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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: SMT.  SARJOO DEVI & ORS.

DATE OF JUDGMENT27/07/1977

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT GOSWAMI, P.K.

CITATION:  1977 AIR 2196            1978 SCR  (1) 181  1977 SCC  (4)   2

ACT: U.P. Zamindari Abolition & Land Reforms Act, 1950-ss. 3(14), 212  and 212A-Scope of-Land settled on the  respondent  with hereditary tenancy rights-Sabhapati of Gaon claimed the land to be common pasture land-No evidence to show the land to be pasture land-Sub Divisional Officer ordered ejectment of the tenant-Legality of the order. Words and phrases-"Held" meaning of.

HEADNOTE: Under  section  3  of the, U.P. Land  Utilisation  Act,  the Collector  served a notice on two intermediaries  under  the U.P. Zamindari Abolition and Land Reforms Act, 1950, calling upon them either to cultivate the land belonging to them  or to  let it out to other persons for cultivation.   Thereupon in  1950  the  land was settled on  respondent  No.  1  with hereditary  tenancy  rights.  In 1954,  a  notification  was issued  under  the Indian Forest Act,  1927  declaring  that certain  lands,  including  the land in  dispute,  would  be constituted  as reserve forest.  Respondent No. 1  preferred her  claim  before the Forest Settlement  Officer.   In  the meantime  respondent  No. 5, Sabbapati of  the  Gaon  Samaj, filed  an  application  before  the  Sub-Divisional  Officer claiming  that the land was customary pasture land and  that respondent  No. 1, who had encroached upon the land,  should be   ejected.    That  application  having   been   granted, respondent  No.  1 filed a suit against  the  appellant  and others  for a declaration that the Sub-Divisional  Officer’s order  was null and void and was not binding on her  because she was the Sirdar in possession of the land. The  trial Court held that the suit land was never  recorded in  the  revenue  papers as customary pasture  land  but  as ’Parti’  land fit for cultivation and declared the order  of the  Sub-Divisional  Officer  to  be  null  and  void.   The District  Court and the High Court upheld the order  of  the trial Court. In  appeal before this Court, it was contended that (i)  the trial  court  was wrong in holding that  the  Sub-Divisional Officer’s  order was null and void; (ii) the impugned  order was  final and (iii) the land not having been ever  occupied for the purpose connected with agriculture respondent No.  1 could not be said to be a hereditary tenant.

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Dismissing the appeal, HELD  : (1) (a) The Courts below were right in holding  that the  land in question was not customary common pasture  land nor  it ever been used as customary pasture land or  pasture land in any year.  The Sub-Divisional Officer acted  without jurisdiction  and  the impugned order  was  wholly  illegal, ineffective, null and void and not binding on respondent No. 1. [186 B] (b)  A  conjoint reading of the provisions of ss. 212-A  and 212 of the 1950 Act would show that the Chairman, member  or society  of  a committee referred to in s. 121 can  make  an application to the Collector for ejectment of a person  only if  the  land  of  which  he is  in  possession  is  of  the description  specified  in s. 212, that is, (i)  if  it  was recorded  as  customary  pasture land or (ii) if  it  was  a customary common pasture land.  The evidence adduced in  the case does not at all show that the suit land was recorded as customary pasture land nor does it show that it was in  fact customary common pasture land.  On the contrary the relevant revenue records showed that the/ land in question was "Parti fit for cultivation." [185 H] (2)The Sub-Divisional Officer’s order cannot be held to be final  and  the suit of respondent No. 1  to  establish  her right  was clearly maintainable.  The impugned order  passed under s. 212-A is not final and it is open to the party 182 against whom the order of ejectment was passed to  institute a  suit  to establish the right claimed by it.  It  is  only when the suit instituted by the person sought to be  ejected fails  that the order of the, ejectment becomes  conclusive. [186 G] (3)(a) This Court in Budhan Singh & Anr. v. Nabi Bux &  Anr. [1970]  2 S.C.R. 10, interpreted the word "held" in s. 9  of the 1950 Act as meaning possession by "legal title". [187 E] (b)A  perusal of the definition of the word ’land’ in  the Act would show that it is not necessary for the land to fall within  the  purview  of this definition, that  it  must  be actually  under  cultivation  or be  occupied  for  purposes connected   with  agriculture.   The  requirement   of   the definition is amply satisfied if the land is either- held or occupied for purposes connected with agriculture.  The  word "held" in the definition is of wide import. [187 A] In  the instant case, it has been concurrently found by  the Courts  below on the basis of evidence adduced in  the  case that the land in question was let out to respondent No. 1 by the  intermediaries in May 1950 for growing crops; that  she brought  a  substantial portion thereof  under  cultivation, paid  rent to the intermediaries, had been regularly  paying revenue  to  the State and that she had all  along  lawfully continued  to  hold the land" for  purposes  connected  with agriculture.  From the appellant’s own revenue record it  is clear  that  respondent  No. 1 was holding  the  land  as  a hereditary tenant on the date immediately preceding the-date of vesting.  She has, therefore, fulfilled all the requisite conditions  and become a sirdar of the land on the  date  of vesting under S. 19 of the Act.  L187 E-F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2334  of 1968.  Appeal by Special Leave from the, Judgment and Order  dated 5-2-1968  of the Allahabad High Court in Second  Appeal  No. 3257 of 1960.

