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PETITIONER: BABU NOORUL HASAN KHAN

       Vs.

RESPONDENT: RAM PRASAD SINGH & ORS.

DATE OF JUDGMENT18/10/1979

BENCH:

ACT:      Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 Secs 11, 12, 13 (1) & 13(2)-Scope of.

HEADNOTE:      The appellants  and others  were  the  Zamindars  of  a village in  which certain  lands were  given on Theka to the Respondent and  others on  6th March,  1948,  the  Zamindari having vested on 30th June, 1952. Disputes arose between the appellants  and  the  respondents  during  the  pendency  of proceedings under  the U.P.  Consolidation of  Holdings Act. The appellants and others claimed the plots in dispute being in their  exclusive Sir and Khudkast would be deemed to have been settled  with them  by the  State on  the Abolition  of Zamindari and  their name  should be  recorded as Bhoomidars thereof. Respondent  and others  on the  other hand  claimed they had  become the  Sirdars of  the plots  in dispute  and resisted the  claims of the Zamindars. The dispute gave rise to the  question of  title. The  Civil Judge sent the matter for decision  to an  Arbitrator appointed under the Act. The Arbitrator held  the respondents  to be  the Sirdars  of the plots in  question. The  appellants filed objections against the award before the Civil Judge who allowed the objections, set  aside  the  award  and  remitted  back  the  award  for reconsideration.  Appeals   were  taken  to  the  Additional District Judge  who  disagreed  with  the  Civil  Judge  but affirmed the  order of  remand. Both  sides  filed  separate revisions before the High Court, the revision of Respondents was allowed  and dismissed those of the appellants. The only point argued  was whether  Respondent and  others have  been rightly held  to be  the Sirdars of the plots in question or whether the ex-landlords had become the Bhoomidars.      Dismissing the appeal. ^      HELD: That  a Thekedar  of an Estate ceases to have any right to hold or possess any land in such Estate with effect from the date of its vesting. This is what has been provided in sub-section  (1) of  section 13. But it is subject to the exceptions-viz., one  the provisions contained in section 12 and the  other engrafted  in sub-section  (2) of section 13. There is  no dispute  between the  parties that  the land in possession of  the Thekedars  on the  date  of  vesting  was either covered  by section  12(1) or  section 13(2)(a).  The land admittedly  was the  Sir or  Khudkasht  of  the  lessor namely the  Zamindars. If  such a  land was  in the personal cultivation of  a person  on the Ist May, 1950 as a Thekedar thereof and  if the  Theka was  made  with  a  view  to  the cultivation of  the land  by such  Thekedars personally then because of  the non-obstante clause occurring in sub-section (1) of section 12 of the Act the Thekedar would be deemed to

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be a hereditary tenants of the land entitled to hold as such and liable to pay rent at hereditary rates. If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed  to collect  rent from  other tenants and incidentally allowed  to cultivate the Sir or Khudkasht land of the  lessor then  he will  be a  mere asami in accordance with section  13(2)(a) of  the  Act.  The  Arbitrator  on  a consideration of the theka document found that the theka 978 was made  with a  view to  cultivation of  the land  by  the Thekedar personally.  The interpretation  of the  Arbitrator was not  such that  it could  enable the Civil Judge to take the view that there was an error of law apparent on the face by the  record. On  the other hand it appears to us that the interpretation put by the Arbitrator was correct. There is a subtle but  clear dividing  line between  the two  types  of cases one  falling under  section 12(1)  of the  Act and the other coming within the ambit of section 13(2) (a). The High Court was  right in its that the Award of the Arbitrator was not fit to be interfered with. [980 G-H. 981 A-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1951 of 1969.      Appeal by  Special Leave  from the  Judgment and  Order dated 7-1-69  of the  Allahabad High Court in Civil Revision No. 506-510 and 548-552/65.      J. P. Goyal and S. K. Jain for the Appellant.      R. K. Garg, V. J. Francis and D. K. Garg for Respondent No. 1.      The Judgment of the Court was delivered by      UNTWALIA, J.-This  is an  appeal by  special leave from the judgment  of the  Allahabad High  Court disposing of ten connected civil revisions. Noorul Hasan Khan and others were the Zamindars  of the  village in  which certain  lands were given in  Theka to  Bhagwati Singh,  Ram  Prasad  Singh  and others on the 6th of March, 1948. The Zamindari vested under the Uttar  Pradesh Zamindari Abolition and Land Reforms Act, 1950, hereinafter called the Act, on the 30th of June, 1952. Disputes arose between the ex-Zamindars and the ex-Thekadars during the  pendency  of  the  proceedings  under  the  U.P. Consolidation of  Holding Act.  When entries  in the list of tenancy holders  were published  under  section  11  of  the Consolidation of  the Holdings  Act relating to the lands in dispute consisting  of several  plots, objections were filed by both  the parties.  Noorual Hasan Khan and others claimed that the  plots in  dispute being  their exclusive  Sir  and Khudkasht would  be deemed to have been settled with them by the State  on the abolition of the Zamindari and their names should be  recorded as  bhumidars thereof. On the other hand Bhagwati Singh  and others  claimed that they had become the Sirdars of  the plots in dispute and they resisted the claim of the  ex-Zamindars. The Consolidation Officer referred the matter to  the Civil  Judge of  Azamgarh in  accordance with section 12  of the  Consolidation of Holdings Act. The Civil Judge  sent   the  matter  for  decision  to  an  Arbitrator appointed under  the Act  as the  dispute gave  rise to  the question  of  title.  Shri  Kailash  Chandra,  an  Assistant Collector, was  appointed as an Arbitrator. On consideration of the oral and documentary 979 evidence adduced  before him  he rejected  the claim  of ex- Zamindars and  decided the  matter  in  favour  of  the  ex-

