AMBA PRASAD versus ABDUL NOOR KHAN AND ORS.

Ap·i/ 17

AMBAPRASAD

ABDUL NOOR KHAN AND ORS.

(M. HIDAYATULLAH AND N. RAJAGOPALA AYYANGAR, JJ.)

U. P. Zamindari Abolition and Land Reforms Act, 1950, s. 20-Explanation II to s. 20-Suit for possession by occupant on the basis of entry in Khasra for 1356F-Entry not corrected before date of vesting-Its effect-Whether correctness of entry be questioned subsequently-Whether plaintiff required to prove actual possession.

On October 10, 1953, the respondents filed suits under s. 232 read with s. 20 of the U. P. Zamindari Abolition, and Land Re-forms 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 ad!hivasi rights under s. 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 appel-lant was that the entry was fraudulently made after July 1, 1949. Th1'5e suits were dismissed by the Sub-Divisional Officer. On appeal, the Additional Commissioner held ·.that the respon-dents had acquired the adhivasi rights. Against this order Amba Prasad (the appellant) appea·led to the Board of Revenue. The Board of Revenue dismissed the appeals. The appellant then filed appeals in this Court.

Held: (i) Under s. 20 of the Abolition Act (U. P. Zamindari Abolition and Land Reforms Act) person continues as an adhivasi after July 1, 1952. provided he is in possession or was evicted after June 30, HMS. If he was evicted after June 30, 1948 he is entitled to regain possession in spite of any order or decree to the contrary. '

(ii) The words "recorded as occupants" in s. 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 person holding the land in possession or actual enjoyment. Mediate possession (except where che immediate possessor holds on behalf of the mediate possessor) is of no consequence.

(iii) The 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 s. 20 of the Abolition· Act.

(iv) The title to possession as adhivasi depends on the entries in the Khasra or Khatauni for the year 1356 Fasli. Sec-tion 20 of the Abolition Act does not require the proof of actual possession. Therefore, s. 20 eliminates inquiries into disputed possession by accepting the record in the Khasra or Khatauni of 1356F. or its correction before July 1, 1952.

The Upper Ganges Sugar Mills Ltd. v. Khalil-u!-Rehman, {1961] 1 S.C.R. 564, referred to.

Amba Pmaad T. Abdul Noor Klia11 and Otli<r•

Lala Nanak Chand v. Board of Revenue, U. P., 1955 A.L.J. Abdul Noor Klia11

408, Ram Dular Singh v. Babu Sukh Ram, 1963 A.L.J. 667, Bhal Singh v. Bhop and Anr., 1963 A.L.J. 288 and Sugriva v. Mu~hi etc., 1963 A.L.J. 17 (Rev.), approved.

CIVIL APPELLATE Jua1sDICTION: Civil Appeals Nos.

680 to 682 of 1963. Appeals by special leave from the judg-ment and decree dated February ~. 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 respon-dents Nos. 1 to 3 (in all the appeals).

April 17, 1964. The judgment of the Court was delivered

HmAYATULLAH, J.-This judgment shall also govern the HidayaJul/.ak,

disposal of C. A. 681 of 1963. These are appeals by special leave of this Court against common order of the Board of Revenue, U.P. dated February 3, 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 Zamiridar of village Rhonda, Pargana and Tehsil Khurja, District Buland-11hahr, before the coming into operation of the U. P. Zamin-dari 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 asli, as persons in possession and who claim, by reason of the entry, to be the recorded occupants of the fields in dis-pute, and to have bbtained adhivasi rights in the fields under s. 20 of the Abolition Act. Though the point in dispute appears to lie within 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 true measure of the arguments in the appeals.

Amba Prasad brought two suits under s. 180 of the U.P.

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 were recorded in the Khasra as tenants 'bi/a tasfia la~an'. These suits were dismissed by the trial Judge and Amba Prasad's appeal to ;the Commissioner failed on November 30, 1943. Amba Pra-sad then appealed to the Board of Revenue, U.P. and suc--ceeded .. The order of the Board of Revenue, U. P. is dated March 19, 1949 (item No. 25). Mohammad Ali had died by l,/P(D)!SCJ-26 ..

1964 .Amba p....,,,; v • .Abd..Z Noor Klwn a"'1 Others Bidayalullah, J.

