Jarnail Singh v. State of Uttar Pradesh — 1983 DIGILAW 43 (ALL)

ORDER K.N. Singh, J. - By means of this petition under article 226 of the Constitution the petitioner has claimed relief for the issue of a writ of certiorari quashing the order of the Prescribed Authority, Kashipur dated April 30, 1976 and the order of the Civil Judge, Nainital dated 5-8-80. 2. The present petition arises out of proceedings taken for determining the ceiling area under the provisions of the U.P. Imposition of Ceiling on Land Holdings Act. 1960 (hereinafter referred to as the Act). The dispute relates to plot No. 21/203/1, measuring 32 bighas, situate in village Tali. Tehsil Bajpur, District Nainital. One Hardee Singh of village Tali was the hereditary tenant of the plot in dispute. He let out that land to Jarnail Singh, the petitioner and executed a sub-lease on 24-5-69. The sub-lease (was) on stamp paper which was witnessed by Roodh Singh and Jogendra. Singh. On the issue of notice under S. 10 (2) of the Act Hardeo Singh filed objections and among other things he stated that plot No. 21/203/2 was not in his possession and the petitioner Jarnail Singh had acquired Adhivasi rights over the plot and as such it could not be taken into consideration in determining his ceiling area. The petitioner also filed objections before the Prescribed Authority on the ground that the plot in dispute did not belong to Hardeo Singh and that he had been in possession as sub-tenant and on the enforcement of the U.P. Zamindari Abolition & Land Reforms Act in Tehsil Bajpur, district Nainital he had become Adhivasi and Sirdar and later on as Bhumidhar of the land and as such the same could not be considered for the purpose of determining the ceiling area of Hardeo Singh. The Prescribed Authority vide its order dated April 13, 1976 rejected the petitioner's objections, on the finding that Hardeo Singh, the tenure-holder had no authority in law to let out the land to the petitioner and that the petitioner had failed to produce any evidence to show that he had acquired Adhivasi rights. The Prescribed Authority further held that the petitioner's possession over the land in dispute was in an unauthorised manner. 3. The petitioner preferred appeal before the District Judge, Nainital. The appeal was dismissed by the Addl. District Judge, Nainital on 11-11-76. The Prescribed Authority further held that the petitioner's possession over the land in dispute was in an unauthorised manner. 3. The petitioner preferred appeal before the District Judge, Nainital. The appeal was dismissed by the Addl. District Judge, Nainital on 11-11-76. The petitioner challenged the order of the appellate authority by means of a writ petition in this Court. On August 3, 1978 this Court allowed the writ petition and remanded the case to the district Judge directing him to decide the case in accordance with law. Thereupon the petitioner's appeal was heard by the Civil Judge, Nainital and by his order dated August 5, 1980 he dismissed the appeal. Aggrieved, the petitioner has approached this Court by means of this petition challenging the orders of the Prescribed Authority and the appellate authority. 4. The learned Civil Judge has held that in the village revenue records the petitioner was not recorded occupant in 1374F and as such he did not acquire any Adhivasi rights as contemplated by section 230-A (8) of the U.P. Zamindari Abolition & Land Reforms Act and for the same reasons the petitioner could not acquire Sirdari or Bhumidhari rights. He further held that the sub-lease Ex. A-1 was inadmissible in evidence as it was neither registered nor verified in accordance with the provisions of the U.P. Tenancy Act, 1939 and lastly, the learned Civil Judge held that the petitioner had failed to produce any evidence to show that he was in actual possession of the land in dispute in 1374F. On these findings the appellate authority held that the petitioner has failed to prove his title to the land in dispute and as such the Prescribed Authority rightly treated Hardeo Singh as tenure-holder of the land in dispute. 5. Shri Ashok Khare learned counsel for the petitioner urged that all the three findings recorded by the appellate authority suffer from manifest error of law and fact. The petitioner, according to the learned counsel, had acquired Adhivasi rights as he was sub-tenant immediately on the date of vesting and the sub-lease was admissible in evidence as it was not required to he registered under the provisions of the U.P. Tenancy Act and further, the petitioner had produced sufficient evidence to prove the subletting as well as his possession over the plot in dispute. 6. 6. There is no dispute that the provisions of the U.P. Zamindari Abolition & Land Reforms Act, 1950 were enforced in the village Tali of Tehsil Bajpur of district Nainital with effect from 1-7-69 under a notification dated June 30, 1969 issued under clause (b) of sub-section (1) of section 2 of the U.P. Zamindari Abolition & Land Reforms Act, 1950. By this notification, the provisions of the Act were made applicable to village Tali, Tehsil Bajpur of district Nainital, subject to the modifications and amendments, as specified in Schedule 2 of the notification. Schedule 2 to the notification contained modification of various provisions of the principal Act of 1950. The modified Act deleted section 20 and instead section 230-A was inserted providing for the acquisition of Adhivasi rights. Section 230-A is in the following terms : "Every person who on the date immediately preceding the appointed day - (a) was or has been deemed to be, in accordance with the provisions of this Act, except as provided in clause (b), a sub-tenant of any land other than grove land, (b) was recorded as occupant of any land other than grove land or vacant land referred to in the proviso to sub-section (3) of section 27 of the U.P. Tenancy (Amendment) Act, 1947 held by a tenant or lessee referred to in sub-clauses (i) to (iii) of clause (a) of Section 130 or by a tenant or lessee referred to in sub-clause (iii) of clause (a) and clause (c) of Section 131 in the Khasra or Khatauni of 1374 Fasli prepared under sections 28 and 33 respectively of the U.P. Land Revenue Act, 1901, shall unless he has become an Asami, under sub-clause (vi) of clause (a) of section 133 be called Adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof. Explanation I - ............... Explanation II - .............. Explanation III - ............." According to the