SONAWATI & ORS. versus SRI RAM & ANR.

SONAWATI & ORS.

SRI RAM & ANR. September 21, 1967

[J. C. SHAH, S. M. SIKRI AND J. M. SHBLAT, JJ.J

U.P. ZamindaTi Abolition and Land Reforms Act .1 of 1951. •. 20(b)-Pf!1'son recorded as occupant' in 1356 Fas!i to be adhivasi-Requirements of section.

U.P, Land Reforms (Supplementary) Act 31 of 1952, & 3-Adhi-. vasi rights under-Tresjiasser whether can claim to be in 'cuitivatory possession' within meaning of Section.

Practice-Dispute as to Tights in land-Magistrate in proceedings under s, 145 Cr. P.C, attaching land and asking parties to go to clvit court-Defendants in civil suit acquiring possession from criminal court pursuant to decree of first · appellate court-High Cou.rt in second appeal whether can grant decree for possession after allow· ina amendment of plaint for that purpose.

The respondents purchased the land in dispute from the bhumi-dhars thereof, but 'P' (predecessor-in-interest of the appellants) claim-ed to be in possession of the land and dispute was raised under s. 145 of the Code of Criminal Procedure. The Magistrate attached the land and relegated the parties to suit. The respondents filed plaint seeking declaration of their rights and removal of 'P's name from the record of rights. The trial court after getting finding from the Revenue Court granted decree to 'the respondents. The first Ap-pellate Court, however decided in favour of 'P' and. on the basis of that finding 'P' got possession from the criminal court. The respon-dents went in second appeal to the High Court which decided in their favour and gave them decree for possession of the land after. allow-ing them to amend their plaint by adding prayer for possession. The appellants came to this Court and urged: (i) 'P' was recorded as an 'occupant' in the khasra of 1356 Fasli and therefore under s. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of 1951 he was an adhivasi, (ii) 'P' was recorded as In 'cultlvatory ~ session' of the land in 1359 Fasli and on that ground also he was aij adhivasi; (iii) the High Court was bound by the findings of the first Appellate Court that the appellant was an 'occupant' in 1356 Fasli and in cultivatory possession in 1359 Fasli; (iv) suit for possession even against trespasser could lie only in the Revenue Court and not in the Civil Court, and the High Court by allowing amendment of the plaint in the second appeal could not assume to itself jurisdic-tion which civil courts do not possess. ·

HELD: (i) The entry in the Khasra of 1356 Fasli on which the appellants relied did not fulfil the requirements of s. 20(b) of Act 1 of 1951. 'P' was not shown in the entry as 'Kabiz' or 'Saih!' etc. There was also strong evidence which was relied on by the Revenue Court but not considered by the first Appellate Court that the name of 'P' was surreptitiously entered in the Khasra of 1356 F. The appellant's case under s. 20(b) of the Abolition Act therefore failed. [621A·F)

Amba Pmad v. Abdul Noor Khan & Ors., [1964] 7 S.C.R. 800. referred to.

(1968] 1 B.o.B.

