Lalsa v. State of U. P. — 1972 DIGILAW 191 (ALL)

JUDGMENT Satish Chandra, J. - This special appeal has come up for hearing after remand of the case by the Supreme Court. It arises out of consolidation proceedings. 2. The Appellants were the zamindars of the plots in dispute. They let them out to one Tameshar, who became an occupancy tenant of the plots. He died in August, 1945. Lalai, Respondent No. 4, claiming to be the daughter's son of Tameshar entered into possession of the plots. One of the Appellants filed a suit for Lalai's ejectment u/s 180 of the U.P. Tenancy Act, 1939. It was alleged that Lalai was a trespasser. The suit was, however, dismissed on the ground that one co-sharer had no right to institute such a suit. Soon thereafter, all the co-sharers together instituted a fresh suit u/s 180 for Lalai's ejectment. They based their suit on their proprietary title. In the suit it was not claimed that the plots constituted the Plaintiffs' Sir or khudkasht. The trial Court held that Lalai was not the daughter's son of Tameshar. He was a trespasser. The suit was decreed. Lalai preferred an appeal. The same was dismissed in July, 1951. Lalai then filed a second appeal before the Board of Revenue and obtained an order staying the execution of the decree. Due to the stay order he continued to remain in possession of the plots. While the second appeal was pending, the UP ZA and LR Act, 1951, came into force on July 1, 1952. The hearing of the appeal was stayed in view of Rule 4 of the ZA Rules. On 9th August, 1954, one of the Plaintiff-Respondents died. His heirs were not substituted. The appeal was dismissed on September 20, 1956. 3. Lalai filed a writ petition in this Court which was dismissed by a learned single Judge on 7th February, 1982. The learned Judge held that for non-substitution of the heirs of the deceased Plaintiff, the second appeal had abated. 4. During the pendency of the writ petition, a notification was issued in January, 1960, u/s 4, UP Consolidation of Holdings Act, 1953. Under it the village where the plots in dispute were situate was brought under consolidation operations. The erst-while zamindars filed an objection praying that they be recorded as bhumidhars of the plots and the name of Lalai be struck off. Under it the village where the plots in dispute were situate was brought under consolidation operations. The erst-while zamindars filed an objection praying that they be recorded as bhumidhars of the plots and the name of Lalai be struck off. The Consolidation Officer by his order dated 29th April, 1961, allowed the objection on the finding that Lalai was only a trespasser. He did not acquire sirdari rights whereas the objectors were bhumidhars. The Addl. Settlement Officer dismissed an appeal filed by Lalai. Lalai filed a second appeal. The Dy. Director of Consolidation on August 17, 1961, allowed the appeal. He held that Lalai had become an adhivasi and then a sirdar because he was in possession of the plots in 1356 Fasli. The objectors went up in revision to the Director of Consolidation. The Director on 28th April, 1962, dismissed the revision. 5. The erst-while intermediaries then came to this Court Under Article 226 of the Constitution. A learned single Judge dismissed the writ petition in limine on the view that after the commencement of the ZA Act all rights, title and interest of the intermediaries extinguished and vested in the State. The writ Petitioners had no subsisting right in the land so as to entitle them to maintain the writ petition The zamindars preferred a special appeal which was also dismissed summarily. 6. The zamindars then went up to the Supreme Court in appeal. The Supreme Court held that the first question was the effect of the decree which had been granted in favour of the Appellants u/s 180 of the Tenancy Act. That decree had become final and is binding on Lalai. Another question which required consideration was whether in view of the phrase "deemed to be held by an intermediary as Sir, Khudkasht or grove" occurring in Clause (a) of Section 18(1) of the ZA Act, could it not be said that where a trespasser was in occupation of certain land, the owner held the land as khudkasht constructively? The Supreme Court observed: It may lead to an anomalous situation if it is held that khudkasht of the owner or zamindar can only mean that he should, at a particular point of time, be cultivating himself. The Supreme Court observed: It may lead to an anomalous situation if it is held that khudkasht of the owner or zamindar can only mean that he should, at a particular point of time, be cultivating himself. For instance, if a few days before July 1, 1952, which was the critical date for the purpose of the Act, a trespasser ousts a zamindar from the possession of his khudkasht land will it mean that the latter would be deprived of taking advantage of the provision of Section 18(1) of the Act? 7. The Court felt that the meaning of the expression "deemed to be held" has to be investigated in the light of the legislation relating to abolition of intermediaries and land reforms together with the tenancy laws and in the absence of a fuller discussion by the High Court and its considered opinion on the point they did not propose to pronounce any final judgment in the matter. In this view, the Court remitted the matter to the High Court. 