then and was represented by one Faiyazali and six ot •• ~rs. Mst. Sarifan had also died and was represen:ed by one Abdul Sattar alias Chunna Khan and two others. As result of the decision of the Board of Revenue possession of the fields was delivered to Amba Prasad on July I. 1949--the day of the commencement of the year 1357 Fasli. The dakha/namas are items Nos. 44 and 45 in this record and they mention fields Nos. 427 / 2, 428 /2, 429, 430 and 380 (item No. 441 and fields Nos. 416, 418/1 and 418/2 <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 s. 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 reference to the High Court of Allah-abad 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 prosecution under s. 218. Indian Penal Code against the Lekhpa/ alleging that he had made false entries in the Revenue papers but the Magistrate, 1st Class. Buland-shahr discharged _him by his order dated Jnly 24, 1950 (item No. 26). An application for revision of the order filed by Amba Prasad was dismissed by the Sessions Judge, Buland-shahr on October 10, 1950 (item No. 27).During the pendency of the proceedings under s. 145, Criminal Procedure Code these fields remained under atta-chment from August 23, 1949 (1358 F.J 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 1963-since 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 sµits failed on August 9, 1952 and Aulll!st 8, 1953 respectively (vide items. Nos. 30 and 32). It appears that proceedings under s. 107,. Criminal Procedure Code were also started against A. Noor-khan and others before Magistrate, I st Class, Bulandshahr and 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),

Meanwhile, the answering respondents and Sarfraz Ali l964 and others commenced on November 6, 1951 thr.ee suits Amba Praaad under s. 61 read with s. 183 of the U. l'. Tenancv Act, 1939 v. ha for declaration of Sirdar rights and to claim hereditary rights Abd:!z Ng:r.,1f, " under s. 180/2 ibid. These suits were decreed against Amba -Prasad by the Judicial Officer, Anupshahr on July 14, 1953. Hidayatullah, J. He held that the Dak/ialdehi 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 JO, 1953 two suit> were filed by the answer-ing respondents in these two appeals and third by the res-pondents in C. A. No. 682 of 1963 which has been compro-mised. These suits were under s. 232,[1]20 of the U. P. Zamin-dari Abolition and Land Reforms Act. It is with these suits that we are concerned in the appeal~. Two suits also under s. 232/20 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, i954 and December 20, 1954 (items Nos. 36 and 38). They were dismissed by the Sub-Divisional Magistrate, Khurja on l'lfay I 6, 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 Klwsras of 1355F, !356F, 1357F, 1358F and 1359F as showing their possession. These lands, however, were under attachment from August 23, 1949 (l 358Fl to November 6, 1959 (1359F) and could not be in the possession of the answering respon-dents in the years 1358F and 1359F. This fact was noticed by the Commissioner, Meerut Division, in his order dated April I, 1954 and he cast doubts on the entries in 1355F and 1356F. The Sub-Divisional Ollicer 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 Klwsra and .not the remarks column. He accordingly held that the entncs of 1355 and 1356 were unreliable and the answering respondents had not acquired adhivasi rights. On Appeal, the Additional Commissioner, Meerut, reversed the decision ~m April 19, 1959 and decreed the suits. Before the Comnrns1011cr the answering respondents claimed that a~ L/P( I)} ISCl--:!l'{n)they were recorded occupants in !356F they were not requir-ed 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 aho claimed that the answer-ing 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.

.dmba Pr<U<Ul v . .dbdtil Noor Khan and Others Hidayalilllah, J.

The learned Commissioner pointed out that the entries were no doubt suspected to be spurious by the Commissioner on April I, 1954, but this was after July I. : 952 which was the date of vesting and the case therefore was outside Expla-nations II and III of s. 20(b) of the Abolition Act. The learned Commissioner, therefore, was of the opinion that the entries could not be discarded as thev must have been com-pleted under the rules before April 3o, 1949, that is to say, even before the Dakhaldehi. He held that the answering res-pondents (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 point-ed 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 s. 218, Indian Penal Code. Since the entries were not corrected as required by Explanation II to s. 20 the conditions of s. 20(b) 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 adhi-vasi rights and as they did not raise such plea they cannot now raise it. We do not accept this contention. The answer-ing respondents had filed these suits even before Ayub Ali Khan and Abdul Sattar had filed their suits. Further, the suit~ filed by Ayub Ali Khan and Abdul Sattar did not decide anything because they were dismissed owing to 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 neces.~ary to be tried.

1964 Amba Prasad Nv. Kha ::..i 1 3~{.,, " Hidayatullah, J.

Mr. Goyal next contends that the answering respondents

must show that they were in possession and that under Ex-Amba He submits that these conditions are not fulfilled by them. planation I to s. 20 they were evicted after June 30, 1948. Abd ::..i 1 Nv. 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 asli must be proved. He further submits that even entries in the Khasra and Khatauni to be tJf value must be made in accordance with ss. 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 rectJrd be correct to claim adhivasi rights under s. 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 Lekhpa/ was also prosecuted under s. 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 collu-sive entry. It appears that Shri Amba P'rasad had filed criminal case against the patwari but this was after the entries in the remarks ctilumn 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 res-pondents and Sri Amba Prasad purchased the equity of redemption and got the share partition-ed. There was litigation between Sri Amba Pra-sad 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 pos-session· was delivered on 1-7-1949, in execution of the decree. The Khasra for 1356 Iasli under

