Khema Kunwar v. Hemraj Singh — 1972 DIGILAW 524 (ALL)

JUDGMENT C.D. Parekh, J. - This Sp. A. No. 948 of 1967 connected with Sp. A. No. 949 of 1967 arises out of the order passed by a learned Single Judge of this Court in writ petition No. 1789 of 1963 filed by Smt. Khema Kunwar against Harnam Singh connected with writ petition No. 2490 of 1963 filed by Smt. Khema Kunwar against Mohar Singh. In this appeal we are concerned only with writ petition No. 1789 of 1963 filed on September, 1963. In the writ petition Smt. Khema Kunwar, who is the Appellant in this special appeal, prayed for the issue a writ of certiorari quashing the orders of the Asstt. SO (C), DyDC camp at Budaun and the it Director of Consolidation, U.P. camp at Bareilly. The orders sought to be quashed were made as annexure D, E and G to the writ petition. Hemraj Singh Mohar Singh figure as Respondent No. 1 respectively in the two special appeals and, therefore, in the subsequent part of this judgment they have been referred to by me as such. 2. In the writ petition the facts as given out were that Harnam Singh, respondent no. I in this appeal, filed an objection u/S. 9 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the UP CH Act) and claimed that he was wrongly recorded on plots nos. 1 and 6 as Asami of the Appellant Smt. Khema Kunwar, which was the wrong entry and it should be corrected and he should be recorded as Sirdar. The copy of the objection filed by Harnam Singh was made Annexure A to the writ petition. A reply to this objection was filed by Smt. Khema Kunwar, the appellant in this appeal, and she stated that Harnam Singh was merely an Asami and his claim was baseless. The Consolidation Officer by his order dated 26-9-1961 repelled the objection of Harnam Singh, Respondent No. 1 and held that the Appellant Smt. Khema Kunwar did not remarry Ganga Singh on the date of letting and Smt. Khema Kunwar was a disabled person. He also held that the remarriage with Ganga Singh was not proved and Harnam Singh, therefore, was an Asami. Harnarn Singh, as it appears, thereafter filed appeal before the Settlement Officer of Consolidation and the Asstt. He also held that the remarriage with Ganga Singh was not proved and Harnam Singh, therefore, was an Asami. Harnarn Singh, as it appears, thereafter filed appeal before the Settlement Officer of Consolidation and the Asstt. Settlement Officer of Consolidation who heard the appeal, considered both the aspects of the matter about the alleged remarriage of Smt. Khema Kunwar with Ganga Singh, and whether Smt. Khema Kunwar was a land-holder on 9th April, 1946 as a widow of Nathu Singh or Ganga Singh was the land-holder as a Thekedar. On the question of remarriage of Smt. Khema Kunwar the Asstt. Settlement Officer of Consolidation held that the remarriage was not proved but on the second question he took the view that under the registered agreement executed in the year 1940 by Smt. Khema Kunwar in favour of Ganga Singh (who was given the theka under the agreement) and he was entitled to realise rent and so he was the land-holder within the meaning of S. 3(26) of the UP ZA and LR Act (Act I of 1951) read with Section 3 (11) of the U.P. Tenancy Act, 1939. At this place it may also be mentioned that Harnam Singh did not take up any objection that Ganga Singh was the thekedar of the disputed plots and was the land-holder when he filed his objection u/s 9 of the UP CH Act but the Asstt. SO (G)on the basis of the document Thekanama held that obviously Ganga Singh was the Thekedar and was entitled to manage the property of Smt. Khema Kunwar. He also took into consideration the facts as mentioned in the Thekanama that Ganga Singh would be entitled to manage and let out the sir and khudkast land. He, however, held that under the thekenama the necessary qualification for the purposes of definition of "land-holder" "that the rent may be payable to him (to the thekedar)" was there and Ganga Sjngh was competent to let out the sir and khudkast land even on Batai during the pendency of the theka, and that Ganga Singh was the land-holder during the period from 1940 to 1952. Therefore, he further held that for the purposes of Section 21(h) of the UP ZA and LR Act the land-holder was Ganga Singh and not Smt. Khema Kunwar on 9th April, 1946 and thus Harnam Singh, Respondent in this appeal, in respect of the land in dispute was entitled to be recorded as Sirdar and not as Asami. He, therefore, ordered that Harnam Singh, the Respondent, be recorded as sirdar of plot Nos. 1 and 6 and thus allowed the appeal of Harnam Singh in respect of plots Nos. 1 and 6. On the same reasoning he also allowed the appeal of Mohar Singh as well and directed that his name be recorded as Sirdar on plot No. 1063. The Dy. Director of Consolidation by his order dated 18-10-1962 considered that the main point involved