HARNAM SINGH (DEAD) THROUGH LRS ETC.

SMT. KHEMA KUNWAR (DEAD) THROUGH LRS AND OTHERS

MAY 2, 1994

[K. RAMASWAMY AND N. VENKATACHALA, JJ.]

Tenancy and Land laws :

United Provinces Tenancy Act 1939-Clauses (7), (II), ( 18), (23), (24) C of Section 3 read with Sections 2Il, 212,222'-'Thekanama' in favour of '1hekedar' in respect of Sir Lands, prior to coming into force of the Act.

U.P. Zamindari Abolition and Land Refonns Act, 1951>--Definition of

' 'land-holder'-Sections 3, 4, 20(b), 21(/)(h) and 157-whether a widow belonging to a class of disabled persons under Section 157 could be regarded D as a "land holder" envisaged under Section 21( I)(h) respecting her Sir lands; which a "Thekedar" under a "1hekanama" executed by her had let out for occupation and cultivation prior to or on 9th of April 1947 by receiving yearly rents from the tenants.

One 'K' was the owner inter alia of plots no. 1, 6 and 1063 in certain E village. On 12.12.39 she execnted a "thekanama" in favour of one 'G' by which he was put in physical possession of the said Sir lands, enabling him as a "thekedar" not only to cultivate those lands personally for over a period of 20 years subject to payment to her "theka" money but also lease them for cultivation to tenants and receive annual rents from them during F the period. 'G' in turn lease plot no. 1 to 6 to 'H' and plot no. 1063 to 'M' on the yearly rents and put them in possession of the plots in 1940 for cultivation. In the year 1960, 'H' and 'M' on finding that they were shown as "Asamis" in respect of their respective plots in the Basic Year Records, filed objections before the jurisdictional Consolidation Officer, claiming thai they should be shown in the Basic Year Records as "Adhivasis" in G respect of plots in their occupation. 'K' contested their claim and the consolidation Officer by his judgment and order dated 29.9.1961 dismissed the objections, but the said objections were upheld in appeal by the Asst!.

Settlement Officer. 'K's appeal before the Deputy Director of Consolidation and her revision before the Jt. Director of Consolidation failed. She H filed a writ petition before the High Court. A single Judge dismissed those

HARNAM SINGH v. SMT. K.KUNWAR 815

writ petitions by a common judgment and order dated 4.9.67, but her A special appeals filed against the common judgment before the same High Court were allowed by common judgment and order dated 8.12.72 of a Division Bench upholding her contention that the appellants herein were "Asamis" under Section 2l(l)(h) of U.P. Zamindari Abolition and Land Reforms Act and not Adhivasis under Section 20(l)(b) thereof.

In the SLP file<! dgainst the aforesaid judgments and o!ders of the High Court, the appellants contested that the Respondent under a Thekanama in the year 1939 in favour of 'G' had granted to him as her Thekedar; the right to lease out her Sir-lands in favour of the tenants and recieve rents from them who in turn leased out those plots to the appellants on yearly rents and put them in possession and the appellants continued to pay the rent prior to or on 5th of April 1947, the Respondent could not have been 'Land-holder' of such lands under Secs. 21 (i)(h) of the U.P. Zamindari Abolition & Land Reforms Act as had been held by the High Court.

Allowing the appeals, this Court

HELD : l. The United Provinces Tenancy Act, 1939 when came into force on 19th of January 1940, the appellants were in occupation of those plots of lands as tenants and cultivating them by paying rent to "thekedar". E Clause (7), (11), (18), (23), (24) of Section 3 read with Section 212-222 of the United Provinces Tenancy Act, makes it clear that Ganga Singh, in whose favour the aforesaid

11thekenama 11 was executed by Smt. Khema Kunwar, in respect of the aforesaid plots, was not only the "thekedar" under the Act but also a "land holder" in respect of those plots in that he F was receiving rents from the tenants who were occupying those plots and cultivating them. [819-C-H; 820-A)

