Case: Azad Singh and Others Vs. Barkat Ullah Khan

original plaintiffs provided for personal cultivation of the land by the Thekedar or personal cultivation was incidental to other rights and obligations such as collection of rent . from the other tenants ? This would necessitate examination of the original document creating Theka. That was not read to us, but Mr. Rangarajan relied upon the following observation in the judgment of the learned trial Judge:"I have read the context (sic) (possibly contract, of the Thekanama. There is no authority given specifically or impliedly for personal cultivation by the Thekedars of the land comprised in the Theka unless there was such a provision. I fear no rights of hereditary tenancy could have been acquired by the plaintiffs."9. It was urged that the learned Judge specifically came to the conclusion that the Theka was not created exclusively and specifically for personal cultivation of the lands involved in the Theka. The learned appellate Judge found that the Thekedars were in actual possession and personal cultivation of the land for a period of 11 years. He further found that the Theka would be deemed to have been granted for personal cultivation and if the plaintiffs (Thekedars) have been found to be in personal cultivation of the suit on 1st May, 1950 as Thekedars, they would be entitled to the benefit of sec. 12 of 1950 Act. The learned appellate Judge then concluded that it is satisfactorily proved that the plaintiffs-Thekedars were in possession on 1st May, 1950.However the learned Judge declined to grant relief to the plaintiffs on the finding that the lessees had acquired Adhivasis right under 1952 Act. It clearly transpires from the findings of the first appellate court, which is the last fact finding court, that the Theka was for personal cultivation of the land involved in the Theka and the Thekedars were personally cultivating the land for a period of 11 years. The High Court in second appeal noticed that the Thekedars were personally cultivating the land. Nothing was pointed out to us to show that Thekedars had any other duty to perform such as collecting rent from other tenants. There is nothing in the record to show that the Theka was as a consideration for some other duties to be performed by the Thekedars to the Zamindars. Therefore, the conclusion is inescapable, that the Theka was created exclusively for personal cultivation of the land involved in the Theka by the Thekedars.If it is clearly established that the Theka was created exclusively for personal cultivation of the land by the Thekedars, the ratio of the decision of this Court would lead to the conclusion that the Thekedars acquired the status of the hereditary tenants under sec. 12 of the 1 950 Act.10. The only question then remains for the consideration is whether the original lessees acquired Adhivasis rights under sec. 3 of the 1952 Act. Sec. 3 which has been extracted herein before provides that any person who has not become a bhumidar, sirdar, adhivasi or asami under 1950 Act if he is in cultivatory possession of any land during the yea r 1359 Fasli and if the bhumidar or sirdar was not such a person, such a person in cultivatory possession would acquire the status of an adhivasi. The High Court then examined what is the significance of the expression cultivatory possession in se c. 3. The High Court rightly held that if the Thekedars had acquired the status of hereditary tenants as Theka was up to and inclusive of the year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars of their possession and therefore possession of the lessees was not lawful against the Thekedars. The High Court rightly held that A the lessees could not be said to be in cultivatory possession of the land on the appointed day. In reaching this conclusion, the High Court relied upon a decision of this Court in Sonawati &ors. v. Shri Ram Anr.(1) The Court held as under:"The expression "cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognized for the purpose of the Act must b e lawful and for the whole year 1359 Fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of s. 3 of U.P. Act of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh(2) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and ors.(B) that occupation by a wrongdoer without any right to the land is cultivatory possession within the meaning of s. 3 of the U.P. Ac t 31 of 1952".Therefore in order to obtain the benefit of sec. 3 of 1952 Act, the person claiming to be in cultivatory possession must show that his or her possession was lawful. The High Court consistent with certain findings of the tria l Court and the first appellate court held that possession of the lessees in 1359 Fasli was not lawful and this necessarily follows from the finding given by the courts that the Thekedars were in cultivatory possession of the plots in dispute on the appointed day i.e. 1st May, 1950 and thereby became entitled to acquire the rights of hereditary tenants. We are in agreement with the conclusion recorded by the High Court.11

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The only question then remains for the consideration is whether the original lessees acquired Adhivasis rights under sec. 3 of the 1952 Act.Sec. 3 which has been extracted herein before provides that any person who has not become a bhumidar, sirdar, adhivasi or asami under 1950 Act if he is in cultivatory possession of any land during the yea r 1359 Fasli and if the bhumidar or sirdar was not such a person, such a person in cultivatory possession would acquire the status of an adhivasi. The High Court then examined what is the significance of the expression cultivatory possession in se c. 3. The High Court rightly held that if the Thekedars had acquired the status of hereditary tenants as Theka was up to and inclusive of the year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars of their possession and therefore possession of the lessees was not lawful against the Thekedars. The High Court rightly held that A the lessees could not be said to be in cultivatory possession of the land on the appointed day. In reaching this conclusion, the High Court relied upon a decision of this Court in Sonawati &ors. v. Shri Ram Anr.(1) The Court held asexpression "cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognized for the purpose of the Act must b e lawful and for the whole year 1359 Fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of s. 3 of U.P. Act of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh(2) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and ors.(B) that occupation by a wrongdoer without any right to the land is cultivatory possession within the meaning of s. 3 of the U.P. Ac t 31 ofin order to obtain the benefit of sec. 3 of 1952 Act, the person claiming to be in cultivatory possession must show that his or her possession was lawful. The High Court consistent with certain findings of the tria l Court and the first appellate court held that possession of the lessees in 1359 Fasli was not lawful and this necessarily follows from the finding given by the courts that the Thekedars were in cultivatory possession of the plots in dispute on the appointed day i.e. 1st May, 1950 and thereby became entitled to acquire the rights of hereditary tenants. We are in agreement with the conclusion recorded by the High Court.