in the second appeal before him was whether Smt. Khema Kunwar was a disabled person u/s 157 of the UP ZA and LR Act on the date of letting out or occupation so as to be benefitted under the provisions of that section. It was by then proved case of the parties that Smt. Khema Kunwar was the widow of Nathu Singh as all the lower courts had rejected the plea of Harnam Singh and others that she had remarried Ganga Singh. Therefore, she was held the widow of Nathu Singh. The only question, therefore, that was considered to be material by the Dy. Director of Consolidation was whether even if she was (widow) of Nathu Singh whether she was the land-holder on the date of the letting of the plots in dispute or not. On the said proved facts that plots in dispute which were in occupation of Mohar Singh and Harnam Singh on the date of vesting were admittedly the land of the proprietor of the Mahal and Smt. Khema Kunwar was admittedly the sir-holder of those plots. But the plots in dispute were let out to Harnam Singh and Mohar Singh sometimes in the year 1353 F., i.e., after the execution of the thekanama; he, therefore, considered the question whether Ganga Singh should be considered to be the person who had let out the land to Mohar Singh and Harnam Singh and was their land-holder or Smt. Khema Kunwar be considered to be their land-holder. The Dy. The Dy. Director of Consolidation considered the definition of "land-holder" as given in the UP ZA and LR Act and the land Revenue Act. He has referred to Section 3 (26) of the UP ZA and LR Act where it has been said that the words and expressions, 'land-holder'...not defined in this Act and used in the United Provinces Tenancy Act, 1939, shall have the meaning assigned to them in that Act. He, therefore, referred to the meaning of the word "landholder" given in the U.P. Tenancy Act, 1939. u/s 3(11) of the U.P. Tenancy Act, 1939, "landholder" means the person to whom the rent is or, but for a contract express or implied, would be payable, but except in Ch. VII and Ch. XIII does not include an assignee of rent or a person who has lost the proprietary or other interest by virtue of which rent became payable to him. The Dy. Director of Consolidation therefore held that the land in question was admittedly sir of Smt. Khema Kunwar and was included in the Thekanama of Ganga Singh, Ganga Singh as land-holder of the land in dispute. It was also held that Respondent being in possession as a sub-tenant became adhivasi after the date of the vesting and thereafter, sirdar on 30th of October, 1954. He, therefore, dismissed both the appeals filed by Smt. Khema Kunwar against Harnam Singh and Mohar Singh. While dismissing the appeal in the earlier part of the judgment he has held that in case of a theka the thekedar is to be considered as land-holder of the land and not the zamindar and since the land in question was let out to Harnam Singh and Mohar Singh by Ganga Singh after the execution of the thekanama in respect of the land in dispute Smt Khema Kunwar could not claim the benefit of being disabled land-holder. In the opinion of the Dy. Director of Consolidation she was not actually the land-holder of the land in dispute. The matter as it appears further went up in revision ' before the Joint Director of Consolidation. He took into consideration two questions of admitted facts that Smt. Khema Kunwar was a widow and she did not remarry and, therefore, she was entitled to let out the land and to collect the land revenue (in my opinion for the word "rent" word "revenue" has been used). He took into consideration two questions of admitted facts that Smt. Khema Kunwar was a widow and she did not remarry and, therefore, she was entitled to let out the land and to collect the land revenue (in my opinion for the word "rent" word "revenue" has been used). He has also considered the question of fact decided by the courts below that the thekedar (Ganga Singh) was the land-holder and no disability was attached to him and the persons to whom land was let out were entitled to behold sirdari rights. He also took into consideration Section 13 of the UP ZA and LR Act which runs thus: Estate in possession of a thekedar. (1) Subject to the provisions of Section 12 and Sub-section (2) of this section a thekedar of an estate or share therein shall, with effect from the date of vesting cease to have any right to hold or possess as such any land in such estate. (2) Where any such land was in the personal cultivation of the thekedar on the date immediately preceding the date of vestings the same shall-- (a) If it was sir or khudkasht of the lessor on the date of the grant of the theka, be deemed for purposes of Section 18, to be the sir of khudkasht of the lessor on the date immediately preceding the date of vesting and the thekedar shall, with effect from the date of vesting