# SONAWATI & ORS v. SRI RAM & ANR

- **Citation:** [1968] 1 S.C.R. 617
- **Court:** Supreme Court of India
- **Decided:** 1967-09-21
- **Bench:** J. C. Shah, S. M. Sikri, J. M. Shblat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sonawati-ors-v-sri-ram-anr-4149
- **Pages:** 9

## Headnote

617
U.P. ZamindaTi Abolition and Land Reforms Act .1 of 1951.
•. 20(b)-Pf!1'son recorded as occupant' in 1356 Fas!i to be adhivasiRequirements of section.
U.P, Land Reforms (Supplementary) Act 31 of 1952, & 3-Adhi-
. vasi rights under-Tresjiasser whether can claim to be in 'cuitivatory
c possession' within meaning of Section.
D
Practice-Dispute as to Tights in land-Magistrate in proceedings
under s, 145 Cr. P.C, attaching land and asking parties to go to clvit
court-Defendants in civil suit acquiring possession from criminal
court pursuant to decree of first · appellate court-High Cou.rt in
second appeal whether can grant decree for possession after allow·
ina amendment of plaint for that purpose.
The respondents purchased the land in dispute from the bhumidhars thereof, but 'P' (predecessor-in-interest of the appellants) claimed to be in possession of the land and a dispute was raised under
s. 145 of the Code of Criminal Procedure. The Magistrate attached
the land and relegated the parties to a suit. The respondents filed a
plaint seeking a declaration of their rights and removal of 'P's name
from the record of rights. The trial court after getting a finding from
E the Revenue Court granted a decree to 'the respondents. The first Appellate Court, however decided in favour of 'P' and. on the basis of
that finding 'P' got possession from the criminal court. The respondents went in second appeal to the High Court which decided in their
favour and gave them a decree for possession of the land after. allowing them to amend their plaint by adding a prayer for possession.
The appellants came to this Court and urged: (i) 'P' was recorded
as an 'occupant' in the khasra of 1356 Fasli and therefore under
F s. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of
1951 he was an adhivasi, (ii) 'P' was recorded as In 'cultlvatory ~
session' of the land in 1359 Fasli and on that ground also he was aij
adhivasi; (iii) the High Court was bound by the findings of the first
Appellate Court that the appellant was an 'occupant' in 1356 Fasli
and in cultivatory possession in 1359 Fasli; (iv) A suit for possession
even against a trespasser could lie only in the Revenue Court and
G not in the Civil Court, and the High Court by allowing amendment
of the plaint in the second appeal could not assume to itself jurisdiction which civil courts do not possess.
·
HELD: (i) The entry in the Khasra of 1356 Fasli on which the
appellants relied did not fulfil the requirements of s. 20(b) of Act 1
of 1951. 'P' was not shown in the entry as 'Kabiz' or 'Saih!' etc. There
was also strong evidence which was relied on by the Revenue Court
B but not considered by the first Appellate Court that the name of 'P'
was surreptitiously entered in the Khasra of 1356 F. The appellant's
case under s. 20(b) of the Abolition Act therefore failed. [621A·F)
Amba Pmad v. Abdul Noor Khan & Ors., [1964] 7 S.C.R. 800.
referred to.
--
618
BUPBEME OOUBT,BEl'OBTB
(1968] 1 B.o.B.
(ii) The appellants':ca~~·uitd!i;:'l§
1ol U.P. Act 31 of 1952 also A'
could not' be sustained. To· get the l;lenefit of 'the section it had to bEI
.established that P was in aCtual cultivatory· possession of the land
in 1359 F alld that fact J.iad."hot.he~n. ~b.ljsh'ed by direct evidence
of 1)ossession, nor was it establislied by the- entry relied '{)n by him.
