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PETITIONER: MUSTAQ ALI KHAN (DEAD) BY LRS.

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDAT

DATE OF JUDGMENT30/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MAJMUDAR S.B. (J)

CITATION:  1996 SCC  (1) 708        JT 1995 (8)   602  1995 SCALE  (6)769

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  speaks of  several events  that have taken place during  the pendency  of the  litigation. About  40.99 acres comprising  of Plot  Nos.63, 66,  96, 34, 53, 37 & 102 situated in  Village  Lakhimpur,  Pargana  Suar,  in  former Rampur State  are the  subject matter  of this appeal. It is the claim  of the appellant that his son is disabled Sirdar. Consequently,  he   has   sub-leased   the   properties   to respondents 3  to 10. On his demise on October 21, 1954, the appellant - his father succeeded to the estate. He also is a disabled person.  The  U.P.  Zamindari  Abolition  and  Land Reforms Act,  1950 (for  short ’the  Act’) was  brought into force in  the State  of Rampur  with effect from January 26, 1956. The  respondents claimed  the status  as Adhivasis  as they were  cultivating the  land and have Bhumiswami rights. The  appellant   claimed  the  Asami  right.  The  Assistant Settlement Officer  by his  proceedings dated  September 30, 1963 negatived the claims of the appellant and held that the respondents became  Adivasis under  the Act.  On appeal, the Assistant Settlement  Officer held  that the  appellant is a disabled person and that, therefore, he became the asami. On revision, the  Deputy Director (Consolidation) while holding that the  appellant  is  a  disabled  person  following  the Judgment of  the Allahabad  High Court  in Smt. Maya v. Raja Dulaji &  Ors. [(1970)  ALJ 476]  held that the appellant is not entitled  to the  status as  a disabled person. When the matter  was   carried  in  writ  petition,  the  High  Court following the  Full Bench judgment in Maya’s case upheld the order of  the Deputy  Consolidation Officer  by his order in Writ Petition  No.627/71 dated  August 11,  1971. Leave  has been granted  by this  Court. This  appeal has  come up  for hearing.      So far  as the  legal position  is concerned, it is now settled by the decision of this Court in Richpal v. Desh Raj reported in [(1982) 1 SCR 368]. At page 378, it is held that

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Shrimati Ram  Kali was  a disabled  person on April 9, 1946, Dan Sahai  (successor in-interest of Smt. Ram Kali) was also a disabled  person, the  land-holder on the date of vesting, who incidentally happened to be Dan Sahai, would be entitled to the  benefit of s.21(10(h) and the respondents (successor of Uttam  Singh and  Murli Singh)  would remain  Asamis  and cannot be  said to  have become  Sirdars. It  is also not in dispute that  a later  Bench of five Judges of the Allahabad High Court in Dwarika Singh v. Dy. Director of Consolidation [(1981) ALJ  484 ]  had also  taken the  same view which was noted by this Court and approved of the correctness thereof. It  would  thus  be  seen  that  a  disabled  person  and  a successor-in-interest who  is also  disabled is  also  Asami and, therefore, he is Sirdar.      The question  is whether  this is  a fit  case for  our interference under Art.136 of the Constitution. It is not in dispute that  the respondents  have been  in possession  and enjoyment for over 45 years and claiming the status to be as Adivasis and  thus entitled  to claim  Bhumidar rights under the Act.  They are  all small  holders and they have been in possession and  enjoyment and cultivating the land for their livelihood. Considered  from this  perspective, equity would be worked  out. Accordingly,  we  direct  the  Dy.  Director (Consolidation) to  determine the  prevailing market rate of the lands  as on  February 26,  1970, the  date on which the Consolidation  Officer   has  upheld   the  claim   of   the respondents as Adivasis. The respondents are directed to pay half of  the market  value to  the appellant  and on payment declare the  respondents as Bhumidars and action accordingly be taken.      The appeal is accordingly disposed of. No costs.