http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: AZAD SINGH & OTHERS

       Vs.

RESPONDENT: BARKAT ULLAH KHAN & OTHERS

DATE OF JUDGMENT26/04/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J)

CITATION:  1983 AIR 1139            1983 SCR  (2) 927  1983 SCC  (3) 111        1983 SCALE  (1)469  CITATOR INFO :  D          1988 SC 587  (14)

ACT:      U.P. Zamindari  Abolition and Land Reforms Act, 1950-s. 12(1)-Interpretation of-Hereditary  tenant-Thekedar under  a Theka for personal cultivation necessary.      U.P.  Land  Reforms  (Supplementary)  Act,  1952-S.  3- Interpretation of-Adhivasi-Cultivatory  possession  must  be lawful.      Words and Phrases-Cultivatory possession.

HEADNOTE:      The plaintiffs, who were Thekedars, filed two suits for possession of  land Leased  out  by  the  Zamindars  to  the defendants-lessees on  the ground  that since  the Thekedars had become  hereditary tenants  under  s.  12  of  the  U.P. Zamindari Abolition  and Land Reforms Act, 1 950 and were in possession of  that land  on  1st  day  of  May,  1950,  the Zamindars had no right to grant lease and the lessees had no right to  enter and  remain in possession of that land after that date. The lessees pleaded that they were in cultivatory possession of  the land  during the year 1359 Fasli and were entitled to  all the rights of adhivasis under the U.P. Land Reforms (Supplementary) Act, 1952. The trial court dismissed the suits  observing that  the Thekedars had acquired rights of hereditary  tenants but  the lessees  were in cultivatory possession in  1359 Fasli  who had  therefore  acquired  the right of  adhivasi. The  first appellate court dismissed the appeals. The  High  Court  in  second  appeal  reversed  the decision of  the trial  court and  the first appellate court and decreed  the suits.  On appeal,  it was  contended  that since there  was no  authority given  to the  Thekedars  for personal cultivation of the lands comprised in the Theka the Thekedars did  not acquire  the right  of hereditary tenants under s. 12 of the 1950 Act.      Dismissing the appeals, ^      HELD: Section  12 of  the 1950 Act provides that if any land was  given to  a person for personal cultivation by him on the  1st day  of May  1950, as  a Thekedar  thereof, then because of  the non-obstante clause occurring in sub-section (I) of  section 12  the Thekedar  would be  deemed to  be  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

hereditary tenant  of the  land entitled to hold the land as such and  liable to  pay rent  at hereditary  rates. If such hereditary tenant  has lost  possession he  is  entitled  to regain his  possession. If,  however, the  land was  in  the personal cultivation  of  the  Thekedar  who  was  appointed merely 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 13 928 of the  Act. Before  a Thekedar  can claim  the status  of a hereditary tenant,  A he must not only be a Thekedar but the Theka must  be specifically granted for personal cultivation of the land included in the Theka by the Thekedar.                                             [931 H, 932 A-C]      Babu Noorul  Hasan Khan  v. Ram  Prasad Singh  and  Ors [1980] I SCR 977 and Raghunandan Singh and Ors v. Brij Mohan Singh and Ors., [1980] 2 SCR 1063, referred to.      In the  instant case  the Theka was created exclusively for personal  cultivation of  the land involved in the Theka be the  Thekedars and  not as a consideration for some other duties to  be performed  by the  Thekedars to the Zamindars. The Thekedars  were in  possession  of  the  land  and  were personally cultivating the land on the 1st day of May, 1950. The Thekedars  acquired the  status  of  hereditary  tenants under section 12 of the 1950 Act. [933 C-E]      Section 3  of the 1952 Act provides that any person who has not  become a  bhumidar, sirdar, adhivas. Or asami under the 1950  Act if he is in cultivatory possession of any land during the year 1359 Fasli and if the bhumidar or sirdar was not such  a person,  such person  in cultivatory  possession would acquire  the status  of an  adhivasi.  To  obtain  the benefit  of   section  3   the  person  claiming  to  be  in cultivatory possession  must show that his or her possession was lawful. [933 F-G, 934 F]      Sonawati and  Ors. v.  Sri Ram  and Anr.,  [1968] I SCR 617, referred to.      In the  instant case  since the  Thekedars had acquired the status  of hereditary  tenants as  Theka was  up to  and inclusive of the year 1359 Fasli, the Zamindars had no right to  induct   lessees  in   possession  after  depriving  the Thekedars of  their possession  and therefore  possession of the lessees  in 1359  Fasli was  not lawful.  Therefore  the lessees did  not acquire  the right of adhivasi. [933 H, 935 A]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 282-283 of 1969.      Appeals by  special leave  from the  Judgment and order dated the  15th October, 1968 of the Allahabad High Court in Second Civil Appeals Nos. 978/58 and 11 of 1959.      S. Rangarajan,  Mrs. S.  Bagga and  Uma  Jain  for  the Appellants.      K.L. Hathi, P.C. Kupur, R.S. Mehta, O.P. Verma and S.N. Singh for the Respondents.      The Judgment of the Court Was delivered by      DESAI, J. These two appeals by special leave arise from two Suits filed by Barkatullah and Sahfiullah for possession of land more 929 particularly set  out at  the foot of the plaint against the Zamindars and  Prem Kumari and Noor Mohammad. Briefly stated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