2. But aller coming into force of the U.P. Zamindari Abolition & Land Reforms Act when a notification referred in Section 4 thereof was published in the Gazette, all rights, titles and interests of all intermediaries in every estate, including the aforesaid plots of lands, ceased and vested in the State of U.P., free from all encumberances. Section 20(b) states that every person who was recorded as a tenant of any land, shall unless he has become an "Asami" under Clause (h) of Section 21(1) be

called "Adhivasis" of the land. [820-A-C) H

A Udai v. Ram Lakhan, (1990) RD 10 SC, relied on.

3. Section 3(26) read with Section 21(1) (h) of U.P. Zamindari Abolition & Land Reforms Act makes it obvious that in respect of the aforesaid agricultural lands (plots) "thekedar" Ganga Singh was the "land holder" who had leased out those lands to the appellants herein and was receiving rents from them, treating them as tenants. The appellants herein who were tenants of those plots being in occupation of them, before, after and at the time of their vesting in the State under the Act, are regarded very rightly by the Consolidation authorities and by the single Judge of the High Court, as occnpant of those plots (1, 6, 1063) and has rightly been held to be "Ad- C hivasis" of the lands under Section 20(b) of the Act. [pp.821-D-F; 822-A-D]

CIVIL APPELATE JURISDICTION : Civil Appeal Nos. 142 and 143 of 1976.

From the Judgment and Order dated 8.12.72 of the Allahabad High D Court in S.A. Nos. 948 & 949 of 1967.

Ms. Rachna Gupta and Ms. S. Bagga for the Appellants.

J.P. Goyal, and M.R. Bidsar and K.K. Gupta for the Respondents.

The Judgment of the Court was delivered by

VENKATACHALA, J. In these appeals by special leave directed against the common judgment and order dated 8th December, 1972 of a Division Bench of the High Court of Allahabad, rendered in Special F Appeals Nos. 948-949 of 1967, a question of somewhat importance, which arises for our decision, is as to whether a widow belonging to a class of disabled persons under section 157 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 'The UPZA & LR Act' could be regarded as a land-holder envisaged udner section 21(1)(h) respecting her G Sir lands, which a 'thekedar' under a 'thekanama' executed by her had let out for occupation and cultivation by tenants prior to 9th April, 1947 and which were allowed by the 'thekedar' to continue in such occupation and cultivation on 9th August, 1947, by receiving yearly rents from the tenants.

Material facts which have led to the need to decide the said question H in the present appeals, could be stated thus :

HARNAM SINGH v. SMT. K.KUNWAR [VENKATACHALA, J.] 817

That on 18th November, 1933, Smt. Khema Kunwar, respondent No.1 A .in these appeals, as the widow of Natho Singh succeeded to his Sir lands

- plots 1, 6 and 1063 among others, of Village Barni M. Khara, Pargana Ujhani, District Budaun. That on 12th December, 1939, she executed a 'thekanama' in favour of one Ganga Singh, by which he was put in physical possession of the said Sir lands, enabling him as a 'thekadar' not only to B cultivate those lands personally for over a period of twenty years subject to payment to her theka money of Rs. 355 per annum, but also to lease them for cultivation to tenants and receive annual rents from them during • that period. No sooner Ganga Singh got possession.of the said Sir lands under the 'thekanama' from Smt. Khema Kunwar, he as 'thekedar', leased c Plot Nos. 1, 6 to Harnam Singh, the appellant in C.A. No. 142 of 1976 and Plot No. 1063 to Mohar Singh, the appellant in C.A. No. 143 of 1976, on yearly rents and put them in possession of those plots in the year 1940 for their cultivation. Eversince the 'thekedar' received yearly rents from Harnam Singh and Mohar Sigh, as they were his tenants or lessees. In the year 1960, when Harnam Singh, who was in occupation of Plot Nos. 1 and 6 and D Mohar Singh, who was in occupation of Plot No. 1063, from the year 1940 , paying annual rents as tenants to 'thekedar', Ganga Singh, found that they were shown as 'Asamis' in respect of the said plots in the Basic Years Records, they filed objections uncjer section 9 of the Uttar Pradesh Consolidation Holdings Act, 1953 - 'the UPCH Act' before the jurisdictional E Consolidation Officer, claiming that they should be shown in Basic Years • Records as 'Adhivasis' respecting plots in their occupation. Smt. Khema ..

