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PETITIONER: RAGHUNANDAN SINGH & ORS.

       Vs.

RESPONDENT: BRIJ MOHAN SINGH & ORS.

DATE OF JUDGMENT15/02/1980

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1980 AIR  869            1980 SCR  (2)1063  1980 SCC  (3) 107  CITATOR INFO :  F          1983 SC1139  (8)

ACT:      U. P.  Zamindari Abolition  and Land  Reforms Act, 1950 (U.P. Act 1 of 1950) Section 12-Scope of.

HEADNOTE:      Terms of  Theka empowering  lease-holders to  remain in possession of  agricultural land-Appoint  temporary  tenants and recover Government Revenue-Thekadar whether a hereditary tenant.      The appellants who were originally the Zamindars of the land in  dispute granted  Thekas to the respondents first on the 10th  July, 1933  and then  on the 24th May, 1943. While the first  Theka provided  that the  lease-holders  were  to remain in  possession of the entire agricultural land either through themselves  or by  arranging with  temporary tenants and by  recovering  government  revenue,  the  second  Theka though in  the same  terms, provided  that the  leaseholders would remain  in possession  of  the  agricultural  land  as lease-holders themselves  and may  appoint temporary tenants by receiving the government revenue.      The appellants  succeeded before the Settlement officer (Consolidation), but  the Deputy  Director of  Consolidation held in  revision, that  the appellants  were Bhoomidars and the respondents could not get any status under Section 12 of the Uttar  Pradesh Zamindari Abolition and Land Reforms Act, 1950. The  High Court  dismissed the  writ petition filed by the appellants in limine.      In the  appeal to this Court it was submitted on behalf of the appellants that as the Theka granted by the Zamindars was not  made with  the lessees  only for  the  purposes  of personal cultivation  of the lands the respondents would not fall within  the ambit  of section  12 of  the Act, while on behalf of the respondents it was contended that as they were in cultivating possession of the lands in question, they had acquired the  status of hereditary tenants conferred on them by section  12 of  the Act  and they  were  not  Assamis  as contemplated by section 13 of the Act.      Allowing the appeal, ^      HELD: 1. Before a person can be held to be a hereditary

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tenant under Section 12 of the Act, three conditions must be fulfilled: (1)  He must  be in  possession of  the  land  in dispute on  the 1st  May 1950,  (2) His  possession must  be under a  Theka and  (3) The Theka must be for the purpose of personal cultivation  of the lands in dispute by that person and not for other purposes. [1065C-D]      2. The  dominant intention  of the statute, as of other land reforms  legislation, is  to secure land for the tiller of the  soil who  alone would  be clothed  with the  special rights of a hereditary tenant. [1065-D]      3. The  terms of  the Theka  do not spell out the facts that the  respondents had  taken the  lease for  purposes of personal cultivation only, because other 1064 purposes also  are indicated  as part of the Theka namely to sublet the  land or  to appoint  temporary tenants  and  the like. The  conditions required  by section  12 are therefore not fulfilled in the case of the respondents. [1066C]      Balu Noorul  Hassan Khan  (Dead) by  LRs v.  Ram Prasad Singh and  others [1980]  1 S.C.C.  367 followed  and relied upon; Rani  Dullaiya &  Anr. v.  Ganga Prasad  1968 ALJ  518 over-ruled.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1197 of 1970.      From the  Judgment and  order  dated  9-4-1969  of  the Allahabad High  Court in  Civil Misc. Writ Petition No. 1005 of 1969.      S. P. Singh and R. A. Gupta for the Appellant.      Yogeswar Prasad,  Mrs. Rani  Chhabra, S.  K. Bagga  and Mrs. S. K. Bagga for Respondent No. 4.      S. N. Singh for Respondents 1-3 and 5.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal  by certificate  is directed against a  judgment  of  the  Allahabad  High  Court,  which dismissed the  writ petition  filed  by  the  appellants  in limine. We  have heard  learned counsel  for the  parties at great length.  The  only  point  for  determination  in  the present appeal  is  whether  the  case  of  the  parties  is governed by  section 12  or section 13 of the U.P. Zamindari Abolition  and  Land  Reforms  Act  1950  (Act  I  of  1950) (hereinafter called  the Act). The facts in dispute and that so far as the appellants are concerned, they were originally the zamindars  of the  lands in  dispute  and  they  granted Thekas to  the respondents  first on  the 10th of July, 1933 and then  on the  24th May,  1943. The interpretation of the terms of  the Theka  would determine  the  question  of  the status of the appellants.      Shri Shiv  Pujan Singh,  appearing for  the appellants, submitted that as the Theka granted by the Zamindars was not made with  the lessees  only for  the purposes  of  personal cultivation of  the lands  the respondents  would  not  fall within the  ambit of  Section 12  of the  Act. On  the other hand, it  was argued or the respondents that as they were in cultivating possession  of the  lands in  question, they had acquired the  status of hereditary tenants conferred on them by  section   12  of  the  Act  and  they  are  not  Assamis contemplated  by   section  13  of  the  Act.  Although  the appellants   succeeded   before   the   Settlement   officer (Consolidation) the Deputy Director of Consolidation held in revision  that   the  appellants  were  Bhoomidars  and  the respondents could not get any status under section 12 of the

