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PETITIONER: PATIRAJI

       Vs.

RESPONDENT: MAMTA & OTHERS

DATE OF JUDGMENT15/03/1973

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SHELAT, J.M.

CITATION:  1973 AIR 1329            1973 SCR  (3) 687  1973 SCC  (1) 665

ACT: U.P.  Zamindari  Abolition and Land Reforms  Act,  1950,  s. 20(b) (i)Adivasi rights under--Who is entitled to.

HEADNOTE: The  appellant filed a suit under s. 20(b) (i) of  the  U.P. Zamindari Abolition and Land Reforms Act, 1950, on the basis that her name was. recorded as an occupant in the Khasra  of 1356  Fasli, that she had therefore become an  Adivasi,  and was  consequently entitled to possession of the  lands  from which  she was unlawfully dispossessed by  the  respondents. The  suit  was dismissed but was allowed in  appeal  by  the Additional   Commissioner.    A  further   appeal   by   the respondents  to the Board of Revenue having been  dismissed, they  filed  a writ petition in the High  Court  which,  was allowed  on  the  ground that the entry in  favour  of  the, appellant was for a part of the year only and that therefore she was not entitled to the, Adivasi rights. Dismissing the appeal to this Court, HELD  : Under the section the Adivasi rights can be  claimed by those persons only who are recorded as occupants for  the whole  of the Fasli year 1356., The rights conferred by  the section  are  available also to trespassers.  It  could  not have  been  the  policy of the Act that  everyone  of  those fleeting trespassers who might be found in occupation at the time   of  the  triannual  inspections,  should   be   given recognition  and  be made eligible for the,  acquisition  of Adivasi rights.  It is neither logic nor good sense that the last  entry-holder should be so recognised, because, such  a construction,.  would  only  encourage  greater  lawlessness amongst  trespassers, every one of whom will make a  frantic attempt  to be last in the queue.  Therefore,. there  is  no justification  for  construing the  provision  with  greater liberality  than  the  language  warrants.   Special  rights having been conferred by the Act they ought to be subject to the  special  limitations imposed by the  Act.  [689C-D,  A; 690A-B] The  Fasli year 1356 commenced on July 1, 1943 and ended  on June30,  1949;  and the appellant’s name was entered  as  an occupant only from February 24, 1949.  As the entry does not show  that  the  appellant was in  occupation  of  the  land throughout  the  year she was not ’entitled to  the  Adivasi

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rights under the section. [690E] Shyam Sunar Lal v. Mangali and Ors., [1963] A.L.J. 286,  Ram Chander  and  Anr. v. Chootu 1957 A.L.J.  24  (Revenue)  and Girdhari  v. Raghubir Singh etc. 1958, A.L.J. 183  (Revenue) approved.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1324  of 1967. Appeal  by special leave from the judgment and  order  dated October  31,  1966 of the Allahabad High  Court  in  Special Appeal No. 344 of 1966. Jagdish Swarup and R. K. Bhatt, for the appellant. C. B. Agarwala and C. P. Lal, for the respondents. 688 The Judgment of the Court was delivered by CHANDRACHUD, J.-The question which arises for  consideration in this appeal is whether the appellant Patiraji is entitled to  the  "Adhivasi" rights under section 20 (b) (i)  of  the U.P.  Zamindari Abolition and Land Reforms Act,  1950  ("the Act"). One Ram Adhar and the respondents were co-tenants of certain lands  situated  at Bibiganj, District  Sultanpur.   On  the death  of Ram Adhar on February 24, 1949 the appellant  took proceedings   under  the  U.P.  Tenancy  Act,  1939  for   a declaration that she was the widow of Ram Adhar and as such, had  become  a  cotenant along with  the  respondents.   The appellant  succeeded before the Assistant Collector  but  in appeal,  the Additional Commissioner and then the  Board  of Revenue  took a contrary view, holding that the appellant was  not the widow of Ram Adhar.  The judgment of the  Board of Revenue is dated July 1, 1954. In  the  meanwhile, the Act had come into force on  July  1, 1952.  The appellant then brought the present suit,  treated as one under section 20(b) read with section 232 of the Act. The  case of the appellant is that her name was recorded  as an  occupant in the Khasra of 1356F, that she has  therefore become   an  Adhivasi  under  section  20(74)  (i)  and   is consequently entitled to possession of the lands, from which she  was  unlawfully dispossessed by the  respondents.   The trial   court   dismissed  the  suit  but   the   Additional ,Commissioner  allowed  Patiraji’s appeal  and  decreed  her suit.  Respondents carried an appeal against the decision of the Additional Commissioner to the Board of Revenue but that appeal  was  dismissed.  The respondents then filed  a  writ petition  in the High Court of Allahabad, which was  allowed by a learned single Judge ,of that court.  He held that  the entry  in favour of the appellant appeared in the Khasra  of 1356F for a part of the year only and therefore she was not entiled  to the Adhivasi rights.  Special Appeal No. 344  of 1956 against the judgment was dismissed by a Division  Bench in limine on October 31, 1956.  This is an appeal by special leave against that decision. The  sole  foundation of the appellant’s claim is  an  entry which  appears  in  the Khasra of 1356F,  which  is  to  the following effects-               "Ram Adhar Pandey Bakasht Waris Baqa biz  Smt.               Patraji Motwaffi Bewa Ram Adhar Panedy  Tarikh               24-2-49  Se", that is to say "Ram Adhar  Pande               in   cultivation  heir  in   possession   Smt.               Patiraji  widow of deceased Ram  Adhar  Pandey               from 24-2-49". The importance of this entry consists in the special benefit