Kunwar, who did not dispute the fact that Harnam Singh and Mohar Singh were occupants of the plots 1, 6 and 1063 contested their claim for recording them as 'Adhivasis' of those lands in Basic Years Records. The F Consolidation Officer by his judgment and order dated 26th September,

t 1961 dismissed the objection raised by Harnam Singh and Mohar Singh.

That order, when was carried in appeals by Harnam Singh and Mohar Singh before the Assistant Settlement Officer, their claim for recording their names in the Basic Years Records as 'Adhivasis' was upheld by his G judgment and order dated 13th June, 1963. Smt. Khema Kunwar, although impugned the order of the Asst!. Settlement Officer in her appeal filed before the Deputy Director of Consolidation, and in her revision filed before the Joint Director of Consolidation, she did not succeed. So also she did not succeed in her Writ Petitions filed in the matter before the High Court of Allahabad, in that a learned Single Judge of that Court H ..,

A dismissed those Writ Petitions by his i:omon judgment and orders dated 4th September, 1967. But her Special Appeals filed against the said common judgment and orders of the learned Single Judge before the same High Court were allowed by a comon judgment and order dated 8th December, 1972 of a Division Bench of that Court, upholding her contention that the appellants herein were 'Asamis' under section 2l(l)(h) of the UPZA&LR Act and not 'Adhivasis' under secti_on 20(1)(b) thereof. It is that common Judgment and order of the Division Bench of the High Court which has been impugned by Harnam Singh and Mohar Singh by filing the present appeals by special leave.

The contention raised before us by Mrs. Rachna Gupta, the learned counsel appearing for the appellants was that even if Smt. Khema Kunwar, widow of Natho Singh belonged to a class of disabled persons under section 157 of the UPZA&LR Act, the judgment and order of the Division Bench of the High Court cannot be sustained since it was based on its D wrong view that Smt. Khema Kunwar was land-holder envisaged under section21(1)(h) of that Act. Her contention, in other words, was that Smt.

Khema Kunwar, when had under a 'thekanama' executed by her in the year 1933 in favour of Ganga Singh had granted to him as her 'thekedar' the right to lease out her Sir lands in favour of the tenants and receive rents from them and when accordingly her Sir lands, the said plots had been E leased out by that 'thekedar' in favour of the appellants and given for their occupation and cultivation long prior to 9th April, 1947 and the appellants were allowed to continue in occupation of such lands by the 'thekedar' on receiving rents from them them even on 9th April, 1947, she (Smt. Khema Kunwar) could not have been the land-holder of such lands, envisaged

F under section 2l(l)(h) of the UPZA&LR Act, as has been held by the Division Bench. Whether the said contention of the learned counsel for the appellants in the present appeals, calls to be upheld, is indeed the question which now needs our consideration and decision.

On 12th December, 1939 Smt. Khema Kunwar, who was the Sirdar G of the aforesaid Sir lands (plots), it is not disputed, executed a 'thekanama' of even date in favour of Ganga Singh, Making him 'thekedar' in respect of them. Under that 'thekanama', it is also not disputed, the 'thekedar' was given the right to cultivate the said plots for a period of 20 years, on payment 'theka' money of Rs. 355 per annum. Under that very 'thekanama', H it is again not disputed, that the 'thekedar' was given the further right to

lease the said plots for cultivation to tenants of his choice and to receive A rents from such tenants. It transpires that on the execution of that 'thekanama' the 'thekedar' who got possession of the said plots from Smt.

