RAGHUNANDAN SINGH & ORS. v. BRIJ MOHAN SINGH & ORS.

###### • \ ## . #### • ' _I_ ' RAGHUNANDAN SINGH & ORS. _v._ BRIJ MOHAN SINGH & ORS. _February_ 15, 1980 [S. MURTAZA FAZAL Au AND A. D. KosHAL, JJ.] _[J._ _P._ _Zan1i11dari_ _Abolition and_ _Land_ _Reforms_ _Act,_ 1950 _(U.P._ _Act_ 1 _o1_ 1950) _Section_ _12-Scope_ _of._ _Terms_ _of_ _Thcka empowering lease-holders to remain in possession_ _of_ _agrl .._ _.c;ultural_ _land--Appoint_ _te1nporary_ _tenants and recover Govern1nent_ _Revenue-_ _Thekadar whether a hereditary tenant._ The appellants who were originally the Zamindars of the land in dispute granted Thekas to the respondents first on the 10th July, 1933 and then on the 24th May, 1943. While the first Theka provided that the tease-holders were to remain in pos.4ession of the entire agricultural land either through them~ 1elves or by euanging with temporary tenants and by recovering government revenue, the second Theka though in the same terms, provided that the leasehold'ers would remain in possession of the agricultural land as lease-holders ·themselves and may appoint temporary tenants by receiving the government 1063 A B ### c D , revenue. # l ' i The appellants succeeded before the Settlement Officer (Consolidation), but the Deputy Director of Consolidation held in revision, that the appellants were Bhoomidars and the respondents could not get any status under Section 12 of the Uttar Pradesh Zam.indari Abolition and Land Reforms Act, 1950·. The High Court dismissed the writ petition filed by the appellants _in_ _limine._ E In the appeal to this Court it v,.-as submitted on behalf of the appellants that as the Theka granted by the Zamindars was not made with the les<ees <>nly for the purposes of personal cultivation of the lands the respondents 'Nould not fall within the ambit of section 12 of the Act, while on behalf of th~ respondents it wa<I contended that oo they were in cultivating possession of the lands in question, they had acquired the status of her'editary tenants conferred p on them by section 12 of the Act and they were not Assamis as contemplated by section 13 of the Act. Allowing the appeal, HELD : 1. Before a person can be held to be a hereditary tenant under Section 12 of the Act, three conditions must be fulfilled: (1) He must be in possession of the land in dispute on the !st May 1950, (2) His possession mlist G be under a Tbeka and (3) The Th'eka must be for the _purpose_ _of_ _personal_ _cuttivlltion_ _of_ _the lands_ _in_ _dispute_ _by_ _that person_ and not for other purposes. !1065C-DJ 2. The dominant intention of the statute, as of other land reforms legisla· tion, is to secure land for the tiller of the soil who alone would be clothed with the special rights of a hereditary tenant. [1065-DJ H 3. The terms of the Tbeka do not spell out the facts that the respondents llad taken the lease for purposes of personal cultivation only, because other 1064 SUPREME COURT REPORTS [1980] 2 S.C.R. ' **A** **purpoSes** **also** **are** **indicated** **as** **part** **of** **the** **Theka namely to sublet the land** **or to appoint** **tcmpora.ry** **tenants** **and** **the** **like.** **The conditions** **required** **by** **section** **12** **are** **therefore not fulfilled** **in** **the** **case** **of** **the** **respondents.** [1066C] ##### ' . _t_ **B** _**Balu Noorul Hassan Khan (Dead) by LRs**_ **v.** _**Ram Prasad Singh and oilier!**_ [1980] 1 S.C.C. 367 followed and relied upon; _Rani_ _Dullaiya_ _&_ _Anr._ v. _Ganga_ _Prarad_ 1968 ALJ 518 over-ruled. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1197 of 1970. From the Judgment and Order dated 9-4-19.69 of the Allahabad High Court in Civil Misc. Writ Petitiou No. 1005 of 1969. S. _P._ _Singh_ and _R. A._ _Gupta_ for the Appellant. **C** _Yogeswar Prasad, Mrs._ _Rani_ _Chhabra,_ S. _K._ _Bagga_ and _Mrs._ S. _K._ _Bagga_ for Respondent No. 4. **D** **E** **F** **G** **H** S. _N._ _Singh_ for Respondents 1-3 and 5. The Judgment of the Court was delivered by FAzAL Au, J.-This appeal by certificate is directed against a judgment of the Allahabad High Court, which dismissed the writ petition filed by the appellants _in limine._ We have heard learned counsel for the parties at great length. The only point for detennination in the present appeal is whether the case of the parties is governed by section 12 or section 13 of the U .P. Zamindari Abolition and Land Reforms Act 1950 (Act I of 1950) (hereinafter called the Act). The facts in dispute are that so far as the appellants are concerned, they were orginally the zamindars of the lands in dispute and they granted Thckas to the respondents first on the 10th of July, 1933 and then on the 24th May, 1943. The interpretation of the tenns of the Theka wonld determine the question of the status of the appellants. Shri Shiv Pujan Singh, appearing for the appellants, submitted