become the asami thereof liable to pay rent at hereditary rates applicable on the date immediately preceding the date of vesting and entitled to hold the land as such for the unexpired period of the theka or for a period of five years from the date of vesting whichever is less; (b) If it was not sir or khudkasht of the lessor on the date of the grant of the theka and-- (i) its area does not exceed thirty acres, be deemed for the purposes of Section 19 to have been held by the thekedar as a hereditary tenant liable to pay rent which shall be equal to the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting. (ii) its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of the Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall be deemed to be vacant land and the thekedar shall be liable to ejectment therefrom in accordance with the provisions of Section 209. (3) Notwithstanding any restriction contained in Clauses (a) and (b) of Sub-section (2) the Collector may, on the application of the thekedar and after such inquiry as may be prescribed, and if he is satisfied that it is in the interest of the efficient and successful working of an existing agricultural farm, permit the thekedar to retain land. (a) if it is land falling Under Clause (a) of Sub-section (2) for a longer period than five years; and (b) if it is land falling Under Clause (b) of the said sub-section, in excess of thirty acres: Provided that the thekedar shall not be entitled to retain the land so allowed beyond the term of the theka, and he shall, in the case of any area in excess of thirty acres allowed to him Under Clause (b) be an asami thereof on behalf of the Gaon Sabha and liable to pay rent at hereditary rate applicable on the date immediately preceding the date of vesting- (4) To every application Under Sub-section (3) the lessor and the Gaon Sabha concerned shall be made parties. The Joint Director therefore held that the sir rights of Smt. Khema Kunwar could subsist on the date of vesting upon two conditions only (1) that the land was the sir of Smt. Khema Kunwar on the date of theka and that condition was satisfied. The other condition he took into consideration was if the said land should have been in the personal cultivation of the thekedar. He, therefore, took into consideration that admittedly the latter condition was not fulfilled in the case of Smt. Khetna Kunwar as the land was not in the personal cultivation of Ganga Singh the thekedar on the date immediately preceding the date of vesting and as such it would not be deemed to be the sir of Smt. Khema Kunwar on that date. He, therefore, held that Smt. Khema Kunwar cannot be entitled to be the bhumidhar of the land and as such the cultivatory possession of Mohar Singh and Harnam Singh recorded in the year 1356 F. and which was proved from the record; entitled them to the Adhivasi rights and thereafter sirdari rights. He, therefore, dismissed the revision of Smt. Khema Kunwar. After the dismissal of the revision she filed on 10-9-1963 writ petition before this Court. 3. Various grounds were taken up in the writ petition but the important grounds were that Harnam Singh and Mohar Singh were asamis u/s 21(h) of the UP ZA and LR Act and the findings given by the consolidation courts were manifestly erroneous. It was also taken as a ground that the Joint Director of Consolidation wrongly relied on Section 13 of the UP ZA and LR Act which only related to the rights which a thekedar could have on the date of vesting in the sir land. It was also taken as a ground that Mohar Singh and Harnam Singh being in cultivatory possession in the year 1359 F. would only asamis and when thekedar ceases to have any right the date of the vesting u/s 14 of the UP ZA and LR Act the only person left for consideration as being the land-holder of Mohar Singh and Harnam Singh would be the Appellant. Smt. Kunwar who was a disabled person within the meaning of Section 157 of the UP ZA and LR Act and was entitled to get the benefit thereof. The learned Single Judge considered Ganga Singh to be the Thekedar as found out by the consolidation courts on the question of facts and interpreted the term "thekedar" as used in the U.P. Tenancy Act, 1939 for "a farmer or other lessee of the rights in land of a proprietor... and in particular of the rights to receive rents or profits but does not include an under-proprietor or a permanent lessee." This definition of the word "thekedar" has been given in Sub-section (24) of Section 3 of the U.P. Tenancy Act, 1939. Under Sub-section (26) of Section 3 of the UP ZA and LR Act for the meaning of the word "thekedar" and the word land-holder we are required to consider the definition given in the U.P. Tenancy Act, 1939. Under Sub-section (26) of Section 3 of the UP ZA and LR Act for the meaning of the word "thekedar" and the word land-holder we