Khema Kun war, leased them to the appellants herein for cultivation as his tenants and received annual rents from them eversince. The right of leasing the said plots in favour of tenants and the right of receiving rents from B them were the rights conferred by Smt. Khema Kunwar in favour of the 'thekedar' Ganga Singh under 'thekanama' executed and registered by her, stood unrebutted before the Consolidation authorities who have concluded accordingly. The English officially translated copy of 'thekanama' produced for our perusal fully supports such conclusion. c The United Provinces Tenancy Act, 1939 - 'the UPT Act' when came into force on January 19, 1940 the appellants were in occupation of those plots of lands as tenants and cultivating them by paying rents to the 'thekedar'. The said tenancies created by 'thekedar' in favour of the appellants being agricultural tenancies, came to be regulated by the UPT Act. D While under clause (7) of section 3 of the UPT Act 'holding' is defined to include the 'theka area' held by a 'thekedar', under clause (24) thereof the 'thekadar' is defined to mean a farmer or other lessee of the rights in !:ind of a proprietor, who has also, in particular the right to receive rents 1 or profits. Section 209 of the UPT Act declares that the farm or lease cif a thekedar is a 'theka', the person who grants it is the 'lessor', and the area E to which it relates is the 'theka area'. Section 211 of that Act declares that the thekedar may exercise, during the period of his 'theka' all rights of the lessor under the Act even if such rights were not conferred upon him under the terms of the 'thekanama'. So also sections 212 to 222 thereof refer to regulation of the relationship of 'thekedar' with his lessor and his lessee. F Further, under clause (11) thereof a 'land-holder' is defined to mean a person to whom rent is payable while under clause (23) thereof 'tenant' is defined to mean a person by whom rent is payable. Furthermore, under clause (18) thereof 'rent' is defined to mean whatever is, in cash or kind, payable on account of the use or occupation of land.

Form the said definition clauses and provisions of the UPT Act, it becomes clear that Ganga Singh, in whose favour the aforesaid 'thekanama' was executed by Smt. Khema Kunwar, respecting the aforesaid plots, was not only the 'thekedar' under that Act but also a 'land-holder' in respect

of those plots in that he was receiving rents from the tenants who were H

A occupying those plots and cultivating them.

But, after the coming into force of the UPZA&LR Act when a notification referred to in section 4 thereof was published in the Gazette all rights, titles and interest of all intermediaries in every estate including the aforesaid plots oflands ceased and vested in the State of U.P. free fro111 incumberances. 'Intermediary' is defined under clause (12) of section 3 thereof to mean with reference to any estate, a proprietor, as well as, a 'thekedar'. Section 12 thereof declares that 'thekedars' would become hereditary tenants where the lands were in their personal cultivation on the 1st day of May, 1950. Under sub-section (2) of section 13 thereof, it C entitles such 'thekedar' to become 'Asamis' to the Sir lands or khudkasht of the lessor on the date of the grant of the 'theka'. However, section 20(b) thereof says that every person who was recorded as a tenant of any land; shall, unless he has become an 'Asami' under clause (h) of section 21(1), be called an 'Adhivasi' of the land. In Udai v. Ram Lakhan, 1990 RD 10 (S.C.), this Court has held that a person shown in actual possession in D Khasra also shall be regarded as tenant. From this it follows that a tenant shown to be in occupation of a plot of land under Record of Rights has to be regarded as a recorded occupant of such land.

Sub-section (1) of section 21 of the UPZA&LR Act, which insofar as is material for deciding the question under consideration may be excerpted. It reads :

"21(1). Notwithstanding anything contained in this Act, every. person who, on the date immediately preceding the date of vesting, occupied or held land as -

(a) ................ .