aforesaid provision, Adhivasi rights could be acquired by a person, firstly, by a sub-tenant of any land other than grove land immediately preceding the appointed day and secondly if he was recorded as occupant of any land other than grove land or vacant land in the year 1374F. Explanation II - .............. Explanation III - ............." According to the aforesaid provision, Adhivasi rights could be acquired by a person, firstly, by a sub-tenant of any land other than grove land immediately preceding the appointed day and secondly if he was recorded as occupant of any land other than grove land or vacant land in the year 1374F. Clause (a) provides for the acquisition of the Adhivasi rights on the basis of sub-tenancy while clause (b) provides for the acquisition of Adhivasi rights on the basis of the recorded occupancy in 1374F. The appointed day as defined by section 3 means July 1, 1969. Thus every person who was a sub-tenant of any land other than grove land on 30-6-69 could acquire Adhivasi rights under S. 230-A (a) of the Act as made applicable to village Tali, Tehsil Bajpur . of district Nainital. 7. There is no dispute that before 1-7-69 the provisions of U.P. Tenancy Act, 1939 as amended by the U.P. Tenancy (Amendment) Act X of 1947 were applicable in Tehsil Bajpur of district Nainital. Section 39 of the U.P. Tenancy Act permitted sub-letting by a tenant other than a tenant of Sir whole or any part of his holding under certain restrictions imposed by the Act. Sections 40 and 44 placed restrictions on sub-letting. It is not necessary to refer to those provisions in detail or discuss their impact on the question under consideration as it is sufficiently clear that sub-letting was permitted under the U.P. Tenancy Act. Section 42, prior to its amendment in 1947, required registration of sub-leases creating sub-tenancy rights but that provision was deleted by the U.P. Act X of 1947. Consequently, sub-lease executed by a tenant conferring sub-tenancy rights on a sub-tenant, was not required to be registered. In the instant case, the sub-lease conferring sub-tenancy rights was alleged to have been executed on 24-5-69. Hardeo Singh was the hereditary tenant and he executed the sub-lease in favour of the petitioner in respect of agricultural land. Hardeo Singh was entitled to sub-let his holding to the petitioner as none of they restrictions contained in sections 40 or 44 of the Act of 1939 prohibited sub-letting by a hereditary tenant. The document sub-letting the land in dispute is on record as Ex. Hardeo Singh was entitled to sub-let his holding to the petitioner as none of they restrictions contained in sections 40 or 44 of the Act of 1939 prohibited sub-letting by a hereditary tenant. The document sub-letting the land in dispute is on record as Ex. A-1 which was proved by Hardeo Singh, the executant, who was examined by the, petitioner before the Prescribed Authority and also by two marginal witnesses, namely, Roodh Singh and Jogendra Singh. In addition to the documentary evidence, the statements of Hardeo Singh and Roodh Singh and Jogendra Singh and the testimony of the petitioner himself, provide good evidence to support the sub-letting of the plot in dispute. The copies of the statements of these witnesses have been. filed as annexures to the rejoinder affidavit. On perusal of them, I find that there is evidence to support the petitioner's plea that Hardeo Singh had let out the land to him and that he was in possession over the plot in dispute prior to the appointed day. The learned Civil Judge committed error in holding that the petitioner had not produced any evidence relating to his possession. In fact, it appears that he did not peruse the oral evidence at all. 8. The learned Civil Judge has held that the petitioner was as not recorded occupant in 1374F and as such he could not acquire Adhivasi rights. The petitioner had never claimed Adhivasi rights on the basis of being a recorded occupant. On perusal of the memo of appeal, I find that petitioner had clearly claimed Adhivasi rights on the basis of sub-tenancy existing in his favour on the date preceding the appointed day. The petitioner's case, therefore, should have been considered in the light of the provisions contained in section 230-A (a) of the Act and not in clause (b) of that section. As noted earlier, the petitioner's case all along had been that Hardeo Singh the tenure-holder had executed the sub-lease, letting out the land in dispute to him for 5 ears in May 1969. The Civil Judge failed to consider this aspect of the matter. For this reason also his order is liable to be quashed he learned Civil Judge held that Ex. A-1 as neither registered nor attested as was required by the U.P. Tenancy Act. The Civil Judge failed to consider this aspect of the matter. For this reason also his order is liable to be quashed he learned Civil Judge held that Ex. A-1 as neither registered nor attested as was required by the U.P. Tenancy Act. A sub-lease executed by a tenant after 1947 was not required to be registered under the Act of 1939 as section 42, which required registration of a sub-lease was deleted. Ex.A-1, could not, therefore, be held to be inadmissible on the ground of its being unregistered. It appears that the learned Civil Judge took notice of section 56 of the Act which required registration of a lease for a period exceeding one year. Section 56 applies to a lease, executed by a land holder in favour of a tenant. It does not contemplate registration of a sub-lease, executed by a tenant in favour of a sub-tenant. Section 57, required attestation of lease and not of a sub-lease. Even assuming that attesting of a document creating sub-tenancy rights was necessary, its omission will not make the sub-letting invalid as it would be only a case of mere irregularity. For these reasons, the view taken by the Civil Judge is not sustainable in law. Moreover, even if the document was not admissible on the ground of its being unregistered and unattested, the Civil Judge should have considered the petitioner's case regarding sub-letting on the basis of oral evidence produced by him. 9. For the reasons stated above, the petition succeeds and is accordingly allowed. The order of the Civil Judge dated August 5, 1980 is quashed and the proceedings are remanded to the Civil Judge for deciding the petitioner's appeal afresh in accordance with law and in the light of the observations contained in this judgment. The petitioner is entitled to his costs.