are required to consider the definition given in the U.P. Tenancy Act, 1939. The learned Single Judge of this Court also held that even though the position of a thekedar is distinct from that of the proprietor, under-proprietor or permanent lessee but he is entitled to receive rent from the person on whom he settles the land. According to the learned Single Judge he is only liable to pay the theka money to the proprietor. He has referred to Sections 209 to 222 of the U.P. Tenancy Act, 1939, and brought out the legal position or the relationship of a thekedar qua the proprietor. He has held that a thekedar may be liable to pay rent to the proprietor in the same way as a tenant-in-chief is liable to pay rent to the zamindar, but, as regards persons actually cultivating the land, from whom the thekedar is entitled to receive rent, the thekedar is the landholder and not the proprietor. He has also held that the proprietor does not receive the rent from the persons actually cultivating the land. Hence he has held that there is no apparent error on the face of the record and upheld the views taken by the consolidation authorities in holding that the proprietor or the land-holder in relation to the persons who were in occupation of the land let out by the thekedar were paying the rent to the thekedar. The grounds taken in the writ petition which have been quoted above according to his opinion did not snow any manifest error on the face of the record and, therefore, he rejected both the writ petitions. This special appeal has been preferred against the order aforesaid passed on September 4, 1967. 4. The only question, therefore, for our consideration is whether Smt. Khema Kunwar is entitled to the benefit of Section 157 of the UP ZA and LR Act or not. Section 157 of the UP ZA and LR Act reads thus: Lease by a disabled person. 4. The only question, therefore, for our consideration is whether Smt. Khema Kunwar is entitled to the benefit of Section 157 of the UP ZA and LR Act or not. Section 157 of the UP ZA and LR Act reads thus: Lease by a disabled person. (1) A bhumidhar or a sirdar or an asami holding the land in lieu of maintenance allowance u/s 11 who is: (a) an unmarried woman, or if married, divorced or separated from her husband or whose husband suffers from any of the disqualifications mentioned in Clauses (o) or (d) or a widow; (b) a minor whose father suffers from any of the disqualifications mentioned in Clauses (o) or (d) or has died and (c) a lunatic or an idiot; (d) a person incapable of cultivating by reason of blindness, or other physical infirmity. (e) prosecuting studies in a recognised institution and does not exceed 25 years in age and whose father suffers from any of the disqualifications mentioned in Clauses (c) or (d) or has died; (f) in the Military, Naval, or Air Service of Indian Domination; or (g) under detention or imprisonment; may let the whole or any part of his holding: Provided that in the case of a holding held jointly by more persons than one, but one or more of them, but not all, are subject to the disabilities mentioned in Clauses (a) to (g), the person or persons may let out his or their share in the holding. (2) Where any share of a holding has been let out under the proviso to Sub-section (1) the court may on the application of the asami or any tenure-holder, determine the share of the lessor in the holding and partition the same. Explanation.--In Clause (e) the expression "recognized institution" means an educational institution or class of institutions declared as such by the State Government. It is admitted in the case that on the date of vesting Smt. Khema Kunwar, the Appellant, was a widow and she became Bhumidhar on the date of vesting. The rights of Mohar Singh and Harnam Singh also came into existence simultaneously with the passing of the Act and vesting of the estate in the State of U.P. Therefore the vesting and the divesting both took place simultaneously. The rights of Mohar Singh and Harnam Singh also came into existence simultaneously with the passing of the Act and vesting of the estate in the State of U.P. Therefore the vesting and the divesting both took place simultaneously. We have, therefore, only to consider the effect of letting out prior to the date of vesting by a thekedar whether it would be letting out by a disabled person or not? In my opinion when she was a disabled person as being a widow she executed the thekenama in favour of Ganga Singh otherwise there may not have arisen any necessity to execute that thekenama. Thekedari rights also extinguished on the date of vesting. Therefore, all that right which Ganga Singh had for letting out the sir land of Smt. Khema Kunwar came to an end. Whether it came to an end prospectively or retrospectively we are not to consider this question in this case. The only question, therefore, is