(h) ............ an occupant referred to in sub-clause (i) of clause (b) of the said section where the land-holder or if there are more than one land-holders, all of them were person or persons belonging -

(a) if the land was let out or occupied prior to the ninth day of April, 1946, both on the date of letting or occupation, as the case may be end on the nineth day of April, 1946, and

(b) if the land was let out or occupied on or after the nineth

day of April, 1946, on the date of letting or occupation, A

to any one or more of the classes mentioned in sub-section

(1) of section 157; ........... .

shall be deemed to be an asami thereof."

The Division Bench of the High Court in its judgment under appeal has taken the view that the respondent herein Smt. Khema Kunwar is the land-holder referred to in clause (h) of sub-section (1) of section 21, falling within one of the classes of disabled persons mentioned in section 157(1)

of the Act and hence the appellants herein, who are in occupation of her aforesaid plots, are to be regarded as 'Asamis' envisaged under the clause, C although they have become tenants under the thekedar - Ganga Singh, who was receiving rents from them.

We find.it difficult to agree with the said view taken by the Division Bench of the High Court which has led to the rendering of its judgment D under appeals. Section 3 of the UPZA&LR Act which contains definition clauses, in its clause (26) states that the words and expressions 'landholder' ....... 'thekedar' .. 'rent' .. 'tenant' ..... 'holding' .. not defined in the Act and used in the United Provinces Tenancy Act, 1939 shall have the meaning assigned to them in the UPT Act. From what is contained in the said clause (26), it becomes obvious that the word 'landholder' used in E any of the provisions of the UPZA&LR Act including the provision in sub-section (1) of section 21 shall carry the meaning given to it under the UPT Act. When we have referred earlier, to the definition clauses and the provisions of the UPT Act we have clearly found that the 'thekedar' under that Act would be a 'land-holder' in respect of Sir lands (plots) of a F proprietor, if he has leased them to tenants on the basis of 'thekanama' executed by the proprietor or Sirdar in his favour, for he receives rents from such tenants. Therefore, the landholder referred to in clause (h) of section 21(1) of the UPZA&LR Act can only be 'thekedar' even where he had leased Sir lands of his proprietor, because of his entitlement to receive rents from the tenants of such lands. Such being the legal position of a G 'thekedar' question of regarding a widow who had given away her Sir lands to-a 'thekedar' under 'thekanama' executed by her conferring full authority on the 'thekedar' to lease to tenants such lands and to receive rents payable for them from the tenants, as a land-holder of such lands can never arise.

Moreover, when 'thekedar' becomes a land-holder in respect of such Sir H

A lands leased out to tenants as 'thekedar' question of a proprietor continuing as their land-holder also cannot arise. Therefore, in the present case, when in respect of the aforesaid agricultural lands (plots) 'thekedar' Ganga Singh was the landholder who has leased out those lands to the appellants herein and was receiving rents from them treating them as tenants, it ought B not to have been held that Smt. Khema Kun war, a person belonging to a class of disabled persons under section 157(1) of the Act, was the 'landholder' in respect of those plots as would make the appellants here\µ the "Asarnis" under section 21(1)(h) of the UPZA&LR Act. On the other hand, the appellants herein, who were the tenants of those plots (lands), being occupl\)lts of them before, after and at the time of their vesting in C the State under the Act, are regarded very rightly by the Consolidation authorities and by the learned Single Judge of the High Court as persons recorded in the Records of Rights, as occupants of those plots (1, 6 and

1063) and have rightly held to be 'Adhivasis' of those lands under section 20(b) of the UPZA&LR act.

In the result, we allow these appeals, set aside the judgment and order of the Division Bench of the High Court under appeals and restore the Orders of the Consolidation authorities and the learned Single Judge of the High Court. which were set aside by the judgment and order under appeal.

However, in the facts and circumstances of the case, we make no order as to costs.

S.S.H.R.

Appeal allowed.