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which such entries confer under section 20(b) (1) of the Act "20.  Every person who   .............. 689               (b) was recorded as occupant               (i) of any land   in the Khasra or Khatauni of               1356F   shall               be  called  Adhivasi of the  land  and  shall,               subject  to  the provisions of  this  Act,  be               entitled   to   take  or   retain   possession               thereof." None of the four explanations to section 20 is relevant  for the present purpose. Looking at the provision contained in section 20(b) (i),  it seems to us plain that the Adhivasi rights can be claimed by those  persons  only who are recorded as occupants  for  the whole  of the Fasli year 1356.  It is important to  remember that  the  rights  conferred  by  section  20  (b)  (i)  are available   even   and  mostly  to   trespassers.    Clearly therefore, there is, in the first instance, no justification for  construing the provision with greater  liberality  than the language warrants.  Special rights conferred by ;the Act ought  to be subject to the special limitations  imposed  by the Act. Apart from this aspect, any other view of section 20(b)  (i) would make it unworkable in practice and would set the  pace for  lawlessness amongst trespassers.  If different  persons are  in occupation of a land during different parts  of  the year,  whom shall the court recognise as an Adhivasi and  by what test shall the court pick and choose ? Under the  Uttar Pradesh Land Records Manual, :the Lekbpal, has to make three field-to-field  inspections of every village in  his  halka, beginning  respectively  on August 15th,  January  15th  and April  15th  of every year. (Rule A-55).. On  the  basis  of these  inspections, the Lekhpal has to make entries  in  the ’Khasra’,  that  is to say in the, field-book, in  form  No. P-A-3 (Rule A-60).  If a person other than’ a  tenure-holder as classified in Part I or Part II of the Khatauni, is found to  be in actual occupation, his name is to be  recorded  in the ’Remarks’ column (column No. 21) as "baqabza so and  so" (Rule  A-71, para 3).  It may so happen, and  decided  cases show  that  it does so happen, that  different  persons  are found  to  be  in possession of a land at the  time  of  the tri--annual  inspections.   The Lekhpal has to  enter  their names  as occupants, may be in the remarks column,  but  the picture  emerging at the close of the year will reveal  that different  persons were in occupation of :the land-some  one during  the Kharif season, some one during the  Rabi  season and  some one probably taking charge, on the sly, of a  bona vacantia.   When the true, owner is away,  the,  trespassers will play and the law which governs them is might is  right. It  cannot be the policy of the Act that everyone  of  these fleeting  trespassers  must  find recognition  and  be  made eligible  for the acquisition of Adhivasi rights.   None  of them, in our opinion, can qualify for these valuable rights. It was urged 690 that  the  last  entry-holder ’Should be  recognised  as  an occupant  ,to the exclusion of others but there  is  neither logic nor good sense in such a course.  The last holder  may have  been in possession for a fractional part of  the  year and  such  possession may adventitiously coincide  with  the April visit of the Lekhpal.  Besides, such a  construction, as,  said  already, will only encourge  greater  lawlessness amongst trespassers.  Every one of them will make a  frantic attempt to be last in the queue.

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Rightly therefore, the High Court of Allahabad and the Board ,of Revenue, U.P. have ’been uniformly taking the view  that the right conferred by section 20 (b) (i) can be availed  of by those persons only who are recorded as occupants for  the entire Fasli year 1356 and not by those who are recorded  as occupants  for a part of the year. (See Shyam Sunar  Lal  v. Mangali  and  Ors.(1)  Ram Chander and  Anr.  v.  Chhotu;(2) Girdhari v. Raghubir Singh etc. (3 ) It would seem that  the Board  of  Revenue struck a discordant note in  the  instant case  only, but it is necessary to point out that the  Board rested its decision on the circumstance that the  appellant was   the  "sole  heir"  of  Ram  Adhar.   In  making   that :assumption  the Board was in error, because in the  earlier proceedings it was held that the appellant was not the widow of Ram Adhar and she traced on other line of heirship. It  is  clear from the entry on which the  appellant  relies that  her name was entered as an occupant as  from  February 24, 1949.  The Fasli year 1356 concerned on July 1, 1948 and ended on June 30, 1949.  As the entry does not show that the appellant was  in occupation of the  land  throughout  the year,  she  is  not entitled to the  Adhivasi  rights  under section 20(b) (i) of the Act. Some  attempt  was made to contend that  the  appellant  was ,shown as a _joint occupant along with the Adhar during  the life  time of the latter and therefore she must be  held  to have been in possession for the whole year.  An  uncertified copy  of the entry to which counsel drew our attention  does not  bear out this submission and in fact such a  contention was never raised at any ,earlier stage. In the result we confirm the judgment of the High Court  and dismiss the appeal with costs. V.P.S.                     Appeal dismissed. (1)1963 A.L.J. 286. (2)1957 A.L.J. 24 (Revenue). (3)1958 A.L.J. 183 (Revenue). 691