Supreme Court of India
CHANDRIKA PRASADversusPULLO (DEAD) BY LRS. AND ORS.
- Citation
- 2000 INSC 205
- Decided
- 10 April 2000
- Disposal
- Dismissed
- Bench
- S B MAJMUDAR
Holding
A sub‑tenant of a mortgagee is not a genuine sub‑tenant for the purposes of Section 20 and therefore cannot be declared an adhivasi.
Summary
The appellant, Chandrika Prasad, claimed adhivasi rights over two agricultural plots on the basis that his father, Ram Harakh, was a sub‑tenant of a mortgagee and thus entitled to protection under Section 20 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950. The respondents, who had purchased the lands from the original fixed‑rate tenants, contested this claim, arguing that a sub‑tenant of a mortgagee could not be deemed a genuine sub‑tenant for the purposes of the Act. The Supreme Court examined the definitions of "tenant" and "sub‑tenant" in the Uttar Pradesh Tenancy Act, 1939, and the effect of Section 21(1)(d) which treats a mortgagee in possession as an asami, thereby precluding the creation of a valid sub‑tenancy. The Court held that Ram Harakh was not a genuine sub‑tenant but merely a licensee of the mortgagee, and consequently could not acquire adhivasi rights. The appeal was dismissed.
Issues considered
- Whether a person recorded as a sub‑tenant of a mortgagee can be considered a genuine sub‑tenant under Section 20 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950.
- Whether such a person is entitled to adhivasi rights when the mortgagee is deemed an asami under Section 21(1)(d).
- Interpretation of the terms "tenant" and "sub‑tenant" as defined in the Uttar Pradesh Tenancy Act, 1939, in the context of land‑reform legislation.
- Whether the entry in the Khasra/Khatuni for the year 1356 Fasli is genuine and can confer adhivasi rights.
Legislation cited
- Uttar Pradesh Land Revenue Act, 1901s. 28, s. 33
- Uttar Pradesh Tenancy Act, 1939s. 22, s. 23
- Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950s. 18(1)(c), s. 20(a)(ii), s. 20(b)(i), s. 21(1)(d), s. 3(23), s. 3(26), s. 4(1)
Subjects
adhivasi rightssub‑tenantmortgageeasamiUttar Pradesh land reformsSection 20Section 21tenancy lawrevenue recordsland ownership
Judgment
CHANDRIKA PRASAD A
_..... v.
PULLO (DEAD) BY LRS. AND ORS.
APRIL 10,2000
[S.B. MAJMUDAR, S. SAGHIR AHMAD AND U.C. BANERJEE, JJ.] B
Lmid Laws:
U.P. ZamindariAbolitionandlandRefonns Act, 1950(1of1951)-Secs.
20, 21(1)(d), 18(1), 4(1), 3(8) 3(26) and 229B(3)-U.P. Tenancy Act 1939-
Secs. 3(22), 3(23)-Appellant'sfatherclaiming adhivasi status as a Sub-tenant
c
of mortgagee-Claim of respondents as purchases from fixed tenants-Held,
mortgagee not a tenant as per provisions of the Act and hence appellant not a
sub-tenant-Further held, appellant is only a licensee not entitled to adhivasi
rights.
D
U.P. Lmid Revenue Act, 1901 (3 of 1901)-Sec. 28-Before recording
anyone as occupant in khasra or khatanni 1356 Fasli on the basis of sub-
tenancy it has to be shown that the entry is one of genuine sub-tenant to enable
him to get the status of adhivasi.
Wonts and phrases-"tenant ''e'sub-tenant "-Meaning of in the context E
of U.P. Zamindari Abolition & Lmid Reforms Act, 1950.
Respondent Nos. 1 and 2 claimed interest in some agricultural lands
under Sec. 229B(3) of the Uttar Pradesh Zamindari Abolition & Land
Reforms Act, 1950 on the ground that the original tenants-fixed tenants
had transferred their interests to one 'S' who, thereafter has executed a F
sale deed in their favour. The Appellant's father 'R' put forward his claim
for the aforesaid two plots of lands before the Consolidation Officer. The
basis of his claim was that he was in possession of these two plots of lands
in the years 1856 and 1859 Fasli as sub-tenant of mortgagees and accord-
"',
ingly adhivasi rights were available to him under Section 20 of the U.P. G
Act.
Respondent Nos. 1 and 2 resisted the said claim and filed objections.
They contended before the Consolidation Officer that after the sale deed in
their favour they were in actual physical possession of the plots in dispute
and that 'R' had surrendered his rights over the plots in dispute in favour H
1145
1146 SUPREME COURT REPORTS [2000] 2 S.C.R.
-
A of the fixed tenants and others some time about 15 or 16 years back.
The Consolidation Officer allowed the objections filed by Respond-
ent Nos. 1 and 2. The Appellant pursued the claim put forward by his
--
father after his death. But his claim was rejected by the Consolidation
Officer. The Appellant filed an appeal before the Settlement Officer (Con-
B solidation) which was dismissed.
_..;
The Appellant then filed a revision before the Deputy Director of
Consolidation, who allowed the same and rendered the case to the Settle-
ment Officer (Consolidation). After remand, the appellate authority, namely,
c the Settlement Officer (Consolidation) allowed the Appellant's appeal and
.......
held that 'R' had acquired the adhivasi rights in the lands in question.
However, a finding was recovered against 'R' that he had surren-
dered his rights in favour of the fixed tenants.
D r
The Appellant as well as Respondent Nos. 1 and 2 filed two revision
applications before the Deputy Director of Consolidation. The Deputy
Director, Consolidation allowed the claim of the Appellant and rejected the
revision filed by Respondent Nos. 1 and 2. It was held that there was no
surrender by 'R' in favour of the fiX4ld tenants. It was further held that
E since 'R' was in actual cultivatory possession in the years 1856 and 1859
Fasli, as such, he had acquired the rights under Section 20 of the U.P. Act.
Respondent Nos. 1 and 2 filed a Writ Petition before the High Court,
which was dismissed. Single Judge held that 'R' was recorded in the column
F of sub-tenant and that he was a sub-tenant of the: mortgagee and, as such,
he had acquired rights under Sedion 20 of the U.P. Act. The Single Judge ---..;
also confirmed the findings of the courts below that the mortgagee had led
out the plots in dispute in due course of management like a prudent owner.
,,_-
'.--
G Respondent Nos. 1 and 2, filed Special Appeal before the Division
Bench of the High Court. The Division Bench of the High Court by its
.....
impugned Judgment, relying upon the full Bench Judgment reported in >-
1974 A.L.J. 706, held that if a person is recorded in sub-tenants column
and another person is recorded as mortgagee in the remarks column, none
.......
of them will be deemed to be a recorded occupant. The Division Bench also
H
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. 1147
·-
~
rejected the contention of the Appellant that, in any case, they had ac-
quired the rights under Section 20(a)(ii) of the U.P. Act.
A
The impugned Judgment· of the Division Bench also disposed of a
cognate matter by adopting the same set of reasoning. By a common
Judgment, both these appeals were allowed and it was held that a sub-
B
tenant from mortgagee could not get any adhivasi rights in the lands in
question. The High Court, held that the said 'R' was not entitled to be
declared as adhivasi taking the view that a sub-tenant from the mortgagee
recorded as such in the Khasras of aforesaid two years was not entitled to
get benefit of Section 20 of the U.P. Act.
c
Two Civil Appeals were allowed by a Division Bench of this Court.