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G. N. Dikshit, and O. P. Rana for the Appellant. Fauidar  Rao, Jagdish Misra and U. D. Prasad for  Respondent No. 1. The Judgment of the Court was delivered by JASWANT  SINGH,  J. This appeal by special  leave  which  is directed  against the judgment and decree dated February  5, 1968 of the High Court of Judicature at Allahabad  affirming the  decisions  of the District Judge and the  Civil  Judge, Basti,  dated  May 20, 1960 and July 27,  1959  respectively decreeing  the  suit instituted by respondent No.  1  herein under sub-section (7) of section 212A of the U.P.  Zamindari Abolition  and  Land Reforms Act, 1950 (U.P. Act  No.  1  of 1951)  (hereinafter referred to as ’the U.P. Z.A.  and  L.R. Act’), which came into force on January 26, 195 1, arises in the following circumstances: The  land in dispute measuring 142 bighas, 1 biswas  and  18 dhurs situate in village Baudhara, Tappa Menhdawal,  Pargana Maghar East, Tehsil Khalilabad, District Basti, belonged  in 1950  A.D. to Girdhar Das and Purshottam Das,  Zamindars  of Gorakhpur  City,  who became intermediaries under  the  U.P. Z.A.  and  L.R. Act.  Finding that the said land  was  lying uncultivated, the Collector, Gorakhpur, served the aforesaid Zamindars  with  a notice under section 3 of-the  U.P.  Land Utilisation  Act calling upon them either to  cultivate  the land themselves or to let out the same to other persons  for cultivation.  The said Zamindars thereupon settled the  land in May 1950 (1357 Fasli) with respondent No. 1 by  executing ’pattas’   in  her.  favour  for  growing  crops  i.e.   for cultivation and conferred hereditary tenancy rights on  her. On May 1, 1954, a notification under section 4 of the Indian 183 Forest  Act,  1927  was published in  the  U.P.  Gazette  in respect of 342 acres of land of village-, Baudhara including the  land in question declaring that it had been decided  to constitute  the  said land as a reserved forest.   This  was followed  in  June, 1954 by a proclamation  as  required  by section  6  of the Forest Act.  Respondent No.  1  thereupon preferred her claim in respect of her rights to the land  in question before the, Forest Settlement Officer.  On  January 22, 1955, when the said claim preferred by respondent No.  1 was  still pending, Ram Naresh Tewari, father of  respondent No.  5,  describing  himself as  Sabhapati  of  Gaon  Samaj, Baraipur,  filed  an  application  purporting  to  be  under section  212A, (1) of the U.P. Z.A and L.R. Act  before  the Sub Divisional Officer, Khalilabad (who was empowered by the State Government to discharge the functions of a  Collector) for ejectment from the land in question of respondent No.  1 on  the ground that it was a customary common  pasture  land and  as such had vested in the Gaon Samaj and that the  said respondent had encroached upon the same.  By his order dated August  16,  1955, the Sub Divisional  Officer,  Khalilabad, allowed  the aforesaid application of Ram Naresh Tewari  and ordered   the   ejectment  of  respondent   No.   1.   After unsuccessfully trying by means of a review petition to  have the aforesaid order of her ejectment quashed, respondent No. 1  filed  the aforesaid suit, being suit No. 7 of  1956,  on February 15, 1960 under sub-section (7) of section 212-A  of the  U.P. Z.A. and L.R. Act against the State of  U.P.,  the appellant  herein,  and  four others  including  Ram  Naresh Tewari, the father of respondent No. 5, for declaration that the  aforesaid order passed by the Sub  Divisional  Officer, Khalilabad, was illegal, ineffective, null and void and  was not binding on her  and that she was a sirdar in  possession of the land in question. She   also   prayed   for    a perpetual   injunction  restraining  the   defendants   from

