# /(. Al. ,l\'atiatilzti v. The Statt of Bombay

- **Citation:** [1961] 1 S.C.R. 564
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** B. P. SrnHA, B. P. Ga.Jendragadkar, K. N. Wanchoo, K. C. DAS GUP'l'A aud J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/al-l-atiatilzti-v-the-statt-of-bombay-2191
- **Pages:** 12

## Headnote

Tenancy-Adhivasi ri!;ht, acq,,isitioiz of-I'os.~,,ssion cnntin11cd
under stay orders of court.~- - tl"hcthcr such poss,·ssion is on bcluilf of
courts-- l'crson recorded in posscssicn as thckadar- ti' /ict11rr an
occ11pant in his 01en 1'igl:t-U. 11• Z111nindari Alo!iti"ori and J.a11d
Reforms Act, i950, (U. }'. I of z950). s. 20(b).
The landlord granted a theka to the ccmp;rny for 10 years
ending \\'ith 1350 F which \\JS rc11e\ve<l up to 1355 F (june
1948). On the company·; refusal to vacate on the cxpi1y 01 the
theka the l~ndlord lilcd a suit for cjcctment under the LT. P.
Tenancy Act, l9J9·
The suit was resisted by the company on
the ground that it has beco1nc a hereditary tenant undC'r s. 29
of that 1\ct.
The suit \vas decreed on l\ovcmher 3, 1948, an<l
an appeal and a second appeal a~ainst the dccrl'e al~o f<l.ilc<l, hut
the curnμany rcmain<:d in possession of the land on account of
stay orJe1s granted by the appellate courts.
In execution t'he
lamllord obtained formal possesoion on Octohcr 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. 2J2 of the U. P. Zaminclari Abolition and Land
Reforn1s Act, 1950, clairning to have become an Adhivasi under
s. 20 thereof. Seclion 20 provi1led that every person who was
recorded as occupant.of any lanri in the K/Iasra or Khataimi of
1356 F shall be called an adhivasi of the land and shall be
1 S.C.R. SUPREME COURT REPORTS
565
entitled to take or retain possession thereof. The company was
1960
recorded in r356 F in possession of the land in dispute as thekedar. The landlord contended that the company had not acquired The Upper Gong"
the rights of an adhivasi: (i) as it being in possession in r356 F SugaY Mills Ltd.
under the stay orders of the courts it was in occupation not on
v.
its own behalf but on behalf of the court, and (ii) as it was J(halil·ul-Rahman
recorded as a thekedar in r356 F its possession was not on its own
&- Othm
behalf but on behalf of the landlords, whose thekedar it was.
\ /
Held,
(per Sinln 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, r948.
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 Revcnite, U. P., r960 A.L.J. 241,
Parshotam Das v. Prem Na.ain, A.LR. r956 All. 665, Birjlal v.
Mitrli Pd., r954 R. D. 175 and Lala Nanak Chand v. The Board of
Revenite, U. P., 1955 A.L.J. 408, referred to.
DAs Gu PTA, J.-The company did not acquire the rights of
an adhivasi. The word "occupant" means a person in possession 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. 24r,
referred to.
CIVIL
APPELLATE JuRISDIOTION: 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
SUPREME COGRT REPORTS
[1961]
1960
· C. B. Aggarwala a.nd C. P. Lal, for the Appellants

## Text

/(. Al. ,l\'atiatilzti
v.
The Statt of
Bombay
Kapur J.
564
SVPHEME COUHT HEPORTS
(1961]
the same subject matter a.s is contended then a.rt. 161
must prevail over art. 142(1) which is in accord with
the constitutional position as above discussed.
In the circumstances of this case I would grant
tho petitioner r.•xemption prayed for and proceed to
hear tbe special leavP. petition on merits.
BY COURT: In view of t.hc majority ,Judgment,
the petition is dismissed.
Petition dismissed.
THE UPPER GA:\GES St;CAH .MILLS LTD.
v.
KHALIL-UL-RAHlllA:\ A.:\'D OTHEHS.