the plaintiffs’  A case was that they were Thekadars and the Theka was  taken for  personally cultivating  the  land  and therefore under  sec. 12 of the U P. Zamindari Abolition and Land Reforms  Act, 1950  (’1950 Act’  for short),  they have become hereditary  tenants and  they were  in possession  of land on  Ist April  1960. It  was alleged that the Zamindars had no  right to  lease the land after the plaintiffs became hereditary tenants  yet Prem  Kumari and  Noor Mohammad took land on  lease from  Zamindars and  entered possession after 1.4 1950.  It was alleged that the lessees from the Zamindar had no  right to  remain in possession as against hereditary tenants.  On   this  short   ground  the  plaintiffs  sought possession of the land.      The defendants  were  the  Zamindars  and  two  lessees contested the  suit. The  averments made  in para  4 of  the plaint were  not controverted specifically and it was merely stated that  they are  subject to additional pleas. The only plea put  forward on behalf of the lessees worth-noticing is that the  lessees were  in cultivatory possession during the year 1359-F and being not a person who has become a bhumidar sirdar, Adhivasi  or Asami  is entitled to all the rights of Adhivasis under  U.P. Land Reforms (Supplementary) Act, 1952 (’1952 Act’ for short)      The trial  court dismissed  the suit observing that the plaintiffs were  Thekadars of  the land and under sec. 12 of the 1950  Act have acquired rights of hereditary tenants but the lessees  were in  cultivatory possession  in 1359-F  and therefore have acquired the right of adhivasi. Thekanama was held to  be defective  on the  question of Theka being given exclusively for  personal cultivation.  The  two  plaintiffs preferred two  separate appeals  and both  the appeals  were disposed of  by the  First  Additional  Civil  and  Sessions Judge, Gonda  as per  his judgment  dated September 1, 1958. Broadly stated,  the learned  Judge agreed with the findings of the  trial court  and dismissed the appeals. The original plaintiffs carried  the  matter  in  .  second  appeal.  Two separate appeals  were preferred,  by the  time the  appeals came up  for hearing,  a statement  was made  that both  the plaintiffs have  compromised the  dispute inter  Se and that the suit  be treated  as one  and if  the appeal  is  to  be allowed, possession is to be given jointly to two appellants as against the respondents H      The learned  Judge disposed  of  both  the  appeals  by common judgment  reversing the  decision of  the trial court and the first 930 appellate court holding that the plaintiffs had acquired the status of  A hereditary  tenants and  were in  possession on 1.5.1950 and,  therefore, the  Zamindars  had  no  right  to dispossess the  plaintiffs and  induct the  two  lessees  in possession. It  was further  held that  as the  lessees came into possession  under Zamindars  who had  no right to grant the lease  possession of  the lessees  being  thus  unlawful against the  plaintiffs, they  could not  have acquired  the Adivasis rights.  Accordingly, the  suit was  decreed and  a decree  for   possession  was   granted  in  favour  of  the plaintiffs. Hence these two appeals by special leave      Both the original lessees have died and their heirs and legal representative are prosecuting these appeals.      Mr. Rangarajan,  learned  counsel  for  the  appellants urged that  in view  of the  finding of the trial court that there was  no specific  authority given to the Thekadars for personal cultivation  of the  lands comprised  in the Theka, the  Thekadars-plaintiffs  did  not  acquire  the  right  of hereditary tenants  under sec  12 of  the 1950 Act. This was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