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Thekedars. Bhagwati  Singh and  others were  held to  be the Sirdars of  the plots  in question.  Noorul Hasan and others filed objections  to the  Award before  the Civil  Judge. He allowed the  objections on the ground that the illegality of the Award  was apparent  on the face of it in as much as the Arbitrator did  not apply the correct law in determining the rights of  the parties.  He set aside the Award and remitted it back  to the  arbitrator for reconsideration in the light of his judgment.      Appeals were  taken to  the learned Additional District Judge who  by  order  dated  8-12-1962  disagreed  with  the learned Civil  Judge on  the main  question but affirmed his order of  remand on  the  ground  that  in  the  Award  many questions were  left undetermined. Both sides filed separate revisions before  the High Court. The High Court has allowed the revisions of the ex-Thekedars and dismissed those of the ex-Zamindars. Hence this appeal.      The only  point which was argued and agitated before us is whether  Bhagwati Singh and others have been rightly held to be  the Sirdars  of the  plots in question or whether the ex-landlords had  become the bhumidars. The determination of this question  depends upon  a correct  appreciation of  the provisions of  law contained  in sections  12 and  13 of the Act.  We  shall  read  the  relevant  portions  of  the  two sections. They are as follows :-           "12. Thekedars to be hereditary tenants in certain      circumstances.-(1) Where  any land  was in the personal      cultivation of a person on the Ist day of May, 1950, as      a thekedar  thereof and  the theka was made with a view      to  the  cultivation  of  the  land  by  such  thekedar      personally, then  notwithstanding anything  in any law,      document or  order of court, he shall be deemed to be a      hereditary tenant thereof entitled to hold, and when he      has been  ejected from the land after the said date, to      regain possession as a hereditary tenant thereof liable      to pay rent at hereditary rates.           13.  Estate   in  possession  of  a  thekedar.-(1)      Subject to the provisions of Section 12 and sub-section      (2) of  this section  a thekedar  of an estate or share      therein shall,  with effect  from the  date of vesting,      cease to  have any right to or possess as such any land      in such estate. 980           (2) Where  any  such  land  was  in  the  personal      cultivation of  the thekedar  on the  date  immediately      preceding the date of vesting, the same shall-      (a)  if it  was sir  or khudkasht  of the lessor on the           date of  the grant  of the  theka, be  deemed  for           purposes of Section 18, to be the sir or khudkasht           of the  lessor on  the date  immediately preceding           the date  of vesting  and the thekedar shall, with           effect from  the date of vesting, become the asami           thereof liable  to pay  rent at  hereditary  rates           applicable on  the date  immediately preceding the           date of  vesting and  entitled to hold the land as           such for  the unexpired period of the theka or for           a period  of five  years from  the date of vesting           whichever is less;      (b)  if it  was not  sir or  khudkasht of the lessor on           the date of the grant of the theka and-           (i)  its area  does not  exceed thirty  acres,  be                deemed for  purposes of  Section 19  to  have                been held  by the  thekedar as  a  hereditary                tenant liable  to pay  rent  which  shall  be                equal to  the rent  calculated at  hereditary

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              rates  applicable  on  the  date  immediately                preceding the date of vesting.           (ii) its area  exceeds thirty  acres, be deemed to                the extent  of thirty  acres for  purposes of                Section 19  to have been held as a hereditary                tenant as  aforesaid and  the remainder shall                be deemed  to be vacant land and the thekedar                shall be  liable to  ejectment  therefrom  in                accordance with  the  provisions  of  Section                209."      It would  be noticed from the provisions aforesaid that a Thekedar  of an Estate ceases to have any right to hold or possess as such any land in such Estate with effect from the date of  its vesting. This is what has been provided in sub- section (1)  of  section  13.  But  it  is  subject  to  two exceptions-viz., one  the provision  contained in section 12 and the  other engrafted  in sub-section  (2) of section 13. There is  no dispute  between the  parties that  the land in possession of  the Thekedars  on the  date  of  vesting  was either covered by section 12(1) or section 13(2) (a). We are not concerned in this case with section 13(2)(b) as the land admittedly was the Sir or Khudkasht of the lessor namely the Zamindars. If such a land was in the personal 981 cultivation of  a person  on the  1st day  of May, 1950 as a Thekedar thereof  and if  the Theka  was made with a view to the cultivation of the land by such Thekedar personally then because of  the non-obstante clause occurring in sub-section (1) of section 12 of the Act the Thekedar would be deemed to be a  hereditary tenant of the land entitled to hold as such and liable to pay rent at hereditary rates. If, however, the land was in personal cultivation of the Thekedar merely as a Thekedar appointed  to collect  rent from  other tenants and incidentally allowed  to cultivate the Sir or Khudkasht land of the  lessor then  he will  be a  mere asami in accordance with section  13(2)(a) of  the  Act.  The  Arbitrator  on  a consideration of the Theka document found that the theka was made with  a view to cultivation of the land by the Thekedar personally. The  interpretation of  the Arbitrator  was  not such that  it could  enable the Civil Judge to take the view that there  was an  error of law apparent on the face of the record. On  the  other  hand  it  appears  to  us  what  the interpretation put by the Arbitrator was correct. There is a subtle but  clear dividing  line between  the two  types  of cases one  falling under  section 12(1)  of the  Act and the other coming  within the  ambit of  section 13(2)(a). In our opinion the  High Court was right in its view that the Award of the Arbitrator was not fit to be interfered with.      For the  reasons stated  above, we  dismiss this appeal but in the circumstances make no order as to costs. N.K.A.                                     Appeal dismissed. 982