(B. P. SrnHA, C. J., B. P. GA.JENDRAGADKAR,
K. N. WANCHOO, K. C. DAS GUP'l'A aud
J. c. SHAH, ,JJ.)
Tenancy-Adhivasi ri!;ht, acq,,isitioiz of-I'os.~,,ssion cnntin11cd
under stay orders of court.~- - tl"hcthcr such poss,·ssion is on bcluilf of
courts-- l'crson recorded in posscssicn as thckadar- ti' /ict11rr an
occ11pant in his 01en 1'igl:t-U. 11• Z111nindari Alo!iti"ori and J.a11d
Reforms Act, i950, (U. }'. I of z950). s. 20(b).
The landlord granted a theka to the ccmp;rny for 10 years
ending \\'ith 1350 F which \\JS rc11e\ve<l up to 1355 F (june
1948). On the company·; refusal to vacate on the cxpi1y 01 the
theka the l~ndlord lilcd a suit for cjcctment under the LT. P.
Tenancy Act, l9J9·
The suit was resisted by the company on
the ground that it has beco1nc a hereditary tenant undC'r s. 29
of that 1\ct.
The suit \vas decreed on l\ovcmher 3, 1948, an<l
an appeal and a second appeal a~ainst the dccrl'e al~o f<l.ilc<l, hut
the curnμany rcmain<:d in possession of the land on account of
stay orJe1s granted by the appellate courts.
In execution t'he
lamllord obtained formal possesoion on Octohcr 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. 2J2 of the U. P. Zaminclari Abolition and Land
Reforn1s Act, 1950, clairning to have become an Adhivasi under
s. 20 thereof. Seclion 20 provi1led that every person who was
recorded as occupant.of any lanri in the K/Iasra or Khataimi of
1356 F shall be called an adhivasi of the land and shall be
1 S.C.R. SUPREME COURT REPORTS
565
entitled to take or retain possession thereof. The company was
1960
recorded in r356 F in possession of the land in dispute as thekedar. The landlord contended that the company had not acquired The Upper Gong"
the rights of an adhivasi: (i) as it being in possession in r356 F SugaY Mills Ltd.
under the stay orders of the courts it was in occupation not on
v.
its own behalf but on behalf of the court, and (ii) as it was J(halil·ul-Rahman
recorded as a thekedar in r356 F its possession was not on its own
&- Othm
behalf but on behalf of the landlords, whose thekedar it was.
\ /
Held,
(per Sinln 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, r948.
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 Revcnite, U. P., r960 A.L.J. 241,
Parshotam Das v. Prem Na.ain, A.LR. r956 All. 665, Birjlal v.
Mitrli Pd., r954 R. D. 175 and Lala Nanak Chand v. The Board of
Revenite, U. P., 1955 A.L.J. 408, referred to.
DAs Gu PTA, J.-The company did not acquire the rights of
an adhivasi. The word "occupant" means a person in possession 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. 24r,
referred to.
CIVIL
APPELLATE JuRISDIOTION: 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
SUPREME COGRT REPORTS
[1961]
1960
· C. B. Aggarwala a.nd C. P. Lal, for the Appellants
The Upp" Ganges(In C. A. No. 196_of 1952) and respondent No. I (in
Sugar Mills Ltd, c. A. No. 4 of I 9a9).
Kilalil-u;:R••.,••
Achhru Ram. and Naunit Lal, for the appellants (in
cS- Others
C. A. No. 4 of 59) a.nd respondents (in C. A. No. 196
of 52).
1960. September 6.
The Judgment of Sinha. C. J.,
Ga.jendra.ga.dkar, Wa.nchoo a.nd Shah, JJ. was delivered by
Wanciloo J.
W ANCHOO 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 ca.lied the Company) while appeal N0. 4 of
1959 is by Mohd. Khalilul Rehman and others (hereinafter ca.lied the landlords). The brief facts necessary
for present purposes a.re thes.e.
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 yea.rs ending with
1350 F (June I 943).
The theka contained a clause
giving option to the Company to get it renewed for
five yea.rs a.nd in consequence the theka was renewed
for five yea.rs from 1351 ]<' to 1355 F (that is upto
June 1948). Thereafter the theka provided for 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. Tenancy Act, 1939. It was
resisted by the Company on the ground that it wa.s
not a thekadar but a. tenant and had become heredi-
.ta,ry tenant under s. 29 of the U. P. Tenancy Act.