8. It was not disputed before us that Tameshar was an occupancy tenant. The various judgments also indicate that he was an occupancy tenant. There is no averment or evidence to show the exact time of the letting of the plots to Tameshar. Under the U.P. Tenancy Act, 1939, no occupancy tenancy rights could be created. u/s 29(b) of the U.P. Tenancy Act every person who is, after the commencement of the Act, admitted as a tenant (otherwise than as a tenant of Sir) is a hereditary tenant. Section 28 of the Act recognises occupancy tenant. Under it a tenant who has acquired a right of occupancy under the Agra Tenancy Act, 1926, or any previous enactment relating to Agra or under the Oudh Rent Act, 1886, is known as an occupancy tenant. Section 17 of the Agra Tenancy Act, 1926, authorised zamindars to confer upon tenants the right of occupancy by a registered instrument. Under the previous tenancy enactments a right of occupancy could be acquired by a tenant by cultivation for 12 years. The fact that Tarn shar was an occupancy tenant establishes that the plots must have been let out to him by the zamindars prior to the commencement of the U.P. Tenancy Act, 1939. Under the previous tenancy enactments a right of occupancy could be acquired by a tenant by cultivation for 12 years. The fact that Tarn shar was an occupancy tenant establishes that the plots must have been let out to him by the zamindars prior to the commencement of the U.P. Tenancy Act, 1939. It also shows that the plots were not at the time of letting to Tameshar the Sir of the zamindars u/s 180, U.P. Tenancy Act, there was no averment that the plots ever constituted the Plaintiffs' Sir or khudkasht. 9. One of the distinguishing feature between Sir and Khudkasht is that Sir may be let out for cultivation to tenants. Such tenants called Tenants of Sir become the personal tenants of the Sir holder. They do not acquire the privileges of occupancy or hereditary tenants, which tenants can acquire in non-Sir land. In other words, Sir does not usually cease to be Sir if it is let out to tenants for cultivation. On the other hand, Khudkasht has no such privilege. It ceases to be Khudkasht the moment it is let out to a tenant, who acquires hereditary rights in the land immediately the land is let out to him (see Agarwalla's Commentary U.P. Tenancy Act, 1939, page 134, Note 5). Of course, if Khudkasht was let out to a tenant while the Agra Tenancy Act was in force, the tenant would become either a statutory tenant or an occupancy tenant depending on the terms of the lease. But it is settled law that when a plot is let out to a tenant, it ceases to be the Khudkasht of the zamindars. One consequence of this extinguishment of Khudkasht rights is that though the plots will in law be deemed to be the property of the zamindar as the proprietor, they will no longer be his Khudkasht even constructively. When the plots in dispute were let out to Tameshar, even if they were the Khudkasht of the zamindars at that time, they ceased to be so. After the death of Tameshar, the zamindars could sue for the ejectment of the trespasser and ask for a decree for possession, but that decree for possession would entitle them to regain possession as the zamindars or proprietors of the land and not as its Khudkasht-holders. 10. After the death of Tameshar, the zamindars could sue for the ejectment of the trespasser and ask for a decree for possession, but that decree for possession would entitle them to regain possession as the zamindars or proprietors of the land and not as its Khudkasht-holders. 10. So long as Tameshar was alive he was in possession of the land as an occupancy tenant with the result that the zamindars could not be deemed to be in constructive possession as Khudkasht-holders. The zamindars' rights would continue to be the same and their nature will not change, merely because after the death of Tameshar a trespasser takes possession. 11. The decree for possession obtained by the zamindars u/s 180, U.P. Tenancy Act, entitled them to eject Lalai and take possession. They could aoquire Khudkasht rights in the plots only if, after the ejectment of Lalai, they had brought the land under their cultivation. Section 3(9) of the U.P. Tenancy Act defines Khudkasht to mean land other than Sir, cultivated by a landlord, an under-proprietor or a permanent tenure-holder as such either himself or by servants or by hired labour. It is cultivation as a landlord that enables him to hold the land as Khudkasht. In the present case the zamindars were not able to execute the decree for possession because of stay orders granted by the Courts. The zamindars never came in actual possession. They never got a chance to acquire Khudkasht rights in the plots in dispute. 12. Section 18 of the UP ZA and LR Act provides that subject to the provisions of Sections 10, 15, 16 and 17, all lands in possession of or held or deemed to be held by an intermediary as Sir, Khudkasht or an intermediary's grove on the date immediately preceding the dale of vesting shall be deemed to be settled by the State Government with such intermediary as a bhumidhar. 