BUPBEME OOUBT,BEl'OBTB

(ii) The appellants':ca~~·uitd!i;:'l§1ol U.P. Act 31 of 1952 also A' could not' be sustained. To· get the l;lenefit of 'the section it had to bEI .established that P was in aCtual cultivatory· possession of the land in 1359 alld that fact J.iad."hot.he~n. ~b.ljsh'ed by direct evidence of 1)ossession, nor was it establislied by the- entry relied '{)n by him. person who has rto' righ}, fo QCl'UPY 18Jld may rely upon his occu· pation'against third'person who-has no bett_er.tiUe, but jle·cannot • se~ up that. tight against ~fie ~wner• of.4he'" Uajd,:SectioD.•3 •conferred B-' rights upon persol\l; in possession of land against the tenure ljolders, it was 11ot· intended' ta·.-pu,t it' premium upon' forcible ·occupation of land· by 'Iandfess citizens. Posses8ion of pers<in in wrongful occupa-tion could not be· deemed to be 'cultivatory' possession• within the' '!l.eanj!Jg,~o~ the ~ection; _[()22lf-623Fl_, • , ,., ';,. " Ram!Xri•hna v. Bl!agwan Baksh" Singh, "[1961] l!tt.J. ,301. • a~· P[roved ]. ,,. . t • . '"-! .• --n"; • l-'1 <) ,Na1)h90, Mal· v.,1}1,ul.90 and Ors,, I.L.R, {l963] All 751,- disapprov-,e~ -'+· r~ (iii) Tile' , High Court wps not ro-... ..._. • ., ... \. ,. bo(,md in "'" the present· case ' J' "' ' ,i>Y, • the findings.of the:first .i\'.ppell'lte Court as .the latter .had ignored import-ant ·evidence on 'record which _provM that 'the ei\iries relied on by 'P' were not genuine. [623G] · · · • · ,v " •• "(iv) The High Coµrt' rightJy' graii.ted tel tl11i respondents decree for possession' after allowil)8 ·the respondents to add' :grliyer for possessimr-to their plainVWb~f'! the High' c.durt lield in Javour ot the plaintiffs-respondents and rejectell the clilim made by. 'P' it was justified ~nd indeed bound, to avoid giving fresh 'lea$e of life to the litigation·.and to make an, ord~t' 'consistently with the rights deC!ai:ed by it, since 'P'"had·during the' p'eh'd~ncy of lhe suit 111~naged,to obtain" iiossession of th<i lahd 'from 'the Court Offieer who was' in posse51lion. ol"tt)e land.A party who .is ·ctefeateil on !He.merits of the disput(f' may not by securing an order from another court during tile pep;. dency of the.suit'be permitted' to displa~e' th~· jurisdiction of the civil court to'try the suit which was "lifhin 'its competence when ·the sul! wa~ filed. [6.25D-E] ' ' · ., . , •· OvrL AP)?EL'LATB 'JurusmciioN: Civil ~ppea'I No. 3:4 of 1965. . • . ' I ' •· Appeill by special leave 'frorh. the judginent :Ind decree dateCI N¢\lember 6, 1962 of the Allahabad ·High 'Cqurt in ·Second ~j>peaf No.,37~5 of 1958. , ·i • , ')J. C(Mi•ra and s. S. Shukla, fgr tl1~ ap!lellants.. .. S. P. '.Sinha, ·E. C. Agdrwala and. P.:C." Ajttrwal~,-fot tp~ res-· pondents. ' ' ' ·' ,. · · :rh~ Judgni.erit df the ,Court ~as· deli~er~~· by ,. ' , , Shl!h.-. J;. ~ piece cit' ligriculti.m/i land bearing. Surve~ Nos., 723/i. 724, 725 and 726 of Nabgawan. tahsil Fatehabad " Di~~ci Agra:;originally, b,elgnged ;to two.firotfiers •. Tota Ram and Lana Ram. 'I:'ota Ram and Lajja Ram 'Were . c!eclared to· be bhumidhars in respect of that land am! Sanacl wa~ issued in their favour lni.dcr s. 7 of lhe U.P. Act' 10 of 1949. "On October 20, 1951, Tola Ram and Lajja Ram ~olcl their interest in lhe land

to two brothers Sri Ram and Ram Prasad-who will hereinafter be called 'the plaintiffs'. Disputes arose thereafter about the possession of the land between one Pritam Singh and the plain-tiffs, and proceedings under s. 145 of the Code of Criminal Proce-dure were started before the -Sub-Divisional Magistrate at the instance of Pritam Singh. The Sub-Divisional Magistrate attached the land and called upon the parties to agitate the dispute as to their respective rights therein in civil suit.

