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PETITIONER: THE UPPER GANGES SUGAR MILLS LTD.

       Vs.

RESPONDENT: KHALIL-UL-RAHMAN AND OTHERS.

DATE OF JUDGMENT: 06/09/1960

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1961 AIR  143            1961 SCR  (1) 564  CITATOR INFO :  RF         1965 SC  54  (18)  F          1968 SC1351  (8,9,10)  RF         1981 SC1005  (3)  E          1990 SC 471  (5,8,9,10,13,14)

ACT: Tenancy-Adhivasi right, acquisition of-Possession  continued under  stay orders of courts-Whether such Possession  is  on behalf of courts-Person recorded in possession as  thekadar- Whether  an  occupant  in his own  right  U.   P.  Zamindari Abolition and Land Reforms Act, 1950, (U.  P. 1 of 1950), S. 20(b).

HEADNOTE: The  landlord  granted a theka to the company for  10  years ending  with  1356 F which was renewed up to  1355  F  (June 1948).  On the company’s refusal to vacate on the expiry  of the theka the landlord filed a suit for ejectment under  the U.  P.  Tenancy  Act, 1939.  The suit was  resisted  by  the company on the ground that it has become a hereditary tenant under  S. 29 of that Act.  The suit was decreed on  November 3,-  1948,  and an appeal and a second  appeal  against  the decree  also failed, but the company remained in  possession of  the  land  on  account of stay  orders  granted  by  the appellate courts.  In execution the landlord obtained formal possession  on  October 13, 1950, but the  company  resisted actual  ejectment., on July 1, 1953, the company  instituted proceedings  to recover actual possession of the land  under S.  232  of the U. P. Zamindari Abolition and  Land  Reforms Act,  1950, claiming to have become an Adhivasi under S.  20 thereof.   Section  20 provided that every  person  who  was recorded  as occupant of any land in the Khasra or  Khatauni of 1356 F shall be called an adhivasi of the land and  shall be 565 entitled to take or retain possession thereof.  The  company was recorded in 1356 F in possession of the land in  dispute as  thekedar.  The landlord contended that the  company  had not acquired the rights of an adhivasi : (i) as it being  in

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possession in 1366 F under the stay orders of the courts  it Was in occupation not on its own behalf but on behalf of the court, and (ii) as it was A recorded as a thekedar in 1356 F its  possession was not on its own behalf but on  behalf  of the landlords, whose thekedar it was. Held,  (per Sinha C. J., Gajendragadkar, Wanchoo  and  Shah, JJ.),  that the company had acquired adhivasi rights in  the land  and  was entitled to the possession  thereof.   Simply because there were stay orders which enabled the company  to remain  in possession, the possession was not on  behalf  of the  court.  It remained in possession in the same right  in which. it was in possession before the decree was passed  on November  3,  1948.   Though the  company  was  recorded  in possession as a thekedar it was an occupant in its own right and not on behalf of the landlord.  It was open to the court to look beyond the entry of the company as a thekedar in the Khasra. Swami Prasad v. Board of Revenue, U. P., 1960 A.L. T. 24  1, Parshotam Das v. Prem Narain, A.I.R. 1956 All. 665,  Birjlal V.  Murli  Pd., 1954 R. D. 175 and Lala Nanak Chand  v.  The Board of Revenue, U. P., 1955 A.L.J. 408, referred to. DAs  GUPTA, J.-The company did not acquire the rights of  an adhivasi.   The word " occupant " means a person in  posses- sion  in  his own right and not on behalf of  someone  else. The  benefit under the section is available only to those  " recorded  as  " occupants ". It is not permissible  to  look beyond the record to ascertain whether the claimant has been "recorded  as  occupant ". The record in the khasra  of  the possession " as thekedar " amounts to record of " possession on behalf of thekedar’s lessor ". Swamy  Prasad v. Board of Revenue, U. P., 1960  A.L.J.  241, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 196 of 1952. Appeal  from the judgment and order dated October 3,   1950, of  the  Court  of Board of Revenue, U.  P.,  Allahabad,  in Review Application No. 161 of 1949-50.                             And Appeal  by special leave from the judgment and  order  dated January  21, 1956, of the Court of the Board of Revenue,  U. P., Allahabad, in Petition No. 22/1954-55. 566 C.B. Aggarwala and C. P. Lal, for the Appellants  (In  C. A. No. 196 of 1952) and respondent No. 1 (in C.   A.  No.  4 of 1959). Achhru Ram and Naunit Lal, for the appellants (in  C. A. No. 4 of 59) and respondents (in C. A. No. 196 of 52). 1960.    September   6.  The  Judgment  of  Sinha   C.   J., Gajendragadkar, Wanchoo and Shah, JJ. was delivered by WANCHOO  J.-These two connected appeals will be disposed  of by  one  judgment.  Appeal No. 196 of 1952 is by  the  Upper Ganges  Sugar  Mills Ltd. (hereinafter called  the  Company) while appeal No. 4 of 1959 is by Mohd.  Khalilul Rehman  and others (hereinafter called the landlords).  The brief  facts necessary  for present purposes are these.  Mukhtiar  Ahmed, father  of the landlords, granted a theka to the Company  in August  1933  (corresponding  to 1341 F)  of  the  lands  in dispute  for a period of ten years ending with 1350 F  (June 1943).   The theka contained a clause giving option  to  the Company to get it renewed for five years and in  consequence the  theka was renewed for five years from 1351 F to 1355  F (that is upto June 1948).  Thereafter the theka provided for

