Holding

If the Theka was created exclusively for personal cultivation, the Thekedar is deemed a hereditary tenant under s.12 of the 1950 Act, and the lessees do not acquire adhivasi rights, leading to dismissal of the appeals.

Summary

The plaintiffs, who were Thekedars, claimed that the Theka granted to them was for personal cultivation, which under Section 12 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 made them hereditary tenants entitled to retain possession. The defendants, lessees of the Zamindars, argued that they were in cultivatory possession during the year 1359 Fasli and therefore acquired adhivasi rights under Section 3 of the Uttar Pradesh Land Reforms (Supplementary) Act, 1952. The trial court held the lessees were adhivasis; the High Court reversed, finding the Theka was for personal cultivation and the lessees had no lawful cultivatory possession. On appeal, the Supreme Court examined the language of Section 12 and held that when a Theka is exclusively for personal cultivation, the Thekedar becomes a hereditary tenant, and consequently the lessees could not acquire adhivasi rights. The Court dismissed the appeals, granting possession to the plaintiffs.

Issues considered

Whether a Thekedar whose Theka is granted exclusively for personal cultivation becomes a hereditary tenant under Section 12 of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
Whether lessees in possession during the year 1359 Fasli acquire adhivasi rights under Section 3 of the U.P. Land Reforms (Supplementary) Act, 1952.
Interpretation of the term 'cultivatory possession' in the 1952 Act.
Whether the lease granted by the Zamindars after 1 May 1950 is void.

Legislation cited

Indian Evidence Act, 1872s. 91, s. 92
U.P. Land Reforms (Supplementary) Act, 1952s. 3
U.P. Zamindari Abolition and Land Reforms Act, 1950s. 12, s. 13, s. 4, s. 6

Subjects

hereditary tenantThekacultivatory possessionadhivasiland reformsZamindari abolitionleasepossession

Judgment

927

AZAD SINGH & OTHERS
A
v.
BARKAT ULLAH KHAN & OTHERS

April 26, 1983

[0.A. DESAI AND 0, i;:HINNAPPA REDDY, JJ.)
B

U.F. Zamindari Abolition and Land Reforms Act, 1950-s. 12(1}-lirt.r-
pretation of-Hereditary tenant-Thekeiklr under a Theka for personal cultivation
necessary.

U.P. Land Reforms (Supplementary) Act, 1952-S. 3-lnterpretation of- ·'
c
Adhivasi-Cultivatory possession mu•f be lawful.

Words and Phrases-Cultivatory posmsion.
•
The plaintiffs, who wer~ Thekedars, filed two suits for possession of land
leased out by the Zamindars to !he defendants-lessee$ on the ground that D
•ince the Thekedars had become hereditary tenants under s. 12 of the' U;P.
Zamindari Abolition and Land Reform~ Act, 1950 and were in possession of
that land on 1st day of May, 1950, the Zamindars had no right to grant lease
and the lessees had no right to enter and remain in. possession of that land after
that date. The lessees pleaded th3t they were in cultivatory possession of the
land-during the yeilr 1359 Fasli and were entitled to all the· rights of adhivasis
under the U.P. Land Reforms (Supplementary) Act, 1952. The trial court E
disinissed the suits observing that the Thekedars had acquired rights of
hereditary tenants but the Jessees were in cultivatory possession in 1359 Fasli
who had therefore acquired the right of adhivasi. The first appellate court
dismissed the appeals. The High Court in second aJ,peal reversed ·the
decision of the trial court and the first appellate court and decreed the suits.
On appeal, it was contended that since there was· no authority given to the F
Thekedars for persoiial cultivation of the "lands comprised in the Theka the
J"hekedars did not acquire the right of hereditary tenants under s. 12 of the
1950 Act.