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interfering  with her possession and enjoyment of the  land. The  case  as set up by respondent No. 1 was  that  in  1357 Fasli  (1950  A.D.),  the zamindars viz.   Girdhar  Das  and Purshottam  Das  who  were  in possession  of  the  land  in question duly executed pattas conferring hereditary  tenancy rights  in  the land in her favour; that  the  said  tenancy rights were confirmed by virtue of the decrees passed by the competent  revenue  courts  in suits brought  by  her  under sections 59 ,and 61 of the U.P. Tenancy Act, 1939 (U.P.  Act No.  XVII of 1939) (hereinafter referred to as ’the U.P.  T. Act);  that  on the notified date viz.  July  1,  1952,  she became a sirdar of the land in question under section 19  of the  U.P.  Z.A. and L.R. Act; that since  1357  Fasli  (1950 A.D.)  she  had been in actual possession of  the  land  and using it for agricultural purposes or for purposes connected with agriculture and had been appropriating its produce  and regularly  paying rent to the aforesaid zamindars and  since July  1, 1952, she had been continuously paying  revenue  to the State Government; that as the land in question could not and  did not vest in the Gaon Samaj, neither the Gaon  Samaj nor  Ram Naresh Tewari had any right to make an  application under  section 212-A (1) of the U,P.  Z.A. and L.R. Act  and that  the  land not having been a common pasture land  or  a customary  common  pasture land before or  after  August  8, 1946, but having been in exclusive possession and  ownership of the aforesaid zamindars till the execution by them of the aforesaid pattas and after their execution in her  exclusive possession,  it  was  not land of  the  nature  which  could legitimately  be said to fall within the purview of  section 212 of the 184 U.P. Z.A. and L.R. Act and that the proceedings taken by the Sub, Divisional Officer, Khalilabad, under section 212-A  of the U.P. Z.A. and L.R. Act were illegal, null and void.  The appellant herein alone contested the suit.  The rest of  the defendants having chosen to remain absent despite service of summons,  the  case proceeded ex-parte against.  them.   The appellant pleaded inter alia that as the land had never been in  the actual possession of the aforesaid zamindars  before or  after the enforcement of the U.P. Z.A. and L.R. Act,  it vested  in  the State Government; that the land  had  always remained a customary pastureland of public utility in  which no  tenancy  or  other  right  could  be  conferred  by  the zamindars  in  favour of respondent No. 1; that  the  trans- action of lease relied upon by respondent No. 1 was  invalid and unenforceable; that the suit land legally vested in  the Gaon  Samaj  and  that the impugned  ejectment  order  dated August  16,  1955  passed by  the  Sub  Divisional  Officer, Khalilabad  was  binding on respondent No. 1  and  the  suit brought by her was not maintainable. On a consideration of the oral and documentary evidence, the trial  court came to the conclusion that the suit  land  was never  recorded in the revenue papers as  customary  pasture land but was recorded in the Khatoni relating to 1357  Fasli (1950 A.D.) as "Parti land fit for cultivation"; that  there was  also  no  evidence to support  the  contention  of  the appellant that the suit land was used in any year as  common pastures  land or as pasture land; that even  the  appellant had  to concede that some 10 or, 12 bigha of the  suit  land had been brought under cultivation by respondent No. 1; that the  suit land had been let out to respondent No. 1  in  May 1950  when she became a hereditary tenant of the same;  that the suit land not being a customary pasture land, the  order dated August 16, 1955 passed by the Sub-Divisional  Officer, Khalilabad was illegal, null and void and was not binding on