1st July, 1952, was the date of vesting. On 30th June, 1952 the intermediary must either be in possession or must be holding the land as Sir or khudkasht. If not, he must be deemed to be holding it as his Sir or khudkasht. 1st July, 1952, was the date of vesting. On 30th June, 1952 the intermediary must either be in possession or must be holding the land as Sir or khudkasht. If not, he must be deemed to be holding it as his Sir or khudkasht. The fictional holding as Sir or khudkasht can only come into play provided the intermediary was at some point of time in possession of holding the land as his Sir khudkasht; but for some supervening reason or event he was not in actual possession in that capacity on the date immediately preceding the date of vesting. The illustration given by the Supreme Court is in point. The Supreme Court observed that for instance, if a few days before July 1, 1952, which was the crucial date for the purpose of the Act, a trespasser ousts a zamindar from the possession of his khudkasht land, will it mean that the latter would be deprived of taking advantage of the provision of Section 18(1)(a) of the Act? The answer would clearly be in favour of the zamindar; but the illustration presupposes that before his ouster by a trespasser, the zamindar was in possession of the land as his khudkasht, i.e., the land was the khudkasht of the zamindar on the date of his dispossession. If so, it will be deemed to be held by him as his khudkasht, even though a trespasser may be actually cultivating it. But if on the date of his dispossession, the zamindar did not have khudkasht rights in the land, as in the present case, no occasion will arise to apply the fiction. He could be deemed to be holding the land as an intermediary in virtue of his proprietary title, but not as khudkasht. A Full Bench of this Court in Buddhan Singh v. Nabi Bux 1961 AWR 452 laid down that the word "held" refers to a title that had a legal origin. To hold means to possess by legal title. The phrase "deemed to be held" would signify a notional holding by a legal title as khudkasht. In this view, the Appellants did not acquire the rights of a bhumidhar u/s 18(1)(a) of the UP ZA Act. 13. To hold means to possess by legal title. The phrase "deemed to be held" would signify a notional holding by a legal title as khudkasht. In this view, the Appellants did not acquire the rights of a bhumidhar u/s 18(1)(a) of the UP ZA Act. 13. The scheme of the U.P. Consolidation of Holdings Act is that after the publication of the notification u/s 4, all pending proceedings for the correction of records and in respect of declaration of rights or interest in any land or for declaration or adjudication of any other right in regard to which proceedings can be taken under this Act, shall stand abated, but without prejudice to the person affected to agitate the right or interest before the appropriate consolidation authorities in accordance with the provisions of the Act (vide Section 5). Section 49 of the Act bars the civil or revenue Courts from entertaining any suit or proceeding with respect to rights in such land or with respect to any other matter for which a proceeding could or ought to have been taken under this Act. u/s 7 the village map is revised. Thereafter u/s 8 the field book of the unit is revised and the current annual register is revised after a field to field 'partal'. The authorities determine the share of individual tenure-holders and prepare a Khasra Chakbandi in respect of the plots falling in the unit. u/s 9 the Asstt. Consolidation Officer issues notice to the tenure-holders concerned containing relevant extracts from the current annual register showing, inter alia, their rights and liabilities. The interested persons can within 21 years of the receipt of the notice file objections disputing the correctness or the nature of the entries in the records These objections are then adjudicated by the Consolidation Officer against whose order an appeal and a revision lie. Ch. III of the Act provides for the preparation of consolidation scheme. At first the provisional consolidation scheme is published inviting objections to the allotment of chaks. The objections, if filed, are decided, followed by appeals and revisions. After the adjudication of the objections the consolidation scheme is confirmed u/s 23. Then u/s 28 the Asstt. Consolidation Officer puts the tenure-holders in actual physical possession of the chaks or land allotted to them. 14. The Consolidation of Holdings Act deals with tenure holders. The objections, if filed, are decided, followed by appeals and revisions. After the adjudication of the objections the consolidation scheme is confirmed u/s 23. Then u/s 28 the Asstt. Consolidation Officer puts the tenure-holders in actual physical possession of the chaks or land allotted to them. 14. The Consolidation of Holdings Act deals with tenure holders. Section 7(ii) defines it to mean Bhumidhar, Sirdar and interalia asami. It provides for adjudication of their rights, for allotment of chaks to them and for delivery of possession over the chaks to the concerned tenure-holders. 