Since the Respondents contended that the Judgment of this Court did not
deal with an earlier Judgment and Section 21(1)(d) of the U.P. Act of 1950
the case was referred to the present larger Bench.
D
Dismissing the Appeal, the Court
HELD : 1. On a conjoint reading of Section 20(a)(ii) and Section
20(b)(i) of U.P. Act it is clear that before recording anyone as occupant in
the khasra or Khatauni 1856 Fasli prepared under Section 28 of the U.P.
Land Revenue Act, 1901, on the basis of sub-tenancy, it has to be shown E
that the said entry is one of a genuine sub-tenant to enable him to get the
status of adhivasi as per the said provisions. On the admitted facts on
record, therefore, the Appellant's father 'R', who was shown to be a sub-
tenant of a mortgagee and not as a sub-tenant of the original head tenant,
who were fixed rat~ tenants at the relevant time, could not get the benefit F
of being declared as adhivasi as per Section 20 of the U.P. Act. [1158-C-Dl
2. The accrual of adhivasi rights to persons listed in Section 20 would
itself be subject to the operation of Section 21(h) wherein asami rights
would be made available to persons covered by that provision. Under
Section 21 tenant's-mortgagees are deemed to be asamis on the date of G
... vesting, if on the date immediately preceding the date of vesting the lands
- were occupied or held by a person who was a mortgagee in actual posses-
sion from a person belonging to any of the classes mentioned in clauses (b)
to (c) of sub-section 1 of section 18. As per Section 18 of sub-section 1
clause (c) listed therein area class of lands held bya fixed-rate tenant or a H
1148 SUPREME COURT REPORTS [2000] 2 S.C.R.
A rent-free grantee as such. Thus on a combined operation of Section 21(1){d)
and Section 18(1)(c), on the date of vesting, the situation arose that the
Head-tenants, who were fixed-rate tena~ts, had not created any sub-ten-
ancy before that date. They had inducted a mortgagee prior to that date.
These mortgagees had to be treated to be asamis. If these mortgagees in
possession were asamis as per the aforesaid provision, they could not be
B
held to be tenants. Consequently, their alleged sub-tenant 'R' could not be
treated to be a "sub tenant" in the real sense of the term. Such purported
sub-tenancy from mortgagee in possession could not give any benefit to 'R'
who was no better than a mere licensee from the mortgagee in actual
possession on the date of vesting. The impugned decision rendered by the
c Division Bench of the High Court, therefore, remains well sustained on the
scheme of the Act when applied to the admitted and well established facts
on record. (1159-A-E]
3. It must be observed that the ratio of the decision in Nath Singh's
case can have no application for sustaining the claim of a sub-tenant from
D the mortgagee who is recorded as such in the year 1856 Fasli as it will be
the mortgagee who will become the asami under Section 21(1)(d) of the
U.P. Act and if he becomes asami a person inducted by him as a purported
sub-tenant from him cannot claim any interest as adhivasi vis-a-vis such
asami. In fact such a mortgagee's sub-tenant cannot be considered to be a
E ''sub-tenant" at all within the meaning of Section 3(26) of the U.P. Act read
with Section 3(23) of the United Provinces Tenancy Act of 1939, as seen
above. The aforesaid decision of the Division Bench, therefore, cannot be
said to have concluded the matter as wrongly assumed by the Division
Bench of this Court. [1160-E-G]
F Even though the Judgment in Ram Adhar's case had no occasion to
examine t~e occupancy rights of the sub-tenant from a mortgagee, its ratio
can rightly be pressed in service by the Respondents for submitting that
when Section 21(l)(d) of the U.P. Act is given its full play, the mortgagee-in
possession cannot be treated to be on a higher level than an asami and
G consequently the alleged sub-tenancy created by him will not ensure of
the benefit of the so-called sub-tenant to claim any independent adhivasi
rights. (1166-A-B]
Amba Prasad v. Abdul Noor Khan & Ors., (1964] 7 SCR 800; Prabhu v.
Ramdeo & Ors., AIR (1966) SC 172 and Daliylal & Ors. v. Rasu4 distin-
H guished.
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. 1149
Nath Singh and Others v. The Board of Revenue and Ors., [1968] 3 SCR A
·..- 498, held inapplicable.
4. On the facts of the present case, there is no escape from the
conclusion that the entry of mortgagee, clearly indicated that the so-called
entry of 'R' as sub-tenant was a fictitious one as 'R', as already seen
earlier, was by no stretch of imagination could have been treated to be a B
sub-tenant from the head-tenant. (1158-G]
Wali Mohammed (Dead) through Lrs. v. Ram Surat & Ors., AIR (1989)
SC 229, distinguished.
c
5. It becomes clear that the Court had no occasion to consider the
question of right of any alleged sub-tenant from a mortgagee-in possession
who was rendered as such in the relevant year 1856 Fasli in the case of Uday
Singh (Dead) though Lrs.• It was also a case of sub-tenant from the original
tenant and not a case of alleged sub-tenant from a mortgagee-in possession. D
The decisions cited by Appellant cannot be said to have covered the ques-
tion of law raised in the present case or in a similar case before the Division
Bench which, with respect, wrongly assumed them to have so ruled. On the
scheme of the Act and the background of the relevant facts which were
established on record it has to be held that the alleged sub-tenant 'R' through
whom the Appellant claims seeking his right to possession on the relevant E
date through mortgagee-in possession cannot get the benefit of Section
20(b)(i) of the Act read with Section 20(a)(ii) of the Act and the entry of sub-
,,,... tenancy in his favour in the year 1856 Fasli had to be treated to be fictitious
and not a genuine one. The ratio of the decision of this Court in these cases
would get squarely attracted against the Appellant. [1164-B-E] F
Uday (Dead) through Lrs. v. Dy. Director of Consolidation Varanasi &
Ors., referred to.
6. The impugned decision of the High Court lays down the correct
legal position in the background of the admitted and well established facts G
on record and calls for no interference. On the contrary, the decision
- rendered in the cognate matter by the Division Bench of this court on 22nd
August, 1995, does not lay the correct law and would remain binding only
as res judicata between the parties to that decision and cannot bind the
present respondents. (1168-D] H
1150 SUPREME COURT REPORTS (2000] 2 S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1772 of 1980.
From the Judgment and Order dated 12.3.76 of the Allahabad High
Court in S.A. No. 257 of 1971.
Pramod Swamp and Ms. Pareena Swamp for the Appellant.
B
R.D. Upadhyay, Dhruv Aggarwal, Rajeev Kr. Singh and P.N.
Ramalingam for the Respondents.
The Judgment of the Court was delivered by
c S.B. MAJMUDAR, J. This appeal, on grant of special leave, has been
referred to a larger Bench by an order dated 27th July, 1999 of a Bench of
two learned Judges of this Court and that is how it was placed for disposal
before this Bench. A few relevant facts for highlighting the le~al question
involved in this appeal deserve to be noted at the outset.