that as the Thcka granted by the Zamindars was not made with the lessees only for the purposes of personal cnltivation of the lands the respondents would not fall within the ambit of Section 12 of the Act. On the other hand, it was argued or the respondents that as they were in cultivating possession of the lands in question, they had acquired the status of hereditary tenants conferred on them by section 12 of the Act and they are not Assamis contemplated by section 13 of the Act. Although the appellants succeeded before the Settlement Officer (Consolidation) the Deputy Director of Consolidation held in revision that the appellants were Bhoomidars and the respondents could not get any status under section 12 of the Act. In order to decide this question, we have to determine the scope and ambit of Section 12 of the Act. _!_ ##### Jl.; .. RAGHUNANDAN _v._ BRIJMOHAN _(Fazal Ali,_ _J.)_ I 065 . "12. Thekedars to be hereditary tenants in certain circumstances- A ( 1) Where any land was in the personal culliivation 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 a hereditary tenant thereof entited to hold, and when he has been ejected from the land after the said date, to B regain possession as a heredifary tenant thereof liable to pay rent at hereditary rates." An analysis of this section would show that before a person can be held to be a hereditary tenant under the section, the following con##### ditions must be fulfilled :- C l. He must be in possession of the land in dispute-on the 1st of May, 1950. 2. His possession must be under a Theka. 3. The Theka must be for the _purpose_ _of_ _personal cultivation_ _of the lands_ _in_ _dispute by that person_ (emphasis supplied) D and not for other purposes. The dominant intention of the statute, as of other land reforms legislation, is to secure land for the tiller of the soil who alone would be clothed with the special rights of a hereditary tenant. It is, therefore, manifest that only if the above three conditions are E fulfilled, would the Thekedars get the status of hereditary tenants and not otherwise. This section was interpreted by a decision of this Court in _Babu Noorul Hasan Khan (Dead)_ _by_ _Lrs._ v. _Ram_ _Prasad Singh_ ##### and Others(') where this Court observed as follows : "If such a land was in .the personal cultivation of a person on the p 1st of May, 1950 as a Thekedar thereof and _if the Theka was made_ _with a view_ _to_ _the_ _cultivation_ _of the land by such Thekedar personally_ then because of the non-obstante clause occurring in sub-section ( 1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent on hereditary rates. If, however, the land was in personal cultivation G 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 assami in accordance with section 13(2) (a) of the Act." The facts of the case before us are similar to the facts of the H' present case' and the decision of the courr is therefore directly in point. (I) [1980] 4 S.C.C. 367. ' B ### _c_ 1066 SUPREME COURT REPORTS [!980] 2 S.C.R. A perusal of para 1 of the Theka executed on the 10th of July 1933 in favour of the Thekedars clearly shows that the lease-holders were to remain in possession of the entire agricultural land eiliier through themselves or by arran!jing with temporary tenants and by recovering government revenue. The other Theka which was executed on 24-5-43 was almost in the same terms and clause(!) provide that the lease-holders will remain in possession of the agricultural land as lease-holders themselves and may appoint temporary tenants by receiving the govermnent revenue. Thus, the terms of the Theka, do not spell out the fact that the respondents had taken the lease for the purpose of personal cultivation only because other purposes also are inddcated as part of the Theka viz. to sublet the land or to appoint temporary tenants and the like. In these circumstances, the condition required by section 12 are cle~rly not fulfilled in the case of the respondents. Mr. Singh appearing for the respondents relied on a decision of D the Allahabad High Court in _Rani Dullaiya_ & _Anr._ v. _Ganga Prasad(')_ where it was held that although the Theka may be for some other purpose also, but if it was also for personal cultivation section 12 of the Act would apply to the Thekedars. With due respect, we are of the opinion that the view taken by the Allahabad High Court is in direct conflict with the decision of this Court referred to above and E it must, therefore, be held to be incorrect. For the above reasons, we allow this appeal, set aside the order of the High Court as also that of the Deputy Director of Consolidation and restore the order of the Settlement Officer (Consolidation) dated 24-1-1968. F In the circumstances of this case, there will be no order as lo costs. N.V.K. _Appeal allowed._ ~~(l)~~ ~~(1968)~~ ~~A.~~ ~~L.~~ ~~J~~ . 518.