Rani Dullaiya v. Ganga Prasad — 1968 DIGILAW 175 (ALL)

JUDGMENT Rajeshwari Prasad, J. - This second appeal came up for hearing before an Hon'ble Single Judge of this Court, when the learned Single Judge referred the appeal for decision to a larger Bench as he found that the question involved in the case are questions of some importance and that there was no authoritative decision relating to these questions. This is how this second appeal has come up before this Bench. 2. The Appellant was a Defendant in the suit giving rise to the second appeal. The case with which the Plaintiff came to Court was that he was granted a theka of the land in suit by Sutan Singh husband of Defendant Smt. Rani Dullaiya and a registered deed was executed on 20-6-1938. The theka was to run upto 1358 Fasli and the Plaintiff was to pay Rs. 1,400/- in a lump sum besides an yearly payment of Rs. 100/- during the continuance of the theka. After the theka period expired, Defendant filed suit for redemption but it was dismissed. The Plaintiff thereupon started proceedings u/s 145, Code of Criminal Procedure. The Magistrate gave a finding against the Plaintiff in respect of three-fourth of the land in suit. The Plaintiff, therefore, proceeded to file the instant suit for a declaration that he is sirdar or in the alternative adhivasi or asami of the land in suit. Defendant No. 2 was added as a party because the Plaintiff had been informed that Defendant No. 2 held himself out to be the adopted son of Defendant No. 1. The suit was not contested by Defendant No. 2. Defendant No. 1 alone contested the suit on the ground that the Plaintiff was neither sirdar nor adhivasi of the land in suit. After the expiry of the theka period, the Defendant No. 1 came into possession of the entire land in suit. On account of the intervention of some persons, a private settlement was arrived at between the parties as a result of which a portion of the land measuring 30-15 acres towards western portion of the land was retained by her and the remaining area of the land which was almost one-fourth of the entire land and towards east, was allowed to remain in possession of the Plaintiff. The Defendant had been in possession of that portion of the land which came to her under that agreement and the suit consequently was barred by Section 42 of the Specific Relief Act. 3. An issue regarding adhivasi right claimed by the Plaintiff having been remitted to the Revenue Court, a finding in the negative was returned by the Revenue Court. The learned Munsif further held that the Plaintiff was not the sirdar of the plots in suit and that the Defendants were bhumidhars of the entire land in suit. It was also found by the trial court that an area of 30.15 acres was not in possession of the Plaintiff and the suit was, so far as that area was concerned barred. The learned Munsif, therefore, proceeded to dismiss the suit. 4. On appeal preferred by the Plaintiff, the learned Additional Civil Judge, Orai found that the Plaintiff became hereditary tenant and sirdar in respect of the plot in suit lying towards east in respect of which a declaration was made by the appellate court. With regard to the remaining area of the land in suit, namely, 30.15 acres, suit for declaration was dismissed as the Plaintiff was not in possession of that area. The second appeal under consideration has been filed by the Defendant against that decision of the lower appellate court. 5. In support of this appeal, what has been urged is that the lower appellate court was not correct in declaring that the Plaintiff had become sirdar of one-fourth of the area of the land in suit. According to the Appellants, the Plaintiff had become only an asami of that area. The entire controversy in this appeal, therefore, is whether the Plaintiff is the sirdar of the area of the land in suit or is only asami thereof. This question involves the interpretation of Sections 12 and 13 of the UP ZA and LR Act. According to the Learned Counsel for the Appellants, the case was governed by Section 13 and consequently the status of the Plaintiff was that of an asami only, while according to the Respondents, the case was also governed by Section 12 of the UP ZA and LR Act and the status of the Plaintiff, therefore, was that of the sirdar. According to the Learned Counsel for the Appellants, the case was governed by Section 13 and consequently the status of the Plaintiff was that of an asami only, while according to the Respondents, the case was also governed by Section 12 of the UP ZA and LR Act and the status of the Plaintiff, therefore, was that of the sirdar. The Learned Counsel for the Appellants has urged that the theka in this particular case must be deemed to be a theka of an estate or a share in an estate and inasmuch as, the thekedar was in possession on the date immediately preceding the date of vesting under the provisions of the UP ZA and LR Act, the status of the Plaintiff could not be any other than that of asami. It appears that the land described in the theka is sir land and has not been described as an estate or a share in an estate, but the Learned Counsel for the Appellants has relied on a Full Bench decision of this Court in the case of Haridwar Singh v. Ghirau Singh 1963 AWR 642 FB. On the basis of that decision, it has been urged that the theka in suit must be considered to be theka of an estate or a share of an estate and consequently the status of the Plaintiff should be that of an asami. In view of that Full Bench decision, it must be held that the theka in suit although it is in respect of sir land only, must be deemed to be a theka being so, Section 13 of the UP ZA and LR Act is applicable. This, however, does not put an end to the controversy. Section 13 has to be read subject to Section 12. The further question, therefore, that arises is whether Section 12 is also applicable to the facts of the present case. In order that thekedar may acquire the right of hereditary tenant u/s 12, two conditions have been prescribed. The first condition is that the thekedar must be in personal cultivation of the land on 1-5-1950. The second condition is that the theka should have been executed with the object that the land be cultivated by the thekedar personally. In order that thekedar may acquire the right of hereditary tenant u/s 12, two conditions have been prescribed. The first condition is that the thekedar must be in personal cultivation of the land on 1-5-1950. The second condition is that the theka should have been executed with the object that