Appeals Nos
680 to 682 of 1963
Appeals by special leave from the judgment and decree dated February 8 1960 of the Board of Revenue U P in petitions Nos
203 to 205 of 1958 59
J P Goyal for the appellant in all the appeals
Brijbans Kishore and Ramesh B Saxena for respondents Nos
I to 3 in all the appeals
April 17 1964
The judgment of the Court was delivered by HIDAYATULLAH J
This judgment shall also govern the disposal of C A 681 of 1963
These are appeals by special leave of this Court against a common order of the Board of Revenue UP dated February 8 1960 disposing of three appeals
Civil Appeal No 682 of 1963 since compromised was also against the same decision
The appellant in each of these appeals is one Amba Prasad who was the Zamindar of village Rhonda Pargana and Tehsil Khurja District Bulandshahr before the coming into operation of the U P Zamindari Abolition and Land Reforms Act 1950
The opposite parties who will be referred to as the answering respondents in this judgment are persons whose names were recorded in column 23 miscellaneous in the Khasra for the year 1356 Fasli as persons in possession and who claim by reason of the entry to be the recorded occupants of the fields in dispute and to have obtained adhivasi rights in the fields under section 20 of the Abolition Act
Though the point in dispute appears to lie within a very narrow compass the history of litigation in respect of these plots is as tedious as it is long
It must unfortunately be told to get a true measure of the arguments in the appeals
Amba Prasad brought two suits under section 180 of the UP Tenancy Act 1939 for ejectment from the fields now in dis pute and for damages against Mohammad Ali and Mst
Sharifan respectively because their names A ere recorded in the Khasra as tenants bila tasfia lagan 
These suits were dismissed by the trial Judge and Aniba Prasad s appeal to the Commissioner failed on November 30 1943
Amba Prasad then appealed to the Board of Revenue UP and succeeded
The order of the Board of Revenue U P is dated March 19 1949 item No 25
Mohammad Ali had died by LPDISCI 26 802 then and was represented by one Faivazali and six others
Sarifan had also died and was represened by one Abdul Sattar alias Chunna Khan and two others
As a result of the decision of the Board of Revenue possession of the fields was delivered to Amba Prasad on July 1 1949 the day of the commencement of the year 1357 Fasli
The dakhalnamas are items Nos 44 and 45 in this record and they mention fields Nos
4272 4282 429 430 and 380 item No 44 and fields Nos 416 4181 and 4182 item No 45 of village Rhonda Pargana and Tehsil Khurja District Bulandshahr
Immediately after obtaining possession of the fields Amba Prasad was required to commence proceedings under section 145 Criminal Procedure Code before the Sub Divisional Magis trate Anupshahr against Faiyazali and Abdul Sattar and others and on January 13 1951 these proceedings terminated in favour of Amba Prasad item No 28
The Sessions Judge Bulandshahr made a reference to the High Court of Allahabad recommending that the order be vacated but the High Court declined to interfere
The order of the High Court is dated October 20 1951 item No 29
Meanwhile Amba Prasad started a prosecution under section 218 Indian Penal Code against the Lekhpal alleging that he had made false entries in the Revenue papers but the Magistrate 1st Class Buland shahr discharged him by his order dated July 24 1950 item No 26
An application for revision of the order filed by Amba Prasad was dismissed by the Sessions Judge Bulandshahr on October 10 1950 item No 27
During the pendency of the proceedings under section 145
Criminal Procedure Code these fields remained under atta chment from August 23 1949 1358 F to November 6 1951 1359 F
Two suits were then commenced in the court of the Munsif Khurja for declaration that crops of the fields under attachment belonged to the plaintiffs
One suit 97 of 1951 was filed by Abdul Noor Khan and others answering respondents and the other 67 of 1952 was filed by Sarfraz Ali Beg and 8 others respondents in C A 682 of 1963since compromised
These suits were directed against Amba Prasad and the plaintiffs claimed to be in possession of the fields by virtue of entries to this effect in the remarks column of the Khasras of the relevant years
These suits failed on August 9 1952 and August 8 1953 respectively vide items Nos 30 and 32
It appears that proceedings under section 107 Criminal Procedure Code were also started against A Noor khan and others before Magistrate 1st Class Bulandshahrand they were bound over to keep the peace
There is on the file of this case an order of the Sessions Judge Buland shahr dismissing their application in revision on February 24 1953 item No 31
803 Meanwhile the answering respondents and Sarfraz Ali and others commenced on November 6 1951 three suits under section 61 read with section 183 of the U P Tenancy Act 1939 for declaration of Sirdar rights and to claim hereditary rights under section 1802 ibid