This plea. failed and the suit was decreed on November 3, 1948. There was a.n appeal by the Company
against the decree. This appeal also failed.
Then
the Company went up in second appeal to the Boa.rd
of Revenue and eventually the second appeal was
Ii
_.
1 S.C.R. SUPREME COURT REPORTS
567
dismissed on July 22, 1950. -During all this period
r96o
from. Nov~mber 194~ to July 1950, .the .Company The Upp" Gan
remamed m possession of the land m dispute on sugar Mills i
account of stay orders obtained from the appellate
v.
courts. Execution began in October 1950 and it is Khali/cu/-Rahma.n
said that possession was delivered to the landlords on
-& Othm
October 13, 1950 and a Dakhalnama was filed on OctoU'anchoo ].
her 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 super-
·aars (caretakers). The Company applied to the Board
fo~ 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. 1 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 anq 20 thereof. The SubDivisio1ial Officer decided in J auuary 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
SUPREME COURT REPORTS
[ 1961]
r96o
effect tha.t the Compa.ny is entitled to the benefit of
Th U -G
s. 20 of the Act and has acquired Adhiva.si rights
e pper
anges h
d
Sugar Mills ltd. t ereun er.
v.
It is conceded by learned counsel for the landlords
Khalil-ul-Rahnia• tha.t if appeal No. 4 fails and the right of tht> Com-
'"" Others
pa.ny either under s. 12 or under s. 20 is upheld, it
would not be necessa.ry to go into a.ppea.l No. 196. On
Wanchoo ].
h
h C
J h
ed
t is view t e
ompa.ny wou d
ave a.cquir
a. new
right under the Act, which would not be affected by
the decision in a.ppea.l No. 196, even if it goes a.gs.inst
the Company. We shall therefore first deal with
appeal No. 4.
Ta.king the case of the Company under s. 20 first,
we have to see whether the Company has acquired
Adhiva.si rights thereunder. The relevant pa.rt of
s. 20 for our purpose~ is as follows :-
"Every person who-
(a) ...•.•••....•......•.•.....•...••..••.....••......•.•••...•..
(b) was recorded as occupa.nt,-
(i) of any land (other than grove land CW" 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 cl. (c) of
sub-s. (l) of s. 27 of the United Provinces Tenancy
(Amendment) Act, 1947, or
(ii) ............... ··: ........................................ .
shil.11 unless he has become a bhumidar of the
land under su b-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 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 Assista.nt
Collect-Or in-charge of the Sub.Division for putting
him in possession of the land of which he is tho Adhivas1.
The question therefore that a.rises is whether tho
Company was recorded as occupant of the la.nd in
dispute which is undoubtedly not grove land or land
1 S.C.R. SUPREME COURT REPORTS
569
to which s. 16 applies.
The word 'occupant' used in
'960
this part of the Act is not a term of art and has not The upper Ganges
been defined anywhere in the Act or in the U. P. sugar Mills Ltd.
Tenancy Act or in the Land Revenue Act. It must
. v.
therefore be given its ordiliary dictionary meaning Khaltl-ul-Ra~man
which is "a person in occupation". In order there-
& Others
fore that the Company can take the benefit of s. 20 it
Wanchoo 1.
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 iD' 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. 'l'hereafter 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, all that had happened after November 3
1948, is that the Company got stay orders from th~
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) 196o A.L.J. 241.
570
Sl'l'l:E:\!E COCHT HEPOHTS
[l!l61 J
'~
6 "
remain in p0sRession that it was in possession on
Tl ,. -
-· .
hohalf of t.hc court .. fn such circum8tances the posSPS·
It v tptr frll11f'(_\
.
f I ('
,
,
s"r"'
Mi!ls L.td. SHHl o t HJ
.. ompany, though II cnntm1wd becau8e of
·
'"·
the Hfay orders, cannot be hPld to be on lwhalf of the
l\J,,1/1l-11l-Ha:,m,u1 court.; and it must be in occupati<>ll in the right as-
& 011"'·'
Herted by it, even though if it had not obtained the
stay orders it would not lnwe remained in· possesRion.
ir.""
