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

PETITIONER: NATH SINGH AND OTHERS

       Vs.

RESPONDENT: THE BOARD OF REVENUE AND OTHERS

DATE OF JUDGMENT: 21/03/1968

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SHAH, J.C.

CITATION:  1968 AIR 1351            1968 SCR  (3) 498  CITATOR INFO :  R          1979 SC 413  (11)  F          1990 SC 471  (10,11,12,13,14)  RF         1990 SC 723  (10)

ACT: U.  P. Zamnindari and Land Reforms Act, 1952 s.  20(b)  (i)- respondents  shown  in record of rights for  1356F  as  sub- tenants-if   to  be  regarded  as  occupants   entitled   to ’Adhivasi’  rights-or whether inquiry to be about  propriety of entry.

HEADNOTE: In 1945 one R who was the thekadar of the proprietary rights of a village, sued the appellants and the respondents, other than  the  first  respondent Board  of  Revenue,  for  their ejectment  under  section  171  of  the  U.P.  Tenancy  Act. alleging that the appellants had illegally sub-let the lands to the respondents.  The appellants and the respondents made a  on cm denying the alleged ’sub-letting and  stating  that the  entries  in the village records about  the  respondents being sub-tenants were erroneous. The suit was dismissed  in March,  1946, I.e., towards the end of 1353 F on the  ground that  there  was  no sub-letting and the  entries  were  not correct  No attempt was made by anyone to bring the  village records  in harmony with this decision and  the  respondents continued to figure as sub-tenants in these records.  On his attention  being  drawn  to this, the Lekhpal,  on  his  own authority, removed the entries in favour of the  respondents from the records for the year ending 1358 F but the  entries for  the  year 1356 F were left undisturbed as  it  was  not within the Lekhpal’s jurisdiction to alter these. After the U.P. Zamindari Abolition and Land Reforms Act came into force in 1952 i.e., at the beginning of 1360 F, on  the strength   of  the  Khasra  and  Khatauni  of   1356F,   the respondents  claimed Adhivasi rights under section  20(b)(i) of  the Act and. file six suits praying for the recovery  of possession of the lands under’s. 232 of the Act.  They  lost the  suits before the sub Divisional Officer and  Additional Commissioner  of  Varanasi but succeeded in appeals  to  the Board of Revenue. The appellants thereafter filed writ petitions for  quashing the orders of the Board; and the High Court although of  the

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

view  that the impugmed orders of the Board of Revenue  were wrong,  held  that the Board had jurisdiction  to  interpret section 20(b) as it thought proper; and as the orders passed by  it were final without being subject to any appeal.  they could  not be quashed by certiorari as being mere errors  of law. In  appeal to this Court, it was contended, inter  alia,  on behalf  of  the appellants that (i) the correctness  of  the entry  in the record of rights of 1356 F could be gone  into and  was capable of challenge in a court of  law  exercising jurisdiction under Art. 226; (ii) in the present case  there was an adjudication in March 1946 that the ’respondents were not  subtenants; consequently, unless they showed that  they had thereafter become sub-tenants, the benefit of the  entry in  their favor in 1356 F could not be availed of  by  them; (iii)  in  the Khasra of 1356 F the  respondents  were  only recorded  as sub-tenants but not as occupants and could  not therefore get the benefit of s. 20 (b) (i) of the Act. HELD: Dismissing the appeals. The  record  of  rights  for the year  1356F  had  not  been corrected  afterwards.  The court had to go by the entry  in the record of rights and 499 no  enquiry need be made as to when the  respondents  became sub-tenants  after the decision in the suit filed by  R.  As between  the  tenant and the sub-tenant, the  entry  in  the record  of rights in favour of the sub-tenant made  him  the occupant entitled to the adhivasi rights under s. 20 of  the Act. [5O4 G-H]  The  Upper Ganges Sugar Mills Ltd. v. Khalil-ul-Rahman  and others, [1961] 1 S.C.R. 564; Amba Prasad v. Abdul Noor  Khan JUDGMENT: Sukh Ram & Ors., [1963] A.L.J. 667; and Nanakchand v.  Board of Revenue U.P. [1955] A.L.J. 408; applied.

& CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 621 to  626 of 1965. Appeals  by special leave from the judgment and order  dated March  6,  1964 of the Allahabad High court in  Civil  Misc. Writs Nos. 1428 to 1433 of 1961. J. P. Goyal and Sobhag Mal Jain, for the appellants (in  all the appeals). S.  P. Sinha and M. 1. Khowaja, for respondents Nos. 2 to  4 (In all the appeals). The  Judgment of the Court was delivered ’by Mitter,  J. These six appeals by special leave arise from  a common  judgment of the Allahabad High Court  rejecting  six writ  petitions  filed by the appellants in that  court  for quashing  the orders of the Board of Revenue arising out  of cases  filed  under  section  232  of  the  U.P.   Zamindari Abolition and Land Reforms Act. The  relevant facts are as follows.’ In 1945 one  Ram  Dhari Singh  who  was the  kadar of the proprietary rights  of.  a village  sued the appellants and the respondents other  than the  Board of Revenue for their ejectment under section  171 of  the  U.P. Tenancy Act alleging that the  appellants  had illegally  sublet  the lands to the,said  respondents.   The appellants  and the respondents made a common cause  denying the  alleged subletting and stating that the entries in  the village records about. the respondents being subtenants were erroneous.  On 3rd March 1946 i.e., towards the end of  1353 F. the suit was dismissed on the ground that there had been’

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

no’  subletting  and that the, entries  regarding  the  sub- letting in the village records were not correct.  No attempt was  however made by anyone to bring the village records  in harmony with the said decision with the result that the said respondents  continued to figure therein as  sub-tenants  as before.   On  his attention being drawn to  this  fact,  the Lekhpal  on his own authority removed the entries in  favour of  the said respondents s lowing them as  sub-tenants  from the records of the year ending 1358 F. 500 The entries in the year 1356 F. were left undisturbed and it was  not within the jurisdiction of the Lekhpal to make  any alterations therein. The  U.P.  Zamindari Abolition and Land Reforms  Act  (here- inafter  referred to as the ’Act) came into force  with  the commencement  of  1360 F. i.e. last July,  1952.   Under  s. 20(b)(i)  every person who was recorded as occupant  in  the Khasra or Khatauni of 1356 F. prepared under sections 28 and 33  respectively  of  the U.P. Land Revenue Act  was  to  be called  an "adhivasi" and was subject to the  provisions  of the Act, to be entitled to take or retain possession of  the land  (unless he would become a bhumidar or an asami).   The second  Explanation to the section provided that  where  any entry in the records referred to in clause (b) of section 20 had  been corrected before the date of vesting under  or  in accordance with the provisions of the U.P. Land Revenue Act, 1901, the entry so corrected was to prevail for the purposes of the said clause.  The third Explanation provided that for the  purposes  of the second Explanation an entry  shall  be deemed to have been corrected before the date of vesting  if an  order  or  decree of a  competent  court  requiring  any correction  in  the records had been made  before  the  said date,  and had become final even though the  correction  may not have been incorporated in the records. On  the strength of the Khasra and Khatauni of 1356  F.  the respondents  claimed adhivasi rights under s. 20(b)  (i)  of the  Act.  They  filed six suits  praying  for  recovery  of possession  under  s. 232 of the Act.   According  to  their case, the appellants were never. in possession of the  lands in dispute at any time.  They lost the suits before the  Sub Divisional  Officer  and  the  Additional  Commissioner   of Varanasi  but  they ultimately succeeded in appeals  to  the Board of Revenue. The  appellants  filed the writ petitions for  quashing  the orders:  of  the  Board  of  Revenue.   The  Hi  Court  went elaborately  into  the procedure for making entries  in  the records of rights and examined the question as to whether an entry  recording a person as a sub-tenant was equivalent  to an  entry recording him as occupant for the purpose  of  the Act.   The High Court concluded that the impugned orders  of the Board of Revenue were wrong but held that the Board  had jurisdiction to interpret s. 2 it thought proper and as  the orders passed by it were final without being subject to  any appeal’,  they could not be quashed by certiorari  as  being mere  errors  of  law.  It is from this  judgment  that  the present appeals have been launched. Learned  counsel  for the appellants  raised  the  following points in his address 501 (1) The correctness of the entry in the record of rights  of 1356  F. can be gone into and is capable of challenge  in  a court of law exercising jurisdiction under Art., 226. (2) In the present case there was an adjudication in March,, 1946   and   the   respondents  were   not   sub-tenants   : consequently,  unless  they showed that they  had  hereafter