the principal contention urged in these two appeals.      1950 Act  was a measure of agrarian reform enacted with a  view   to  abolishing   the  Zamindari   system  and  for acquisition of  intermediaries’ rights.  Section 4  provided for  vesting   of  estates   in  the  State  free  from  all encumbrances with  effect from  the date  to be specified by the State  Government in a notification. Sec. 6, inter alia, provided the consequences of the vesting of an estate in the State, one such being that all rights, title and interest of all the  intermediaries shall  cease and  be vested  in  the State. Sec.  1 2  provides that  the Thekadars would acquire the rights  of hereditary  tenants in certain circumstances. It reads as under;           "(1) Where any land was in personal cultivation of      a person  on the  1st day  of May,  1950 as  a Thekadar      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. 931           (2) The  fact that the land comprised in the theka      has been  in the  personal cultivation  of the thekedar      since   the    commencement   of   the   theka   shall,      notwithstanding anything contained in section 91 and 92      of the  Indian Evidence  Act,  1872  (I  of  1872),  be      receivable in  evidence for  showing that the theka was      of the nature referred to in sub-section (1)". 1952 Act enacted certain supplementary provisions in respect of the  1950 Act.  Sec. 3  of 1952  Act provided  that every person who  was in cultivatory possession of any land during the year 1359-Fasli but is not a person who as a consequence of vesting under s. 4 of the 1950 Act has become a bhumidar, sirdar, adhivasi  or asami under s. 18 to 21 of the said Act shall be  and is hereby declared to be, with effect from the appointed date  (b) if the bhumidar or sirdar was not such a person, an adhivasi, and shall be entitled to all the rights and be subjected to all the liabilities conferred or imposed upon an asami or an adhivasi. There is an explanation to the section which is not material. Original lessees claimed that they have acquired the status of Adhivasi under s. 3 of 1952 Act.      It is  not in dispute that the original plaintiffs were Thekedars. It  was however  contended that  unless the Theka was  exclusively   far  personal  cultivation  of  the  land comprised in  the Theka, the Thekedars would not acquire the status  of  hereditary  tenants.  Sec.  12  which  has  been extracted herein before specifically provides that where any land is  in 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 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. This section came in for interpretation in Babu  Noorul Hasan  Khan v.  Ram Prasad  Singh &  Ors (1) wherein it  was held  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. But this is subject to two exceptions; one such being as enacted in 5. l

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

2  which   provides  that  if  such  land  was  in  personal cultivation of a person on the 1st day of May, 1950, as a 932 thekedar thereof  and if  the theka  was made with a view to the A  cultivation of land by such thekedar personally, then because of the non-obstante clause occurring in sub-sec. (I) of s.  12 of  the Act,  the Thekedar would be deemed to be a hereditary tenant  of the land entitled to hold land as such and  liable  to  pay  rent  at  hereditary  rates.  If  such hereditary tenant  has lost  possession he  is  entitled  to regain his possession. It was further held that 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  sec. 13(2)  of the Act. This interpretation of sec.  12 was  re-affirmed in  Raghunandan Singh & Ors. v. Brij Mohan  Singh & Ors(1) It would thus appear well-settled that before  a Thekedar can claim the status of a hereditary tenant, he must not only be a Thekedar but the Theka must be specifically granted  for personal  cultivation of  the land included in the Theka by the Thekedar.      The question  therefore, is  whether in  this case  the land included  in  the  Theka  of  the  original  plaintiffs provided  for  personal  cultivation  of  the  land  by  the Thekedar or  personal cultivation  was incidental  to  other rights and obligations such as collection of rent . from the other tenants  ? This  would necessitate  examination of the original document  creating Theka.  That was not read to us, but Mr.  Rangarajan relied upon the following observation in the judgment of the learned trial Judge:           "I have read the context (sic) (possibly contract,      of  the   Thekanama.  There   is  no   authority  given      specifically or  impliedly for  personal cultivation by      the Thekedars of the land comprised in the Theka unless      there was  such  a  provision.  I  fear  no  rights  of      hereditary tenancy  could have  been  acquired  by  the      plaintiffs." It was urged that the learned Judge specifically came to the conclusion that  the Theka  was not  created exclusively and specifically for  personal cultivation of the lands involved in the  Theka. The  learned appellate  Judge found  that the Thekedars were in actual possession and personal cultivation of the  land for a period of 11 years. He further found that the Theka would be deemed to have been granted for 933 personal cultivation  and if the plaintiffs (Thekedars) have been found  to be in personal cultivation of the suit on 1st May, 1950  as Thekedars,  they  would  be  entitled  to  the benefit of  sec. 12 of 1950 Act. The learned appellate Judge then concluded  that it  is satisfactorily  proved that  the plaintiffs-Thekedars were in possession on 1st May, 1950. However the  learned Judge  declined to  grant relief to the plaintiffs on  the finding  that the  lessees  had  acquired Adhivasis right  under 1952  Act. It clearly transpires from the findings of the first appellate court, which is the last fact  finding   court,  that  the  Theka  was  for  personal cultivation of  the land  involved  in  the  Theka  and  the Thekedars were  personally cultivating the land for a period of 11  years. The  High Court  in second appeal noticed that the Thekedars  were personally cultivating the land. Nothing was pointed  out to  us to show that Thekedars had any other duty to  perform such as collecting rent from other tenants. There is nothing in the record to show that the Theka was as a consideration for some other duties to be performed by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