These suits were decreed against Amba Prasad by the Judicial Officer Anupshahr on July 14 1953
He held that the Dakhaldehi of July 1 1949 did not affect the plaintiffs and since they were shown to be in possession they were entitled to succeed item No 33
Amba Prasad filed an appeal and the Commissioner Meerut Division re versed the decision by his order dated April 1 1954 item No 35
The Board of Revenue U P also dismissed the appeal of the plaintiffs on September 17 1955 item No 38
On October 10 1953 two suits were filed by the answering respondents in these two appeals and a third by the res pondents in C A No 682 of 1963 which has been compro mised
These suits were under section 2322O of the U P Zamin dari Abolition and Land Reforms Act
It is with these suits that we are concerned in the appeals
Two suits also under section 23220 of the Abolition Act were filed by Ayub Ali Khan and Abdul Sattar Khan and others against Amba Prasad
The answering respondents and Sarfraz Ali and others were joined as defendants in those suits
The plaints in these two suits are dated December 28 1954 and December 20 1954 items Nos 36 and 38
They were dismissed by the Sub Divisional Magistrate Khurja on  lay 16 1955
The Addi tional Commissioner Meerut dismissed the appeals on Janu ary 30 1950 in default of appearance item No 39
On September 4 1958 the Sub Divisional Officer Khurja dismissed the three suits filed by the answering respondents and the respondents in the companion appeal
In these suits the answering respondents relied on extracts from the Khasras of 1355F 1356F 1357F 1358F and 1359F as showing their possession
These lands however were under attachment from August 23 1949 1358F to November 6 1959 1359F and could not be in the possession of the answering respondents in the years 1358F and 1359F
This fact was noticed by the Commissioner Meerut Division in his order dated April 1 1954 and he cast doubts on the entries in 1355F and 1356F
The Sub Divisional Officer took up the same line of reasoning and pointed out that in years subsequent to 1355F the entry would have found place in column 6 of the Khasra and not the remarks column
He accordingly held that the entries of 1355 F and 1356 F were unreliable and the answering respondents had not acquired adhivasi rights
On Appeal the Additional Commissioner Meerut reversed the decision on April 19 1959 and decreed the suits
Before the Commissioner the answering respondents claimed that as L PDISCI 26a 804 they were recorded occupants in 1356F they were not required to prove actual possession
This proposition it appears was conceded by the counsel for Amba Prasad
He only argued that the entries were not in accordance with paragraph 87 of the Land Records Manual and they were considered spurious in earlier litigation
He also claimed that the answering respondents were barred by the principle of res judicata because though they were parties to the suits of Ayub Ali Khan and Abdul Sattar they did not claim adhivasi rights in those suits
The learned Commissioner pointed out that the entries were no doubt suspected to be spurious by the Commissioner on April 1 1954 but this was after July 1 1952 which was the date of vesting and the case therefore was outside Expla nations 11 and III of section 20b of the Abolition Act
The learned Commissioner therefore was of the opinion that them entries could not be discarded as they must have been completed under the rules before April 30 1949 that is to say even before the Dakhaldehi
He held that the answering respondents appellants before him had acquired adhivasi rights
Amba Prasad appealed to the Board of Revenue
The Board dismissed his appeal on February 8 1960 by the order now impugned
This time the learned counsel for Amba Prasad conceded that the entry was made but contended that it was fraudulently made after July 1 1949 and referred to the prosecution of the Lekhpal
The Board of Revenue pointed out that there was no order for the correction of the entry before the date of vesting and the Lekhpal was acquitted of  the charge under section 218 Indian Penal Code
Since the entries were not corrected as required by Explanation 11 to section 20 the conditions of section 20b of the Abolition Act were held to be satisfied and the appeal was dismissed
Mr Goyal on behalf of Amba Prasad contends that these suits were barred by res judicata
He submits that in the previous suits filed by Ayub Ali Khan and Abdul Sattar and others the answering respondents were made defendants and could have raised the plea that they had acquired adhivasi rights and as they did not raise such a plea they cannot now raise it
We do not accept this Contention
The answering respondents had filed these suits even before Ayub Ali Khan and Abdul Sattar had filed their suits
Further the suits filed by Ayub Ali Khan and Abdul Sattar did not decide anything because they were dismissed owing to a technical flaw in the plaint
Even the appeal was dismissed in default of appearance