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the  plaintiff.  The trial court further held that the  oral and  documentary  evidence  adduced  by  respondent  No.   1 established that she had been recorded in the revenue papers as hereditary tenant of the land; that respondent No. 1  had also been held by the competent revenue courts in suits Nos. 1178 of 1950, 780 of 1950 and 285 of 1952 filed by her under sections  59 and 61 of the U.P. T. Act as hereditary  tenant and that she had become sirdar of the suit land on the  date of  vesting.   With these findings, the Civil  Judge,  Basti decreed the suit with costs in favour of respondent No. 1 by his  judgment and decree dated July 27, 1959.  Aggrieved  by this  Judgment  and  decree, the State of U.P.  went  up  in appeal to the District Judge, Basti, who by his judgment and decree  dated May 20, 1960 affirmed the  aforesaid  judgment and  decree of the trial court holding inter alia  that  the suit  land  had  been let out to respondent No.  1  for  the purpose  of growing crops; that in revenue papers  (Exhibits 1,  7 and 8) which relate to the years 1358, 1359  and  1362 Faslis,  she had been recorded as hereditary tenant  of  the suit  land  and she became, sirdar thereof on  the  date  of vesting  viz.   July 1, 1952.  On further appeal,  the  High Court  by  its judgment dated February 5, 1968,  upheld  the aforesaid  judgments and decrees of the trial court and  the District  Judge,  Basti.  It is against  this  judgment  and decree that the State of U.P. had come up in appeal to  this Court. 185 Appearing  on behalf of the appellant, Mr. Dixit  has  urged that the material on the record did not warrant the findings of  the  courts below that the suit land not  being  of  the nature contemplated by section 212 of the U.P. Z.A. and L.R. Act,  the  aforesaid  order passed  by  the  Sub  Divisional Officer,  Khalilabad,  was null and void.   He  has  further contended  that the impugned order was final and  conclusive and the suit out of which the present appeal has arisen  was not  maintainable.  He has lastly submitted that it is-  the definition  of "land" as contained in section 3(14)  of  the U.P. Z.A. and L.R. Act and not the one contained in  section 3(1) of the U.P. T. Act which is relevant for the purpose of the  instant  case and that the land not  having  been  ever occupied   for  the  purpose  connected  with   agriculture, respondent No. 1 could not be said to be a hereditary tenant thereof and the courts below have erred in declaring her  as sirdar thereof.  We shall consider these points seriatim. Point  No. 1 :-For a proper determination of this point,  it is  necessary to refer to section 212-A(1) of the U.P.  Z.A. and  L.R. Act under which the aforesaid application  by  Ram Naresh  Tewari, father of Sheo Ram Tewan, respondent  No.  5 herein  purported to be made as also to section 212  of  the same Act which is alluded to in section 212-A(1) :               "212-A(1).     Without   prejudice   to    the               provisions  of  section  212,  the   Chairman,               member  or society of a committee referred  to               in  section 121, may, make an  application  to               the Collector for ejectment from the land of a               person in possession of a land referred to  in               section 212.               (7)Where  an order for ejectment  has  been               passed  under this section, the party  against               whom the order has been passed, may institute.               a  suit to establish the right claimed by  it,               but  subject to the results of such  suit               the order passed under sub-section (4) or  (6)               shall be conclusive."               "212.   Ejectment  of  persons  from  land  of

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             public utility.  Any person who, on or after               the  eighth  day  of  August  1946  has   been               admitted  as a tenure or grove holder  of,  or               being  an intermediary has brought  under  his               own  cultivation or has planted a grove  upon,               land  which was recorded as or  was  customary               common  pasture  land,  cremation  or   burial               ground,  tank pond path way or Khalian,  shall               be  liable notwithstanding anything  contained               in section 199, on the suit of the Gaon  Sabha               to ejectment from the land, on payment of such               compensation as may be prescribed." A  conjoint reading of the provisions of these two  sections would  show  that  the  Chairman, member  or  society  of  a committee referred to in section 121 can make an application to the Collector for ejectment of a person only if the  land of which he is in possession is of the description specified in  section  212 i.e. (1) if it was  recorded  as  customary pasture  land  or (2) if it was a customary  common  pasture land.  The evidence adduced in the case does not at all show that  the suit land was recorded as customary  pasture  land nor does it show that it was in fact 186 customary  common  pasture  land.   On  the  contrary,   the appellant’s  own  record  clearly  negatives  its-case.   In Exhibits 2 and 45 which are copies of settlement Khatoni  of 1323  Fasli,  the land in question is  clearly  recorded  as ’Parti’ with long thatching grass.  Again in Khatoni of 1357 Fasli  (1950 A.D.), the land is recorded as "Parti  tit  for cultivation".   The courts below were, therefore,  perfectly right  in holding that there is no evidence to  support  the appellant’s contention that the land in question was  either recorded  as customary common pasture land or had ever  been used as customary pasture land or pasture land in any  year. Manifestly therefore, the Sub Divisional Officer, Khalilabad acted without jurisdiction and the impugned order passed  by him  directing  the ejectment of the respondent  No.  1  was wholly  illegal, ineffective, null and void and not  it  all binding on respondent No. 1. Point  No. 2 :-The second point urged by Mr, Dixit  is  also devoid  of substance.  Even a cursory glance at  sub-section (7)  of  section  212-A  of  the  U.P.  Z.A.  and  L.R.  Act reproduced above is enough to show that the order passed  by the Sub Divisional Officer, Khalilabad, under section  212-A is  not final and it is open to the party against  whom  the order  of  ejectment  is  passed  to  institute  a  suit  to establish the right claimed by it.  It is only when the suit instituted by the person sought to be ejected fails that the order of ejectment becomes conclusive.  The aforesaid  order passed  by  the Sub Divisional Officer,  Khalilabad  cannot, therefore,  be  held to, be final and the  suit  brought  by respondent  No.  1  to  establish  her  right  was   clearly maintainable. Point No. 3 :-For a decision of this point, it is  essential to refer to sections 3(14) and 19 of the U.P. Z.A. and  L.R. Act, which read as follows :               "3  (14).  Land (except in sections  109,  143               and  144  and Chapter VII means land  held  or               occupied    for   purposes   connected               with  agriculture,  horticulture  or animal               husbandry  which  includes  pisciculture   and               poultry farming."               1 9. All land held or deemed to have been held               on the data immediately preceding the date  of               vesting by any person as