the land be cultivated by the thekedar personally. A perusal of the terms of the thekanama shows that it had been contemplated that the land would be personally cultivated by the thekedar but the further term of the theka is that the thekedar will be entitled to lease out the land covered by the theka. In a case, where the object of the theka is only one, there can be no controversy with regard to the real nature of the transaction. But as it is, in the instant case, both the rights, namely of personal cultivation and of leasing out the land to others have been given to the thekedar. There does not appear to be any reported decision of this Court in relation to a situation like the present one. Our attention has not been invited to any unreported decision of this Court either. There are, however, some decisions of the Board of Revenue which are relevant to the question under consideration. In the case of Mohd. Khail-ul-Rahman v. Upper Ganges Sugar Mills 1956 RD 271 the Board of Revenue took the view that Under Sub-section (2) of Section 12 of the UP ZA and LR Act, if the land given on theka had been in the personal cultivation of the thekedar since the commencement of the theka, it would be evidence to show that the theka was made with a view to the cultivation of the land by the thekedar personally, notwithstanding anything written in the lease deed as to the terms of the lease. The fact that there was a term in the deed that the lessee or the thekedar could sublet the land to other cultivators would not affect the nature of the lease. In-spite of such term in that lease, it was held that Section 12 was applicable and that thekedar became hereditary tenant of the land in question. That view of the Board of Revenue is based on the interpretation of Sub-section (2) of Section 12. In-spite of such term in that lease, it was held that Section 12 was applicable and that thekedar became hereditary tenant of the land in question. That view of the Board of Revenue is based on the interpretation of Sub-section (2) of Section 12. With regard to that view of the Board of Revenue, it may be said that in the view taken by the Board of Revenue, it would hardly have been necessary to prescribe two conditions u/s 12 for accrual of right as hereditary tenant in the case of thekedar. If the fact that the thekedar personally cultivated the land conclusively established that the lease must be deemed to have been granted for personal cultivation of the thekedar then it would not have been necessary to have Worded Section 12 in the manner in which it has been done by the legislature. In the case of Ram Dulare v. Brij Bhukhan 1956 RD 312 as well as in the case of Smt. Risali v. Raghubir Singh 1960 AWR (Rev) 6 the Board of Revenue took the view that if the right to let out the land has also been given to the thekedar in addition to the right to cultivate the same personally, Section 12 of the UP ZA and LR Act would not be applicable. In these two cases, it was emphasised that it could not be said that the underlying or primary intention of the theka was not that the thekedar should cultivate the land himself. There is thus some conflict in the view of the Board of Revenue on the question. 6. The language in which Section 12 has been couched is as follows: (1) Where any lane was in the personal cultivation of a person on 1-5-1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then notwithstanding anything in any law, document or order of court, he shall be deemed to be a hereditary tenant thereof entitled to hold and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates. (2) The fact that the land comprised in the theka has been in the personal cultivation of the thekedar since the commencement of the theka shall, notwithstanding anything contained in Sections 91 and 92 of the Indian Evidence Act, 1872, be receivable in evidence for showing that the theka was of the nature referred to in Sub-section (1). The object of the section obviously was to give status as hereditary tenant to a thekedar who happened to be in personal cultivation of the land on the first day of May 1950. That appears to be the main object of that section. The second condition prescribed in the section, namely, that the theka should have been made with a view to the cultivation of the land by such thekedar personally appears to have been intended to make it clear that the thekedar who is in cultivatory possession of the land on the first day of May, 1950 must be in cultivatory possession in pursuance of the right given to him under the terms of the theka and not in violation of any term of the theka. No sanctity was intended to be attached to the cultivatory possession of the thekedar if that was so in breach of the term of the theka. According to construction that we are inclined to put to that provision, there is in fact only one condition for acquisition of the status of hereditary tenant under that provision of law and that one condition is, that the thekedar must be in personal cultivation of the land on the first day of May, 1950 provided of course he was personally cultivating it in pursuance of the term of the theka and not in breach thereof. Such view finds support from the provision of Sub-section (2) of Section 12 also. According to that sub-section, the fact that the thekedar was personally cultivating the land since the commencement of the theka would be good and admissible evidence to show that the theka was granted for the purpose of personal cultivation of the thekedar. In this view of the matter, we feel no difficulty in coming to the conclusion that the requirements of Section 12 of the Act are fulfilled if personal cultivation is one of the objects for which the theka is granted. In this view of the matter, we feel no difficulty in coming to the conclusion that the requirements of Section 12 of the Act are fulfilled if personal cultivation is one of the objects for which the theka is granted. In the instant case, it is not in dispute that the thekedar had been personally cultivating the land since the commencement of the theka and was doing so also on the first day of May, 1950. We are, therefore, of the opinion that Section 12 is also applicable to the facts of the instant case. The finding and the result arrived at by the lower appellate court are, therefore, correct. 7. The second appeal and the cross objection are both dismissed and the judgment and the decree of the lower appellate court is confirmed. Under the circumstances, we make no order as to costs of this Court.