Munshi Singh v. Deputy Director of Consolidation — 1969 DIGILAW 34 (ALL)

JUDGMENT Satish Chandra, J. - This petition arises out of consolidation proceedings. The respondents were the tenants of plot No. 106. In 1943 the zamindars ejected them in execution of a decree under Section 171 of the U. P. Tenancy Act. Subsequently the zamindars let out the land to the petitioners. The respondents applied for reinstatement under Section 27 of the U. P. Tenancy (Amendment) Act No. X of 1947. The revenue court granted an order of reinstatement on 23rd April, 1948. Since the land was in possession of the petitioners at that time they were declared the sub. tenants. They were not liable to be ejected for three years under the proviso to sub-sec. (3) of Section 27. On 26th July, 1952, the respondents filed a suit under Section 202 of the U. P. Zamindari Abolition and Land Reforms Act for the ejectment of the petitioners which was stayed because of the pendency of another suit filed by Virendra Singh, petitioner No. 4, for a declaration that the order of reinstatement under Section 27 of the U. P. Tenancy Act was illegal because he was a minor at that time. This suit of Virendra Singh was dismissed by the trial court as well as by the lower appellate court. The second appeal filed in this Court abated in or about March, 1967 under Section 5 (2) (a) of the U. P. Consolidation of Holdings Act. 2. In due course the proceedings under the U. P. Consolidation of Holdings Act commenced. The respondents filed an objection claiming to have become adhivasis and sirdars. The Consolidation Officer upheld the petitioner's claim and dismissed the objection of the respondents. On appeal, however, it was held that the petitioners were only assamis under Section 21 (1) (c) of the U. P. Zamindari Abolition and Land Reforms Act. Because of the pendency of the suit under Section 202, the petitioners did not mature any title as sirdars under Section 204. It was also held that Virendra Singh was not a minor when the order of reinstatement was passed in 1948. That order was, therefore, binding on him. These findings have been affirmed by the Deputy Director of Consolidation in revision. 3. In the present petition it was urged that the finding, that the petitioners were asamis, was incorrect. It was also held that Virendra Singh was not a minor when the order of reinstatement was passed in 1948. That order was, therefore, binding on him. These findings have been affirmed by the Deputy Director of Consolidation in revision. 3. In the present petition it was urged that the finding, that the petitioners were asamis, was incorrect. The respondents were estopped from challenging the status of the petitioners as sirdar's. It was lastly urged that the finding on the question of minority was vitiated by an error of law. 4. It was urged for the petitioners that the effect of proviso to Section 27 (3) of the U. P. Tenancy (Amendment) Act was to declare a person in possession to be a subtenant for a period of three years. On the expiry of that period he would cease to be a sub-tenant and would continue in possession only as a trespasser. He would be liable to ejectment as such. The decree in the proceedings for reinstatement was put in execution but was dismissed. The dismissal of the execution would debar the respondents from instituting a fresh suit for ejectment. On the date of vesting, namely 1st July, 1952, they would be persons in possession as trespassers, liable to ejectment. No suit for ejectment under Section 200 was filed within the period of limitation. The petitioners, therefore, became sirdars. 5. I am unable to agree with this line of argument. The proviso to Section 27 (3) of the U. P. Tenancy (Amendment) Act states : "Provided that if such holding or any part thereof is in the possession of any person to whom the landholder had let it out before the first day of September, 1946, such person not being a relation, dependent or servant of the landholder, the court instead of ordering the ejectment of such person, shall, notwithstanding the provisions of any law for the time being in force, declare him to be the sub-tenant of the applicant in respect of such holding of such part. The person so declared as a sub-tenant shall not be liable to ejectment until after the expiry of three years from the date of the declaration. The person so declared as a sub-tenant shall not be liable to ejectment until after the expiry of three years from the date of the declaration. In such a case, the rent payable by the applicant to the land-holder shall be the rent payable by him for such land before ejectment or the amount calculated according to the circle rates, whichever is less, and the rent payable to the applicant by the person declared as sub-tenant shall be the amount payable by such person to the landholder, immediately before the declaration or twelve and a half per cent, over and above the amount calculated according to the circle rates applicable to hereditary tenants, whichever is higher". 