Petitioner and others on 23.6.1948. The Consolidation Officer held that the Petitioner and the other claimants had not been able to establish that they became Adhivasi u/s 20(b) of the Abolition Act. The Petitioner and other persons who claimed co birdari rights with him then went up in appeal from the order of the Consolidation Officer. The Settlement Officer (Con solidation) dismissed the appeal and confirmed the order of the Consolidation Officer. Aggrieved Appellants, which included the Petitioner, then went up in second appeal. The Deputy Director of Consolidation who heard the second appeal dismissed it. The Petitioner and his co Appellants then went up in revision before the Director against the second appellate order of the Deputy Director. The Director dismissed the revision. The Petitioner alone now has come to this Court and challenges the validity of the above said orders of the Consolidation authorities. 3. At the hearing, on behalf of the contesting opposite parties numbers 5 to 12 Sri K.C. Agarwal, their learned Counsel, raised a preliminary objection that the petition was incompetent inasmuch as neither the other persons who claimed to be co sirdars along with the Petitioner have joined this petition as Petitioners nor has the Petitioner impleaded them formally as Respondents. I do not find any substance, whatsoever, in this objection. This writ petition under Article 226 is substantially one for a writ of certiorari. All the necessary parties have been impleaded, namely, Director of Consolidation, the Deputy Director, the Settlement Officer and the Consolidation Officer. All the proper parties have also, been impleaded who are contesting Respondents numbers 5 to 12 represented by Sri K.C. Agarwal. I do not"think the other persons who claimed co Sirdari rights along with the Petitioner to the disputed holdings were necessary parties or proper parties to this petition. The consideration which prevail in appeals from decrees under the CPC to my mind, do not wholly apply in respect of impleading of parties in writ petitions. I do not"think the other persons who claimed co Sirdari rights along with the Petitioner to the disputed holdings were necessary parties or proper parties to this petition. The consideration which prevail in appeals from decrees under the CPC to my mind, do not wholly apply in respect of impleading of parties in writ petitions. The fundamental principle seems to be that all those parties mast be brought before this Court who would be affected by the orders passed by this Court if the writ petition succeeded, so as to afford them a hearing. I do not see how the persons who claimed co Sirdari rights along with the Petitioner would be affected if any order is passed in this petition. Moreover, it appears to me that the Rules of the Court under Chapter 22 leave ample power with this Court to hear any person who appears to the court to be a proper person to be heard notwithstanding that he had not been served with notice. This shows that non impleading of a party is not such a matter as to be fatal to the maintainability of a petition under Article 226. 4. On merits, Sri Dhan Prakash, learned Counsel for the Petitioner, mainly urged that there has been a manifest error in the view taken by the consolidation authorities amounting to an error apparent, that despite the tact which was proved on that record that "the Petitioner was recorded as a tenant of the disputed holdings in the Khasra of 1356F they disregarded that entry and refused to hold the Petitioner to be an Adhivasi u/s 20(b) of the Abolition Act. Reliance was placed by the learned Counsel on the case of Lala Nanakchand v. The Board of Revenue (1955'AWR 371) in support of the proposition that the only requirement of Section 20 is a person being recorded as an occupant no matter whether such a person was in actual possession or not in 1356F. Support for the proposition that even a tenant would be a recorded occupant within the meaning of Section 20 is sought to be drawn from the decision of the Supreme Court in the case of Amba Prasad v. Mahboob Ali (1964. AWR 541). Sri K.C. Agarwal, learned Counsel for the contesting opposite parties, contended that the Petitioner being out of. Support for the proposition that even a tenant would be a recorded occupant within the meaning of Section 20 is sought to be drawn from the decision of the Supreme Court in the case of Amba Prasad v. Mahboob Ali (1964. AWR 541). Sri K.C. Agarwal, learned Counsel for the contesting opposite parties, contended that the Petitioner being out of. possession on 30th June 1948 having been evicted in execution of a decree of a competent court On 23.6.1948 was not entitled to become an Adhivasi u/s 20(b) of the Abolition Act for neither he could be said to be recorded as occupant in 1356F nor was he entitled to regain possession having not been ejected under a decree of a competent court after 30th June 1948. It was also argued by the learned Counsel that in any case the contesting Respondents being in actual cultivatory possession of the disputed holdings in 1359F, became Adhivasi u/s 3 of the U.P. Act XXXI of 1952 and even assuming that the Petitioner had acquired Adhivasi rights u/s 20(b) of the Act his light would be deemed to be extinguished and by virtue of their cultivatory possession in 1359F the contesting Respondents would be preferred in law for conferment of Adhivasi rights. 5. On a consideration of the arguments made before me by the learned Counsel for the respective parties, I am of the view that no case has been made out by the Petitioner that there has been any error in the view taken by the Consolidation authorities. I am further of the view that even if it could be said that another view was reasonably possible to be taken as to the law applicable to the facts proved by the evidence on record, the law which prevailed with the Consolidation authorities would not amount to give rise to an' error apparent so as to be amenable to a writ of certiorari. 6. 