Holding

The Court held that where consolidation operations are deemed not closed under section 52(2) of the Uttar Pradesh Consolidation of Holdings Act, the provisions of sections 4‑A, 4 and 5 are inapplicable, the arbitrator’s award remains valid, and the appellants, lacking any legal title or status as intermediaries or cultivators, are not entitled to retain the disputed land.

Summary

Suraj Mal and another (appellants) claimed title to a Zamindari parcel sold by Sona Devi, arguing that the sale deed gave them a valid interest. The respondents, Sona Devi's minor sons, sued for declaration that their mother only had a life interest and that the sale was void, seeking possession. The Munsif decreed in their favour; appeals were stayed when the village was notified for consolidation under the Uttar Pradesh Consolidation of Holdings Act, 1953. An arbitrator, referred by the consolidation officer, upheld the respondents' claim, finding the sale deed invalid; the appellants’ objections to the award were dismissed, but a lower court set aside the award on procedural grounds, a decision later reversed by the High Court. The Supreme Court examined whether sections 4‑A, 4 and 5 of the Consolidation Act applied, concluding that because consolidation operations were deemed not closed under section 52(2), those provisions were inapplicable and the arbitrator’s award stood. It also held that the appellants acquired no legal interest and were not intermediaries under section 18 of the Zamindari Abolition Act nor cultivators under section 3 of the 1952 Act, so they could not retain possession. The appeals were dismissed.

Issues considered

The applicability of sections 4‑A, 4 and 5 of the Uttar Pradesh Consolidation of Holdings Act, 1953 to proceedings stayed by a consolidation notification.
Whether the reference to the statutory arbitrator under section 12 of the Consolidation Act was maintainable.
Whether the arbitrator committed legal misconduct by not applying section 18 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.
Whether the appellants, having no title under the sale deed, qualify as intermediaries or cultivators entitled to retain the land under sections 18 of the Zamindari Abolition Act and 3 of the Uttar Pradesh (Supplementary) Act, 1952.

Legislation cited

Arbitration Act, 1940s. 39
Uttar Pradesh Consolidation of Holdings Act, 1953s. 12, s. 3, s. 4, s. 4A, s. 5, s. 52
Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960
Uttar Pradesh (Supplementary) Act, 1952s. 3
Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950s. 18

Subjects

Consolidation of Holdings ActSection 4-ASection 52ArbitrationLand titleAdverse possessionZamindari abolitionCultivatory possessionLegal standingAppeal dismissed

Judgment

A

·~~ SURAJ MAL AND ANOTHER
v.
RAM SINGH AND OTHERS
B
AUGUST 7, 1986

(0. CHINNAPPAREDDY ANDMURARIMOHONDUTT, JJ.]
--t
U.P. Consolidation of Holdings Act, 1953---us. 4, 4A, 5 and 52-
A-· Consolidation proceedings -When deemed to be closed-consequence
~
of Notification under s. 4(2). c
Uttar Pradesh (Supplementary) Act, 1952-s. 3-Benefit of-
When can be claimed-Person not having any lawful right in land-Not
entitled to claim cultivatory possession.
;..
D
Sona Devi, mother of respondents nos. 3, 4 and S, inherited cer-
lain Zamindari property from her father. By a registered deed of sale
she sold it to the predecessor in interest of the appellants and one Abbey
Ram. At that time she had no son, but subsequently, respondents nos. 3
to S were born to her and at the time of her death all of them were
minors.
E

"" Respondents Nos. 3 to S tiled a suit against the appellants and
others for a declaration that their mother had only a life interest in the

-t
zamindari property sold by her, and that the transfer not having been
supported by any legal necessity, was not binding upon them. They also
prayed for recovery of possession of the property and for mesne profits.
F
The suit was decreed by the Munsif. During the pendency of the appeals
filed by both the parties, the village in which the disputed land is situate,
was notified for consolidation operations and, therefore, in view of s. S
~ of the Consolidation Act, all further proceedings of the appeals were
stayed.
G
In !he consolidation proceedings, the names of the appellants were
recorded in the revenue papers as Bhumidar in respect of the disputed
land. The respondents tiled objections under s. 12 of the Consolidation
Act, raising questions of title regarding the disputed land. The Consoli-
dation Offirer referred the matter under sub-s. 4 of s. 12 to the stain-
tory Arbitrator, who made an Award in favour of the Respondents and H
487
488 SUPREME COURT REPORTS [19861 3 S.C. R.

A recorded the findings that Sona Devi had only a life interest in the
disputed land, that the sale deed executed by her was neither for legal
1'-
necessity nor fur the benefit of the estate of her deceased father, that the
transfer of the disputed land by the sale deed was not binding on the
respondents Nos. 3 to 5 and that they were entitled to reocover posses-
B sion of the disputed land.