Dimliuing the appeals,

HELD: Section 12 of the 1950 Act provides that if any land was G
given to a penon for personal cultivation by him on the 1st day· of May,
1950, as a Thekedar thereof, then because of the non-obstante clause occurring
in sub-section (I) of section 12 the Thekedar would be deemed to be a here-
dit1ry tenant of the land entitled to hold the land as such and liable to pay
rent at hereditary rates. If such hereditary tenant has lost Pf.?_ssession he is
~···· entitled to regain his possession. If, however, the land was in the personal H
cultivation of the Thekedar who was appointed merely to collect rent from
other tenants and incidentally allowed to 'cultivate the' Sir, ot Khudkasht
land of the lessor !hen he will be a mere as~i in ac~or\lance with se~tion 13
928 SUPREME coµRT REPORTS (1983) 2 S.C.R.

of the Act. Before a Thekedar can claim the status ·of a hereditary tenant,
he must not only be a Thekedar but the Theka must be specifically granted
for penonal cultivation of the land included in the Theka by tho Thekedar. -.,,
[931 H, 932 A-CJ

Babu Noorul Hasan Khan v. Ram Prasad Singh and Ors., [1980]1 SCR ·
977 and Raghunandan Singh and Ors. v. Brij. Mohan Singh and Ors., [1980]
2 SCR 1063, referred to.
B
In the instant case the Theka was created_ eXclusivelf for personal
cultivation of the land involved in the Theka by tho · Thekedars and not as a
consideration for some other duties to· be performed by the·., Thekedars to the
Zamindars. The Thekedars were in possession of.the land and were personally
cultivating the land on the !st day of May, 1950. The Thekedars acquired the
c status of hereditary tenants under section 12 of the 1950 Act. [933 C-E]

Section 3 of the 1952 Act provides that any person who has not become
a bhumidar. sirdar, adhivas! or asami under the 1950 Act if he is in cultivatory
possession of any land during the year 1359 Fasli a.nd if the bhumidar or sirdar
was not such a pe,rson, such person in cultivatory possCssion woilid acquire
the status of an adhivasi. JO obtain the ben~fit of secti~n 3 the person
D claiming to bi: in cultivatory possession must show that his or her possession
was Ia.wful. [933 F-G, 9'4 F] •

Sonawati and Ors. v. Sri Ram and Anr., [1.968] 1 SCR 617, referred to.

In thC instai1t case since the Thekedars had acquired the status of
hereditary tCnant~ as· Thek8: was up to and inqlu~ive of the year 1359 Fasli, th.;
Zamindars had no right to induct lessees in possession after depriving the
Thekedars of their possession and therefore posses&ion of the lessees in_ 1359
Fasli ·was not lawful. Therefore the lessees did not acquire the riatit of
adhivasi. [933 H, 93~ A]

. C1v1L APPELLATE JuR1sv1cTioN : Civil Appeal Nos. 282-283 of
F 1969.

Appeals by special leave from the Judgment and · order dated
the 15th October, 1968 of the Allahabad High Court in Second Civil
Appeals Nos. 978/58 and 11 of 1959.
G S. Rangarajan, Mr11. S. Bagga and Uma Jain for the Appellants.

K.L. Hathi, P.C. Kapur, R.S. Mehta, 0.P. Verma and S.N.
Singh for the Respondents.

H The Judgment of the Court was delivered by

DESAJ, J. These two appeals by special leave arise from two
suits filed by Barkatullah and SaJlliullah for possession of land more
AZAD SINGH v. BARKAT ULLAH (Desai, J.) 929

particularly set out at the foot of the plaint against the Zamindars
and Prem Kumari and Noor Mohammad. Briefly stated the plaintiffs' A
case was that they were Thekadars and the Theka was taken for
personally cultivating the land and therefore under sec. 12 of the
U.P. Zamindari Abolition and Land. Reforms Act, 1950 ('1950 Act'
for short), they have become hereditary tenants and they were in
possession of land on 1st April. 1960. It was a:lleged that the Zamin-
dars had no right to lease the land after the plaintiffs became
B
hereditary tenants yet Prem Kumari and Noor Mohammad took
land on lease from Zamindars and entered possession after 1.4.1950.
It was alleged that the lessees from the Zamindar had no right to
remain in possession as against hereditary tenants. On this short
ground the plaintiffs sought possession of the land. c
The defendants were the Zamindars and two lessees contested
the suit. The averments made in para 4 of the plaint were not con-
troverted specifically and it was merely stated that they are subject
to additional pleas. The only plea put forward on behalf of the
lessee3 worth-noticing is that the lessees were in cultivatory possession D
during the year 1359-F and being not a person who has become a
bhumidar, sirdar, Adhivasi or Asami is entitled to all the rights of
Adhivasis under U.P. Land Reforms (Supplementary) Act; 1952
(' 1952 Act' for short)