1964 the rules may have been deposited some time ..d mba Pnuad before 31st July 1950 but the entries in the v . Khasras had to be completed upto 30th April .Abdul Noor Kha1' and Ofhers. 1949". Bidayatullah, J. 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 cqlumn 6 but column 6 is crossed out. It is, however, to be seen that when tenant leaves the neighbourhood without leaving in charge of his holding, person responsible for the pay-ment of his rent as it falls due and without giving 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. 85(c)). 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 s. :.:.0 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 l, 1949. There is nothing to show that t}le 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 evic-tion after June 30, 1948 before they can regain possession as adhivasis under s. 20. Mr. Brij Bans Kishore, ht>wever, 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 lands were not in his clients' possession. ·

We have pointed out above that the eviction could not

have taken place before. July I, 1949. The Dakhalnamas show that possession was given to Amba Prasad on July I, 1949. In so far as the appellant is concerned he was not in posses-sion 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.

191i4 The real dispute thus is whether person who is record-ed as 'qabiz' but not as tenant or sub-tenant can get the Amb" Prasad advan~ge ?f s._ 20 of t~e Aboliti?n Act and claim rights as Abdul N';,,, Khan Khan an adhrvast. It 1s convement at this stage to set out the mate-and 011"" rial portions of s. 20:

Amb" Prasad Abdul N';,,, Khan Khan and 011"" idayatullaA, J

"20. Every person who-(a) * • • • • (b) was recored as occupant-(i) of 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 U.P. Land Revenue Act, 1901, or who was on the date immediate-ly preceding the date of vesting entitled to re-gain p0ssession thereof under clause (c) of sub-section (!) 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.

khasra or

Explanation I-Where 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 person entitled to regain possession of the land. Explanation II-Where any. entry in the records re-· ferred to in clause (b) has been corrected before the date of vesting under or in accordance with the provisions bf 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 II an entry shall be deemed to have been corrected before the date of vesting if an order or decree of 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 person who was entitled as an intermediary to the land or any share therein in the year 1356 Fasli."

The scheme of the section may now be noticed. The section, speaking generally, says that certain persons "record-ed" as "cccupants" of lands (other than grove lands or lands to which section 16 applies) shall be known as adhiva~is and

1[[964 ]]Ambu Pmsad Pmsad •· ·

1[[964 ]]shall be entitled to retain or to regain possession of them, Ambu Pmsad Pmsad after the date of vesting which was July 1, 1952. Such persons •· do not include an intermediary (Explanation IV). Such per-Abd;1.;l07k,,.!han sons must be recorded as occupants in the khasra or khatauni · for 1356F 0-7-48 to 30-6-49). If such person is in posses-Hidayoi.izoi.,J. sion 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 l). The emphasis has been laid on the record of khasra or kha-tauni of 1356F and June 30, 1948 is the datum line. The importance of 'an entry in these two documents is further apparent from explanations II and III. Under the former, if the entry is corrected before the date of vesting 0-7-52), 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 competent court ordering the cor-rection 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 l, 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 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 proprietor and tenant the tenant, and between tenant and the sub-tenant the latter and between him and person recorded in the remarks column as "Dawedar qabiz" the dawedar qabiz are the occu-pants. 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, 19 52, 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 tb the contrary. The word 'occupant' thus signifies occupancy and enjoyment. Mediate possession, (except .where the imme-diate 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

7 S.C.R.

section eliminates inquiries into disputed possession by ac-cepting the records in the khasra or khatauni of 1356F, or Amba Prasa4 its correction before July 1, 1952. It was perhaps thought Abdu! N:~, Kha,. that all such disputes would have solved themselves in the and Others four years between June 30, 1948 and June 30, 1952. J~

Amba Prasa4 N:~, Kha,. and Others Hidayntu7fal1, J~

There was, however, for some time 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. v. Khalil-ul-Rehman and others(') where the correctness of Lala Nanak Chand v. The Board of Revenue, U.P.(') was challenged on the ground that it had held that mere entry in 1356F without possession in that year was sufficient. This Court did not decide the ques-tion and left it open. Subsequently, the Allahabad High Court in several decisions including the Full Bench decision in Ram Dular Singh and another v. Babu Sukh Ram and others(') has endorsed the earlier view in Nanakchand v. Board of Revenue, U.P.(') In L. Bha/ Singh v. Bhop and an-other(') the following passage from Nanak Chand's case was expressly approved: -

"It seems to us that clauses (b)(i) and (b)(ii) of Sec. 20 do not require the. proof of actual possession in the year 1356F. What they require merely is the entry of person's name as an occupant in the Khasra or Khatauni of 1356F. The words of the section are clear. (Every ~rson who was recorded as occupant in the Khasra or Khatauni in 1356F. etc.).

The words are not "every person who was an occu-pant in l 356F": 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 conclu-sion is reinforced by what is stated in Explana-tion II".

The Board of Revenue in Sugriva v. Mukhi etc.(') 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 ~osts. One set of hear-ing fees.