D Background facts :
The appellant before us is the son of one Ram Harakh, who claimed
adhivasi rights in two plots of agricultural land being Nos. 210/l and 549
situated in village Kanak Sarai of Mirzapur district in the State of Uttar
Pradesh. This claim was put forward in defence to a suit filed by respondent
E Nos. 1 and 2 herein under Section 229-B(3) of the Uttar Pradesh Zamindari
Abolition & Land Reforms Act, 1950 (hereinafter referred to as 'the U.P.
Act'). The aforesaid claim was based on Section 20 of the said Act. In the
basic year as provided in the aforesaid U.P. Act, these plots of lands were
recorded in the names of Sri Narain, Sheo Narain, Nar Narain, Jagdish
F Narain, Ghanshyam, Kripa Shanker, Kashi Shanker and Daya Shanker. The
respondent Nos. 1 and 2 herein claimed interest in these lands on the ground
that Sri Narain and others had transferred their interests to one Shri Ram
Manawan who, thereafter has executed a sale deed on 10th February, 1961
in favour of respondent Nos. 1 and 2. The appellant's father Ram Harakh put
forward his claim for the aforesaid two plots of lands before the Consolidation
G
Officer. The basis of his claim was that he was in possession of these two
plots of lands in the years 1356 and 1359 Fasli as sub-tenant of mortgagees
and accordingly adhivasi rights were available to him under Section 20 of the
U.P. Act.
H Respondent Nos. 1 and 2 resisted the said claim of Shri Ram Harakh
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. [S.B. MAJMUDAR, J.] 1151
and filed objections. They contended before the Consolidation Officer that A
after the sale deed in their favour they were in actual physical possession of
the plots in dispute. That Ram Harakh had surrendered his rights over the
plots in dispute in favour of Sri Narain and others some time about 15 or 16
years back.
The Consolidation Officer on 19th March, 1966 allowed the objections B
filed by respondent Nos. 1 and 2. It may be mentioned that pending the
consolidation proceedings, Ram Harakh died and in his place the name of the
appellant was substituted. The appellant pursued the claim put forward by his
. father Ram Harakh. But his claim was rejected by the Consolidation Officer.
The appellant field an appeal before the Settlement Officer (Consolidation) c
-:r which was dismissed on 6th June, 1966.
The appellant then carried the matter in revision before the Deputy
Director of Consolidation, who allowed the same and remanded the case to
the Settlement Officer (Consolidation). After remand, the appellant authority,
namely, the Settlement Officer (Consolidation) allowed the appellant's appeal D
on 11th May, 1968 and held that the appellant's father Ram Harakh had
acquired the adhivasi rights in the lands in question.
However, a finding was recorded against Ram Harakh that he had
surrendered his rights in favour of Sri Narain and others.
E
Being aggrieved by the aforesaid decision, the appellant as well as
..,. respondent Nos. 1 and 2 filed two revision applications before the Deputy
Director of Consolidation. The Deputy Director, Consolidation allowed the
claim of the appellant and rejected the revision filed by respondent Nos. I and
2. It was held that there was no surrender by Ram Harakh in favour of Sri F
Narain and others. It was further held that since Ram Harakh was ill
cultivatory possession in the years 1356 and 1359 Fasli, as such, he had
acquired the rights under Section 20 of the U.P. Act.
Being aggrieved by the order of the Deputy Director (Consolidation),
respondent Nos. 1 and 2 filed a Writ Petition No. 1626 of 1969 before the G
Allahabad High Court. A learned Single Judge, Justice R.S. Misra, dismissed
the writ petition of respondent Nos. 1 and 2 on 5th November, 1971. The
learned Single Judge held that the father of the appellant was recorded in
column of sub-tenant and that he was a sub-tenant of the mortgagee and, as
such, he had acquired rights under Section 20 of the U.P. Act. The learned H
1152 SUPREME COURT REPORTS [2000] 2 S.C.R
A Single Judge also confirmed the findings of the courts below that the
mortgagee had let out the plots in dispute in due course of management like 1'.
a prudent owner.
Respondent Nos. 1 and 2, being aggrieved by the aforesaid decision of
the learned Single Judge, filed Special Appeal No. 257 of 1971 before the
B Division Bench of the High Court. The Division Bench of the High Court by
its impugned judgment, relying upon the full Bench judgment reported in
1974 A.L.J. 706, held that if a person is recorded in sub-tenants' column and
another person is recorded as mortgagee in the remarks column, none of them
will be deemed to be a recorded occupant. The Division Bench also rejected
c the contention of the appellant that, in any case, they had acquired the rights
under Section 20(a)(ii) of the U.P. Act.
Now, it may be noted that the impugned judgment of the Division
Bench also disposed of a cognate matter by adopting the same set of
reasoning. It fell for consideration in Special Appeal No. 332 of 1971. By a
D comm.on judgment, both these appeals were allowed and it was held that a
sub-tenant from a mortgagee could not get any adhivasi rights in the lands
in question.
From this common judgment' of the Division Bench different civil
appeals were filed before this Court on grant of special leave to appeal. The
E Ciyil Appeal No. 3316of1979 sought to challenge the common judgment of
the High Court dealing with Special Appeal No. 332 of 1971 while another
Civil Appeal No. 1772 of 1981 was filed against the very same judgment in
Special Appeal No. 332 of 1971 by other set of respondents before the High
...
Court. So far as the present Civil Appeal No. 1772 of 1980 is concerned, it
F was filed against the very same common judgment of the Division Bench of
fhe High Court by which Special Appeal No. 257 of 1971 was disposed of.
Both Civil Appeal Nos. 3316 of 1979 and 1772 of 1981 were allowed by a
Bench of this Court consisting of Madan Mohan Punchhi, J. (as he then was)
and Sujata V. Manohar, J. by their Order dated 22nd August, 1995. However,
the present Civil Appeal No. 1772 of 1980 was not listed for disposal before
G that very Bench though it involved identical questions for consideration of the
Court and arises from the very same common judgment of the Division Bench
of the High Court. When this civil appeal reached final hearing on 27th July,
1999 before a Bench of two leaned Judges of this Court presided over by Mrs.
Sujata V. Manohar, J., the aforesaid decision of this Court dated 22nd August,
H 1995 was pressed in service and it was contended that in the light of that
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. [S.B. MAJMUDAR, J.] 1153
decision, the present appeal was also required to be allowed. However, A
·--< learned counsel for the respondents pointed out that in those appeals the
provisions of Section 2l(l)(d) of the U.P. Act were not considered. Reliance
was also placed on a decision of this Court in the case of Ram Adhar Singh
(dead) through LR.s. & Ors. v. Bansi (dead) through LR.s. & Ors., reported
in (1987] 2 sec 482 and in particular, paragraph 4 of the said judgment at
B
page 485. This judgment was not pointed out before the Bench which
considered the earlier two appeals. The Bench of this Court, by its order dated
27th July, 1999, therefore, directed that it is necessary to constitute a larger
Bench to consider the point in issue in this appeal. That is how, as noted
earlier, this appeal has been placed before this larger Bench.
c
In order' to resolve the controversy posed for our consideration in this
appeal, it will be necessary to keep in view the factual matrix on which there
is no serious dispute between the parties and which remains well sustained
on record. Both the lands in question were occupied by Sri Narain & Ors.,
who were recorded as fixed rate tenants. They had mortgaged these lands in
D
favour of Murat Singh & Ors. before the basic year referred to in the U.P.