The trial court dismissed the suit observing that the plaintiffs
E
were Thekadars of the land and under sec. 12 of the 1950 Act have
acquired rights of hereditary tenants but the lessees were in culti·
vatory possession in 1359-F and therefore have acquired the right of
adhivasi. Thekanama was held to be defective on the question of
Theka being given exclusively for personal cultivation. The two F
plaintiffs preferred two separate appeals and both the appeals were
disposed of by the First Additional Civil and Sessions Judge, Gonda
as per his judgment dated September 1, 1958. Broadly stated, the
learned Judge agreed with the findings of the trial court and dis·
missed the appeals. The original plaintiffS carried the matter in G
second appeal. Two separate appeals were preferred, by the time
the appeals came up for hearing, a statement was made that both
the plaintiffs have compromised the dispute inter se and that the suit
be treated as one and if the appeal is to be allowed, possession is to
be given jointly to two appellants as against the respondents. H
The learned Judge disposed of both the appeals by common
judgment reversing t_he decision of the trial court and the first
930 SUPREME COURT REPORTS [1983] 2 s.c.R,

appellate court holding that the plaintiffs had acquired the status of .~ ,.
A hereditary tenants and were in possession on J.5.1950 and, therefore, 1
the Zamindars had no right to dispossess the plaintiffs and induct
the two lessees in possession. It was further held that as the lessees
came into possession under Zamindars who had no right to grant
the lease, possession of the lessees being thus unlawful against the
plaintiffs, they could not have acquired the Adivasis rights. Accord-
B ingly, the suit was decreed and a decree for possession was granted
in favour of the plaintiffs. Hence these two appeals by special
leave.

Both the original lessees have died and their heirs and leflal
c representative are prosecuting these appeal.s.

Mr. Rangarajan, learned counsel for the appellants urged that
in view of the finding of the trial court that there was no specific
authority given to the Thekadars for personal cultivation of the lands
D comprised in the Theka, the Thekadars-plaintiffs did not acquire the
right of hereditary tenants under sec 12 of the 1950 Act. Thi~ was
the principal contention urged in these two appeals.

1950 Aci was a measure of agrarian reform enacted with a
view to abolishing the Zamindari system and for acquisition of
E intermediaries' rights. Section 4 provided for vesting of estates in
the State free from all encumbrances with effect from the date to be
specified by the State Government in a notification. Sec. 6, ·inter
alia, provided the consequences of the vesting of an estate in the
, State, one such being thitt .all rights, title and interest of all the
F intermediaries shall cease and be vested in the State. Sec. 12 provides
that the Thekadars would acquire the rights of hereditary tenants in
certain circumstances. It reads as under ;

"(I) Where any land was in personal cultivation of
a person on the 1st day of May, 1950 as a Thekadar
G
thereof and the theka was made with a view to the culti-
vation 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 entitled to hold, and when he has been ejected
'
from the land after the said date, to regain possession
as a hereditary tenant thereof liabk to pay rent at
hereditary rates.
AZAD SINGH v. BARKAT ULLAH (Desai, J.) 931

(2) The fact that the land comprised in the theka
has been in the personal cultivation of the thekedar since A
the commencement of the theka shall, notwithstanding
anything contained in Section 91 and 92 of the Indian
Evidence Act, 1872 (I of 1872), be receivable in evidence
for showing that the theka was of the nature referred to
in sub-section(!)". B
1952 Act enacted certain supplementary provisions in respect of the
1950 Act. Sec. 3 of 1952 Act provided that 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 s. 4 of the
1950 Act has become a bhumidar, sirdar, adhivasi or asami under c
s. 18 to 21 of the said Act shall be and is hereby declared to be,
with effect from the appointed date (b) if the bhumidar or sirdar was
not such a person, an adhivasi, and shall be entitled to all the rights
and be subjected to all the liabilities conferred or imposed upon an
asami or an adhivasi. There is an explanation to the section which
is not material. Original lessees claimed that they have acquired the
D
status of Adhivasi under s. 3 of 1952 Act.

