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PETITIONER: RAM PRAKASH

       Vs.

RESPONDENT: MOHAMMAD ALI KHAN (DEAD) THROUGH L.R’S

DATE OF JUDGMENT04/04/1973

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. SHETTY, K.J. (J) CHANDRACHUD, Y.V.

CITATION:  1973 AIR 1269            1973 SCR  (3) 893  1973 SCC  (2) 163

ACT: U.   P.  Zamindari Abolition and Land Reforms Act  1950,  s. 18(1)-,Land  held  by an intermediary as  an  intermediary’s grove on the date immediately preceding the date of  vesting deemed  to  be  settled by the State  Government  with  such intermediary-Earlier rights are extinguished-Res Judicata-No res judicata when issue in earlier decision was different.

HEADNOTE: In  February  1946, H leased his share in a grove  in  Uttar Pradesh to the appellant and sold to him the trees  standing thereon.  Similarly A, a widow, leased her share and that of her minor children in the grove and sold the standing  trees to  the  appellant.  Subsequently the proprietary  right  of some  other co-sharers in the grove was sold to one  M.  The appellant instituted a suit sometime in 1946 against M.  and others for injunction and alternatively for possession  over the grove.  Sometime in 1947 M and others also instituted  a rival suit for, cancellation of the aforesaid leases on  the contention  that  under s. 246 of the U.P. Tenancy  Act  the execution  of  a lease by some of the  cosharers  only,  was invalid.  The trial court dismissed the appellants suit  and decreed  M’s  suit.   The lower appellate  court  granted  a decree in favour of the appellant for joint possession  over the  share of H and A in the grove land.  It was held  that the  lease  executed  by A as guardian  of  the  minors  was invalid.   M filed two appeals in the Allahabad High  Court. During the pendency of the appeals M died and his legal  re- presentatives were brought on record.  The appeal filed by M in his own suit was dismissed by a Single Judge of the  High Court.   The  appeal filed by M in the appellants  suit  was heard by another single Judge, and was allowed with  respect to  the  lease of grove land and dismissed as  regards  the: sale of the trees.  It was held that after the  commencement of  the  U.P. Zamindari Abolition and Land Reforms  Act  the appellant  had  no  subsisting interest in  the  land.   The appellant was granted special leave to appeal to this Court. Dismissing the appeal, HELD  :  (i) As the grove in dispute was  an  intermediary’s grove  M and others who were intermediaries on the  relevant date  became its bhumidars. the lessee of an  intermediary’s

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grove  land is not an intermediary because he does not  fall within the definition of the word ’intermediary’.  No  other provision  of the Act gives him any kind of interest in  the intermediary’s  grove land.  The appellant got no  right  in the grove land in dispute. [895E] Rana  Sheo  Ambar Singh v. Allahabad Bank  Ltd.   Allahabad, [1962]  2 S.C.R. 441 and Jamshed Jahan Begam and  others  v. Lakhan Lal and others, [1970] 2 S.C.R. 566, relied on. (ii) The  dismissals of M’s other appeal by the  High  Court could  not  operate as res judicata in  the  present  appeal because  the  questions, at issue in the  two  appeals  were different. [895G] 894