A person who has rto' righ}, fo QCl'UPY 18Jld may rely upon his occu·
pation'against a third'person who-has no bett_er.tiUe, but jle·cannot
•
se~ up that. tight against ~fie ~wner• of.4he'" Uajd,:SectioD.•3 •conferred B-'
rights upon persol\l; in possession of land against the tenure ljolders,
it was 11ot· intended' ta·.-pu,t it' premium upon' forcible ·occupation of
land· by 'Iandfess citizens. Posses8ion of a pers<in in wrongful occupation could not be· deemed to be 'cultivatory' possession• within the'
'!l.eanj!Jg,~o~ the ~ection; _[()22lf-623Fl_, • ,
,., ';,.
"
Ram!Xri•hna v. Bl!agwan Baksh" Singh, "[1961] l!tt.J. ,301. • a~·
Proved
,,.
. t
•

## Text

A
B
SONAWATI & ORS.
v.
SRI RAM & ANR.
September 21, 1967
[J. C. SHAH, S. M. SIKRI AND J. M. SHBLAT, JJ.J
617
U.P. ZamindaTi Abolition and Land Reforms Act .1 of 1951.
•. 20(b)-Pf!1'son recorded as occupant' in 1356 Fas!i to be adhivasiRequirements of section.
U.P, Land Reforms (Supplementary) Act 31 of 1952, & 3-Adhi-
. vasi rights under-Tresjiasser whether can claim to be in 'cuitivatory
c possession' within meaning of Section.
D
Practice-Dispute as to Tights in land-Magistrate in proceedings
under s, 145 Cr. P.C, attaching land and asking parties to go to clvit
court-Defendants in civil suit acquiring possession from criminal
court pursuant to decree of first · appellate court-High Cou.rt in
second appeal whether can grant decree for possession after allow·
ina amendment of plaint for that purpose.
The respondents purchased the land in dispute from the bhumidhars thereof, but 'P' (predecessor-in-interest of the appellants) claimed to be in possession of the land and a dispute was raised under
s. 145 of the Code of Criminal Procedure. The Magistrate attached
the land and relegated the parties to a suit. The respondents filed a
plaint seeking a declaration of their rights and removal of 'P's name
from the record of rights. The trial court after getting a finding from
E the Revenue Court granted a decree to 'the respondents. The first Appellate Court, however decided in favour of 'P' and. on the basis of
that finding 'P' got possession from the criminal court. The respondents went in second appeal to the High Court which decided in their
favour and gave them a decree for possession of the land after. allowing them to amend their plaint by adding a prayer for possession.
The appellants came to this Court and urged: (i) 'P' was recorded
as an 'occupant' in the khasra of 1356 Fasli and therefore under
F s. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act 1 of
1951 he was an adhivasi, (ii) 'P' was recorded as In 'cultlvatory ~
session' of the land in 1359 Fasli and on that ground also he was aij
adhivasi; (iii) the High Court was bound by the findings of the first
Appellate Court that the appellant was an 'occupant' in 1356 Fasli
and in cultivatory possession in 1359 Fasli; (iv) A suit for possession
even against a trespasser could lie only in the Revenue Court and
G not in the Civil Court, and the High Court by allowing amendment
of the plaint in the second appeal could not assume to itself jurisdiction which civil courts do not possess.
·
HELD: (i) The entry in the Khasra of 1356 Fasli on which the
appellants relied did not fulfil the requirements of s. 20(b) of Act 1
of 1951. 'P' was not shown in the entry as 'Kabiz' or 'Saih!' etc. There
was also strong evidence which was relied on by the Revenue Court
B but not considered by the first Appellate Court that the name of 'P'
was surreptitiously entered in the Khasra of 1356 F. The appellant's
case under s. 20(b) of the Abolition Act therefore failed. [621A·F)
Amba Pmad v. Abdul Noor Khan & Ors., [1964] 7 S.C.R. 800.
referred to.
--
618
BUPBEME OOUBT,BEl'OBTB
(1968] 1 B.o.B.