1"'
0 1
Learned coirnsd for the landlords in this connection
reli<'d on Parshotam Das v. Prem Narain('). That
c<ise, ho.1c,·cr, i8 diHtinguishable because in that caso
a receiver had been appointed and tho person recorded in occ11patiu11 of th<' land wa~ h<.'ld to be the agent
of the receiver.
Reliance was also placed on a decision of the
801~rd of J:evenun in Hirjlal , .. .Murli
Pd.('), where it was held thBt where ·a person is
rccordcd as occupant in 1356 F, Lccause of possesnion
acrpiiretl on t.he basiH of a stay ordt•r issued Ly a
court, his po,si;s,ion will be deemed to Le on behalf
of the court and will therefore not qualify him for
acquisition of the rights of 1rn Adhivasi under s. 20.
The fac!H in thi<t ease were somewhat different inasmuch as there was reclclivery of possession and that
is how the p<'rson to whom possession was redelivered
was recorded in the rm·en•a• r.ecords in 1356 F as
occupant.
But if that case means to lay down that
a peroon who remains in possession because a stay
order !ms lwen pa.sscd by an appellate court must be
deemed to be in possession on behalf of the court, it
is incorrect.: In this cas0 the Company was in possession from before N ovem uer 3, HJ48, and rem<\ined in
possession tlwreafter ut•cause certain stay orders wero
passed by the appellate courts.
In the circumstances
it must. ue' held tu have remained in possession in the
·same right in 11 hich it was in possession before ::\ovemLer 3, 1948, and its possession thereafter cannot be
said to be on he half 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 t.hc revenue records it mtrnt be held to ha,·e
remained in possession on behalf of the landlord~
whose thrkadar it was,
In this connection reliance
(1) A.LR. 1956 AIL 665.
(2) [1954] R.D. in
1 S.C.R. SUPREME COURT REPORTS
571
was placed on Lala Nanak Chand v. The Board of
1960
Revenue, U. P. (1), where it was held that what
.
.
.
h
h
Id b
f
The U ppcr Ganges
s. 20(b) reqmres IS t at there s ou
e an entry o 3: Sugar Mills Ltd.
person's name as an occupant in the khasra or khatauni
v.
ofl356 ]<'; but it is not necessary that the person Khalil-ul-Rahman
recorded as an occupant should also have been in
& Others
actnal possession. It is not necessary to consider the
correctness of that decision in this case for it is not in
Wanchoo f.
dispute here that the Company was uot 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 th>tt 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 connection we may point out that
the Compa.ny 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 Compa.ny's case under
s. 12 the landlords contended th.a't 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 t}ley said that
the Company was not their thekadar in 1356 I<' 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 ('J. That case, however, was
concerned only with the question whether a person
r11corded 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 necessary that he should also be actually in possession in
the relevant year.
We need say nothing about the
(1) 1955 A.L.J. 408.
i>72
SUPRE:\1.E COCRT REPORTS
[1961]
1960
correctness of that decision in the present rase.
But
--
that case was not concnned with the nature of possesThe l:Pf"' GaH
0 es
·
]
h ti
·
'
b h ]f
5
,; 11
/ 1 s1on, name y, w e 1er 1t was on a person s own e a
"g"' 'v.' ' ·' ·or on behalf of someone else. The words in s. 20(b)(i)
Klw!il-ut-llah"""' only speak of a. person being recorded as occupant
~- 01hm
and there is nothing in that section as to the nature
of the occupancy, namely whether it is on behalf of
wa,,,h,o J.
the person recorded or on behalf of somebody else.
That is a matter which in our opinion must always be
decided on other evidence fur the entry does 11ot 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 ha. vc a.I ready 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 prescrib!l the form in which the entry
specified by s. 20(b) should be made.
Besides the
reforenoe to the theka was bound to be continued even
after its termination so long as the Company remained in possession and the lekhpal received nu order to
change it.
Therefore the contention on behalf of the
landlords that we cannot look beyond the entry of tho
Company as a thekadar and must hold on that basis
that it was in possession on behalf of the lnnrllords, is
incorrect.
On the landlords' own showing in this
case, the Company was not in JH>SSl'Hsion as a tltekadar
as the theka bad expried before 1356 I•'.
UnrlPr the
circumstances we are of opiniou that· the company
was recorded as an occupant in 1356 F and that tho
nature of that occupation was on its own behalf and
was uot either on behalf of the court or on behalf of
the landlords.