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option  to renew the lease with the lessor.  In March  1948, the landlords gave notice to the Company to the effect  that the  theka would not be renewed after 1355 F.  The  Company, however’   did not agree to hand over  possession  to  the landlords and consequently a suit was filed by the landlords for  ejectment of the Company under the U. P.  Tenency  Act, 1939.  It was resisted by the Company on the ground that  it was  not a thekadar but a tenant and had  become  hereditary tenant  under  s. 29 of the U. P. Tenancy  Act.   This  plea failed and the suit was decreed on November 3, 1948.   There was  an  appeal  by the Company against  the  decree.   This appeal  also  failed.  Then the Company went  up  in  second appeal  to  the Board of Revenue and eventually  the  second appeal was 567 dismissed  on  July 22, 1950.  During all this  period  from November  1948  to  July  1950,  the  Company  remained   in possession of the land in dispute on account of stay  orders obtained  from  the appellate courts.   Execution  began  in October 1950 and it is said that possession was delivered to the landlords on October 13, 1950 and a Dakhalnama was filed on October 15, 1950.  It appears, however, that the  Company offered  resistance  to  actual ejectment and  this  led  to proceedings  under s. 145 of the Code of Criminal  Procedure and  the  magistrate ordered the attachment of the  land  in November 1950 and appointed two superdars (caretakers).  The Company  applied  to the Board for a certificate  which  was granted;  and  that is how appeal No. 196 has come  to  this Court. In the meantime, U. P. Zamindari Abolition and Land  Reforms Act,  1950 (U.  P. I of 1951), (hereinafter called the  Act) came  into  force on July 1, 1953.   The  Company  thereupon instituted  proceedings to recover actual possession of  the land  under  s.  232  of the Act read with  ss.  12  and  20 thereof.  The Sub-Divisional Officer decided in January 1954 in favour of the Company and ordered delivery of  possession to  it holding that the Company was entitled  to  possession both  under  s. 12 as well as under s. 20 of the  Act.   The landlords went up in appeal, which was dismissed in January, 1955.   The  appellate  court  held  that  the  Company  was entitled  to  recover  possession under s. 12  but  did  not decide  the  case put forward by the Company  under  s.  20. Thereupon there was a second appeal to the Board of  Revenue which  was  dismissed  in January,  1956.   The  Board  also decided  the  appeal  on  the basis of s.  12  and  did  not consider the case as put forward under s. 20.  The landlords then  came to this Court and were granted special  leave  to appeal  in  May 1956; and that is how appeal  No.  4  became pending in this Court. These  appeals  were heard on November 18,  1959,  and  this Court remanded the matter and called for a finding from  the Board  whether the Company had acquired any rights under  s. 20 of the Act.  The finding has been submitted by the  Board and is to the 73 568 effect that the Company is entitled to the benefit of s.  20 of the Act and has acquired Adhivasi rights thereunder. It is conceded by learned counsel for the landlords that  if appeal No. 4 fails and the right of the Company either under s. 12 or under s. 20 is upheld, it would not be necessary to go into appeal No, 196.  On this view the Company would have acquired  a  new  right under the Act, which  would  not  be affected by the decision in appeal No. 196, even if it  goes against  the  Company.  We shall therefore first  deal  with appeal No. 4.