Thekedars to  the Zamindars.  Therefore, the  conclusion  is inescapable, that  the Theka  was  created  exclusively  for personal cultivation  of the  land involved  in the Theka by the Thekedars.      If it is clearly established that the Theka was created exclusively for  personal cultivation  of the  land  by  the Thekedars, the  ratio of  the decision  of this  Court would lead to  the conclusion  that  the  Thekedars  acquired  the status of  the hereditary tenants under sec. 12 of the 1 950 Act.      The only question then remains for the consideration is whether the original lessees acquired Adhivasis rights under sec. 3  of the  1952 Act.  Sec. 3  which has  been extracted herein before  provides that any person who has not become a bhumidar, sirdar,  adhivasi or asami under 1950 Act if he is in cultivatory  possession of  any land during the year 1359 Fasli and  if the  bhumidar or sirdar was not such a person, such a  person in  cultivatory possession  would acquire the status of  an adhivasi. The High Court then examined what is the significance  of the expression ’cultivatory possession’ in sec. 3. The High Court rightly held that if the Thekedars had acquired  the status  of hereditary tenants as Theka was up to  and inclusive  of the  year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars  of their  possession and therefore possession of the lessees was not 934 lawful against  the Thekedars.  The High  Court rightly held that A  the lessees  could not  be said to be in cultivatory possession of  the land  on the  appointed day.  In reaching this conclusion,  the High  Court relied  upon a decision of this Court  in Sonawati & ors. v. Shri Ram Anr.(1) The Court held as under:           "The expression  "cultivatory possession"  is  not      defined in the Act, but the Explanation clearly implies      that the  claimant must  have a  lawful right  to be in      possession of  the land,  and must  not belong  to  the      classes  specified  in  the  explanation.  "Cultivatory      possession" to be recognized for the purpose of the Act      must be  lawful and  for the  whole year  1359 Fasli. A      trespasser who  has no  right to  be in  possession  by      merely   entering    upon   the    land   forcibly   or      surreptitiously cannot  be  said  to  be  a  person  in      "cultivatory possession"  within the meaning of s. 3 of      U.P. Act of 1952. We are of the view that the Allahabad      High Court  was right  in holding  in  Ram  Krishna  v.      Bhagwan Baksh  Singh(2) that a 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 cultivatory  possession of that 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 a      Full Bench of the Allahabad High Court in Nanhoo Mal v.      Muloo  and  ors.(B)  that  occupation  by  a  wrongdoer      without  any   right  to   the  land   is  ’cultivatory      possession’ within  the meaning of s. 3 of the U.P. Act      31 of 1952". Therefore in  order to  obtain the benefit of sec. 3 of 1952 Act, the  person claiming  to be  in cultivatory  possession must show  that his  or her  possession was lawful. The High Court consistent  with certain  findings of  the trial Court and the  first appellate  court held  that possession of the lessees in  1359 Fasli  was not  lawful and this necessarily follows from  the finding  given  by  the  courts  that  the Thekedars were  in cultivatory  possession of  the plots  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

dispute on  the appointed day i.e. 1st May, 1950 and thereby became entitled to acquire the rights of hereditary tenants. We are in agreement with the conclusion recorded by the High Court. 935      It must  therefore follow as a necessary corollary that the lessees  did not  acquire the  right of adhivasi and the hereditary A  tenants would  be entitled  to  a  decree  for possession.  Accordingly,  the  appeals  fail  and  must  be dismissed. The appeals are thus dismissed with costs. H.S.K.                                    Appeals dismissed. 936