whether Smt. Khema Kunwar could be the land-holder of Mohar Singh and Harnam Singh or not. The well recognised canon of interpretation is that when legislature puts a construction on an Act a subsequent cognate enactment in the same terms would, prima facie, be understood in the same sense. Where it is gathered from a later act that the legislature attached a particular meaning to certain words in an earlier cognate Act (1) this would be taken as a legislative declaration of its meaning; (2) subsequent legislation on the same subject may be looked into in order to see what is the proper construction to ba put upon an earlier Act. It may be taken for granted that the legislature is acquainted with the actual state of the law. Therefore when the words of an old statute are either incorporated in or by reference made of a, new statute, this is understood to be done with the object of adopting in legal interpretation which has been put on them by courts. So the same words appearing in a subsequent Act in pari materia, the presumption arises that they are used in the meaning which has been judicially put on them and that unless there be something to rebut that presumption the new statute is to be construed as the old one was. 5. So the same words appearing in a subsequent Act in pari materia, the presumption arises that they are used in the meaning which has been judicially put on them and that unless there be something to rebut that presumption the new statute is to be construed as the old one was. 5. I have, therefore, to see in the light of the above well known interpretation of statute that the word "landholder" as contained in Sub-section (ii) of Section 3 of the U.P. Tenancy Act, 1939, will include a thekedar or not. Land-holder as tenant in the U.P. Tenancy Act, 1939, means a person to whom the rent is or but a contract express or implied would be payable. Had there been no contract by Smt. Khema Kunwar with Ganga Singh the rent would have been payable to Smt. Khema Kunwar whosoever have been the occupier of the land and if Ganga Singh had been further given a right under the thekenama to let out the sir land as well and to realise the rent from the occupants of such sir land that would be covered up by the expression, but for a contract express or implied, and if Smt. Khema Kunwar could let out her sir land to Mohar Singh and Harnam Singh directly she could do so through thekedar as well and, therefore, according to the well recognised principle of interpretation as given above Smt. Khema Kunwar did not loose her right to receive rent although the thekedar was given the right to realise rent from the occupants and as provided Smt. Khetna Kunwar was to get theka money from Ganga Singh. But that does not mean and would not mean that she lost her proprietary right or other interest in the land by virtue of which rent was payable to her. It is another matter that in one lump sum, i.e. the theka money which Ganga Singh paid to Smt. Khema Kunwar may be a theka rent but a fraction of it can be considered to be the rent which was payable or was paid by Mohar Singh and Harnam Singh to Ganga Singh. In such circumstances as the definition stands in the U.P. Tenancy Act, 1939, Smt. Khema Kunwar was the land-holder for all intents and purposes so far as Section 157 of the UP ZA and LR Act is concerned. In such circumstances as the definition stands in the U.P. Tenancy Act, 1939, Smt. Khema Kunwar was the land-holder for all intents and purposes so far as Section 157 of the UP ZA and LR Act is concerned. Had there not been the simultaneous vesting and divesting of the rights under the UP ZA and LR. Act of the proprietors and had there not been simultaneous acquisition of rights the legislature would not have enacted Sub-section (26) of Section 3 of the Act for the purposes of looking for the definition of the two words viz the 'thekedar' and the land holder. In my opinion, therefore when the land was let out by Ganga Singh to Mohar Singh and Harnam Singh he was a disabled person and although there might not have been direct letting by her but still the letting was done on. her behalf for her benefit under the disability which Smt. Khema Kunwar sufferred being a widow. 6. The learned Counsel for the Respondent referred to us a Full Bench case of this Court Smt. Maya v. Raja Dulajji 1970 AWR 272 and he particularly invited our attention to Section 21(1)(h) and Section 157(1) of the UP ZA and LR Act and stated that the Full Bench has held that for the purposes of Section 21(1)(h) it has to be considered that the disability of the land-holder who had let out the land and suffered from disability on the date of letting as well as on 19th of April, 1946 and where the letting wars done prior to that date who continued to be the landholder on the date immediately preceding the date of vesting Section 157 of the ZA and LR Act does not apply. He has also and stressed that if both the sections i.e. 21(1)(h) and 157 are read together it will apply to a tenant, a sub-tenant or occupant as the case may be where the land-holder does not belong to anyone or more of the classes mentioned in Sub-section (1) of Section 157 of the UP ZA and LR Act on the date of vesting but belongs to class or classes both on the date of the letting or occupation and on 9th of April, 1946 provided he continued to be landholder on the date of vesting. 