Act. It is also not in dispute between the parties that the said mortgage was
not redeemed by the original mortgagers-fixed rate tenants prior to the basic
year. It is also an admitted position on record that in Khasra 1356 and 1359
Fasli, Murat Singh & Ors. were recorded as mortgagees and the father of the
appellant Shri Ram Harakh and Respondent No. 15 in the appeal - Devi E
Charan was recorded as sub-tenant of the mortgagees. The original mortga-
gors-fixed rate tenants Sri Narain & Ors. had transferred their interest in the
plots in favour of Ram Manawan. The said Ram Manawan in his turn
executed a sale deed in favour of Respondent Nos. 1 and 2 on 10th February,
1961 for consideration of Rs. 4,000. These respondents filed a suit under F
Section 229-B of the U.P. Act for declaration and possession. It is this suit
which, as noted earlier, was contested by Ram Harakh, father of the appellant
and the Respondent No. 15. He submitted that as he was lessee from the
mortgagees-Murat Singh & Ors., he became adhivasi. It is this claim of the
appellant's father that is on the anvil of scrutiny before us in the present
proceedings. The High Court, in the impugned judgment, has held that the G
said Ram Harakh was not entitled to be declared as adhivasi taking the view
that a sub-tenant from the mortgagee recorded as such in the Khasras of
~
aforesaid two years was not entitled to get benefit of Section 20 of the U.P.
Act. In the cognate matter arising from Special Appeal No. 332 of 1971 also
similar view was taken. As noted earlier, a Division Bench of this Court by H
1154 SUPREME COURT REPORTS [2000] 2 S.C.R.
A its order dated 22nd August, 1995 allowed civil appeals arising out of
identical decision of the Division Bench of the High Court in the cognate
matter. Question is whether the said decision rendered by the Division Bench
B
of this Court is well sustained on the statutory scheme of the U.P. Act or not.
Before coming to the grips of the present question, the relevant
statutory background has to be kept in view.
-
STATUTORY BACKGROUND :
The U.P. Act, by Section 4 in Chapter II, provides for vesting of estates
C in the State. Sub-section 1 thereof lays down that :
"(l) As soon as may be after the commencement of this Act, the State
Government may, by notification, declare that, as from a date to be
specified, all estates situate in Uttar Pradesh shall vest in the State and
as from the beginning of the date so specified (hereinafter called the
D "date of vesting"), all such estates shall stand transferred to and vest,
except as hereinafter provided, in the State free from all encum-
brances".
The specified date for the purpose of Section 4(1) is 1st July, 1952. Section
3 sub-section 8 defines "Estate" as under :
E
"(8) "Estate" means and shall be deemed to have always meant the
area included under one entry in any of the registers described in
clauses (a), (b), (c) or (d) and, in so far as it relates to a permanent
tenure holder in any register described in clause (e) of Section 32 of
F the U.P. Land Revenue Act, 1901, as it stood immediately prior to the
coming into force of this Act, or, subject to the restriction mentioned
with respect to the register described in clause (e), in any of the
registers maintained under Section 33 of the said Act or in a similar
register described in or pr~pared or maintained under any other Act,
Rule, Regulatfon or Order relating to the preparation or maintenance
G
of record-of-rights in force at any time and includes share in, or of
an "estate"".
It is not in dispute between the parties that the plots in question were covered
by the aforesaid definition of the te1m "Estate" and, therefore, were within
H the sweep of the Act, especially Section 4 thereof.
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. [S.B. MAJMUDAR. J.] 1155
Sub-section 26 of Section 3 provides as under : A
"(26) words and expressions (land-holder), permanent tenure holder~
thekedar permanent lessee in Avadh, grove-holder, rent, cess, sayar,
sir, (tenant) hereditary tenant, khudkasht, fixed-rate tenant, rent-free
grantee, exproprietary tenant, occupancy tenant, non-occupancy ten-
ant, sub-tenant, holding and crops, not defined in this Act, and used B
in the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939),
shall have the meaning assigned to them in that Act."
The terms "tenant" and "sub-tenant" are not defined in the U.P. Act.
Consequently, the meaning assigned to them in the United Provinces Tenancy
Act of 1939 will govern the definition of these provisions.
c
Sub-section 22 of Section 3 of the United Provinces Tenancy Act, 1939
defmes "sub-tenant" and Sub-section 23 defmes "tenant" as under :
"(22) "Sub-tenant" means a person who holds land from the tenant D
thereof other than a permanent tenure-holder or from a grove-holder
or from a rent-free grantee or from a grantee at a favourable rate of
rent and by whom rent is, or but for a contract express or implied,
would be payable;
(23) "Tenant" means the person by whom rent is or but for a contract E
express or implied, would be payable and except when the contrary
intention appears includes a sub-tenant but does not include a
m01tgagee of proprietary or under-proprietary rights a grave-holder
a rent-free grantee a grantee at a favourable rate of rent or except as
otherwise expressly provides by this Act, as under-proprietor a
permanent lessee or a kadar·;"
F
(Emphasis supplied)
As the appellant's father staked his claim for getting occupancy rights as per
Section 20 of the U.P. Act and as the respondents have relied upon Section
G
2l(l)(d) in support of their rival contentions for displacing the case of the
appellant, it would be appropriate at this stage to extract the aforesaid relevant
provisions.