6. I No doubt in the case of Nanak Chand v. The Board of Revenue (supra) this Court took the view that merely the fact of a person bearing recorded as an occupant was enough to confer upon him Adhivasi rights u/s 20 of the Act without examining the question whether such a person was in actual possession but in that case the learned fudges were not concerned with the case of a person claiming Adhivasi rights who was not in possession on 30th June 1948. In Amba Prasad case (supra) the Supreme Court, to my mind, as I read the judgment, has declared the law in clear terms. It has been held by the Supreme Court that only that person who is recorded as occupant in the Khasra or Khatauqi of 1356F is covered by Section 20(b) of the Abolition Act who was in actual possession of the land, on which he is recorded as occupant, on 30th June 1948, that is, the date immediately preceding the date of the starting of the year 1356 Fasli. It also follows- from the decision of the Supreme Court in Amba Prasad's case that only a person who has been evicted ? after 30th June 1948, and who is recorded as occupant in Khasra and Khatauni of 1356F can regain possession. The possession on 30th June 1948 as laid down by the Supreme Court is the foundation of the claim of Adhivasi rights u/s 20(b). This should be clear from the following observations of Hidayatullah, J. who spoke for the Court at page 546 of the report: "Once we find out the right person in the light of the explanations that, person continues as an Adhivasi after July 1, 1952 provided he is in possession on or was evicted after June 30, 1948". The Petitioner admittedly was not in possession of the disputed holding on June 30, 1948, he having been evicted on 23rd June 1948. This is the finding which has bees recorded by the Consolidation Officer and affirmed by the higher consolidation authorities. The Petitioner admittedly was not in possession of the disputed holding on June 30, 1948, he having been evicted on 23rd June 1948. This is the finding which has bees recorded by the Consolidation Officer and affirmed by the higher consolidation authorities. It appears from the impugned orders that the Patwari, however, continued the entry in the tenants column in the name of the Petitioner and others though they had been ejected It is obvious that even if the entry as a tenant in favour of the petitionee in 1356 Fasli be read as an entry of an occupant within the meaning of Section 20 (b) of the Abolition Act, the Petitioner would not be entitled, to regain possession u/s 20 of the Abolition Act as he was not evicted after June 30, 1948. 7. Moreover, I have great doubts that the Petitioner merely on the entry showing him as a tenant of the disputed Sir land in the Khasra of 1356F can claim to be recorded as occupant within the meaning of Section 20(b) of the Abolition Act. It is the practice perhaps justified by the rules in the Land Record Manual, that an entry of tenancy or sub tenancy can be made by the Patwari in the Khasra or Khatauni in the name of a person who was entered as such in the previous year even though he may not be in possession for the direction under the rules is that in the remarks column the name of the person who is actually found in possession is to be entered. Thus the mere record of a person as tenant in the tenants column in the Khasra or Khatauni of 1356F would not necessarily show that such a person was in actual possession and enjoyment of the holding. On the facts in the instant case it has been established that the Petitioner was never in possession though he may be recorded as a tenant in 1356F. As explained by the Supreme Court in the case of Amba Prasad (supra), the word 'occupant' must mean a person holding the land in possession or actual enjoyment and that the word 'occupant' signified occupancy and enjoyment. As explained by the Supreme Court in the case of Amba Prasad (supra), the word 'occupant' must mean a person holding the land in possession or actual enjoyment and that the word 'occupant' signified occupancy and enjoyment. The Petitioner having been evicted on 23rd June 1948 in execution of a decree of a competent court and the zamindar having taken back possession from him and it having been found that he never was in actual possession of the disputed holding in 1356F, he would not be an occupant within the meaning of that word used in Section 20 of the Abolition Act. 8. Though the Consolidation authorities did not discuss the question of the rights of the contesting Respondents on the basis of their being in actual cultivatory possession in 1359F it appears to me that the matter is beyond doubt on the facts established on the record. The Consolidation authorities have found that the contesting Respondents were in actual cultivatory possession in 1359 F. Section 3 of the U.P. Act XXXI of 1952 clearly applied. It would be the contesting Respondents who would be preferred even if it be assumed that the Petitioner could legitimately claim to be an adhivasi under Seciton 20(b) of the Abolition Act. In the case of Nanhoo Mai v. Muloo and Ors. (3) ( 1963 AWR 498 ) Desai, C.J. at page 507 of the report observed as follows: "An Adhivasi who is already in possession is entitled to remain in possession so time as he is not ejected in the enforcement of the liability existing on 30.6.1952 or u/s 234 and so long he is not ejected another Adhivasi cannot be restored to possession. The necessary consequence must, therefore, be that Adhivasi rights of others will disappear". 9. There is no doubt in my mind that a person Who is in cultivatory possession in 1359F over a land on which another person can claim Adhivasi rights u/s 20(b) of the Act is to be preferred for it is the actual cultivatory possession in 1359F which would be conclusive of the right and such a person having been conferred a right by law another person who is even entitled to regain possession u/s 20(b) of the Abolition Act would fail to obtain possession against the former. However, in the present case I have already held that the Petitioner was not even entitled to regain possession and thus fell outside Section 20 (b) of the Abolition Act. 10. For the reasons given above, I do not find any merit in this writ petition and dismiss it with costs to opposite patties numbers 5 to 12.