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Taking the case of the Company under s. 20 first, we have to see  whether  the  Company  has  acquired  Adhivasi   rights thereunder.   The relevant part of s.20 for our purposes  is as follows               "     Every person who-               (a)......................................................... ....               (b)   was recorded as occupant,-               (i)of  any land (other than grove  land  or               land to which s. 16 applies) in the Khasra  or               khatauni of 1356 F, prepared under ss. 28  and               33 respectively of the U. P. Land Revenue Act,               1901,  or  who  was on  the  date  immediately               preceding  the  date of  vesting  entitled  to               regain  possession  thereof under el.  (e)  of               sub-s.  (1) of s. 27 of the  United  Provinces               Tenancy (Amendment) Act, 1947, or               (ii)........................................................ ...               shall unless he’ has become a bhumidar of  the               land  under  sub-s. (2) of s-18  or  an  asami               under el. (h) of s. 21, be called adhivasi  of               the land and shall, subject to the  provisions               of  this  Act, be entitled to take  or  retain               possession thereof" Section  232 of the Act gives right to an Adhivasi  to  whom cl. (b) of s. 20 applies to apply within thirty months  from the date of vesting to the Assistant Collector in-charge  of the  Sub-Division for putting him in possession of the  land of which he is the Adhivasi. The  question therefore that arises is whether  the  Company was  recorded  as occupant of the land in dispute  which  is undoubtedly not grove land or land 569 to  which s. 16 applies.  The word I occupant’ used in  this part  of  the  Act is not a term of art  and  has  not  been defined  anywhere in the Act or in the U. P. Tenancy Act  or in  the Land Revenue Act.  It must therefore be  given  its’ ordinary   dictionary  meaning  which  is  "  a  person   in occupation  ". In order therefore that the Company can  take the  benefit  of  s.  20 it should  have  been  recorded  in occupation  of the land in dispute in the year 1356  F.  The only  limitation that has been placed by judicial  decisions on this meaning of the word " occupant " is that the  person should  be in occupation in his own right and not on  behalf of  someone else. (See Swami Prasad and another v. Board  of Revenue, U. P. (1) ). So long therefore as a person has been in occupation in the relevant year in his own right (and not on behalf of someone else) he will be entitled to the rights conferred  under s. 20 of the Act.  Learned counsel for  the landlords  however  contends  that the Company  was  not  in possession  in  its  own  right and  his  argument  in  this connection  is two-fold.  Firstly, it is submitted that  the Company was ordered to be ejected on November 3, 1948, which was in 1356 F. Thereafter it remained in possession  because of  the stay orders passed by the appellate courts to  which it  went in appeal successively. Therefore even  though  the Company  was in occupation throughout 1356 F its  possession after  November  3, 1948 was not on its own  behalf  but  on ’behalf  of  the Court.  Secondly, it is urged that  as  the Company was recorded as a thekadar in 1356 F, its possession was  not on its own behalf but on behalf of  the  landlords, whose thekadar it was. We are of opinion that there is no force in either of  these contentions.   So far as the first contention is  concerned,