Section 20 clauses (a) and (b), in so far as they are relevant, read as
under: H
1156 SUPREME COURT REPORTS [2000] 2 S.C.R.
A "20. Every person who -
(a) on the date immediately preceding the date of vesting was or
has been deemed to be in accordance with the provisions of this
Act -
B (i) except as provided in sub-clause (i) of clause (b), a tenant
of sir (other than a tenant referred to in clause (ix) of
Section 19 or in whose favour hereditary rights accrue in
accordance with the provisions of Section 10), or
(ii) except as provided in (sub-clause (i) of clause (b)), a sub-
c tenant other than a sub-tenant referred to in proviso to sub-
section (3) of Section 27 of the United Provinces Tenancy
(Amendment) Act, 1947 (U.P. Act X of 1947), or in sub-
section (4) of Section 47 of the United Provinces Tenancy
Act, 1939 (U.P. Act XVII of 1939), of any land other than
D grove land,
(b) was recorded as occupant, -
(i) of any land (other than grove land or land to which Section
16 applies or land referred to in the proviso to sub-section
E . (3) of Section 27 of the U.P. Tenancy (Amendment) Act,
1947) in the khasra or khatauni of 1356 F. prepared under
Section 28 and 33 respectively of the U.P. Land Revenue
Act, 1901 (U.P. Act III of 1901), or who was on the date
immediately preceding the date of vesting entitled to
regain possession thereof under clause (c) of sub-section
F (1) of Section 27 of the United Provinces Tenancy{Amend-
ment) Act, 1947 (U.P. Act X of 1947), or
(ii) of any land to which Section 16 applies, in the (khasra or
khatauni of 1356 Fasli prepared under Sections 28 and 33
respectively) of the United Provinces Land Revenue Act,
G
1901 (U.P. Act III of 1901), but who was not in possession
in the year 1356F,
shall, unless he has become a bhumidhar of the land under sub-section
(2) of Section 18 or an asami under clause (h) of Section 21, be called
H adhivasi of the land and shall, subject to t11e provision of this Act, be
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. [S.B. MAJMUDAR, J.] 1157
entitled to take or retain possession thereof." A
-
Section 20(b)(ii) is not relevant for our present purpose as it is not the
case of any party that Section 16 of the Act applies in the facts of the present
case as it deals with the occupancy rights of hereditary tenant. The other
relevant provision is Section 21 which deals, amongst others, with the rights
of tenant's mortgagees. The said provision, so far as it is relevant, reads as B
under:
"21. Non-occupancy tenants, sub-tenants of grove-lands and tenant's
mortgagees to be asamis. - (1) Notwithstanding anything contained
in this Act, every person who, on the date immediately preceding the
date of vesting, occupied or held land as -
c
(a) a non-occupancy tenant of an intermediary's grove-land,
(b) a sub-tenant of a grove-land,
(c) a sub-tenant referred to in the proviso to sub-section (3) of D
Section 27 of the United Provinces Tenancy (Amendment) Act,
1947 (U.P. Act X of 1947),
(d) (a mortgagee in actual possession) from a person belonging, to
any of the classes mentioned in [clauses (b) to (e)] of sub-
E
section (1) of section 18 or clauses [(i) to (vii) and (ix)] of
..__
Section 19,
(e) Xx xxxx xxxxxxx xxxxxxx
Xxxxxx xxxxxxx xxxxxxx
F
shall be deemed to be an asami thereof."
A conjoint reading of the aforesaid relevant provisions leaves no . room for
doubt that if a person, like the appellant's father - Ram Harakh, was recorded
as a sub-tenant of a mortgagee in the relevant records of right then, strictly
G
speaking, he would not be treated to be a "sub-tenant" in the real sense of
the term as he would not be a person claiming sub-tenancy as carved out from
the larger interest of the head-tenant.
On the very definitions of "tenant" and "sub-tenant" a mortgagee, being
not a tenant, cannot induct anyone as his alleged sub-tenant. A sub-tenant has H
1158 SUPREME COURT REPORTS [2000] 2 S.C.R.
A to claim through a tenant and not through a mortgagee. For the simple reason
that head-tenant Sri Narain & Ors. had mortgaged the lands in favour of
Murat Singh & Ors. who were shown as mortgagees in the khasra or khatauni
1356 Fasli and as Ram Harakh, the appellant's father, was claiming as sub-
tenant of the mortgagee and not as a sub-tenant of the original fixed rate
tenants Sri Narain & Ors., his claim was outside the sweep of Section 20(b)(i)
B
of the U.P. Act. When the term "sub-tenant" as employed by Section 20(a)(ii)
is read in the light of the definition of "sub-tenant" as found in Section 3(22)
of the United Provinces Tenancy Act, 1939 read with Section 3(26) of the
present U.P. Act, it becomes at once clear that Ram Harakh, the appellant's
father, was not a "sub-tenant" at all within the meaning of Section 20(a)(ii)
c read with Section 20(b)(i). On a conjoint reading of Section 20(a)(ii) and
Section 20(b)(i) of the U.P. Act it has to be held that before recording anyone
as an occupant in the khasra or khatauni 1356 Fasli prepared under Section
28 of the U.P. Land Revenue Act, 1901, on the basis of sub-tenancy, it has
to be shown tht:tt the said entry is one of a genuine sub-tenant to enable him
D to get the status of adhivasi as per the said provisions. On the admitted facts
on record, therefore, the appellants fathet Ram Harakh, who was shown to
be a sub-tenant of a mortgagee and not as a sub-tenant of the original head
tenants - Sri Narain & Ors., who were fixed rate tenants at the relevant time,
could not get the benefit of being declared as adhivasi as per Section 20 of
the U.P. Act. Such a benefit would have accrued to Ram Harakh in either of
E the following two contingencies: (1) if Ram Harakh was in fact a sub-tenant
directly from head tenants - Sri Narain & Ors. and his name was recorded as
such in khasra or khatauni 1356 Fasli, and (2) in the alternative, if Ram
Harakh was recorded as a sub-tenant in the aforesaid khasra or khatauni 1356
Fasli after redemption of mortgage by head-tenant - Sri Narain & Ors. who
F were fixed rate tenant before the date of vesting resulting in elimination of
mortgagees' rights in favour of Murat Singh & Ors. on the relevant date. In
the latter contingency it could have been urged with some emphasis by the
appellant that the entry as mortgagee in favour of Murat Singh & Ors. was
of no consequence and that he, during the subsistence of the mortgage, as a
prudent manager of the estate, had created sub-tenancy in favour of Ram
G Harakh, which after redemption prior to date of vesting entitled to latter to
be recorded as sub-tenant of mortgagor head-tenants. This legal consequence
would be followed as sub-t~nancy created by mortgagee, on redemption
would have remained binding on the erstwhile mortgagor. Such a contingency
never arose on the facts of the present case. Consequently, none of the
H aforesaid two contingencies got attracted in favour of Ram Harakh on the
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. [S.B. MAJMUDAR, J.] 1159
facts of the present case immediately preceding the date of vesting. On the A
contrary, as laid down by Section 20 itself the accrnal of adhivasi rights to
persons listed in Section 20 would itself be subject to the operation of Section
21(h) wherein asami_ rights would be made available to persons covered by
that provision. When we tum to Section 21 we find that tenant's-mortgagees
are deemed to be asamis on the date of vesting, if on the date immediately
B
preceding the date of vesting the lands were occupied or held by a person who
was a mortgagee in actual possession from a person belonging to any of the
classes mentioned in clauses (b) to (c) of Sub-section 1 of Section 18. When
j we tum to Section 18 sub-section 1 clause (c) we find listed therein a class
of lands held by a fixed-rate tenant or a rent-free grantee as such. Thus on
a combined operation of Section 2l(l)(d) and Section 18(1)(c), on the date c
of vesting, the following situation arose. Head-tenants Sri Narain & Ors, who
were fixed-rate tenants, had not created any sub-tenancy before that date.
They had inducted mortgagee Murat Singh prior to that date. These mortga-
gees had to be treated to be asamis. If these mortgagees in possession were
asarnis as per the aforesaid provisions, they could not be held to be tenants. D
Consequently, their alleged sub-tenant-Ram Harakh could not be treated to be
a "sub-tenant" in the real sense of the term. Such purported sub-tenancy from
mortgagee-in possession could not give any benefit to the appellant's father-
Ram Harakh who was no better than a mere licensee from the mortgagee in
actual possession on the date of vesting. The impugned decision rendered by
the Division Bench of the High Court, therefore, remains well sustained on E
the scheme of the Act when applied to the admitted and well established facts
on record.