(ii) The appellants':ca~~·uitd!i;:'l§
1ol U.P. Act 31 of 1952 also A'
could not' be sustained. To· get the l;lenefit of 'the section it had to bEI
.established that P was in aCtual cultivatory· possession of the land
in 1359 F alld that fact J.iad."hot.he~n. ~b.ljsh'ed by direct evidence
of 1)ossession, nor was it establislied by the- entry relied '{)n by him.
A person who has rto' righ}, fo QCl'UPY 18Jld may rely upon his occu·
pation'against a third'person who-has no bett_er.tiUe, but jle·cannot
•
se~ up that. tight against ~fie ~wner• of.4he'" Uajd,:SectioD.•3 •conferred B-'
rights upon persol\l; in possession of land against the tenure ljolders,
it was 11ot· intended' ta·.-pu,t it' premium upon' forcible ·occupation of
land· by 'Iandfess citizens. Posses8ion of a pers<in in wrongful occupation could not be· deemed to be 'cultivatory' possession• within the'
'!l.eanj!Jg,~o~ the ~ection; _[()22lf-623Fl_, • ,
,., ';,.
"
Ram!Xri•hna v. Bl!agwan Baksh" Singh, "[1961] l!tt.J. ,301. • a~·
Proved
,,.
. t
•
'"-!
.•
n";
•
l-'1
<)
.
.
--
c
,Na1)h90, Mal· v.,1}1,ul.90 and Ors,, I.L.R, {l963] All 751,- disapprov-
,e~
,
... ..._. ...
,.
"'"
'
J' '
•
-'+·
ro-
• .,
\.
"'
r~ (iii) Tile' High Court wps not bo(,md in the present· case ,i>Y, the
findings.of the:first .i\'.ppell'lte Court as .the latter .had ignored important ·evidence on 'record which _provM that 'the ei\iries relied on by
'P' were not genuine. [623G]
· · ·
•
·
,v
"
••
"(iv) The High Coμrt' rightJy' graii.ted tel tl11i respondents a decree D
for possession' after allowil)8 ·the respondents to add' a :grliyer for
possessimr-to their plainVWb~f'! the High' c.durt lield in Javour ot the
plaintiffs-respondents and rejectell the clilim made by. 'P' it was
justified ~nd indeed bound, to avoid giving a fresh 'lea$e of life to the
litigation·.and to make an, ord~t' 'consistently with the rights deC!ai:ed
by it, since 'P'"had·during the' p'eh'd~ncy of lhe suit 111~naged,to obtain"
iiossession of th<i lahd 'from 'the Court Offieer who was' in posse51lion. E
ol"tt)e land.A party who .is ·ctefeateil on !He.merits of the disput(f'
may not by securing an order from another court during tile pep;.
dency of the.suit'be permitted' to displa~e' th~· jurisdiction of the
civil court to'try the suit which was "lifhin 'its competence when ·the
sul! wa~ filed. [6.25D-E]
'
'
· ., .
,
•·
OvrL AP)?EL'LATB 'JurusmciioN: Civil
~ppea'I No. 3:4 of
1965. .
•
.
'
I
F
'
•·
Appeill by special leave 'frorh. the judginent :Ind decree dateCI
N¢\lember 6, 1962 of the Allahabad ·High 'Cqurt in ·Second ~j>peaf
No.,37~5 of 1958.
,
·i • ,
')J. C(Mi•ra and s. S. Shukla, fgr tl1~ ap!lellants..
..
S. P. '.Sinha, ·E. C. Agdrwala and. P.:C." Ajttrwal~,-fot tp~ res-· G
pondents.