The plaintiffs then commenced an action in the Court of the Munsif, Fatehabad, against Pritam Singh a!ld Tota Ram for declaration of their rights as bhumidhars in possession of the land in suit and. for an order "expunging" the name of Pritam Singh from the revenue records. Pritam Singh resisted the suit contend-ing, inter alia, that the land was abandoned by Tota Ram and Lajja Ram and tha.t since it was under his cultivation continuously since Fasli year 1356 (the ·year commencing from July l, 1948 and ending on June 30, 1949) he had acquired the rights of an . ladhivasi in the land and he was not liable to be evicted from the same. The Munsif referred the following issue arising out of the

pleadings to the Assistant Collector. Agra, for decision:

"Whether the defendant No. 1 (Pritam. Singh) has acquired adhivasi rights, if so, its effect?"

The Assistant Collector held that the revenue records did .not show that Pritiim Singh was in possession at any time in or before !the end of 1359 Fasli and that the entries in the khasra relied upon by Pritam Singh had been fabricated to support his case. Consistently with the finding of the Assistant Collector, the Munsif ~ judgment in favour of the plaintiffs. But in appeal to the District Court, Agra, that judgment was reversed. The Appellate Judge held that the revenue entries were genuine entries r posted by the Patwari in discharge 'of bis duty arid that Pritam Singh was in .possession in the year 1356 Fasli and also in 1359 Fasli and he had acquired the rights of an adhivasi. The plaintiffs tben carried the · dispute to the High Court of Allahabad. The IDgh Court reversCd ·the decree passed by the First Appellate Court and restored the decree of the Munsif. With special leave, the heirs and legal representatives of Pritam Singh have appealed .G to .this Court.

. It was not the case of Pritam Singh that he bas acquired title to the land by transfer or by adverse. possession. Pritam Singh relied merely upon the entries in khasra for 1356 Fasli and his claim of ~sion of the land in Fasli 1359, and. upon statutory consequepces arising from the entries under s. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act l of 1951, and s. 3 of the U.P. Land Reforms (Supplementary) Act 31 of 1952. The U.P. Zamindari Abolition and Land Reforms Act l of l9Sl was brought into ·force from July l, 1952. By s. 20 certain rights were conferred upon persons whose names were recorded

in the revenue records in respect of agricultural land. The mate-

rial clause (b) of s. 20 on which reliance is placed reads as follows : "20. Every person who-

(b) was recorded as occupant-

(i) of any land ·(other than grove land or JI lands to which section 16 applies) in the khasra or khatauni prepared under sec-tions 28 and 33 respectively of the U.P. Land Revenue Act, 1901, or who was on the date immedia.tely preceding the date of ·vesting entitled to regain possession there-of under clause (c) of sub-section (1) of sec-c tion 27 of the United Provinces Tenancy (Amendment) Act, 1947, or

The land in dispute is not grove land, nor it is land to which s. 16 of the Act applies. Pritam Singh claimed that his name was entered as an occupant in the kharra of 1356 Fasli prepared under th"e U.P. Land Revenue Act, 1901, and he was on that account entitled to the rights of an adhivasi in respect of the land. It was held by this Court in Amba Prasad v. Abdul Noor Khan and Others(') that s. 20 of U.P. Act I of 1951 does not require proof of actual possession: it eliminates inquiries into disputed possession by accepting the record in the khavra or khatauni of l!: 1356 Fasli or its correction before July I, 1952. In view of that decision it musJ be held that the Civil Court in adjudging claim of person to the rights of an adhivasi is not called upon to make an enquiry whether the claimant was actually in possession of the land or held the right as an occupant: cases of fraud apart, the entry in the record alone is relevant.

But the entries on which reliance was placed by Prit!lm Singh r do not' support his case that he was recorded as an occupant in the khasra or khatauni of 1356 qsli. In the certified extract of the khasra for 1356 Fasli (Ext. A/!J ten4ered in evidence by Pritam Singh in the column 'Name and caste of cultivator' the entry is "Tota Ram and others" and in the column for 'remarks' the entry is "Pritam Singh s/ o Pyarelal of Sankuri". Our attention has not been invited to any provision of the U.P. Tenancy Act or instructions issued . by the Revenue authorities which tend to establish that the name of an occupant of land is liable to be entered· in the column reserved for 'remarks'. In order that person may be regarded as an adhivari of piece of land, s. 20(b) of Act I of 1951 requires that his name must ~ recorded in <the R khasra or khatauni for 1356 Fasli as an occupant. The Assistant Collector has pointed out tha.t according to paragraph 87 of the Land Records Manual it is necessary for Patwari to make an

enquiry about the status of the occupant, and if he thinks that claimant is an occupant, he should enter the name in red ink in khasra as-"Kabiz. sa;hi etc.''. Admittedly Pritam Singh was not shown as Kabiz or saihi nor was the entry posted in red ink.