15. It is true that the decree for ejectment of Lalai obtained by the Appellants u/s 180, U.P. Tenancy Act, became final. This Court had in the earlier writ petition found that for non-substitution of the heirs of a deceased Plaintiff, the second appeal filed by Lalai had abated. The result was that although Rule 5 of the ZA Rules required the abatement not only of such appeals u/s 180 but also of the suits out of which they arose, yet the result of the High Court's, judgment was that only the second appeal abated, the suit did not. The decree for ejectment passed by the Addl. Commissioner remained operative. The Appellants, however, did not succeed in executing the decree till February, 1962, because till then the execution of the decree was stayed by orders of the Courts. But there is no evidence that even after the expiry of the stay orders the Appellants did in fact eject Lalai by executing the decree. The decree-holders never came in actual possession of the plots. 16. There is no specific provision in the U.P. Consolidation of Holdings Act preventing execution of decrees for ejectment passed prior to or after the commencement of consolidation operations. But it may be said that if execution of such decrees involved adjudication of rights which may have come into existence by virtue of the commencement of the ZA Act, such adjudication would, in view of Sections 5 and 49 of the Consolidation of Holdings Act, be barred in the civil or revenue Courts; and such adjudication could only be undertaken by the consolidation authorities; and thereafter the consolidation authorities would be liable to deliver possession to the Appellants u/s 28 of the chaks that may be allotted to them in lieu of the plots in dispute. Assuming this to be a correct construction of the provisions of this Act and also assuming that the Appellants could, after adjudication of their rights, demand delivery of possession from the consolidation authorities in lieu of execution of their decree u/s 180, yet, under the Act the Appellants could require an adjudication of their rights as tenure-holders only. They must establish that they are tenure-holders of the kind recognised by the act e.g. Bhumidhar etc. The consolidation authorities could not adjudicate any other kind of right or dispute. They could not deliver possession to a person who is not a tenure-holder. The Appellants could not demand delivery of possession merely on the ground that they had obtained a decree for ejectment u/s 180, U.P. Tenancy Act, as the erstwhile proprietors or intermediaries. 17. u/s 6, UP ZA and LR Act, all rights, title and interests of all the intermediaries in land ceased with effect from the date of vesting, namely 1st July, 1952. They could no longer be treated as the owners of the plots. In Rana Sheo Ambar Singh v. Allahabad Bank 1961 AWR 546 SC the Supreme Court held that the tenures created by the ZA Act are fresh rights. They are not rights given in lieu of the extinguishment of the old proprietary rights. The Appellants could not become bhumidhars merely because they were the intermediaries. 18. The Appellants could not demand delivery of possession from the consolidation authorities on their defunct title as intermediaries. 19. The ZA Act recognises three classes of tenure-holders--bhumidhars, sirdars and asamis. The Appellants claimed to be bhumidhars. As seen above, they failed to establish any such title. They were not tenure-holders and as such they could not ask the consolidation authorities to execute the decree for ejectment and deliver possession, to them. So, inspite of the decree for ejectment having become final, the Appellants had no title right left to the possession of the plots in dispute. The consolidation authorities were justified in rejecting the objections filed by the Appellants. 20. It was submitted that in any event Lalai would not in law be the sirdar of the plots. It is unnecessary to discuss or find the title of Lalai. He was recorded in the basic year as a sirdar. That entry would continue unless some one else proves a right to be entered on the plots in dispute. 20. It was submitted that in any event Lalai would not in law be the sirdar of the plots. It is unnecessary to discuss or find the title of Lalai. He was recorded in the basic year as a sirdar. That entry would continue unless some one else proves a right to be entered on the plots in dispute. If the Appellants claim to be recorded as bhumidhars fails, then in the absence of any objection on behalf of the Gaon Sabha claiming to be entitled to be recorded over these plots, as the residuary owner by reason of escheat to the State, the basic year entry will continue. So far as the Appellants are concerned, they cannot validly plead the case of the Gaon Sabha. It was open to the Gaon Sabha to have filed an objection but it did not do so. In the context it will be futile to consider whether Lalai did acquire the rights of a sirdar. 21. In the result, the appeal is without merit and is accordingly dismissed with costs.