6. It will show that the court, to which an erstwhile tenant had applied for reinstatement, instead of ordering the ejectment of the person in possession, only makes a declaration that he would be the sub-tenant of the applicant. So the court only passes a decree for a declaration in so far as it relates to the sub-tenant, in addition to a decree for reinstatement as against the landlord. The proviso then provides a statutory protection to the sub-tenant by saying that he shall not be liable to ejectment until after the expiry of three years from the date of the declaration. This does not mean that on the expiry of three years the sub-tenancy becomes extinguished or that the status of the sub-tenant would automatically come to an end as a subtenant. 7. This will all the more be clear if we compare this proviso with Section 47 of the U. P. Tenancy Act. Under Section 47 (1) except as otherwise provided in sub-sec. (3) and sub-sec. (4) , the extinction of the interest of a tenant, other than a permanent tenure-holder or a fixed-rate tenant, shall operate to extinguish the interest of any tenant holding under him. Thus, under it the sub-tenancy automatically extinguishes the interest and so the status of the sub-tenant. Then, under sub-sec. (4) it is provided that if the sub-tenancy was valid and it has still some period to run, then the covenants, binding and enforceable as between the tenant and the sub-tenant and the sub-tenant shall, subject to the provisions of sub-sec. Thus, under it the sub-tenancy automatically extinguishes the interest and so the status of the sub-tenant. Then, under sub-sec. (4) it is provided that if the sub-tenancy was valid and it has still some period to run, then the covenants, binding and enforceable as between the tenant and the sub-tenant and the sub-tenant shall, subject to the provisions of sub-sec. (5), be binding and enforceable as between the tenant's landholder and the sub-tenant for the remainder of the sub-lease or for five years, whichever period may be the shorter. This is a provision which expressly extinguishes the interest of a sub-tenant on the extinction of the interest of a tenant. Even then it makes provision for the continuance of the lessee on the same terms for the stated period. There is nothing like it in the proviso to Section 27 (3) . There only a declaration is intended to be given by the court. The person so declared to be a sub-tenant is entitled to remain in possession for a minimum period of three years for enjoying the land. Thereafter he would be in the same position as any other sub-tenant under the U. P. Tenancy Act. That is the only effect of the proviso. I am unable to read the proviso to mean that a sub-tenant would cease to have any interest on the expiry of three years period, or that after the expiry of this period the sub-tenant, if he continues to be in possession, would ipso facto become a trespasser. 8. In Raghunath v. Th. Ram Pratap Singh, 1964 RD 404 similar view was taken. It was emphasised that the sub-tenant has a right to remain in possession for a period of three years. But if for any reason he continues to be in possession he could acquire rights under Section 21 (1) (c) of the U. P. Zamindari Abolition and Land Reforms Act. If he is not allowed to continue as a sub-tenant his rights would come to an end because his right to remain in possession was limited to three years. But the extinguishment of his right depended upon his not being permitted to continue in possession. If he is not allowed to continue as a sub-tenant his rights would come to an end because his right to remain in possession was limited to three years. But the extinguishment of his right depended upon his not being permitted to continue in possession. I am unable to read this decision as laying down that if the tenant does not eject the subtenant, but permits the sub-tenant to remain in possession, the latter would change his status on the expiry of the three years' period automatically. 9. For the petitioners reliance was placed upon Kedar Nath v. Jamuna, 1964 RD 173 . That case is not applicable. There the landlord ejected a tenant under Section 180. The tenant applied for reinstatement. Thereafter the landlord again sued the tenant for ejectment under Section 180. The Full Bench held that a second suit would not lie. The decree in the first suit could be' executed. That case did not deal with the situation where on reinstatement of the erstwhile, but ejected, tenant land had been let out by the zamindar to some other person who is declared to be a sub-tenant, and the question arises between the tenant and the sub-tenant. 10. For the petitioners Mr. Chaudhary relied upon Roorey v. Board of Revenue, 1956 ALJ 417. That case is also distinguishable. It was held that there was no clear procedure provided for the execution of the order of reinstatement under Section 27 (3) of Act X of 1947 but it can be executed by a court on the analogy of the provisions of Order XXI, Rule 36 of the Code of Civil Procedure and the provisions of Sections 181 and 186 of the U. P. Tenancy Act. That is not a case laying down directly or indirectly that a decree for reinstatement and a declaration of some one else as a sub-tenant is still executable against the sub-tenant after the expiry of the three years period. That case contemplated the execution of the decree for reinstatement at the time when the decree was passed. 11. Reliance was also placed upon the Supreme Court decision in Birendra Pratap Singh v. Gulwant Singh, A.I.R. 1968 SC 1068. That case is also not applicable to the facts of the present case. That case contemplated the execution of the decree for reinstatement at the time when the decree was passed. 