'
'
'
·' ,. ·
·
:rh~ Judgni.erit df the ,Court ~as· deli~er~~· by ,. '
, ,
Shl!h.-. J;. ~ piece cit' ligriculti.m/i land bearing. Surve~
Nos., 723/i. 724, 725 and 726 of Nabgawan. tahsil Fatehabad
"
Di~~ci Agra:;originally, b,elgnged ;to two.firotfiers •. Tota Ram and B
Lana Ram. 'I:'ota Ram and Lajja Ram 'Were . c!eclared to· be
bhumidhars in respect of that land am! a Sanacl wa~ issued in
their favour lni.dcr s. 7 of lhe U.P. Act' 10 of 1949. "On October
20, 1951, Tola Ram and Lajja Ram ~olcl their interest in lhe land
·;
·'
BONAWATI AND OBS V 81\I llAM AND ANII (Shah, J.)
619
A to two brothers Sri Ram and Ram Prasad-who will hereinafter
be called 'the plaintiffs'. Disputes arose thereafter about the
possession of the land between one Pritam Singh and the plaintiffs, and proceedings under s. 145 of the Code of Criminal Procedure were started before the -Sub-Divisional Magistrate at the
instance of Pritam Singh. The Sub-Divisional Magistrate attached
B the land and called upon the parties to agitate the dispute as to
their respective rights therein in a civil suit.
The plaintiffs then commenced an action in the Court of the
Munsif, Fatehabad, against Pritam Singh a!ld Tota Ram for a
declaration of their rights as bhumidhars in possession of the land
in suit and. for an order "expunging" the name of Pritam Singh
c from the revenue records. Pritam Singh resisted the suit contending, inter alia, that the land was abandoned by Tota Ram and
Lajja Ram and tha.t since it was under his cultivation continuously
since Fasli year 1356 (the ·year commencing from July l, 1948
and ending on June 30, 1949) he had acquired the rights of an
. ladhivasi in the land and he was not liable to be evicted from the
same. The Munsif referred the following issue arising out of the
D pleadings to the Assistant Collector. Agra, for decision:
"Whether the defendant No. 1 (Pritam. Singh) has
acquired adhivasi rights, if so, its effect?"
The Assistant Collector held that the revenue
records did .not
show that Pritiim Singh was in possession at any time in or before
B !the end of 1359 Fasli and that the entries in the khasra relied
upon by Pritam Singh had been fabricated to support his case.
Consistently with the finding of the Assistant Collector, the
Munsif ~
judgment in favour of the plaintiffs. But in appeal
to the District Court, Agra, that judgment was reversed.
The
Appellate Judge held that the revenue entries were genuine entries
r posted by the Patwari in discharge 'of bis duty arid that Pritam
Singh was in .possession in the year 1356 Fasli and also in 1359
Fasli and he had acquired the rights of an adhivasi. The plaintiffs
tben carried the · dispute to the High Court of Allahabad. The
IDgh Court reversCd ·the decree passed by the First Appellate
Court and restored the decree of the Munsif. With special leave,
the heirs and legal representatives of Pritam Singh have appealed
.G to .this Court.
. It was not the case of Pritam Singh that he bas acquired
title to the land by transfer or by adverse. possession. Pritam Singh
relied merely upon the entries in khasra for
1356 Fasli
and his claim of ~sion of the land in Fasli 1359, and. upon
statutory consequepces arising from the entries under s. 20(b) of
B the U.P. Zamindari Abolition and Land Reforms Act l of 1951,
and s. 3 of the U.P. Land Reforms (Supplementary) Act 31 of
1952. The U.P. Zamindari Abolition and Land Reforms Act l of
l9Sl was brought into ·force from July l, 1952. By s. 20 certain
rights were conferred upon persons whose names were recorded
620
8UPIWllll COUllT bPOllTS
[1988] l I.Cl.a.
in the revenue records in respect of agricultural land. The mate- A
rial clause (b) of s. 20 on which reliance is placed reads as follows :
"20. Every person who-
(a)
•
(b) was recorded as occupant-
(i) of any land ·(other than grove land or
lands to which section 16 applies) in the
khasra or khatauni prepared under sec-
(ii)
tions 28 and 33 respectively of the U.P.