7. 7. The land-holder as I have just stated above has been defined in the U.P. Tenancy Act, 19.59, and in the Full Bench case the short question was that when there were two land-holders on the date of the vesting, viz., Smt. Maya and her husband Thakur Das, a new body of land-holders had come into existence and all of them were not the landholders who had originally let out the land as disabled persons. It has further been decided in that case that Section 21(1)(h) of the UP ZA and LR Act considers the disability of the land-holder who let out the land and suffered from the disability on the date of the letting as well as on 9th April, 1946, where the letting was done prior to that date and who continued to be the land-holder on the date immediately preceding the date of vesting though his disability might had ceased on or before the date of vesting. 8. In the instant case, Smt. Khema Kunwar was a disabled person on the date when the land was let out by tier thekedar Ganga Singh to Harnam Singh and Mohar Singh and she was also a disabled person on the date of vesting. In my opinion, therefore, the receipt of rent by the thekedar or through the thekedar by a disabled person is of no consequence for considering the material error which has been committed by the consolidation courts. Section 13 of the UP ZA and LR Act is also of no consequence for consideration of the rights of Smt. Khema Kunwar if she was a disabled person on the date of the letting out or on the date of vesting. It was under the contract that Ganga Singh let out the sir rights of Smt. Khema Kunwar who was a disabled person. Therefore, the Full Bench case on the facts of that case has no application to the facts of the present case. 9. It was under the contract that Ganga Singh let out the sir rights of Smt. Khema Kunwar who was a disabled person. Therefore, the Full Bench case on the facts of that case has no application to the facts of the present case. 9. Section 157 of the UP ZA and LR Act has been enacted by the legislature keeping in view as I have expressed above all the pros and cons to give relief to such disabled persons who could not have either cultivated their own land or could not get direct benefit as intermediaries and the rights of such feeble persons, or disabled persons have been preserved by the legislature so that these persons may not ultimately suffer on account of the drastic legislation which has divested many rights vested in persons and has conferred rights which were not in existence at all. A.K. Kirty, J. 10. I agree with my brother that these appeals should be allowed. For the reasons stated by my brother Parekh, J. I also am of the opinion that the Appellant Smt. Khema Kunwar was and continued to be the 'land holders' even though she had executed a thekenama in favour of Ganga Singh. Being a widow, and her alleged remarriage not having been proved, she was and remained a 'disabled person' at all relevant points of time and, therefore, she is a person to whom Section 157 of the UP ZA and LR Act applied. Admittedly the plots in question were Sir she thus, under the provisions of the said Act, was Bhumidhar of the plots on the vesting of estates in the U.P. State and the status of Hemraj Singh and Mohar Singh was that of Asamis and not of Adhivasis. She was as such entitled to the reliefs sought by her in the two writ petitions as has been held by brother Parekh, J. 11. We, therefore, allow these two appeals and set aside the orders passed by the learned Single Judge of this Court. We also allow the writ petitions and set aside the orders aforesaid passed by the Asstt. Settlement Officer of Consolidation dated 13-7-1962, Dy. Director of Consolidation dated 18-10-1962 and the Joint Director of Consolidation dated 20-3-1963 and issue a writ of certiorari quashing the said orders and uphold the order of the Consolidation Officer. 12. We also allow the writ petitions and set aside the orders aforesaid passed by the Asstt. Settlement Officer of Consolidation dated 13-7-1962, Dy. Director of Consolidation dated 18-10-1962 and the Joint Director of Consolidation dated 20-3-1963 and issue a writ of certiorari quashing the said orders and uphold the order of the Consolidation Officer. 12. In the circumstances of the case, the parties would bear their own costs.