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1860  of 1967. Appeal  by special leave from the judgment and  order  dated August 8, 1967 of the Allahabad High Court in Special Appeal No. 2350 of 1953. K.   P. Gupta, for the appellant. J.   P.  Gopal and Sobhag Mal Jain, for respondents Nos.   1 to 7. The Judgment of the Court was delivered by DWIVEDI,  J.-In  this  appeal the bone of  contention  is  a certain zamindari grove.  The grove belonged to a number  of co-sharers.  But in a partition it fell to the share of  one Sakhawat Ali and one Hafiz Ali.  On February 16, 1,946 Hafiz Ali  executed  a  composite document of lease  and  sale  in favour of the appellant, Ram Prakash.  He let out his  share in  the grove land and sold his share in the standing  trees to  Ram Prakash.  On the same day another  similar  document was  executed  in favour of the appellant by  Smt.   Abbasi, widow  of Sakhawat Ali.  She executed the document for  self and  as  guardian  of her minor sons  and  daughters.   T’he document  was  in  respect of her share  and  her  childrens share.   Subsequent to the execution of those documents  the proprietary right of some other co-sharers (presumably  some successors  of Sakhawat Ali) in the grove land was  sold  to one Mohammad Ali.  The appellant instituted’a suit some time in  1946 against Mohammad Ali and others for injunction  and alternatively  for possession over the grove.  Some time  in 1947  Mohammad Ali and others also instituted a  rival  suit for  cancellation of the aforesaid leases.  Their  case  was that  the  leases were invalid as section 246 of  the,  U.P. Tenancy  Act prohibited the execution of a lease by some  of the  co-sharers  only.  The two suits were  tried  together. The  trial  court dismissed the suit of  the  appellant  and decreed the other suit.  Two appeals were preferred  against the  decree of the trial court.  The lower  appellate  court granted  a  decree  in favour of  the  appellant  for  joint possession  over the share of Hafiz Ali and Smt.  Abbasi  in the grove land.  It was held that the lease executed by Smt. Abbasi as guardian of the minors was invalid.  So no  decree was passed in respect of their shares.  The other appeal was disposed of on the same terms.  Mohammad Ali then filed  two second  appeals  in  the Allahabad High  Court.   They  were numbered. 2350 and 2351 of 1953.  Second appeal No. 2350  of 1953 was filed against the decree passed in the  appellant’s suit;  second appeal No. 2351 of 1953 was filed against  the decree in his own suit.  During the pendency of the appeals, Mohammad Ali died and his legal representatives were brought on record.  Second. appeal No. 2351 of 1953 was dismissed by

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a  learned Judge of the High Court.  Second Appeal No.  2350 of 1953 came up for 895 hearing  before  another  learned  Judge.   The  appeal  was allowed  with  respect  to  the  lease  of  grove  land  and dismissed  as regards the sale of trees.  Hence this  appeal by special leave. We agree with the learned Judge that after the  commencement of  the  U.P.  Zamindari  Abolition  and  Land  Reforms  Act (hereinafter  referred to as the Act), the appellant has  no subsisting interest in the grove land.  Section 18(1) of the Act provides that all lands in possession or held or  deemed to be held by an intermediary as an intermediary’s grove  on the date immediately preceding the date of vesting shall  be deemed  to  be  settled by the State  Government  with  such intermediary.    Section  2(12)  of  the  Act   defines   an intermediary   as  "a  proprietor,  under-proprietor,   sub- proprietor,  thekedar, permanent lessee in Avadh,  permanent tenure-holder  of an estate or part thereof." Section  2(13) defines  "intermediary’s  grove"  as  grove  land  held   or occupied by an intermediary as such. As the grove in dispute was an intermediary’s grove Mohammad Ali  and  others, who were intermediaries  on  the  relevant date, became its bhumidars.  The lessee of an intermediary’s grove  land is not an inermediary because he does  not  fall within the definition of the word "intermediary".  No  other provision  of the Act gives him any kind of interest in  the intermediary’s grove land.  Accordingly, the appellant  gets no  right in the grove land in dispute.  The scheme  of  the Act is to create new rights in place of old rights.  The old rights are dead and gone after the commencement of the  Act. (vide  Rana  Sheo  Ambar  Singh  v.  Allahabad  Bank   Ltd., Allahabad(1)  and Jamshed Jahan Begam and others  v.  Lakhan Lal and others(). The decision of the High Court in second appeal No. 2351  of 1953 cannot operate as res judicata in this appeal.   Second appeal No. 2351 of 1953 arose out of the suit instituted  by Mohammad Ali and others.  That suit was for cancellation  of the   leases   on  the  ground  that  they  were   made   in contravention  of  the  provisions of s.  246  of  the  U.P. Tenancy  Act.. The question whether the Zamindari  Abolition and  Land Reforms Act gave any rights to ,the  appellant  in the  grove land in dispute could not be and was in fact  not considered in that appeal.  In that appeal the material (1)[1962] 2 S. C. R. 441.   (2) [1970] 2 S. C. R. 566. 896 issue was whether the leases were void.  The argument on be- half of Mohammad Ali and others in second appeal No. 2350 of 1953  now  is that assuming that the leases are  valid,  the lessee  has no subsisting right in the grove land after  the enforcement of the Act. As the grove is land covered by the Act, it will be governed by  the provisions of the Act and not by the  provisions  of the Transfer of Property Act.  We have already held that the appellant’s lessee rights came to an end on the commencement of the Act.  And the Act conferred on him no new rights.  In the  result,  there  is  no force in  this  appeal.   It  is dismissed with costs. G.C.                                      Appeal dismissed,. 897