11. Reliance was also placed upon the Supreme Court decision in Birendra Pratap Singh v. Gulwant Singh, A.I.R. 1968 SC 1068. That case is also not applicable to the facts of the present case. That case interpreted Section 47 of the U. P. Tenancy Act and held that in view of the provisions of Section 47 (4) of the Act on the extinction of the tenancy the interest of the sub-tenant is also extinguished but the sub-tenant would *continue on the same terms only for the duration of his sub-lease. In that case the sub-lease was to operate with effect from 1st July, 1947. It was held that it could not be said that the sub-lease came into operation from 14th June, 1947 so as to attract the application of Section 295-A of the U. P. Tenancy Act. The case is as such not material. 12. The petitioners were sub-tenants admittedly till April, 1951. On the expiry of the three years' period, their continuance in possession would be as a sub-tenant. On the date of vesting they were in possession as sub-tenants. They consequently became asamis under Section 21 (1) (c) of the Act. 13. Assuming, however, that the possession of the petitioners became that of a trespasser on the expiry of the three years' period in April 1951, the position would be that they were trespassers on the date immediately preceding the date of vesting. A trespasser in possession on such a date has not been conferred any rights as such by the U. P. Zamindari Abolition and Land Reforms Act. They not having become some kind of tenant under the U. P. Tenancy Act on the date immediately preceding the date of vesting, they acquired no rights under the U. P. Zamindari Abolition land Land Reforms Act. If they had been recorded in the relevant revenue records in 1356 Fasli they could have claimed to be adhivasis under Section 20 (b), but it will be seen that clause (b) of Section 20 specifically excludes land to which the proviso to Section 27 (3) of the U. P. Tenancy (Amendment) Act applies. So, the petitioners could not have claimed to become adhivasis under Section 20 (b) . The petitioners claimed that they had been in cultivators possession. So, the petitioners could not have claimed to become adhivasis under Section 20 (b) . The petitioners claimed that they had been in cultivators possession. That is the decision of the Supreme Court in Smt. Sonawati v. Sri Ram, 1968 ALJ 313. 14. For the ejectment of a trespasser Section 209 provides a remedy by way of a suit. The respondents had filed a suit on 26th of July, 1952. That suit was filed within the limitation prescribed for a suit under Section 209. Even though the suit was headed under Section 202, since the relief claimed was for possession by ejectment of the subtenant, it could be treated as a suit under Section 209. Consequently, it could -not be said that the petitioners matured any title under Section 210. 15. In my opinion the authorities below rightly held that the petitioners had become only asamis. 16. For the petitioners Mr. Chaudhry also urged that in view of the proceedings under Chapter IX-A of the Act the respondents were estopped from challenging the status of the petitioners to be adhivasis. It was urged that in those proceedings the petitioners were declared adhivasis and the respondents were paid compensation for the extinguishment of their rights as tenants. It has been held by a Full Bench of this Court in Maqbool Raza v. Joint Director of Consolidation, 1968 ALJ 89 that the proceedings under Chapter IX-A did not either create a bar of res judicata or that of conclusiveness. It was never the intention of the Legislature by introducing Chapter IX -A to decide the question as to who is the adhivasi of a particular plot of land. It was foreign to the scheme of Chapter IX-A. to decide the question as to who is the adhivasi of the land sought to be acquired. It was held that the consolidation authorities were competent to go into the question as to who was adhivasi and thereafter the sirdar of the land in dispute in spite of the compensation statement showing something to the contrary. In view of this interpretation of the statutory provisions, the consolidation courts could not be debarred from adjudicating the title of the parties on the ground of the doctrine of estoppel. It is well settled that there can be no estoppel against the statute. 17. In view of this interpretation of the statutory provisions, the consolidation courts could not be debarred from adjudicating the title of the parties on the ground of the doctrine of estoppel. It is well settled that there can be no estoppel against the statute. 17. In the end the finding that Virendra Singh was not minor in 1948, when the proceedings for reinstatement were taken, was also challenged. It was urged that the Settlement Officer (Consolidation) was not entitled to rely upon the findings recorded by the civil courts in the suit filed by Virendra Singh. The settlement Officer (Consolidation) based his findings on the evidence before him. The judgments of the civil courts were filed in these proceedings. They were pieces of evidence and could well be referred to. The finding is, in my opinion, not vitiated by any error of law. Moreover, the Deputy Director of Consolidation has not even referred to the judgments of the civil courts. He has disbelieved the evidence produced by the petitioners to prove minority. 18. In the result, the petition fails and is accordingly dismissed with costs.