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             (i) (ii) (iii) (iv)      hereditary tenant               (v)               (vi)               (vii)               (viii)               (iX)               shall,  have in cases provided for  in  clause               (d)  of  sub-section  (1) of  section  18,  be               deemed  to be settled by the State  Government               with  such  person who shall, subject  to  the               provisions of this Act, be entitled except  as               provided in sub-section (2) of section 18,  to               take   or  retain,  possession  as  a   sirdar               thereof.." 187 A  bare  perusal  of the definition of  the  word  "land  as contained  in  section 3(14) of the U.P. Z.A. and  L.R.  Act which  is  reproduced  above  would  show  that  it  is  not necessary  for the land to fall within the purview  of  this definition  that  it must be actually under  cultivation  or occupied  for  purposes  connected  with  agriculture.   The requirement  of  the definition is, in  our  opinion,  amply satisfied  if  the  land  is either  held  or  occupied  for purposes  connected  with  agriculture.   The  world  "held" occurring  in the above definition, which is a pa. pple.  of the  word  "hold"  is of wide  import.   In  the  Unabridged Edition  of  "The  Random House Dictionary  of  the  English Language",  the  word "hold" has been inter alia  stated  to mean  "to have the ownership or use of; keep as one’s  own." In  ’The  Dictionary of English Law’ by  Earl  Jowitt  (1959 Edition),  the word "hold" has been interpreted  as  meaning "to have as tenant". In  Stroud’s  Judicial  Dictionary  (Fourth  Edition),   the distinction  between holding and occupation is sought to  be brought  out  by  quoting  the  following  observations   by Littledale, J. in R. v. Ditcheat(1).               "There  is  a material  difference  between  a               holding and an occupation.  A person may hold,               though  he  does not occupy.  A  tenant  is  a               person  who  holds  of another;  he  does  not               necessarily occupy. In  Webster’s  New  Twentieth  Century  Dictionary   (Second Edition),  it  is stated that in legal  parlance,  the  word "held"  means  to possess by ’legal titled’.   Relying  upon this connotation, this Court in Budhan Singh & Anr. v.  Nabi Bux & Anr.(2), interpreted the word "held" in section. 9  of the  U.P. Z.A. and L.R. Act as meaning possession  by  legal title. In  the instant case, it has been concurrently found by  the courts  below on the basis of evidence adduced in  the  case that the land in question was let out to respondent No. 1 by the  aforesaid intermediaries in May, 1950 (1357 Fasli)  for growing  crops;  that  she  brought  a  substantial  portion thereof  under  cultivation, paid rent to  Girdhar  Das  and Purshottam  Das  in 1951 and 1952 against  proper  receipts; that she has been regularly paying revenue to the  appellant and  that she has all along lawfully continued to  hold  the land  for purposes connected with agriculture.  It  is  also established  from  the appellant’s own revenue  record  that respondent No. 1 was holding the land as a hereditary tenant on  the  date  immediately preceding the  date  of  vesting. There  is, therefore, no manner of doubt that she  fulfilled all the requisite conditions and became a sirdar of the land on the date of vesting under section 19 of the U.P. Z.A. and L.R. Act.

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  All  the contentions raised by counsel for the  appellant, therefore, fail. For  the foregoing reasons, we find no force in this  appeal which  is  dismissed.   The appellant  shall  pay  costs  of respondent No. 1 as directed in court’s order dated November 12, 19 8. P.B.R.                            Appeal dismissed. (1)  9 B & c 108. (2)  [1970] 2 S.C.R. 10. 188