However, in the cognate matter, the Division Bench of this Court, by
its Order dated 22nd August, 1995 took a contrary view. A mere look at the
F
said decision makes it clear that the Division Bench, with respect, had not
noticed the correct legal position on the conjoint scheme of Sections 20,
2l(l)(d) read with Sections 18(l)(c) and 3(26) of the U.P. Act. In fact, the
observation of the Division Bench that the question of law as raised therein
was covered by three decisions of this Court in Nath Singh and Others v. The
Board of Revenue and Others, repmted in [1968] 3 SCR 498, Wali Mohammad G
(Dead) through Lrs. v. Ram Surat and Others, AIR (1989) SC 2296, and
Uday (Dead) through Lrs. v. Deputy Director of Consolidation, Varanasi and
Others, (1989] Supp. 2 SCC 722 cannot be said to be well sustained on the
peculiar facts of these cases. Reasons are obvious. The aforesaid three
decisions relied upon in the judgment of the Division Bench, as we shall see H
1160 SUPREME COURT REPORTS [2000] 2 S.C.R.
A presently, have not ruled on the legal rights of any sub-tenants from mo1tga-
gees nor have tl1ey held tltem to be treated as adhivasis as per tlte scheme of
tlte Act. It is, tlterefore, necessary for us to refer to tltese judgments which
were made tlte sole basis of tlte decision of tlte Division Bench in tlte cognate
matter decided on 22nd August, 1995.
B
In Nath Singh and Others (supra), tlte two learned Judges of tltis Comt
had an occasion to consider tlte scheme of Section 20(b)(i) of tlte U.P. Act.
Mitter, J. speaking for tlte Bench relying on earlier decisions of tltis Court
took tlte view tltat when tlte main-tenant had created sub-tenancy in favour
of tlte claimant, who were recorded as sub-tenants in tlte record of rights for
c 1356 Fasli, such sub-tenants could get tlte benefit of being given tlte status
of adhivasis under Section 20(b)(i) of tlte Act. Now, it becomes at qnce clear
tltat before Section 20(b)(i) can be pressed in service by tlte claimant it has
to be shown tltat immediately before tlte date of vesting tlte claimant's name
was recorded as an occupant being sub-tenant of tlte lands. In tlte aforesaid
case, tlte claimant was recorded as a sub-tenant from tlte original tenant and
D
his occupancy was so recorded in tlte year 1356 Fasli. It is in tlte background
of tltese facts tltat it was held tltat adhivasi rights were correctly made
available to such a claimant who was an admitted sub-tenant of tlte head-
tenant and whose name was so recorded in 1356 Fasli. Once tltat conclusion
was reached obviously Section 20(b)(i) of tlte Act came to.tlte assistance of
E such claimant. It must, tlterefore, be observed tltat tlte ratio of tlte aforesaid
decision can have no application for sustaining tlte claim of a sub-tenant from
tlte mortgagee who is recorded as such in tlte year 1356 Fasli as it will be
tlte mortgagee who will become tlte asami under Section 21(1)(d) of tlte U.P.
Act and if he becomes asami a person inducted by him as a purported sub-
F tenant from him cannot claim any interest as adhivasi vis-a-vis such asami.
. In fact such a mortgagee's-sub-tenant cannot be considered to be a "sub-
tenant" at all witltin tlte meaning of Section 3(26) of tlte U.P. Act read witlt
Section 3(23) of tlte United Provinces Tenancy Act of 1939, as seen above.
The aforesaid decision of tlte Division Bench, tlterefore, cannot be said to
have concluded tlte matter as witlt respect, wrongly assumed by tlte Division
G Bench of tltis Court in its order dated 22nd August, 1995.
The second decision on which reliance was placed by tlte aforesaid
Division Bench of tltis Court was rendered in tlte case of Wali Mohammad
(Deceased by Lrs.) v. Ram Surat & Ors. (supra). The aforesaid decision
H rendered by another Division Bench of two learned Judges of tltis Court
CHANDRIKAPRASAD v. PULLO (DEAD) BYLRS. [S.B.MAJMUDAR,J.] 1161
consisting of M.H. Kania (as he then was) and S. Ranganathan, JJ. is not A
•• relevant for deciding the present controversy as that decision had also not
touched upon the question whether the purported sub-tenant of a mortgagee
in possession could claim any adhivasi rights under Section 20(b) of the Act.
In para 2 of the Judgment, Kania, J., who spoke for the Bench, clearly
indicated that though one Wali Mohammad had executed a usufructuary
B
mortgage in favour of Ram Kumar and Shiv Kumar in respect of two plots
on 22nd May, 1928, he had redeemed the said mortgage and took possession
of the said plots prior to Fasli Year 1356 precisely in the Fasli Year 1354 and
had continued to be in possession. Thus by the Fasli Year 1354 entries of
mortgagor and mortgagee recorded between Wali Mohammad on the one
hand and Ram Kumar and Shiv Kumar on the other, had come to an end. c
Despite this fact, the name of Ram Kumar was recorded in the Khasra or
K.hatauni 1356 Fasli. It becomes obvious that in Fasli Year 1356 the name of
Ram Kumar could not have been shown as a subsisting mortgagee as his
mortgage was already redeemed two years back by Wali Mohammad, the
original mortgagor. It is on the basis of this entry in favour of Ram Kumar, D
the erstwhile mortgagee, that it was held that Section 20(b) got attracted in
favour of Ram Kumar. The observations made in paras 4 and 5, in this
connection, are required to be extracted :
"4. The said section deals with the question as to who is entitled to
take or retain possession of the· land in question. The plain language
E
of the aforesaid Cl. (i) of sub-sec. (b) of S.20 of the said Act suggests
that.this question has to be determined on the basis of the entry in
the Khasra or K.hatauni of 1356 Fasli Year prepared under Ss. 28 and
33 respectively of the U.P. Land Revenue Act, 1901. An analysis of
the said section shows that under sub-sec. (b) of S.20 the entry in the F
Khasra ·or Khatauni of the Fasli Year 1356 shall determine the
question as to the person who is entitled to take or retain possession
of the land. It is. of course, true that if the entry is fictitious or is found
to have been made surreptitiously then it can have no legal effect os
it can be ~garrkd os no entry in law but merely because an entry is G
made incorrectly that would not lead to the conclusion that it ceases
to be an entry. It is possible that the said entry may be set aSide in
appropriate proceedings but once the entry is in existence in the
Khasra or Khata~ of Fasli Year 1356. that would govern the
question as to who is entitled to take or retain possesfilon of the land
to which the entry relates. ff
1162 SUPREME COURT REPORTS [2000] 2 S.C.R.
A 5. It was submitted by learned counsel for the appellants that if entry
was not correct, it could not be regarded as an entry made according
to law at all and the right to take or retain possession of the land could
--
not be determined on the basis of an incorrect entry. He placed
reliance on the decision of this Court in Bechan v. Kankar,[1973] 1 ...
SCR 727 : AIR (1972) SC 2157. In that judgment the nature of the
B
entries in Khasra or Khatauni is discussed and it is also discussed as
to how this entry should be made. This Court held that entries which
are not genuine cannot confer Adhivasi rights. It has been observed
that an entry li.nder S.20(b) of the said Act, in order to enable a person·
to obtain Adhivasi rights, must be an entry under the provisions of
c law and entries which are not genuine cannot confer Adhivasi rights.