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

become sub-tenants the benefit of the entry in their  favour in 1 3 5 6 F. could not be availed of by them. (3) Under rule 183 of the rules framed under the Act it  was incumbent on the respondents to state in their  applications the  dates of their dispossession and the failure to  do  so rendered their petitions defective. (4)  In  the  Khasra of 1356 F. the  respondents  were  only recorded as sub-tenants but not as occupants and hence  they cannot get the benefit of s. 20(b) (i) of the Act. Before  entering into a discussion as to the merits  of  the points raised, it is worthy of note that before the Board of Revenue   ie.  the  ultimate  fact-finding   authority   the contention  on  behalf  Of  the  respondents  who  were  the appellants    before  the  Board,  was  that  they  had  been recorded  as occupants in the revenue papers of 1356 F.  and hence they were entitled to be reinstated to possession,  it being unnecessary for them to prove that they were in actual possession in 1356 F. The arguments before the Board of Revenue -on behalf of  the present appellants were : (1) as the appellants were not  in possession, they were not sub-tenants either in 1356, F.  or before and hence they could not be regarded’ as occupants in 1356  F: in support of this proposition reliance was  placed on a decision, of this Court in The Upper Ganges Sugar Mills Ltd.   v.  Khalil-ulRahman  and  others(’)  which  will   be discussed later : (2) as both the courts below and the Board of  Revenue,  had  concurrently  found  that  there  was  no contract  of  sub-tenancy,  the  respondents  could  not  be regarded  as sub-tenants and could not rely on an  entry  in the  year 1356 F. in their favour, and (3) a sub-tenant  was not  an occupant and as such not, entitled’ to  maintain  an application under s. 232 of the Act. All  these  contentions were turned down by  the  Board  of’ Revenue.   As  regards the first -point the Board  took  the view that the Upper Ganges Sugar Mills (1) case did not  lay down that a, person had to be in actual possession before he could get the, benefit of the entry in the record of  rights of  1356 F. With regard to the second point, the Board  held that  even if the respondents had failed to prove that  they were -sub-tenants they could" (1) [1961] 1 S.C.R. 564. 502 still  be  treated  as trespassers.   The  third  point  was disposed  of  by the Board placing reliance  on  an  earlier decision  of its own -to the effect that the entry  of  sub- tenancy  should  be  held  to be  an  entry  of  a  recorded occupant. There  are  two decisions of this Court which  negative  the points  canvassed  before us.  In the-  Upper  Ganges  Sugar Mill?(") case, the appellant company, a thekadar up to  1355 F.  (June  1948)  had retained possession of  the  lands  in dispute  by  virtue  of stay  orders  granted  although  the landlord had succeeded in the ejectment suit under the  U.P. Tenancy  Act in all the courts up to the Board  of  Revenue. During  the pendency of the company’s appeal to this  Court, the Act came into ’ force.  The company star proceedings  to recover actual possession under s. 232 of the Act read  with sections  12 and 20.  The trial court decided in favour  -of the  company and ordered delivery of possession  under  both the  sections.   The landlords lost  in  appeal.   Thereupon there was a Second Appeal to the Board of Revenue which  was dismissed in January 1956.  The landlords came to this Court on  special leave, The appeals were remanded by  this  Court for  a finding whether the company had acquired  any  rights under s. 20 of the Act.  The Board held that the company was

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

entitled  to such benefit and had acquired  Adhivasi  rights thereunder. Before  this  Court at the final hearing, there was  a  good deal  -of discussion as to the meaning of the expression  "a person in occupation".  It was held, that in order that  the company could take the benefit of s. 20 it should have  been recorded as in occupation of the land in dispute in the year 1356  F.  and  the  only  limitation.  placed  by   judicial decisions  on the meaning of the word occupant" was  that  a person  should be in occupation in his own right and not  on behalf of some cane else.  On behalf of the landlords it was argued  that  the company was not in possession in  its  own right  firstly because there was an order for  ejectment  in November 1948 and thereafter it retained in possession  only on account of the stay orders; and secondly, as a , thekadar the  possession  of  the  company  was  on  behalf  of   the landlords.   This  Court  held that on  the  landlords"  own showing  the company was not in possession as a thekadar  is the  theka had expired before 1356 F. and  consequently  the nature  of occupation of the company was on its  own  behalf and not on behalf of the court or of the landlords.  In  the result, the company was held entitled to Adhivasi rights. This case establishes that a person recorded as an  occupant on the relevant date although found by courts of law to have no  right to I possession even prior thereto, is not  to  be denied Adhivasi rights. (1) [1961] 1 S.C.R. 564. 503 The case of Amba Prasad v. Abdul Noor Khan and others(’)  is more  in  point.  Amba Prasad was a zamindar  of  a  village before  the coming into operation of the Act.  The  opposite parties were persons whose names had been recorded in column 23  (miscellaneous)  in the Khasra for the year 1356  F.  as persons  in  possession and they claimed to be  recorded  as occupants  of  the fields in dispute and  to  have  obtained adhivasi  rights under S. 20.  The case of  the  respondents was  that they were in occupation of the land, and had  been dispossessed  after- June 30, 1948 by the appellant  and  as they  were  recorded  occupants in 1356, F.  they  were  not required  to prove actual possession.  The appellants  stand was  that the entry was fraudulently made after July,  1949. The  suits were dismissed by the Sub-Divisional Officer  but in   appeal  the  Additional  Commissioner  held  that   the respondents had’ acquired Adhivasi rights.  This was  upheld by  the Board of Revenue.  The appellant then filed  appeals to  this Court.  The real dispute , as noted by  this  Court was  whether a person who was recorded as ’Qabiz’ but not as a  tenant or Subtenant would get the advantage of S.  2O  of the Act and claim Adhivasi rights.  Examining the scheme  of s. 20 along with its.  Explanations, it was observed:               "The  section, speaking generally,  says  that               certain  persons "recorded" as "occupants"  of               lands  (other  than grove lands  or  lands  to               which  section 16 applies) shall be  known  as               adhivasis  and shall be entitled to retain  or               to regain possession of them after the date of               vesting  which was July 1, 1952 . . . . . .  .               Such  persons. must be recorded as  occupants,               in the khasra or Khatauni for 1356 F.  (1-7-48               to  13O-  6-49).   If such a.,  person  is  in               possession  , he continues in possession.   If               he is evicted after June 30, 1948 he is to  be               put   back   in   possession   notwithstanding               anything  in any order or decree.  By  fiction               such  persons  are deemed to  be  entitled  to