Lastly the answering respondents and Amba Prasad were co defendants and no issue between them was tried or decided even if one was necessary to be tried
805 Mr Goyal next contends that the answer in respondents must show that they were in possession and that under Explanation I to section 20 they were evicted after June 30 1948
He submits that these conditions are not fulfilled by them
Mr Goyal also wishes to withdraw the concession made on behalf of Amba Prasad before the Tribunals below that the answering respondents need not prove their possession
He says that the concession was made because there were rulings of the Allahabad High Court which bound the Revenue Tri bunals
He submits that these rulings should be considered and urge that possession in 1356 Fasli must be proved
He further submits that even entries in the Khasra and Khatauni to be of value must be made in accordance with sections 28 and 33 of the U P Land Revenue Act and he relies on paragraph 87 of the Land Record Manual to contend that the entries in favour of the answering respondents were irregular
These contentions though they appear to be many are really two
The first questions the entry and the other the right of the answering respondents even if the record be correct to claim adhivasi rights under section 20 of the Abolition Act
We shall consider them separately
The first question is whether these entries were regularly made
It is pointed out that they were doubted by the Revenue Tribunals in some other proceedings and that the Lekhpal was also prosecuted under section 218 Indian Penal Code
That however does not prove in these proceedings that the entries are spurious
The Lekhpal was discharged and the Additional Commissioner has held here By making the entry in the remarks column it is also not possible to attribute any dishonest or collusive entry
It appears that Shri Amba Prasad had filed a criminal case against the patwari but this was after the entries in the remarks column in favour of appellants had been made
The entry in 1356 fasli cannot be discarded on the remarks in the judgments referred by the learned counsel for the respondent
It appears that Sri Mohammad Ali and Srimati Sharifan were the proprietors and they mortgaged their share with present respondents and Sri Amba Prasad purchased the equity of redemption and got the share partitioned
There was litigation between Sri Amba Prasad and Sri Mohammad Ali and Srimati Sharifan upto High Court
Sri Amba Prasad and others filed suits against Srimati Sharifan and Sri Mohammad Ali under section 180 and it was decreed in the 2nd appeal on 19 3 49
The possession was delivered on 1 7 1949 in execution of the decree
The Khasra for 1356 fasli under 806 the rules may have been deposited some time before 31st July 1950 but the entries in the Khasras had to be completed upto 30th April 1949 Mr Goyal relies upon paragraph 87 of the Land Records Manual and argues that the names of persons occupying land without the consent of persons whose names are recorded in column 5 of the khasra should have been entered in column 6 but column 6 is crossed out
It is however to be seen that when a tenant leaves the neighbourhood without leaving in charge of his holding a person responsible for the pay ment of his rent as it falls due and without giving a written notice to the land holder of such arrangement the Lekhpal is required to show the name of the actual cultivator in the column of remarks preceded by the word qabiz  see Para
85c
That is how the entry stands and there is nothing on the record of this case on the strength of which it can be said that the entry in 1356F was not regularly made
If it was wrong Amba Prasad ought to have got it corrected but the doubts cast on the entry cannot be said to have corrected it as required by Explanation III to section 20 of the Abolition Act
There is thus no doubt that the answering respondents were recorded as qabiz  in 1356F
There is also no doubt that if they were qabiz  they were dispossessed after June 30 1948
The possession of Amba Prasad did not begin earlier than July 1 1949
There is nothing to show that the possession of the answering respondents was disturbed bet ween these two dates because the attachment came much later
Mr Goyal however contends that the burden is on the answering respondents to prove their possession and eviction after June 30 1948 before they can regain possession as adhivasis under section 20
Mr Brij Bans Kishore however joins issue and claims that the answering respondents have done enough when they show that they are recorded as occupants  in the year 1356F
He contends that it is not necessary to show possession though he does not admit that the Ian were not in his clients  possession
We have pointed out above that the eviction could not have taken place before July 1 1949
The Dakhalnamas show that possession was given to Amba Prasad on July 1 1949
In so far as the appellant is concerned he was not in possession before that date and the khasra for 1356F shows that the answering respondents were qabiz  in possession