Therefore the Cum pa.ny would be entitled to Adhivasi rights. On this view it is not necessary to decide whether the Company i8 also entitled
to the benefit of H. 12. Appeal :-.lo. 4 therefore fails.
As appeal ~"- 4 fails, it is not necessary to decide
appeal Xo. 196 and that appeal must under the circumstances be dismissed as infructuous.
In the circumst.a.nces of these two appeals we a.re of
opinion that parties should bear their own costs of
the two appeals in this Court.
We therefore dismiss
tho appeals and pass no order as to costs.
'
1 S.C.R. SUPREME COURT REPORTS
573
DAS GUPTA J.-I have had the advantage of reading
r96o
the J'udgment prepared by my brother Mr. Justice Th u -G
b
I
.
b')'
th
h
e
ppcr
anges
Wanchoo -;
ut
regret my ma 1 1ty to agree
at t e Suga' Mills Ltd.
Upper Ganges Sugar Mills Ltd., the respondent in
v.
Civil Appeal No. 4 of 1959 is entitled to the benefit of Mrnlil-ul-Rahman
s. 20(b) of the U. P. Zamindari Abolition Act.
& Othm
The facts have been fully stated by Mr. Justice
Wanchoo and it is unnecessary to repeat them.
Das Gupta J.
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 ejectmcnt 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 a~ 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 s. 20(b).
The word "occupant" has not been defined in the
Act and it has to be praperly interpreted on a consideration of t~e entire scheme and t.he purpose of the
SCPRK\IE COURT REPORTS
[ 1961]
'960
legislation. It was suggested on behalf of the landn, ~·rpn G""~" lords (Appellants in r. A. Xo. 19fi of 1952) that" OCCU·
Sug"' .1/1!/s I.Id. pant" COnnoteR a (JPJ"SO!l
Wr.o is in pO~Se~sion in his
'
own right and not on hehalf of some0ne elRe.
This
J!l,nlil-ul·llnh"'"' was the view t.aken hy tllf' . .\llalialmd High Co1Jrt in
"
011""
Swami Prasad v. Board of Revemie, U. l'. (1).
The
correctn!'ss of this view haH not hf''·'n l'h;i,llengPd
Dr1.s (; upta } . befcwe US.
Bearing in mind this connotation of the word
"occupant" we have to examine the ontries in the
Khasra and Khatauni to see w hethcr they amount to
the recording of the Company as au" occupant". It
.has to be noticed that this benefit under s. 20(b) is
under the provisions of the section available tu 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 roferenco 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
Legi•lature 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 ur Khati>uni as
prepared iu the Uttar Piack~h does not in 11ny case •
record any person a.A an "occupant"; that is wliy we
h1we to cxamiue tlie entries in the record to sbow
whether they record the facts which 11re neceRse.ry to
satisfy the connote.t.ion of the word "occupant".
Looking at the entries before us l find that thPy
record the Upper Gangc·s Sugar J\I ills' possession as a
Thekadar. Chapter XI of the U. P. Tenancy Act
(U. P. XVll of 1939) deals with a Thekadar.
It
seems rnasonablc to bold that in this Chapter, Thek&-
dar is equated to a farmer of rents, and Theke.dar's
possession ordinarily is c,unte1upla.ted to be possession
011 behalf of his lessor.
The record in the Khasra of
possession " as a Thekadar" appears to me therefore
to a.mount to record of " possession on behalf of the
Thek11.dar's lessor". On the accepted interpretation
of the word "occupant" in s. 20 the.t it means a
person in possession. in his own right and not on
(1) 19(>o A.L.J- 24t
\
 ;\.
-+
1 S.C.R. SUPREME COURT REPORTS
575
behalf of somebody else, these entries in my opinion
'960
must be held to record the Upper Ganges Sugar Mills Th< up-;,-; Ganges
Ltd., as an "occupant". The fact that the Theka sugar Mills Ltd.
had come to a,n end, and yet, the Khasra continued to
v.
record the possession as "Thekadar" is, I apprehend, Khalil-ul-Rahman
wholly beside the question.
·
& Others
I cannot see how we can look beyond the actual Das ~~-;1• J.
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 beuefit of s. 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, foll 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 concluRion 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 .