Case: Nath Singh And Others Vs. The Board Of Revenue And Others

In 1945 one Ram Dhani Singh who was the thekadar of the proprietary rights of a village sued the appellants and the respondents other than the Board of Revenue for their ejectment under Section 171 of the U. P. Tenancy Act alleging that the appellants had illegally sublet the lands to the said respondents. The appellants and the respondents made a common cause denying the alleged subletting and stating that the entries in the village records about the respondents being sub-tenants were erroneous. On 3rd March 1946 i.e. towards the end of 1353-F the suit was dismissed on the ground that there had been no subletting and that the entries regarding the subletting in the village records were not correct. No attempt was however made by anyone to bring the village records in harmony with the said decision with the result that the said respondents continued to figure therein as sub-tenants as before. On his attention being drawn to this fact, the Lekhpal on his own authority removed the entries in favour of the said respondents showing them as sub-tenants from the records of the year ending 1358-F. The entries in the year 1356-F, were left undisturbed, and it was not within the jurisdiction of the Lekhpal to make any alterations therein.3. The U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) came into force with the commencement of 1360-F i.e. 1st July, 1952. Under S. 20 (b)(i) every person who was recorded as occupant in the Khasra or Khatauni of 1356-F prepared under Sections 28 and 33 respectively of the U. P. Land Revenue Act was to be called an "adhivasi" and was subject to the provisions of the Act to be entitled to take or retain possession of the land (unless he would become a bhumidar or an asami). The second Explanation to the section provided that where any entry in the records referred to in clause (b) of Section 20 had 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 was to prevail for the purposes of the said clause. The third Explanation provided that for the purposes of the second Explanation 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 the records had been made before the said date and had become final even though the correction may not have been incorporated in the records.4. On the strength of the Khasra and Khatauni of 1356-F, the respondents claimed adhivasi rights under S. 20 (b) (i) of the Act. They filed six suits praying for recovery of possession under S. 232 of the Act. According to their case, the appellants were never in possession of the lands in dispute at any time. They lost the suits before the Sub-Divisional Officer and the Additional Commissioner of Varanasi but they ultimately succeeded in appeals to the Board of Revenue.5. The appellants filed the writ petitions for quashing the orders of the Board of Revenue. The High Court went elaborately into the procedure for making entries in the record of rights and examined the question as to whether an entry recording a person as a sub-tenant was equivalent to an entry recording him as occupant for the purpose of the Act. The High Court concluded that the impugned orders of the Board of Revenue were wrong but held that the Board had jurisdiction to interpret Sec. 20(b) as it thought proper and as the orders passed by it were final without being subject to any appeal, they could not be quashed by certiorari as being mere errors of law. It is from this judgment that the present appeals have been launched.

Reasoning:
11. Before this Court at the final hearing, there was a good deal of discussion as to the meaning of the expression "a person in occupation". It was held that in order that the company could take the benefit of Section 20 it should have been recorded as in occupation of the land in dispute in the year 1356 F and the only limitation placed by judicial decisions on the meaning of the word "occupant" was that a person should be in occupation in his own right and not on behalf of some one else. On behalf of the landlords it was argued that the company was not in possession in its own right firstly because there was an order for ejectment in November 1948 and thereafter it remained in possession only on account of the stay orders; and secondly, as a thekadar the possession of the company was on behalf of the landlords. This Court held that on the landlords own showing the company was not in possession as a thekadar as the theka had expired before 1356 F and consequently the nature of occupation of the company was on its own behalf and not on behalf of the Court or of the landlords. In the result, the company was held entitled to Adhivasi rights.12.This case establishes that a person recorded as an occupant on the relevant date although found by courts of law to have no right to possession even prior thereto, is not to be denied adhivasi rights.These decisions negative the first, second and the fourth points sought to be raised on behalf of the appellants. The record of rights for the year 1356 F had not been corrected afterwards. We have to go by the entry in the record of rights and no enquiry need be made as to when the respondents became sub-tenants after the decision in favour of the landlord. Ram Dhani Singh. The last decision of this Court also shows that as between the tenant and the subtenant the entry in the record of rights in favour of the sub-tenant makes him the occupant entitled to the adhivasi rights under Section 20 of the Act.16. With regard to the point as to the violation of rule 183 it is enough to say that the point was not canvassed before the Board of Revenue and as such we need not look into it.