There is also strong evidence on the record which shows that the name of Pritam Singh was surreptitiously entered in the khasra for .1356 Fasli. In the kharra. Barahsala i.e. consolidated khasra for 1347 to 1358 Fasli Tota Ram and Lajja Ram are shown as persons cultivating the land and there is no record of the name of any sub-tenant on the land. Before the Assistant Collector two certified extracts of the khasra for '1356 as/i in respect of the land in dispute were produced. Jn the c~rtified ·extract Ext. A/l tendered by Pritam Singh his name· was shown in the 'remarks' column. In the certified extract tendered by the plaintiffs there was no such entry. The Assistant Collector did not call for the original record, nor did he attempt to probe into the circumstances in which the entry of Pritam Singh came to be made. He, how-ever, observed that in Ext. A/ 1 the name of Pritam Singh was entered in the 'remarks' column against Survey No. 723 II wliich had fallen in an earlier partition to the share of one Kunjilal and in respect of which Pritam Singh had never claimed any right. The First Appellate Court did not refer to these important pieces of evidence. His conclusion cannot be regarded as binding upon the High Court in Second Appeal.It must therefore be held that relying upon the entry of his .E name in the 'remarks' column in the khasra for 1356 Fasli Pritam Singh could not claim that he had established his rights as an adhiva.,; of the land under s. 20(b) of the U.P. Zamindari Aboli-tion and Land Reforms Act I of 195 J.

The alternative case under s. 3 of the U.P. Land Reforms (Supplementary) Act 31 of 1952 may now be considered. Section 3 of Act 31 of 1952 provides, insofar as it is material:

"(!) Every person who was in cultivatory possession of any land during the year 1359 fasli but is not a. person who as consequence of vesting under Section 4 Of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951) (hereinafter referred to as the said Act), has become bhumidhar, sirdar, adhivasi or asami under Sections 18 lo 21 of the said Act shall be and is hereby deClared to be, with effect from the appoint-ed date~

(a) if the bhumidhar or sirdar of the land was, or where the land belongs jointly to two or more bhumidars or sirdars, all of them were, on the appointed date person or persons· referred . to in item (i) to (vi) of sub-section (2) of Section io of the said Act. an asami from year to year, or ·

(b) if the bhumidhar or sirdar was not such person, an adhivasi,

and shall be entitled to all the rights and be subject to all the liabilities conferred or imposed upon an asami or an adhivasi, as the case may be, by or under the said Act.

Explanatio11-A person shall not be deemed to be in cultivatory possession of the land, if he was cultivat-B ing it as. ·mortgagee with possession or tllekedtJr, or he was merely assisting or participating with bhumi-dhar, sirdar, adhivasi or· asami concerned in the actual performance of agricultural operations."

The section appears to be somewhat involved in jts phraseology. But its purport is fairly clear. person who is not in consequence of the provisions of ss. 18 to 21 of the U.P. Act l of. 1951 bhumidhar, sirdar, adhivasi or asami but who is in "cultivatory possession" of land during 1359 Fasli shall be entitled to the rights in respect of that land of an asami from year to year if the bhumidhar or sirdar of the land was on the appointed date person who is referred to in item (i) to (vi) of s. 10(2) of the U.P. Act l of 1951, and he shall be entitled to the rights of an adhivasi if the bllumidhar or sirdar of the land was not person referred to in items (i) to (vi) of s. 10(2). The U.P. Act 31 of 1952 was enacted to grant protection to certain persons who bad been in "cultivatory possession" of land in the holdings of bhumidhars or sirdars, and had been or were being forcibly evicted from the land by the tenilre holders. The language of the section clearly shows that it was intended to grant th.e rights of an asami or adhivavi according as the case fell within cl. (a)' or cl. (b) to person who had been admitted to. cultivatory possession and who was in such possession in 1359 Fasli.