It is not in dispute that the original plaintiffs were Thekedars.
It was however contended that unless the Theka was exclusively for
personal cultivation of the land comprised in the Theka, the Theke- E
dars would not acquire the status of hereditary tenants. Sec. 12
which has been extracted herein before specifically provides that
where any land is in personal cultivation of a person on :the !st 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 F
then notwithstanding anything in any law, document or order of
court, he shall be deemed to be hereditary tenant thereof entitled to
hold, and when he has been ejected from the land after the said
date, to regain possession as a hereditary tenant thereof liable to
pay rent at hereditary rates. This section came in for interpretation
in Babu Noorul Hasan Khan v. Ram Prasad Singh & Ors.(1), wherein G
it was held that a Thekedar of an Estate ceases to have any right to
hold or possess as such any land in such Estate with effect from the
date of its vesting. But this is subject to two exceptions; .one such
being as enacted in s. 12 w.hich provides that if such land was. in
personal cultivation of a person on the !st day of May, 1950, as a H

(I} [1980] 1 S.C.R. 977.
932 SUPREME COURT REPORTS [1983] 2 s.c.R.
/

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-sec. (Il of s. 12 of the Act,
the Thekedar would be deemed to be a hereditary tenant of the land
entitled to hold land as such and liable to pay rent at hereditary
rates. If such hereditary tenant has lost possession he is entitled to
.B regain his possession. It was further held that if, however, the land
was in personal cultivation 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 asami in accordance with sec. 13(2) of the Act. This inter- ,J,
pretation of sec. 12 was re-affirmed in Raghunandan Singh & Ors. v.
c Brij Mohan Singh & Ors.( 1) It would thus appear well-settled that
before a Thekedar can claim the status of a hereditary tenant, he
must not only be a Thekedar but the Theka must be specifically
granted for personal cultivation of the land included in the Theka by
the Thekedar.
D
The question therefore, is whether in this case the land included
in the Theka of the original plaintiffs provided for personal cultiva-
tion of the land by the Thekedar or personal cultivation was
incidental to other rights and obligations su·ch as collection of rent
from the other tenants ? This would necessitate examination of the
E original document creating Theka. That was not read to us, but
Mr. Rangarajan relied upon the following observation in the
judgment of the learned trial Judge :

"I have read the context (sic) (possibly contract, of
F the Thekanama. There is no authority given specifically
or impliedly for personal cultivation by the Thekedars of
the land comprised in the Theka unless there was such a
provision, I fear no rights of hereditary tenancy could
have been acquired by the plaintiffs."

G
It was urged that the learned Judge specifically came to the conclu-
sion that the Theka was not created exclusively and specifically for
per~onal cultivation of the lands involved in the Theka. The learned
appellate Judge found that the Thekedars were in actual possession and
H personal cultivation of the land for a period of 11 years. He further
found that the Theka would be deemed to have been granted for

(I) [198012 SCR!I063,
AZAD SJNGII v. BARKAT ULLAH (Desai, J.) 933

personal cultivation and if the plaintiffs (Thekedars) have been found
_. r to be in personal cultivation of the suit on !st May, 1950 as Theke- A
dars, they would be entitled to the benefit of sec. 12 of 1950 Act. The
learned appellate Judge then concluded that it is satisfactorily proved
that the plaintiffs-Thekedars were in possession on 1st May, 1950.
However the learned Judge declined to grant relief to the plaintiffs
on the finding that the lessees had acquired Adhivasis right under B
1952 Act. It clearly transpires from the findings of the first appellate
court, which is -the last fact finding court, that the Theka was
for personal cultivation of the land involved in the Theka and the
..)- _ Thekedars were personally cultivating the land for a period of 11
years. The High Court in second appeal noticed that the Thekedars
. were personally cultivating the land. Nothing was pointed out to us to c
show that Thekedars had any other duty to perform such as collecting
rent from other tenants. There is nothing in the record to show
that the Theka was as a consideration for some other duties to be
performed by the Thekedars to the Zamindars. Therefore, the con-
clusion is inescapable, that the Theka was created exclusively for D
•
personal cultivation of the land involved in the Theka by the
Thekedars.