In that judgment it has been stated that the High Court was wrong
when it held thatthough the entry was incorrect, it could not be said
to be fictitious. That observation, however, has to be understood in
the context of what follows, namely, that an entry which is incorrectly
D introduced into the records by reason of ill-will or hostility is not only
shorn of authenticity but also becomes utterly useless without any
lawful basis. This judgment, in our view, does not lay down that all
incorrect entries are fictitious but only lays down that a wrong entry
or incorrect entry .which has been made by reason of ill-will or
E hostility cannot confer any right under S.20(b) of the said AcL This
decision is clarified by a subsequent judgment of this Court in Vishwa
Vijai Bharti v. Fakhrul Hassan, [1976) Suppl SCR 519 : AIR (1976)
SC 1485 where it has been held as follows (at p. 1488.of AIR) :
"It is true that the entries in the revenue record ought, generally, to
F be accepted at their face value and courts should not embark upon
an appellate inquiry into their correctness. But the presumption of
correctness can apply only to genuine, not forged or fraudulent,
entries. The distinction may be fine but it is real. The distinction is
that one cannot challenge the correctness of what the entry in the
G revenue record states but the entry is open to the attack that it was
made fraudulently or surreptitiously. Fraud and forgery rob a docu-
ment of all its legal effect and cannot found a claim to possessory
H
title.".
(Emphasis supplied)
-
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. [S.B. MAJMUDAR, J.) 1163
In the background of fact situation in that case, it was then observed in para A
6 of the report firstly, that there was nothing to show that the entry of Ram
Kwnar as the occupant was fictitious or was made fraudulently or was
incorrectly introduced by reason of ill-will or hostility towards Wali
Mohammad. Secondly, it was held that Ram Kwnar, being noted as occupant
on the relevant date, was entitled to the benefit of Section 20(b) of the U.P. B
Act. We fail to appreciate how this decision also could have persuaded that
Division Bench in its order dated 22nd August, 1995 to come to the
conclusion that the law on the point in question was concluded by the said
decision, amongst others. It has to be kept in view that, on the facts of the
present case, there is no escape. from the conclusion that the entry of .
mortgagee, Murat Singh, clearly indicated that the so-called entry of Ram C
Harakh as sub-tenant was a fictitious one as Ram Harakh, as already seen
earlier, was by no stretch of imagination could have been treated to be a sub-
tenant from the head-tenant Sri Narain & Ors. On this finding even the ratio
of the decision in Wali Mohammad v. Ram Surat and Others (supra) also,
instead of helping the appellant, would go against him. That takes us to the D
consideration of the last of the trinity of the judgments relied upon by the
Division Bench of this Court for supporting its conclusion in its order dated
22nd August, 1995. In the case of Uday (Dead) through Lrs. v. Deputy
Director of Consolidation, Varanasi and Others (supra), a Division Bench
consisting of two learned Judges, S. Ranganathan and M.M. Punchhi, JJ. (as E
he then was), has to consider a fact situation which is entirely different from
the one before us. The original appellants before this Court, Udai and Pargash,
claimed to be sub-tenants of the land who were recorded as such in the year
1357 Fasli which was a relevant year for areas situated within the Varanasi
District. They were not claiming to he sub-tenants of any mortgagees-in
possession as is the claim of Ram Harakh in the present case. Relying on the F
entries as sub-tenants so far as Udai and Pargash were concerned, it was held
by this Court upholding the decision of the High Court, that both Udai and
Pargash were entitled to get the benefit of Section 20(b)(i) of the U.P. Act.
Ranganathan, J., speaking for the Bench, made the following pertinent
observation in para 5 of the report. G
"5. The answer to the above question seems self-evident if one were
to go by the purely etymological meaning of the word "occupant".
In the absence of any statutory definition; that word would clearly
cover any person who has been recorded as having been in occupation H
1164 SUPREME COURT REPORTS [2000] 2 S.C.R.
A of the land in question in the relevant fasli irrespective of the capacity
in, or title under, which he so occupied it. There will therefore be no
reason, normally speaking, to exclude a person whose occupancy is
recorded on the-basis of his sub-tenancy... "
..
It becomes at once clear that the aforesaid decision also had no occasion to
B consider the question of right of any alleged sub-tenant from a mmtgagee-
in possession who was recorded as such in the relevant year 1356 Fasli. It
was also a case of a sub-tenant from the original tenant and not a case of
alleged sub-tenant from a mortgagee-in possession. This decision, therefore,
also falls in line with the decision of this Court in Nath Singh and Others v.
c I1ie Board of Revenue and Others (supra). The aforesaid three decisions,
therefore, cannot said to have covered the question of law raised in the present
case or in a similar case before the Division Bench which, with respect,
wrongly asswned them to have so ruled. On the scheme of the Act and the
background of the relevant facts which were established on record it has to
D be held that the alleged sub-tenant-Ram Harakh through whoni the appellant
claims seeking his right to possession on the relevant date thro_ugh mortgagee-
in possession cannot get the benefit of Section 20(b)(i) of the Act read with
Section 20(a)(ii) of the Act and the entry of sub-tenancy in his favour in the
year 1356 Fasli had to be treated to be fictitious and not a genuine one. On
this fmding even the ratio of the decision of this Court in Wali Mohammed
E v. Ram Surat and Others (supra) would get squarely attracted against the
appellant.
This discussion puts and end to the dispute in controversy and clearly
indicates that the impugned decision of the Division Bench of the High Court
F against the appellant is well sustained. However, we may also refer to other
decisions of this Court to which our attention was invited by learned counsel
for the contesting parties in support of their respective cases. In the case of
Ram Adhar Singh (dead) through LrS. &: Ors. v. Bansi (dead) through Lrs.
&: Ors. (supra) another two-Judge Bench of this Court, speaking through Sen,
J., held that usufructuary mortgage of an occupancy holding is invalid. A
G
mortgagee acquires no right other than the right to retain possession and fall
back upon the stipulation in the so-called mortgage bond till his money is
paid.-There is no transfer of an interest by the occupancy tenant. The right
of an occupancy tenant under Section 6 of the Recovery of Rents (Bengal)
Act was not transferable. However. under the U.P. Debt Redemption Act,
H 1940 all usufructuary mortgages became self-liquidating mortgages.
CHANDRIKA PRASAD v. PULLO (DEAD) BY LRS. [S.B. MAJMUDAR, J .] 1165
-- Observations in para 4 of the report were pressed in service by learned
counsel for the respondents. They read as under :
A
... "4. We fmd that it has been the consistent view of the Allahabad High
Court that a usufructuary mortgage of an occupancy holding was not
valid as a mortgage with all its incidents and subject to the provisions
B
of law relating to usufructuary mortgage but was valid only in a
qualified sense i.e. in the sense of subletting with a covenant that the
mortgagor will not be entitled to recover possession without payment
of the mortgage money, and further that under such a mortgage there
is no transfer of the right of an occupancy tenant and consequently
no suit for redemption was maintainable nor was there any extinguish- c
ment of the right of an occupancy tenant upon the expiry of the period
of limitation fixed for redemption under Article 148 of the Limitation
Act, 1908. There is a long catena of decisions dealing with the
question starting from Khiali Ram v. Nathu Lal, down to Samharu v.