Pritam Singh had no right to the land at all and the revenue record shows that till the end of 1358 Fasli i.e. till June 30, 195f, the land was not in his possession. Pritam Singh is recorded in the· khasra of 1359 Fasli in the column for shikmi (sub-tenant) as "without settlement of rent'', and Tota Ram and Lajja Ram are entered as cultivators. In the khatau11i for 1359 Fas/i Pritam Singh is shown as "cultivator for one year, without settlement of rent". There are similar entries in the khasra and khatauni for 1361 Fasli, and in 13'62 Fasli the names of the plaintiffs are entered in the column of cultivator, and the name of Pritam Singh is shown in the column for shikmi.The scheme of s. 3 of the U.P. Land Reforms (Supple-mentary) Act, 1952 is different from the scheme .of s. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act l of 195\. Whereas under Act l of 1951 the entry is made evidence without further enquiry as to his right .of the status of the person who is recorded as an occupant, under s. 3 of the U.P. Land Reforms (Supplementary) Act, 1952, person who claims .the sta.t~ of an asami or an adhivasi must estllblish that he was in "cultivatory

possession" of the land during the year 1359 Fasli. The expression "cultivatory possession" is not defined in the Act, but the Expla· nation clearly implies that the claimant must have lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recog-nized for the purpose of the Act must be lawful, and for the whole year 1359 Fasli. trespasser who has no right to be in possession by merely entering upon the land forcibly or surrepti-tiously cannot be said to be person in ... cultivatory possession" within the meaning of s. 3 of U.P. Act 31 of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh(') that 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 culti-vatory possession of tha.t 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 Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and others(') that occupation by

wrongdoer without any right to the land. is "cultivatory posses·

sion" within the meaning of s. 3 of the U.P. Act 31 of 1952.

person who has no right to occupy land may rely upon his occupation against third person who has no better title, but he cannot set up that right against the owner of the land. It must be remembered that by s. 3 of U.P. Act 31 of 1952 the Legisla· ture conferred rights upon persons in possession of land against the tenure holders, and in the absence of any express provision, we _are unable to hold that it was intended by the Act to put premium upon forcible occupation of land by lawless citizens. We have no doubt therefore that by forcibly occupying the ·land after 1358 Fasli, Pritam Singh could not acquire as against the bhumidhar of the land the rights of an adhivasi by virtue of s. 3

of U.P. Act 31 of 1952.

Counsel for the appellants contended that the finding record· ed 'by the First Appellate Court that Pritam Singh was in "culti· vatory possession" in 1359 F<L1·/i was binding upon the High Court in Second Appeal. For reasons already set out, possession of person in wrongful occupation cannot be deemed cultivatory possession. Again the Appellate Judge in arriving at his conclu· sion ignored very important evidence on the record, and on that account also the conclusion was not binding on the High Court. Pritam Singh's name was recorded in the khasra for the year 1359 Fasli as sub-tenant "without settlement of rent". Pritam Singh did not offer to give evidence at any stage _of the trial before the Assistant Collector. and it was not· his case that he had entered into any contract of sub-tenancy with Tota Ram and Lajja Ram. The entry which records him as sub-ten~nt of Tota Ram and Lajja Ram for the year 1359 Fa.~li is on his own case

(') I.L.R. [1963] All. 751.