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all  that had happened after November 3, 1948, is  that  the Company  got  stay  orders from  the  appellate  courts  and remained  in possession as before till July 1950,  when  its second  appeal  before  the Board  of  Revenue  was  finally dismissed.  It cannot, however, be said simply because there were stay orders as a result of which the Company  continued to (1)  1960 A.L.J. 241. 570 remain in possession that it was in possession on behalf  of the  court.   In such circumstances the  possession  of  the Company,  though  it continued because of the  stay  orders, cannot be held to be on behalf of the court; and it must  be in occupation in the right asserted by it, even though if it had not obtained the stay orders it would not have  remained in  possession.  Learned counsel for the landlords  in  this connection relied on Parshotam Das v. Prem Narain (1).  That case,  however,  is distinguishable because in that  case  a receiver  had  been  appointed and the  person  recorded  in occupation  of  the  land was held to be the  agent  of  the receiver.   Reliance  was also placed on a decision  of  the Board of Revenue in Birjlal v. Murli’ Pd. (2), where it  was held that where a person is recorded as occupant in 1356  F, because of possession acquired on the basis of a stay  order issued  by a court, his possession will be deemed to  be  on behalf  of the court and will therefore not qualify him  for acquisition of the rights of ’an Adhivasi under s. 20.   The facts in that case were somewhat different inasmuch as there was  redelivery of possession and that is how the person  to whom possession was redelivered was recorded in the  revenue records  in 1356 F as occupant.  But if that case  means  to lay  down that a person who remains in possession because  a stay  order  has been passed by an appellate court  must  be deemed  to  be in possession on behalf of the court,  it  is incorrect.  In this case the Company was in possession  from before   November  3,  1948,  and  remained  in   possession thereafter  because certain stay orders were passed  by  the appellate  courts.  In the circumstances it must be held  to have  remained in possession in the same right in  which  it was   in  possession  before  November  3,  1948,  and   its possession thereafter cannot be said to be on behalf of  the court. The next argument on behalf of the landlords is that as  the Company was recorded as a thekadar in 1356 F in the  revenue records  it must be held to have remained in  possession  on behalf  of  the landlords whose thekadar it  was.   In  this connection reliance (1) A.I.R. 1956 All. 665. (2) [1954] R.D. 175. 571 was  placed on Lala Nanak Chand v. The Board of Revenue,  U. P.  (1),  where it was held that what s. 20(b)  requires  is that  there  should  be an entry of a person’s  name  as  an occupant in the khasra or khatauni of 1356 F; but it is  not necessary  that the person  recorded as  an  occupant should also have been in actual possession.  It is not necessary to consider  the correctness of that decision in this case  for it  is  not in dispute here that the Company  was  not  only recorded in possession but was in actual possession in  1356 F.  What is contended on behalf of the landlords is that  as the  Company was recorded as a thekadar in 1356 F it is  not open  to the court to go behind that entry and therefore  it must  be  held  that  the company was  in  occupation  as  a thekadar  in that year and thus was in occupation on  behalf of  the  landlords  and  not  on  its  own  behalf  In  this