Dharamraj Pandey. It follows that it has been the settled law as D
administered in the then United Provinces that a usufructuary mort-
gage of an occupancy holding was invalid and there was no transfer
of an interest by the occupancy tenant and the mortgagee acquired no
right other than the right to retain possession and fall back upon the
stipulation in the so-called mortgage bond till his money was paid.
As pointed out in the Full Bench decision in Samharu v. Dharamraj E
Pandey, the view that a usufructuary mortgage by an occupancy
tenant was not valid in the eye of law has been accepted by the
legislature in clause (d) of Section 21(1) the U.P. Zamindari Abolition
& Land Refonns Act, 1951. The matter stands concluded by the
- doctrine of stare decisis. If we were to subscribe to the contention
advanced by the learned counsel for the appellants, it would imply
not only unsettling the law which has stood the test of time for over
100 years but have the effect of reopening transactions past and
closed and unsettling titles over the State".
F
G
This decision clearly indicates that mortgagee-in possession is no better than
an asami and has no right to create a genuine sub-tenancy. His alleged sub-
tenant will be no better than a pure licensee from him.
--- On the facts of that case it was, therefore, held that successor-in-interest
of tl1e original mortgagees had no right to get the benefit of occupancy under H
1166 SUPREME COURT REPORTS [2000) 2 S.C.R.
A the Act. Even though the said judgment had no occasion to examine the
occupancy rights of the sub-tenant from a m01tgagee, its ratio can rightly be
pressed in service by the respondents for submitting that when Section
21(1)(d) of tlie U.P. Act is given its full play, the mortgagee-in possession
cannot be treated to be on a higher level than an asarni and consequently the
B alleged sub-tenancy created by him will not enure for the benefit of the so-
called sub-tenant to claim any independent adhivasi rights.
In the case of Amba Prasad v. Abdul Noor Khan & Ors., [1964) 7 SCR
800, Hidayatullah. J. (as he then was), speaking for the Bench of two learned
Judges, had to interpret the words "recorded as occupants" as found in
C Section 20 of the U.P. Act. It was held on the facts of that case that the
appellant before this Court was not entitled to raise the plea of the correctness
of the entry in khasra because the entry was not corrected before the date of
vesting as required by Explanation (ii) to Section 20 of the U.P. Act. It was
further observed that the title to possession as adhivasi depends on the entries
D in the khasra or khatauni for the year 1356 Fasli. Section 20 of the U.P. Act
does not require the proof of actual pqssession. These observations, on the
facts of that case, cannot be of any assistance to the appellant for the simple
reason that this Court, in the aforesaid cases, was not concerned with the
examination of a situation like the present one wherein alleged sub-tenant of
a mortgagee-in possession claimed the benefit of Section 20 of the U.P. Act.
E Learned counsel for the appellant vehemently relied upon a decision of the
Constitution Bench of this Court in the case of Prabhu v. Ramdeo & Ors.,
AIR (1966) SC 1721. In that case the Constitution Bench was concerned with
the interpretation of the relevant provisions of the Rajasthan Tenancy Act. In
the light of the said statutory scheme, it was observed that rights of tenants
F inducted by mortgagee-in possession, under the provisions of Transfer of
Property Act, 1882, may conceivably be improved by statutory provisions
which may meanwhile come into operation. The definition of "tenant" under
Section 5(43) of the Rajasthan Tenancy Act was pressed in service for
deciding the legal rights of three respondents before the Court. The contention
of the appellant, Prabhu, before the Court for treating the respondents as
G
"trespassers" as defined by Section 5(44) of the Rajasthan Tenancy Act was
repealed. The relevant observations made in paras 6 and 7 deserve to be re-
produced to appreciate and ratio of the Constitution Bench decision in this
- case. They read as under :
H "(6) Before dealing with the specific provisions of the said section we
CHANDRIKAPRASAD v. PULLO (DEAD) BY LRS. [S.B. MAJMUDAR, J.] 1167
may refer to two definitions which are relevant. "Tenant" has been A
defined by S.5(43) of the Act as meaning a person by whom rent is
. or but for a contract, express or implied, would be payable and except
when the contrary intention appears, shall include a co-tenant or a
groveholder or a village s.ervant or a tenant of khudkasht or a
mortgagee of tenancy rights but shall not include a grantee at a
B
favourable rate of rent or an ijaredar or a thekedar or a trespasser. That
is how the definition stood at the relevant time. The test prescribed
by this definition is that the person can claim to be a tenant if it is
shown that rent is payable by him in respect of the land. That test is
clearly satisfied by three respondents in the present case.
c
(7) The next definition to which it is necessary to refer is that of a
trespasser. The appellant, in his present suit, has contended that the
respondents are trespassers. A "trespasser" has been defined by
S.5(44) of the Act as meaning a person who takes or retains
possession of unoccupied land without authority or who prevents
another person from occupying land duly let out to him. That is how D
the definition read at the material time. It is plain that the respond-
ents do not fall within the definition of "trespasser" as prescribed by
this clause."
A mere look at these observations shows that on the peculiar scheme of E
Sections 5(43) and 5(44) of the Rajasthan Tenancy Act, it was held that a
tenant of the mortgagee-in possession could not be treated as a trespasser. As
already seen earlier, the statutory scheme of the U.P. Act is entirely different.
The aforesaid decision, therefore, also cannot advance the case of the
appellant.
F
Reliance was also placed on another Constitution Bench judgment of
this Court in Dahya Lal & Ors. v. Rasul Mohammed Abdul Rahim, [1963]
3 SCR 1. That was a case under the Bombay Tenancy and Agricultural Land
Act, 1948. Question was whether tenant of a mortgagee-in possession could
be treated to be a deemed tenant under Section 4 of the Bombay Act, 1948.
Section 4 of the said Act, in so far as it is material, provided :
G
"A person lawfully cultivating any land belonging to another person
shall be deemed to be a tenant if such land is not cultivated
personally by the owner and if such person is not (a) a member of
the owner's family, or (b) a servant on wages payable in cash or kind H
U68 SUPREME COURT REPORTS (2000] 2 S.C.R.
A but not in crop share or a hired labourer cultivating the land under
the personal supervision of the owner's family, or (c) a mortgagee in
possession.... "
In the light of the aforesaid statutory scheme, it was observed that only a
mortgagee-in possession could not be a deemed tenant but tenant of a
B mo1tgagee-in possession, being nc;it falling in the excluded category, would be
covered by the main part of Section 4, being a person lawfully cultivating and
land belonging to another person. It becomes at once cle/"1" piat the aforesaid
decision r.endered in the light of an entirely different stathtory/ scheme cannot
advance the case of the appellant for getting his father, Ram/Harakh, the so-
c called "sub-tenant" of the mortgagee-in possession, to be treated as an
adhivasi under Section 20 of the U.P. Act.
As a result of the aforesaid discussion, therefore, it must be held that
the impugned decision of the High Court lays down the con-ect legal position
in the background of the admitted and well established facts on record and
D calls for no interference. On the contrary, the decision rendered in the cognate
matter by the Division Bench of this Court on 22nd August, 1995, with
respect, must be held to be not faying down the correct law and would remain
binding only as res judicata between the parties to that decision and cannot
bind the present respondents.
E The appeal, therefore, fails and is dismissed with no order as to costs.
V.M. Appeal dismissed.
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