It is contended that the suit is for possession and the date of dispossession has not been given as required by rule 183
No such objection appears to have been made at any time
In any event that date is useful only to calculate limitation and it is not Amba Prasad s cases that there is any such bar
807 The real dispute thus is whether a person who is recorded as qabiz  but not as a tenant or a sub tenant can get the advantage of section 20 of the Abolition Act and claim rights as an adhivasi
It is convenient at this stage to set out the material portions of section 20 20
Every person who a  b was recored as occupant iof any land other than grove land or land to which section 16 applies in the khasra or khatauni of 1356F prepared under sections 28 and 33 respectively of the UP Land Revenue Act 1901 or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under clause c of subsection 1 of section 27 of the United Provinces Tenancy Amendment Act 1947 or ii     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 Where a person referred to in clause b was evicted from the land after June 30 1948 he shall notwithstanding anything in any order or decree be deemed to be a person entitled to regain possession of the land
Explanation II Where any entry in the records referred to in clause b has been corrected before the date of vesting under or in accordance with the provisions of the U P Land Revenue Act 1901 the entry so corrected shall for the purposes of the said clause prevail
Explanation III For the purposes of explanation 11 an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent court requiring any correction in records has been made before the said date and had become final even though the correction may not have been incorporated in the records
Explanation IV For the purposes of this section  occupant as respects any land does not include a person who was entitled as an intermediary to the land or any share therein in the year l356 Fasli
 The scheme of the section may now be noticed
The section speaking generally says that certain persons recorded a occupants of lands other than grove lands or lands to which section 16 applies shall be known as adhivasis and 808 shall be entitled to retain or to regain possession of them after the date of vesting which was July 1 1952
Such persons do not include an intermediary Explanation IV
Such persons must be recorded as occupants in the khasra or khatauni for 1356F 1 7 48 to 30 6 49
If such a person is in possession be continues in possession
If he is evicted after June 30 1948 he is to be put back in possession notwithstanding anything in any order or decree
By fiction such persons are deemed to be entitled to regain possession Explanation 1
The emphasis has been laid on the record of khasra or khatauni of 1356F and June 30 1948 is the datuni line
The importance of an entry in these two documents is further apparent from explanations 11 and 111
Under the former if the entry is corrected before the date of vesting 1 7 52 the corrected entry is to prevail and under the latter the entry is deemed to be corrected even though not actually corrected if an order or decree of a competent court ordering the correction had been made before the date of vesting and the order or decree had become final
There are thus two date lines
They are June 30 1948 and July 1 1952 and the title to possession as adhivasi depends on the entries in the khasra or khatauni for the year 1356F Before we proceed to decide whether the answering respondents satisfy the above tests we must consider what is meant by the terms occupant  and recorded 
The word occupant  is not defined in the Act
Since khasra records possession and enjoyment the word occupant  must mean a person holding the land in possession or actual enjoyment
The khasra however may mention the proprietor the tenant the sub tenant and other person in actual possession as the case may be
If by occupant is meant the person in actual possession it is clear that between a proprietor and a tenant the tenant and between a tenant and the sub tenant the latter and between him and a person recorded in the remarks column as Dawedar qabiz the dawedar qabiz are the occupants
This is the only logical way to interpret the section which does away with all intermediaries
If rights are not to be determined except in the manner laid down by the section the entries must be construed as explained by the four explanations
Once we find out the right person in the light of the explanations that person continues as an adhivasi after July 1 1952 provided he is in possession or was evicted after June 30 1948
If he was evicted after June 30 1948 he is entitled to regain possession in spite of any order or decree to the contrary
The word occupant  thus signifies occupancy and enjoyment
Mediate possession except where the immediate possessor holds on behalf of the mediate possessor is of no consequence
In this way even persons who got into Occupation when lands were abandoned get recognition
