Subhanna vs Dy. Director of Consolidation

Satish Chandra, J.—This appeal arises out of consolidation proceedings. Mohd. Ahmad, Respondent No. 3, filed a suit for declaration u/s 63, U.P. Tenancy Act against the Appellant Subhanna on 14-6-1949. The parties filed a compromise. On the basis of that compromise, the suit was decreed on 18-5-1949, declaring the Appellant Mohammad Ahmad to be the khudkasht-holder of the plots in dispute. Subhanna made an application for review denying the compromise, but that application was dismissed on 16-7-1951. On 7-9-1950, Mohammad Ahmad filed a fresh suit u/s 180 of the U.P. Tenancy Act against Subhanna on the allegation that he had trespassed over the land in dispute after the passing of the compromise decree. This suit was dismissed by the trial court, but on appeal it was decreed on 17-9-1962. In execution of that decree possession was delivered to Mohd. Ahmad on 22-10-1962. Subhanna, however, filed a second appeal, which was pending before the Board of Revenue when consolidation proceedings commenced.

Subhanna filed an objection in the consolidation proceedings claiming to have become sirdar of the land in dispute. Maqbool Ahmad and Mohd. Ayub, Respondents 3 and 4, also filed an objection claiming to be mutated in place of Mohd. Ahmad by virtue of a sale deed dated 22-11-1963 executed by Mohd. Ahmad in their favour. The Consolidation Officer upheld the claim of Subhanna. On appeal, the Settlement Officer repelled the claim of Subhanna and upheld the title of Mohammad Ahmad as khudkasht-holder. He directed that his vendees Maqbool Ahmad and Mohd. Ayub be recorded as bhumidhari. Subhanna filed a revision before the Dy. D.G. who held that Subhanna had become bhumidhar of the land in dispute and was entitled to be recorded as such. Aggrieved Maqbool Ahmad and Mohd. Ayub filed a writ petition in this Court.

The learned single Judge held that Subhanna was recorded as occupant over the plots in dispute in the revenue papers in 1356F, but since the suit for declaration was instituted during the year 1356F. and decreed, the result was that a final decision between the parties u/s 63 of the U.P. Tenancy Act came into existence. The effect of this decision would be that the entry of 1356F. would be deemed to have been corrected, within meaning of Explanation III to Section 20, ZA and LR Act. Consequently, this entry could not be availed of by Subhanna for claiming adhivasi rights.

It was urged before the learned Single Judge that in view of the fact that Subhanna had been in continuous possession till the execution of the decree passed in the suit u/s 180 of the U.P. Tenancy Act, and delivery of possession on 22-10-1962 to Mohd. Ahmad, he (Subhanna) by this time had become a hereditary tenant. The learned single Judge repelled this contention on the finding that since the suit for ejectment had been instituted within limitation no right could accrue to Subhanna merely because he had been in possession during the pendency of that suit.

It appears that Subhanna had deposited ten times of the land revenue and obtained a bhumidhari sanad. He claimed to have become bhumidhar of the land in dispute on the basis of the sanad. The learned Single Judge held that mere possession of the bhumidhari sanad will not confer any bhumidhari right,

ON these findings, the writ petition was allowed and the orders of the Dy. D.C. and the Consolidation Officer were quashed. Aggrieved, Subhanna has come up in appeal.

We agree with the learned Single Judge that no hereditary tenancy rights accrued to the Appellant and that no bhumidhari rights could be claimed on the basis of the mere possession of the sanad. These two points need not detain us any longer.

With regard to the entry of the Appellant''s name in the village papers as occupant in 1356F., the matter is covered by the five Judge Full Bench case of Ambika Prasad v. Kamla Prasad 1971 AWR 861. In that case a suit for ejectment filed in the revenue court ended in a compromise decree, wherein the Defendant stated that the Plaintiff was the rightful tenure-holder and that the Defendant had no concern with the plots in dispute, and the Plaintiff was entitled to take possession. This compromise was effected towards the end of 1355F. The Full Bench held that this compromise decree fulfils the requirement of Explanation III to Section 20(b) of the ZA and LR Act. It was held that Explanation III applies not only to cases where the decree states that revenue records be corrected accordingly, but also to cases where the nature of decree is such that correction of records becomes a necessary consequence in order to obey the command of the Court contained in the decree. In the present case the compromise decree of declaration was passed on 18-6-1949, i.e. be ore the expiry of 1356F. Para 39 of the Revenue Court Manual provides that in any case in which the effect of the order or decree passed involves a change in the patwari''s records, the court shall draw up a separate order in the prescribed form (B.R. No. 250) giving full details of the entries to be made and entries to be expunged and direct the Tahsildar to have the new entries recorded in the patwari''s papers. A declaratory decree does not require an application for execution by the decree-holder. The court has to carry out the correction in the revenue papers in accordance with the decree, as provided by para 39 of the Revenue Court Manual. There is a presumption that the official authorities will do their work in accordance with law. It can be presumed that on the passing of the compromise decree, orders in accordance with para 39 must have been passed and the correction done. The existing entries showed Subhanna as the occupant. That clearly required correction in accordance with the declaratory decree. In this context the decree in favour of Mohd. Ahmad in the declaratory suit must be deemed to have corrected the entry of 1356F., within meaning of Explanation III to Section 20(b).