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

             regain   possession  (Explanation   I).    The               emphasis  has  been  laid on  the  record’  of               khasra  or  khatauni of 1356 F. and  June  30,               1948 is the datum line.  The importance of  an               entry  in  these  two  documents  is   further               apparent from Explanations II and III.   Under               the  former if the entry is  corrected  before               the  date  of vesting (1-7-52)  the  corrected               entry  is to prevail and under the latter  the               entry  is deemed to be corrected (even  though               not actually corrected) if an order or  decree               of  a competent court ordering the  correction               had  been made before the date of vesting  and               the  order or decree had become final.   There               are thus two date lines.  They are June 30, (1)  [1964] 7 S.C.R. 800. 504               1948  and  July  1, 1952,  and  the  title  to               possession as adhivasi depends on the  entries               in  the khasra or khatauni for the year  .1356               F." The  Court went on to-add that the word ’occupant’  had  not been defined in the Act and said.:               "Since khasra records possession and enjoyment               the word ’occupant’ must mean a person holding               the  Ian( in possession or actual               -enjoyment.  The khasra, however, may  mention               the proprietor, the tenant, the subtenant  and               other.  person  in actual possession,  as  the               case  may  be.  If by occupant  is  meant  the               person  in actual possession it is clear  that               between a proprietor and a tenant, the tenant,               and  between  a tenant and the  subtenant  the               latter  and between him and a person  recorded               in’ the remarks column as "Dawedar qabiz"  the               dawedar qabiz are the occupants..........  The               section  eliminates  inquiries  into  disputed               possession by accepting the records in the kha               or  khatauni  of  1356 F.  or  its  correction               before  July 1. 1952.  It was perhaps  thought               that all such disputes would have solved them-               selves in the four years between June 30, 1948               and June 30, 1952." With  regard to the question as to whether a mere  entry  in 1356  F.  without possession in that  year  was  sufficient, reference ,was made by this Court to the Full Bench decision of the Allahabad High Court in Ram.  Dular Singh and another v. Babu Sukh Ram & others(1) which had endorsed the  earlier view in Nanakchand v. .Board of Revenue, U.P. (16).  In  the last  mentioned case the Allahabad High Court had  observed- that the words in the section were not "every person who was an  occupant in 135,6 F." nor were the -words "every  person who  was recorded as an occupant in the year 1356F. and  who was in possession in that year." According to the  Allahabad High  Court there was no warrant for introducing  -words  in the section which were not there.  This Court felt that  .in view  of the long established line, of cases, there  was  no justification  for reopening this question and the  decision of the Board of ’Revenue was right. These  decisions negative the first, second and  the  fourth points sought to be raised on behalf of the appellants.  The record of rights for the year 1356 F. had not been corrected afterwards.   We ’have, to go by the entry in the record  of rights  and  no  enquiry  need  be  made  as  to  when   the respondents became sub-tenants after the  decision in favour

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

of  the  landlord,, Ram Dhani Singh.  The last  decision  of this  Court also shows, that as between the tenant and  -the sub-tenant  the entry in the record of Tights in  favour  of the (1) [1963] A.L.J. 667. (2) [1955] A.L.J. 408. 505 sub-tenant  makes him the occupant entitled to the  adhivasi rights under S. 20 of the Act. With regard to the point as to the violation of rule 183  it is enough to say that the point was not canvassed before the Board of Revenue and as such we need -not look into it. In  the  result,  the appeals fail and  are  dismissed  with costs.  One -hearing fee. R.K.P.S.                 Appeals dismissed. 506