If it is clearly established that the Theka was created exclusively
for personal cultivation of the land by the Thekedars, the ratio of E
the decision of this Court would lead to the conclusion that the
' Thekedars acquired the status of the heredit~ry tenants under sec. 12
of the 1950 Act.

The only question then remains for the consideration is F
whether the original lessees acquired Adhivasis rights under sec. 3
of the 1952 Act. Sec. 3 which has been extracted herein before
provides that any person who has not become a bhumidar, sirdar,
adhivasi or asami under 1950 Act if he is in cultivatory possession
of any land during the year 1359 Fasli and if the bhumidar or sirdar
was not such a person, such a person in cultivatory possession G
would acquire the status of an adhivasi. The High Court then
examined what is the significance of the expression 'cultivatory
possession' in sec. 3. The High Court rightly· held that if the
Thekedars had acquired the status of hereditary tenants as Theka
was upto and inclusive of the year 1359 Fasli, the Zamindars had H
no right to induct lessees in possession after depriving the Thekedars
of their possession and therefore possession of the lessees was not
~' .
934 SUPREME COURT REPORTS (!983} 2 s.c.R..

lawful against the Thekedars. The High Court rightly held that
A the lessees could not be said to be in cultivatory possession of the
land on the appointed day. In reaching this conclusion, the High ""( ·"" .
Court relied upon a decision of this Court in Sonawati & Ors. v.
Sliri Ram Anr.(1) The Court held as under :

B "The expression "cultivatory possession" is not
defined in the Act, but the Explanation 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 recogaised for the purpose of the Act must be lawful
.. c and for the whole year 1359 Fasli. A trespasser who
has no right to be in possession by merely entering upon
the land forcibly or surreptitioulsy cannot be said to be
a person in "cultivatory possession" within the meaning
of s. 3 of U.P. Act of1952. We are of the view that the
• Allahabad High Court was right ii\ holding in Ram
D Krishna v. Bhagwan Baksh Singh(') that a person who
through force inducts himself over and into some land
and succeeds in continuing_ his occupation over it cannot
be said to be in cultivatory possession of that land so as
to invest him with the rights of an asami or an adhivasi,
E 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 Ors.(') that occupation by a wrongdoer '
without any right to the land is 'cultivatory possession'
within the meaning of s. 3 of the U.P. Act 31 of 1952".

F Therefore in order to obtain the benefit of sec. 3 of 1952 Act, the
person claiming to be in cultivatory possession must show that his
or her possession wa!I lawful. The High Court consistent with
certain findings of the trial Court and the first appellate court held
that possession of the lessees in 1359 Fasli was not lawful and this
G necessarily follows from the finding given by the courts that the
Thekedars were in cultivatory possession of the plots in dispute on
the appointed day i.e. !st May, 1950 and thereby became entitled
to acquire the rights of hereditary tenants. We are in agreement
with the conclusion recorded by the High Court.
H . -r---
(I) (1968] I S.C.R. 617.
(2) (1961) A.L.J. 301.
(3) l.L.R. (1963) AU. 751.
AZAD SINGH v. llARKAT ULLAH (Desai, J.) 9H
It must therefore follow as a necessary corollary that the
lessees did not acquire the right of adhivasi and the hereditary A
... tenants would be entitled to a decree for possession. Accordingly,
the appeals fail and must be dismissed. The appeals are thus
dismissed with costs.
•
H.S.K. Appeals di1mlssed.
•

•

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·'4-