Land Revenue Act, 1901, or who was on
the date immedia.tely preceding the date of
·vesting entitled to regain possession thereof under clause (c) of sub-section (1) of section 27 of the United Provinces Tenancy
(Amendment) Act, 1947, or
"
The land in dispute is not grove land, nor it is land to which s. 16
JI
c
of the Act applies. Pritam Singh claimed that his name was
entered as an occupant in the kharra of 1356 Fasli prepared under D
th"e U.P. Land Revenue Act, 1901, and he was on that account
entitled to the rights of an adhivasi in respect of the land. It was
held by this Court in Amba Prasad v. Abdul Noor Khan and
Others(') that s. 20 of U.P. Act I of 1951 does not require proof
of actual possession:
it eliminates inquiries into disputed
possession by accepting the record in the khavra or khatauni of l!:
1356 Fasli or its correction before July I, 1952. In view of that
decision it musJ be held that the Civil Court in adjudging a
claim of a person to the rights of an adhivasi is not called upon to
make an enquiry whether the claimant was actually in possession
of the land or held the right as an occupant: cases of fraud apart,
the entry in the record alone is relevant.
But the entries on which reliance was placed by Prit!lm Singh r
do not' support his case that he was recorded as an occupant in
the khasra or khatauni of 1356 F qsli. In the certified extract of
the khasra for 1356 Fasli (Ext. A/!J ten4ered in evidence by Pritam
Singh in the column 'Name and caste of cultivator' the entry is
"Tota Ram and others" and in the column for 'remarks' the
entry is "Pritam Singh s/ o Pyarelal of Sankuri". Our attention G
has not been invited to any provision of the U.P. Tenancy Act
or instructions issued . by the Revenue authorities which tend to
establish that the name of an occupant of land is liable to be
entered· in the column reserved for 'remarks'.
In order that a
person may be regarded as an adhivari of a piece of land, s. 20(b)
of Act I of 1951 requires that his name must ~ recorded in <the R
khasra or khatauni for 1356 Fasli as an occupant. The Assistant
Collector has pointed out tha.t according to paragraph 87 of the
Land Records Manual it is necessary for a Patwari to make an
(') [1964] 7 S.C.R. 800.
'·
BONAWA'fl AND ORS .v SRI RAM AND ANR (Shah, J.)
621
A enquiry about the status of the occupant, and if he thinks that
a claimant is an occupant, he should enter the name in red ink in
khasra as-"Kabiz. sa;hi etc.''. Admittedly Pritam Singh was not
shown as Kabiz or saihi nor was the entry posted in red ink.
There is also strong evidence on the record which shows
that the name of Pritam Singh was surreptitiously entered in the
B khasra for .1356 Fasli. In the kharra. Barahsala i.e. consolidated
khasra for 1347 to 1358 Fasli Tota Ram and Lajja Ram are shown
as persons cultivating the land and there is no record of the name
of any sub-tenant on the land. Before the Assistant Collector two
certified extracts of the khasra for '1356 F as/i in respect of the land
in
dispute were produced. Jn the
c~rtified ·extract Ext. A/l
c tendered by Pritam Singh his name· was shown in the 'remarks'
column. In the certified extract tendered by the plaintiffs there
was no such entry. The Assistant Collector did not call for the
original record, nor did he attempt to probe into the circumstances
in which the entry of Pritam Singh came to be made. He, however, observed that in Ext. A/ 1 the name of Pritam Singh was
entered in the 'remarks' column against Survey No. 723 II wliich
D had fallen in an earlier partition to the share of one Kunjilal and
in respect of which Pritam Singh had never claimed any right.
The First Appellate Court did not refer to these important pieces
of evidence. His conclusion cannot be regarded as binding upon
the High Court in Second Appeal.
It must therefore be held that relying upon the entry of his
.E name in the 'remarks' column in the khasra for 1356 Fasli Pritam
Singh could not claim that he had established his rights as an
adhiva.,; of the land under s. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act I of 195 J.