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Act.      In order  to decide this question, we have to determine the scope and ambit of Section 12 of the Act. 1065      "12. Thekedars  to be  hereditary  tenants  in  certain circumstances-(1)  Where   any  land  was  in  the  personal cultivation of  a person  on the  1st 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 entited 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."      An analysis  of this  section would  show that before a person can  be held  to be  a hereditary  tenant  under  the section, the following conditions must be fulfilled:-           1.    He  must be  in possession  of the  land  in                dispute on the 1st of May, 1950.           2.   His possession must be under a Theka.           3.   The Theka must be for the purpose of personal                cultivation of  the lands  in dispute by that                person (emphasis  supplied) and not for other                purposes.  The   dominant  intention  of  the                statute,   as    of   other    land   reforms                legislation, is to secure land for the tiller                of the  soil who  alone would be clothed with                the special rights of a hereditary tenant.      It is, therefore, manifest that only if the above three conditions are fulfilled, would the Thekedars get the status of hereditary  tenants and  not otherwise.  This section was interpreted by a decision of this Court in Babu Noorul Hasan Khan (Dead)  by Lrs. v. Ram Prasad Singh and Others(1) where this Court observed as follows:-      "If such  a land  was in  the personal cultivation of a person on  the 1st 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  on 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 assami in accordance with section 13(2) (a) of the Act."      The facts  of the  case before  us are  similar to  the facts of  the present  case and the decision of the court is therefore directly in point. 1066      A perusal  of para  1 of the Theka executed on the 10th of July  1933 in  favour of the Thekedars clearly shows that the lease-holders were to remain in possession of the entire agricultural land  either through themselves or by arranging with temporary tenants and by recovering government revenue. The other  Theka which was executed on 24-5-43 was almost in the same  terms and clause(1) provide that the lease-holders will remain in possession of the agricultural land as lease- holders themselves  and may  appoint  temporary  tenants  by receiving the government revenue.      Thus, the terms of the Theka, do not spell out the fact that the  respondents had taken the lease for the purpose of personal cultivation  only because  other purposes  also are indicated as part of the Theka viz. to sublet the land or to

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appoint temporary tenants and the like.      In  these  circumstances,  the  condition  required  by section 12  are clearly  not fulfilled  in the  case of  the respondents.      Mr. Singh  appearing for  the respondents  relied on  a decision of the Allahabad High Court in Rani Dullaiya & Anr. v. Ganga  Prasad (1)  where it  was held  that although  the Theka may be for some other purpose also, but if it was also for personal  cultivation section  12 of the Act would apply to the  Thekedars. With  due respect,  we are of the opinion that the view taken by the Allahabad High Court is in direct conflict with  the decision  of this Court referred to above and it must, therefore, be held to be incorrect.      For the  above reasons, we allow this appeal, set aside the order  of the  High Court  as also  that of  the  Deputy Director of  Consolidation and  restore  the  order  of  the Settlement Officer (Consolidation) dated 24-1-1968.      In the  circumstances of  this case,  there will  be no order as to costs. N.V.K.                                       Appeal allowed. 1067