Case: Azad Singh and Others Vs. Barkat Ullah Khan

These two appeals by special leave arise from two Suits filed by Barkatulla h and Sahfiullah for possession of land more particularly set out at the foot of the plaint against the Zamindars and Prem Kumari and Noor Mohammad. Briefly stated the plaintiffs A case was that they were Thekadars and the Theka was taken for personally cultivating the land and therefore under sec. 12 of the U P. Zamindari Abolition and Land Reforms Act, 1950 (1950 Act for short), they have become hereditary tenants and they were in possession of land on 1st April 1960. It was alleged that the Zamindars had no right to lease the land after the plaintiffs became hereditary tenants yet Prem Kumari and Noor Mohammad took land on lease from Zamindars and entered possession after 1.4 1950. It was alleged that the lessees from the Zamindar had no right to remain in possession as against hereditary tenants. On this short ground the plaintiffs sought possession of thedefendants were the Zamindars and two lessees contested the suit. The averments made in para 4 of the plaint were not controverted specifically and it was merely stated that they are subject to additional pleas. The only plea put forward on behalf of the lessees worth-noticing is that the lessees were in cultivatory possessio n during the year 1359-F and being not a person who has become a bhumidar sirdar, Adhivasi or Asami is entitled to all the rights of Adhivasis under U.P. Land Reforms (Supplementary) Act, 1952 (1952 Act fortrial court dismissed the suit observing that the plaintiffs were Thekadars of the land and under sec. 12 of the 1950 Act have acquired rights of hereditary tenants but the lessees were in cultivatory possession in 1359-F and therefore have acquired the right of adhivasi. Th ekanama was held to be defective on the question of Theka being given exclusively for personal cultivation. The two plaintiffs preferred two separate appeals and both the appeals were disposed of by the First Additional Civil and Sessions Judge, Gonda as per his judgment dated September 1, 1958. Broadly stated, the learned Judge agreed with the findings of the trial court and dismissed the appeals. The original plaintiffs carried the matter in . second appeal. Two separate appeals were preferred, by the time the appeals came up for hearing, a statement was made that both the plaintiffs have compromised the dispute inter Se and that the suit be treated as one and if the appeal is to be allowed, possession is t o be given jointly to two appellants as against the respondentsThe learned Judge disposed of both the appeals by common judgment reversing the decision of the trial court and the first appellate court holding that the plaintiffs had ac quired the status of A hereditary tenants and were in possession on 1.5.1950 and, therefore, the Zamindars had no right to dispossess the plaintiffs and induct the two lessees in possession. It was further held that as the lessees came into possession under Zamindars who had no right to grant the lease possession of the lessees being thus unlawful against the plaintiffs, they could not have acquired the Adivasis rights. Accordingly, the suit was decreed and a decree for possession was granted in favour of the plaintiffs. Hence these two appeals by special leave

Reasoning: 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.