The alternative case under s. 3 of the U.P. Land Reforms
F (Supplementary) Act 31 of 1952 may now be considered. Section
3 of Act 31 of 1952 provides, insofar as it is material:
G
B
"(!) Every person who was in cultivatory possession
of any land during the year 1359 fasli but is not a.
person who as a consequence of vesting under Section 4
Of the U.P. Zamindari Abolition and Land Reforms Act,
1950 (U.P. Act I of 1951) (hereinafter referred to as
the said Act), has become a bhumidhar, sirdar, adhivasi
or asami under Sections 18 lo 21 of the said Act shall be
and is hereby deClared to be, with effect from the appointed date~
(a) if the bhumidhar or sirdar of the land was, or where
the land belongs jointly to two or more bhumidars
or sirdars, all of them were, on the appointed date
person or persons· referred . to in item (i) to (vi) of
sub-section (2) of Section io of the said Act. an
asami from year to year, or
·
G22
SUPRBMlll. OOUllT lll:HRTS
;1968J l a.o.ii.
(b) if the bhumidhar or sirdar was not such a person,
A
an adhivasi,
and shall be entitled to all the rights and be subject to all
the liabilities conferred or imposed upon an asami or an
adhivasi, as the case may be, by or under the said Act.
Explanatio11-A person shall not be deemed to be
1
in cultivatory possession of the land, if he was cultivatB
ing it as. a ·mortgagee with possession or a tllekedtJr, or
he was merely assisting or participating with a bhumidhar, sirdar, adhivasi or· asami concerned in the actual
performance of agricultural operations."
The section appears to be somewhat involved in jts phraseology.
But its purport is fairly clear. A person who is not in consequence c
of the provisions of ss. 18 to 21 of the U.P. Act l of. 1951 a
bhumidhar, sirdar, adhivasi or asami but who is in "cultivatory
possession" of land during 1359 Fasli shall be entitled to the rights
in respect of that land of an asami from year to year if the
bhumidhar or sirdar of the land was on the appointed date a
person who is referred to in item (i) to (vi) of s. 10(2) of the U.P.
Act l of 1951, and he shall be entitled to the rights of an D
adhivasi if the bllumidhar or sirdar of the land was not a person
referred to in items (i) to (vi) of s. 10(2). The U.P. Act 31 of 1952
was enacted to grant protection to certain persons who bad been
in "cultivatory possession" of land in the holdings of bhumidhars
or sirdars, and had been or were being forcibly evicted from
the land by the tenilre holders. The language of the section E
clearly shows that it was intended to grant th.e rights of an asami
or adhivavi according as the case fell within cl. (a)' or cl. (b) to a
person who had been admitted to. cultivatory possession and who
was in such possession in 1359 Fasli.
Pritam Singh had no right to the land at all and the revenue
record shows that till the end of 1358 Fasli i.e. till June 30, 195f, F
the land was not in his possession. Pritam Singh is recorded in
the· khasra of 1359 Fasli in the column for shikmi (sub-tenant) as
"without settlement of rent'', and Tota Ram and Lajja Ram are
entered as cultivators. In the khatau11i for 1359 Fas/i Pritam Singh
is shown as "cultivator for one year, without settlement of rent".
There are similar entries in the khasra and khatauni for 1361
Fasli, and in 13'62 Fasli the names of the plaintiffs are entered in G
the column of cultivator, and the name of Pritam Singh is shown
in the column for shikmi.
The scheme of s. 3 of the U.P. Land Reforms (Supplementary) Act, 1952 is different from the scheme .of s. 20(b) of the
U.P. Zamindari Abolition and Land Reforms Act l of 195\.