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connection we may point out that the Company claimed that it was entitled to possession not only as an Adhivasi under  s. 20  but  also  as a hereditary tenant  under  s.  12,  which provides that a thekadar under certain circumstances becomes a hereditary tenant.  To meet the Company’s case under s. 12 the landlords contended that the Company was not a  thekadar in  1356 F because the theka expired on June 30, 1948.   The landlords  were thus taking contradictory positions for  the purposes of ss. 12 and 20; in opposition to the claim  under s.  12 they said that the Company was not their thekadar  in 1356  F while in opposition to the claim under s.  20,  they said  that  the  Company was not in possession  on  its  own behalf but as their thekadar.  It is argued on their  behalf that for the purpose of s. 20 all that has to be looked into is  the entry and nothing more and they rely on  Lala  Nanak Chand’s  case (1).  That case, however, was  concerned  only with  the question whether a person recorded in the  revenue records had also to prove actual possession and it was  held therein that it was enough that a person should be  recorded in the revenue records as an occupant and it was not  neces- sary  that he should also be actually in possession  in  the relevant year.  We need say nothing about the (1) 1955 A.L.J.408. 572 correctness of that decision in the present case.  But  that case  was  not  concerned with  the  nature  of  possession, namely,  whether  it was on a person’s own behalf      or on behalf  of someone else.  The words in s. 20(b)(i) man  Only speak  of a person being recorded as occupant and  there  is nothing  in that section as to the nature of the  occupancy, namely whether it is on behalf of the person recorded or  on behalf  of  somebody else.  That is a matter  which  in  our opinion  must  always be decided on other evidence  for  the entry  does  not  contemplate recording the  nature  of  the possession in the sense of its being on behalf of the person recorded or on someone-else’ behalf We have already observed that  the expression " occupant " is not defined in the  Act and  it  is clear that neither the Act nor  the  Rules  made under it prescribe the form in which the entry specified  by s. 20(b) should be made.  Besides the reference to the theka was bound to be continued even after its termination so long as  the  Company  remained in  possession  and  the  lekhpal received no order to change it.  Therefore the contention on behalf of the landlords that we cannot look beyond the entry of  the  Company as a thekadar and must hold on  that  basis that  it  was in possession on behalf of the  landlords,  is incorrect.  On the landlords’ own showing in this case,  the Company was not in possession as a thekadar as the theka had expired  before  1356 F. Under the circumstances we  are  of opinion that the company was recorded as an occupant in 1356 F  and  that the nature of that occupation was  on  its  own behalf  and  was  not either on behalf of the  court  or  on behalf  of  the landlords.  Therefore the Company  would  be entitled to Adhivasi rights.  On this view it is not  neces- sary to decide whether the Company, is also entitled to  the benefit of s. 12.  Appeal No. 4 therefore fails. As  appeal No.4 fails, it is not necessary to decide  appeal No.  196  and that appeal must under  the  circumstances  be dismissed as infructuous. In the circumstances of these two appeals we are of  opinion that parties should bear their own costs of the two  appeals in.  this Court.  We therefore dismiss the appeals and  pass no order as to costs. 573 DAS  GUPTA  J.-I  have  had the  advantage  of  reading  the