In this connection, reliance was placed on the three Judges Full Bench decision in Harinath v. Ram Pratap Singh 1968 AWR 65. Learned Counsel invited our attention to the following passage in para 22 of the report:

In the first place there is no order or decree of a competent court requiring any correction in the records. The compromise decree does not say that correction of papers shall be made. Secondly, Explanation I would exclude the operation of Explanations II and III, in the case. Explanation I clearly provides that notwithstanding anything in any order or decree a person evicted from the land after 30-6-1948, the person entered as occupant, shall be entitled to regain possession.

Referring to this passage, the learned Judges in Ambika''s case observed:

As the passage extracted above would show, Harinath''s case was actually disposed of on the basis of Explanation I and not on the basis of Explanations II and III. The scope of Explanations II and III was never considered in that case. In Harinath''s case the Full Bench only made a casual observation that the compromise decree does not say that correction of papers shall be made without laying down as a proposition of law that unless and until a decree said in so many words that correction of revenue records shall be made, Explanation III will not be attracted.

On this ground that Full Bench decision was held distinguishable, and not an authority for the proposition that Explanation III would not be attracted in a case where the decree did not specifically state that correction of revenue records shall be made in accordance with its terms.

It will be seen that in substance the observations made in para 22 by the Full Bench in Harinath''s case have been set at rest. We do not feel that the observations in para 22, which were termed as casual observations by the larger Full Bench, can be treated as laying down any binding proposition of law. Further, it may be pointed out that Explanations I and III to Section 20 operate in entirely different fields. Section 20(b)(i) of the ZA and LR Act provides:

Every person who--

(a)... ... ... ...

(b) was recorded as occupant--

(i) of any land...in the khasra or khatauni of 1356F. prepared Under Sections 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 Clause (c) of Sub-section (i) of Section 27 of the U.P. Tenancy (Amendment) Act, 1947...shall, unless he has become "bhumidhar" of the land Under Sub-section (2) of Section 18, or an asami, Under Clause (h) of Section 21, be called adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.

Explanation I--Where a person referred to in Clause (b) was evicted from the land after 30-6-1948, he shall notwithstanding anything in any order or decree, be deemed to be a person entitled to regain possession of the land.

Explanation II--Where any entry in the records referred to in Clause (b) has 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 shall for the purposes of the said clause, prevail.

Explanation III--For the purposes of Explanation II 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 records has been made before the said date and had become final even though the correction may not have been incorporated in the records.

It shall be seen that Clause (b)(i) speaks of two categories of persons: (a) those recorded as occupants in the khasra or khatauni of 1356F. and (b) those who were, on the date immediately preceding the date of vesting entitled to regain possession u/s 27(1)(c) of the U.P. Tenancy (Amendment) Act, 1947. Section 27(1)(c) aforesaid authorised persons who had been ejected u/s 180 of the U.P. Tenancy Act, notwithstanding his having been recorded as an occupant on the first day of January, 1938, to apply for restoration of possession within six months of the commencement of that Act. This category of persons alone were entitled to regain possession.

Explanation I only explains the term ''entitled to regain possession'' co-curing in Section 20(b)(i). That phrase is relevant only in regard to the category of persons referred to in Section 27(1)(c). It has no application to the other category of persons referred to in Section 20(b)(i), namely, those who were recorded as occupants in the khasra or khatauni of 1356F. So this Explanation is not attracted to them.

The first category of persons, namely, those recorded as occupants in 1356F., are specifically dealt with in Explanation II and III. These Explanations do not relate to persons referred to in Section 27(1)(c). The two sets of Explanations apply to different categories of persons. They operate in different Fields. The casual observation in Harinath''s case that Explanation I would exclude the operation of Explanations II and III, is not quite accurate, because there is no overlapping.

For the Appellant, reliance was placed on the Supreme Court case of Amba Prasad v. Mahboob Ali Shah 1964 AWR 541. In that case, the main discussion was whether the entry of 1356F was genuine. An ejectment decree passed in a suit u/s 180 of the U.P. Tenancy Act was put in execution in 1952 (1359F.), that is to say, after the expiry of 1356F. Under the rules the entries for 1356F. had to be completed upto 30-4-1949. In this context, the Supreme Court observed that the decree could not require correction of 1356F. entry.

In the present case, the decree was passed on 18-6-1949. In our view, Amba Prasad''s case is also distinguishable.

In our opinion, the learned Single Judge took a right view of the law. The appeal fails and is dismissed with costs.