The 809 section eliminates inquiries into disputed possession by ac cepting the records in the khasra or khatauni of 1356F or its correction before July 1 1952
It was perhaps thought that all such disputes would have solved themselves in the four years between June 30 1948 and June 30 1952
There was however for some time a difference of opinion on the point whether possession in 1356F should be proved between the High Court of Allahabad and the Board of Revenue
Section 20 came before this Court in The Upper Ganges Sugar Mills Ltd vs Khalil ul Rehman and others1 where the correctness of Lala Nanak Chand vs The Board of Revenue UP2 was challenged oil the ground that it had held that a mere entry in 1356F without possession in that year was sufficient
This Court did not decide the question and left it open
Subsequently the Allahabad High Court in several decisions including the Full Bench decision in Ram Dular Singh and another vs Babu Sukh Ram and others3 has endorsed the earlier view in Nanakchand vs Board of Revenue UP2 In L Bhal Singh vs Bhop and another4 the following passage from Nanak Chand s case was expressly approved It seems to us that clauses bi and bii of Sec 20 do not require the proof of actual possession in the year 1356F
What they require merely is the entry of a person s name as an occupant in the Khasra or Khatauni of 1356F
The words of the section are clear
Every person who was recorded as occupant in the Khasra or Khatauni in 1356F etc
The words are not every person who was an occupant in 1356F nor are the words every person who was recorded as an occupant in the year 1356F and who was also in possession in that year
There is no warrant for introducing words in the section which are not there
This conclusion is reinforced by what is stated in Explanation 11
The Board of Revenue in Sugriva vs Mukhi etc5 has also adopted the same view
In view of the long established line of cases we see no justification for reopening of this question
The decision of the Board of Revenue was therefore right
The appeal fails and is dismissed with costs
One set of hearing fees
Appeal dismissed
1  2 3 4 at p 291


Summary:
On October 10 1953 the respondents filed suits under section 232 read with section 20 of the U P Zamindari Abolition and Land Reforms Act 1950 against the appellant before the Sub Divisional Officer
Before the coming into operation of the Abolition Act the appellant Amba Prasad was Zamindar of the disputed land
The names of the respondents were recorded in column 23 miscellaneous in the Khasra for the year 1356 Fasli as persons in possession of the disputed land
The respondents claimed adhivasi rights under section 20 of the Abolition Act because they were recorded as occupants of the fields in dispute in the Khasra for 1356 Fasli
The common case of the respondents was i that they were in possession of the suit land ii that they were dispossessed after June 30 1948 by the appellant iii that as they were recorded occupants in 1356F they were not required to prove actual possession
The case of the appellant was that the entry was fraudulently made after July 1 1949
These suits were dismissed by the Sub Divisional officer
On appeal the Additional Commissioner held that the respondents had acquired the adhivasi fights
Against this order Amba Prasad the appellant appealed to the Board of Revenue
The Board of Revenue dismissed the appeals
The appellant then filed appeals in this Court
Heldi Under section 20 of the Abolition Act U P Zamindari Abolition and Land Reforms Act a person continues as an adhivasi after July 1 1952
provided he is in possession or was evicted after June 30 1948
If he was evicted after June 30 1948 he is entitled to regain possession in spite of any order or decree to the contrary
iiThe words recorded as occupants in section 20 of the Abo lition Act mean persons recorded as occupants in the Khasra or Khatauni for 1356 Fasli 1 7 48 to 30 6 49
Such persons do not include an intermediary
The word occupant must mean a person holding the land in possession or actual enjoyment
Mediate possession except where he immediate possessor holds on behalf of the mediate possessor is of no consequence
iiiThe appellant was not entitled to raise the plea of the correctness of the entry in Khasra because the entry was not corrected before the date of vesting 1 7 52 as required by Explanation ii to section 20 of the Abolition Act
ivThe title to possession as adhiwasi depends on the entries in the Khasra or Khatauni for the year 1356 Fasli
Section 20 of the Abolition Act does not require the proof of actual possession
Therefore section 20 eliminates inquiries into disputed possession by accepting the record in the Khasra or Khatauni of 1356F or its correction before July 1 1952
801 The Upper Ganges Sugar Mills Ltd vs Khalil ul Rehman   referred to
Lala Nanak Chand vs Board of Revenue U P 1955 ALJ 408 Ram Dular Singh vs Babu Sukh Ram  Bhal Singh vs Bhop and Anr and Sugriva vs Mukhi etc  approved