Whereas under Act l of 1951 the entry is made evidence without B
further enquiry as to his right .of the status of the person who is
recorded as an occupant, under s. 3 of the U.P. Land Reforms
(Supplementary) Act, 1952, a person who claims .the sta.t~ of an
asami or an adhivasi must estllblish that he was in "cultivatory
1
SONAWATI AND URS V SIU RAM AND OUS (l:i/U1I., J,)
623
A possession" of the land during the year 1359 Fasli. The expression
"cultivatory possession" is not defined in the Act, but the Expla·
nation clearly implies that the claimant must have a lawful right
to be in possession of the land, and must not belong to the classes
specified in the explanation. "Cultivatory possession" to be recognized for the purpose of the Act must be lawful, and for the
B whole year 1359 Fasli. A trespasser who has no right to be in
possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in ... cultivatory possession"
within the meaning of s. 3 of U.P. Act 31 of 1952. We are of the
view that the Allahabad High Court was right in holding in Ram
Krishna v. Bhagwan Baksh Singh(') that a person who through
force inducts himself over and into some land and succeeds in
C continuing his occupation over it cannot; be said to be in cultivatory possession of tha.t land so as to invest him with the rights
of an asami or an adhivasi, and we are unable to agree with the
subsequent judgment of a Full Bench of the
Allahabad High
Court in Nanhoo Mal v. Muloo and others(') that occupation by
a wrongdoer without any right to the land. is "cultivatory posses·
D sion" within the meaning of s. 3 of the U.P. Act 31 of 1952.
A person who has no right to occupy land may rely upon
his occupation against a third person who has no better title, but
he cannot set up that right against the owner of the land. It must
be remembered that by s. 3 of U.P. Act 31 of 1952 the Legisla·
ture conferred rights upon persons in possession of land against
E the tenure holders, and in the absence of any express provision,
we _are unable to hold that it was intended by the Act to put a
premium upon forcible occupation of land by lawless citizens.
We have no doubt therefore that by forcibly occupying the ·land
after 1358 Fasli, Pritam Singh could not acquire as against the
bhumidhar of the land the rights of an adhivasi by virtue of s. 3
F of U.P. Act 31 of 1952.
Counsel for the appellants contended that the finding record·
ed 'by the First Appellate Court that Pritam Singh was in "culti·
vatory possession" in 1359 F<L1·/i was binding upon the High Court
in Second Appeal. For reasons already set out, possession of a
person in wrongful occupation cannot be deemed cultivatory
G possession. Again the Appellate Judge in arriving at his conclu·
sion ignored very important evidence on the record, and on that
account also the conclusion was not binding on the High Court.
Pritam Singh's name was recorded in the khasra for the year 1359
Fasli
as
sub-tenant "without settlement
of rent".
Pritam
Singh did not offer to give evidence at any stage _of the trial before
the Assistant Collector. and it was not· his case that he had
B entered into any contract of
sub-tenancy with Tota Ram and
Lajja Ram. The entry which records him as a sub-ten~nt of Tota
Ram and Lajja Ram for the year 1359 Fa.~li is on his own case
(') [1961] A.L.J. 301.
(') I.L.R. [1963] All. 751.
624
BUl'.llKMJI COURT llSPOllT8
[1968) l s.0.11,
untrue. There is further no oral evidence in support of the case A
of Pritam Singh that he was in actual "cultivatory possession" of
land and the entry relied upon by him does not support his case.
To get the benefit of s. 3 of U.P, Act 31 of 1952, it had to be .