(') [1961] A.L.J. 301.

untrue. There is further no oral evidence in support of the case of Pritam Singh that he was in actual "cultivatory possession" of land and the entry relied upon by him does not support his case. To get the benefit of s. 3 of U.P, Act 31 of 1952, it had to be . established that Pritam Singh was in actual cultivatory possession of the land and that fact is not established by direct evidence of possession, nor is it established by the entry relied upon by him. The conclusion of the learned {\ppellate Judge that Pritam Singh was in "cultivatory possession" was partially founded on the conclusion recorded by him that in 1356 Fasli Pritam Singh was in possession of the land. We have already pointed out that in so concluding he misread the kilasra entry for 1356 Fasli and gave no effect to the khasra Baraltsa/a which showed that Pritam Singh was not in possession of the land till the end of 1358 Fasli. The learned Judge also 'inferred that because it was stated by Sri Ram the first plaintiff and his witness Maharaj Singh that no crops were cultivated during the Kharif season and as the khasra for 1359 Fas/i showed that Bajra was sown in one of the plots in 1359 Fasli and gram was raised in all the plots, Pritam Singh must have been in possession as sub-tenant and must have culti-vated the land in the Kharif season of 1359 Fasli. This was, in our judgment, far-fetched inference. The Appellate Judge also did not refer to other evidence to which pointed attention was directed in support of his conclusion, by the Assistant Collector Agra: for instance, Banwari Lal, Naib Registrar examined on behalf of the plaintiffs had clearly stated that Pritam Singh was not in possession of the land prior to 1359 Fasli and that Tota Ram who was examined as witness stated that Pritam Singh was not in possession of the land and he had not given the land to Pritam Singh on lease, and that he did not receiye rent from Pritam Singh. We are unable, therefore, to hold that conclusion arrived at only from an entry in the revenue records which does not prima facie support the case of Pritam Singh, that he wrong- fully trespassed upon the land and cultivated it may be regarded as conclusive, in Second Appeal. The High Court was, in our judgment, right in reaching the conclusion that Pritam Singh was not in "cultivatory possession" of the land in 1359 Fasli within the meaning of s. 3 of Act 31 of 1952.

Counsel for the appellants finally contended that the High Court was incompetent in this suit to grant decree for possession of the land to the plaintiffs. Counsel submitted that suit for possession. even against trespasser, could lie only in the Revenue Court and not in the Civil Court, and the High Court by allowing amendment of the plaint. in the Second Appeal .before it could not assume to itself the jurisdiction which the Civil Courts do not possess. Our attention was not· invited to any provision which enacts that even against rank trespasser the Civil Court may not pass decree. in favour of an owner of the land. in ejectment in respect of agricultural land. But even assuming that the statute law in the State of U.P. warrants that submission, we think that the High Court had jurisdiction in the cin.:umstanccs of the present case to allow amendment of the plaint and to grant decree for possession. ll may be recalled that the pfaintilfs had originally tiled suit for dccforation of title and for injunction restraining Pritam Singh from interfering with their possession. The· land was at the date of the suit under attachment by the order of the Magistrate, 1st Class, Agra, in proceedings under s. 145 of the Code of Criminal Proc~dure, started by Pritam Singh, and the Magistrate had directed the parties to establish their possession or right to possession in competent Civil Court. suit for declaration and injunction in that state of affairs was properly tiled. If the plaintiffs established their title to the land, they could claim an order from the Criminal Court for delivery of fering possession, 1with and their an possession injunction restraining Pritam was ~\n appropriate Singh relief. from But it inter· ap· pears that pursuant to the order of the First Appellate Court Pritam Singh obtained possession from the Criminal Court and thereafter the plaintiffs amended the plaint with the leave of the l> High Court and decree for possession was claimed. When the High Court held in favour of the plaintiffs and rejected the claim made by Pritam Sin&h. in our judgment, the High Court was justi· lied, and indeed bound, to avoid giving fresh lease of life to this litigation. to make an order consistenlly with the rights de· dared by it, ·since Pritam Singh had during the pcndcncy of the suit managed to obtain possession of the land from the Court Officer who was in possession of lhc land. party who is defeated on the merits of the dispute may 1iot by securing an order from another Court during the pcndcncy o[ suit be permitted to dis· place thc·jurisdiction of the Civil Court to try the suit which was within its competence when the suit was filed.

The appeal therefore fails and is dismissed with costs.

Appeal dismissed.