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judgment  prepared by my brother Mr. Justice Wanchoo; but  I regret  my  inability to agree that the Upper  Ganges  Sugar Mills  Ltd  the respondent in Civil Appeal No. 4 of 1959  is entitled to the benefit of s. 20(b)of  the U.  P.  Zamindari Abolition Act. The facts have been fully stated by Mr. Justice Wanchoo  and it is unnecessary to repeat them. It  is common ground that if the Company, the  Upper  Ganges Sugar  Mills Ltd., can get the benefit of s. 20(b) or s.  12 of the U. P. Zamindari Abolition Act the Civil Appeal No.  4 of 1959 must be dismissed and consequently Civil Appeal  No. 196  of 1952 which is by the Company against the  decree  of ejectment  made in favour of the superior landlords must  be dismissed as infructuous.  The relevant portion of s. 20  is in these words:-               " Every person who (a)               (b)   was recorded as occupant               (i)   of  any land (other than grove  land  or               land to               which s. 16 applies) in the Khasra or Khatauni               of  1356  F,  prepared under  ss.  28  and  33               respectively  of the U. P. Land  Revenue  Act,               1901               (ii)               shall  unless he has become Bhumidhar  of  the               land  under  sub-s. (2) of s. 18 or  an  asami               under  cl. (h) of s. 21 be called Adhivasi  of               the  land and shall, subject to the  provision               of  this  Act, be entitled to take  or  retain               possession thereof." The  Khasra  and Khatauni have been produced before  us  and they  show that the Upper Ganges Sugar Mills Ltd., has  been recorded as in possession of the land in dispute.  They also show however that the possession was as a " Thekadar ". What we  have to ask ourselves is, whether these entries  in  the Khasra  or Khatauni justify the conclusion that the  Company has  been recorded as an " occupant " within the meaning  of a. 20(b). The word " occupant " has not been defined in the Act and it has  to  be properly interpreted on a consideration  of  the entire scheme and the purpose of the 574 legislation.   It was suggested on behalf of  the  landlords (Appellants  in  C. X. No. 196 of 1952) that  "  occupant  " connotes a person who is in possession in his own right  and not  on behalf of someone else.  This was the view taken  by the  Allahabad  High  Court  in Swami  Prasad  v.  Board  of Revenue,  U. P. (1).  The correctness of this view  has  not been challenged before us. Bearing in mind this connotation of the word ,,occupant " we have  to examine the entries in the Khasra and  Khatauni  to see  whether they amount to the recording of the Company  as an  "  occupant ". It has to be noticed  that  this  benefit under  s.  20(b)  is under the  provisions  of  the  section available to those who are " recorded " as " occupants " and not to all those who are "occupants ". If the fact of  being occupants  was  what  was necessary, and  reference  to  the records  was to be made only in supporting or resisting  any claim  on  that basis, we could  certainly  look-beyond  the record to decide the question.  The Legislature has  thought fit  to correlate the benefit to the record as  an  occupant and not merely to the-fact of being an occupant.  The Khasra or  Khatauni  as prepared in the Uttar Pradesh does  not  in any, case record any person as an " occupant "; that is  why we have to examine the entries in the record to show whether

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they  record  the facts which are necessary to  satisfy  the connotation of the word " occupant ". Looking at the entries before  us  I find that they record the Upper  Ganges  Sugar Mills’  possession as a Thekadar.  Chapter XI of the  U.  P. Tenancy Act (U. P. XVII of 1939) deals with a Thekadar.   It seems  reasonable to hold that in this Chapter, Thekadar  is equated  to  a farmer of rents,  and  Thekadar’s  possession ordinarily is contemplated to be possession on behalf of his lessor.   The  record  in the Khasra of possession  "  as  a Thekadar " appears to me therefore to amount to record of  " possession  on  behalf of the Thekadar’s lessor  ".  On  the accepted  interpretation of the word " occupant " in  s.  20 that  it means a person in possession in his own  right  and not on (1)  1960 A.L.J. 241 575 behalf of somebody else, these entries in my opinion must be held  to record the Upper Ganges Sugar Mills Ltd., as  an  " occupant ". The fact that the Theka had come to an end,  and yet,  the  Khasra continued to record the  possession  as  " Thekadar " is, I apprehend, wholly beside the question. I  cannot  see how we can look beyond the actual  record  to ascertain  whether  the  claimant has been  "    recorded as occupant  "  ;  nor  can I find  any  way  of  holding  that possession  as  " Thekadar " in the record, may or  may  not mean " possession on behalf of the lessor ". Nor do I  think it  possible to say that " occupant " should be  interpreted to  include  even  one in possession on  behalf  of  another person.   I  therefore find it difficult to agree  that  the Upper  Ganges Sugar Mills is entitled to the benefit of  is. 20(b) of the U. P. Zamindari Abolition Act. As my learned brethren have taken the view that the  Company is so entitled to the benefit, full arguments have not  been heard on the question whether the Company is entitled to the benefit  of s. 12 and no arguments were heard in  the  other appeal,  viz.,  Civil  Appeal No. 196/52.   I  am  therefore unable  to  come to any conclusion as to how  these  appeals should be disposed of. ORDER  OF  COURT.   In view of  the  majority  Judgment  the appeals are dismissed.  No order as to costs. Appeals dismissed. 74 576