established that Pritam Singh was in actual cultivatory possession
of the land and that fact is not established by direct evidence
of possession, nor is it established by the entry relied upon by
him. The conclusion of the learned {\ppellate Judge that Pritam B
Singh was in "cultivatory possession" was partially founded on
the conclusion recorded by him that in 1356 Fasli Pritam Singh
was in possession of the land. We have already pointed out that
in so concluding he misread the kilasra entry for 1356 Fasli and
gave no effect to the khasra Baraltsa/a which showed that Pritam
Singh was not in possession of the land till the end of 1358 Fasli. c
The learned Judge also 'inferred that because it was stated by
Sri Ram the first plaintiff and his witness Maharaj Singh that no
crops were cultivated during the Kharif season and as the khasra
for 1359 Fas/i showed that Bajra was sown in one of the plots in
1359 Fasli and gram was raised in all the plots, Pritam Singh
must have been in possession as a sub-tenant and must have cultivated the land in the Kharif season of 1359 Fasli. This was, in D
our judgment, a far-fetched inference. The Appellate Judge also
did not refer to other evidence to which pointed attention was
directed in support of his conclusion, by the Assistant Collector
Agra: for instance, Banwari Lal, Naib Registrar examined on
behalf of the plaintiffs had clearly stated that Pritam Singh was
not in possession of the land prior to 1359 Fasli and that Tota E
Ram who was examined as a witness stated that Pritam Singh was
not in possession of the land and he had not given the land to
Pritam Singh on lease, and that he did not receiye rent from
Pritam Singh. We are unable, therefore, to hold that a conclusion
arrived at only from an entry in the revenue records which does
not prima facie support the case of Pritam Singh, that he wrong- F
fully trespassed upon the land and cultivated it may be regarded
as conclusive, in Second Appeal. The High Court was, in our
judgment, right in reaching the conclusion that Pritam Singh was
not in "cultivatory possession" of the land in 1359 Fasli within
the meaning of s. 3 of Act 31 of 1952.
Counsel for the appellants finally contended that the High G
Court was incompetent in this suit to grant a decree for possession
of the land to the plaintiffs. Counsel submitted that a suit for
possession. even against a trespasser, could lie only in the Revenue
Court and not in the Civil Court, and the High Court by allowing
amendment of the plaint. in the Second Appeal .before it could
not assume to itself the jurisdiction which the Civil Courts do H
not possess. Our attention was not· invited to any provision which
enacts that even against a rank trespasser the Civil Court may
not pass a decree. in favour of an owner of the land. in ejectment
in respect of agricultural land. But even assuming that the statute
80NAIVATI AND ORS V SIU RAil AND ORS (8/u1n, J,)
625
A law in the State of U.P. warrants that submission, we think that
the High Court had jurisdiction in the cin.:umstanccs of the
present case to allow amendment of the plaint and to grant a
decree for possession. ll may be recalled that the pfaintilfs had
originally tiled a suit for a dccforation of title and for injunction
restraining Pritam Singh from interfering with their possession.
B The· land was at the date of the suit under attachment by the
order of the Magistrate, 1st Class, Agra, in proceedings under
s. 145 of the Code of Criminal Proc~dure, started by Pritam Singh,
and the Magistrate had directed the parties to establish their
possession or right to possession in a competent Civil Court. A
suit for declaration and injunction in that state of affairs was
properly tiled. If the plaintiffs established their title to the land,
C they could claim an order from the Criminal Court for delivery of
possession, and an injunction restraining Pritam Singh from inter·
fering
1with their possession was ~\n appropriate relief. But it ap·
pears that pursuant to the order of the First Appellate Court
Pritam Singh obtained possession from
the Criminal Court and
thereafter the plaintiffs amended the plaint with the leave of the
l> High Court and a decree for possession was claimed. When the
High Court held in favour of the plaintiffs and rejected the claim
made by Pritam Sin&h. in our judgment, the High Court was justi·
lied, and indeed bound, to avoid giving a fresh lease of life to
this litigation. to make an order consistenlly with the rights de·
dared by it, ·since Pritam Singh had during the pcndcncy of the
suit managed to obtain possession of the land from the Court
E Officer who was in possession of lhc land. A party who is defeated
on the merits of the dispute may 1iot by securing an order from
another Court during the pcndcncy o[ a suit be permitted to dis·
place thc·jurisdiction of the Civil Court to try the suit which was
within its competence when the suit was filed.
The appeal therefore fails and is dismissed with costs.
G.C.
Appeal dismissed.
W/IN)6SCI-H