·Two petitions of objections to the Award, filed by the appellants,
were dismissed by the Civil Judge. The Additional District Judge in
second appeal took the view that as the sons of Abhey Ram, who was
also one of the transferees under the said sale deed, were not made
*'
r·'
parties in the proceedings, the reference to the Arbitrator was illegal
c and the Award made by him was invalid, and that the Arbitrator was
guilty of legal misconduct inasmuch as he had committed an error of
law apparent on the face of the Award, allowed the appeals, and set
aside the order of Civil Judge and also the Award of the Arbitrator. -ii
D A Single Judge of the High Court allowed the Revision Petitions of
the respondents, set aside the order of the Additional Di•trict Judge and
restored that of the Civil Judge and also the Award of the Arbitrator.

Dismissing the appeals, this Court,

E
HELD: 1. The object of sub-s. (2) of s. 52 of the U. P. Consolida-
!ion of Holdings Act 1953 is that when an order has been passed by a
Court under the provisions of the Constitution or in cases or proceed-

F
ings pending under the Consolidation Act, the right or interest involved
under such order or in the pending cases or proceedings under the
Consolidation Act, should not be again subjected to the consideratfon in
the consolidation proceedings started by virtue of a notification under s.
) -
4-A oftbe Consolidation Act. [495E-F]

2. Section 4-A will apply only where the consolidation operations
+
remained closed for a period of JO years from the date of the notifica-
tion under s. 52(1). But, in view of s. 52(2), consolidation operations
shall be deemed to have not been dosed in respect of two cases men-
G
tioned therein. So, s. 4A will have no application to these two cases.
Consequently, t,he provision of s. 4 as also the provision of s. 5 will not
apply to these two cases. [4950-E]

3. The proceedings out of which the instant appeals ari'° are
H proceedings under the Consolidation Act and, therefore, s. 5(2)(a) will
S. MAL v. RAM SINGH 489

have no application to these proceedings. In any event, in view of s. A
52(2), the notification issued under s. 4-A and the subsequent notifica·-
tion under s. 4(2) and the consequence thereof as provided under s. 5(2)
of the Consolidation Act, will have no application to or affect the pro-
ceedings giving rise to the instant appeals. [496A-B]

4. The High Court was right in holding that the Additional Dis- B
trict Jndge should not have entertained the objection to the maintain-
ability of the reference to the Arbitrator raised for the first time before
him and that the proper stage for raising such an objection was when
the reference was made under s. 12 of the Consolidation Act. [496E-F]

• 5. Since the sale deed in question has been held by the Arbitrator
c
as invalid inasmuch as it was not supported by any legal necessity, the
appellants had not acquired any interest in the disputed land under the
sale deed and, as such, they had no intermediary interest in the dis-
puted land on the date immediately preceding the date of vesting under
the Zamindari Abolition Act. The appellants not being intermediaries
or persons of any category as mentioned ins. 18, they are not entitled to D
retain the disputed land and their possession is not protected by the
provision of s. 18. [497C-D]
6. Section 3 of the Uttar Pradesh (Supplementary) Act, 1952 does
not confer any right on a person whose possession of land during the
year 1359 Fasli was illegal. It is not the intention of the Legislature to
E
protect the possession of a trespasser under s. 3(1). The explanation to
s. 3(1) gives sufficient indication that a person not having any lawful
right in the land, cannot claim to be in cultivatory possession of such
land. [499A-B]
( Ram Krishna v. Bhagwan Baksh Singh, (1961) ALJ 301 and Badri
F
and another v. Juthan Singh and Others, (1969) ALJ 411, relied upon.

In the instant case, in view of the findings of the Arbitrator, the
appellants did not acquire any interest in the disputed land by virtue of
the sale deed in question, and it cannot be said that they have acquired
title to the disputed land by adverse possession. After the death of Sona
G
Devi, the possession of the disputed land by the appellants became
illegal and adverse to the respondents Nos. 3 to S. But before such
possession could ripen into title after the lapse of twelve years, the
respondents Nos. 3 to 5 instituted a suit within six years of such posses-
sion in the Court of Munsif for the recovery of possession of the dis-
puted land from the appellants, which was decreed. Both the appellants H
490 SUPREME COURT REPORTS [1986] 3 S.C.R.

A and the respondent Nos. 3 to 5 filed appeals, but in view of s. 5 of the
Consolidation Act, all iurther proceedings of the said appeals were
stayed. Thereafter, the consolidation proceedings were started giving
rise to the present appeals. Thus, the appellants have not acquired any
•
title to the disputed land hy adverse possession. [498E-H]
B
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 273·
274of 1972

From the Judgment and Order dated 25.8.19'.'1 of the Allahabad
High Court in C. Revn. No. 1354 and 1355 of 1969.

C J.P. Goel, Rajesi1 and R.A. Gupta for the Appellants. -
O.P. Rana, P.K. Pillai for the Respondents.

The Judgment of the Court was delivered by
D
DUTT, J. These two appeals by special leave have been prefer·
red by the appellants against the judgment of a learned Single Judge of
the Allahabad High Court. By the said judgment the learned judge set
aside the order of the District Judge, Meerut, passed by him on appeal
under section 39 of the Arbitration Act, 1940, upholding the order of
the First Civil Judge, Meerut, and the Award of the Arbitrator made
E
under section 12 of the U. P. Consolidation of Holdings Act, 1953,
hereinafter referred to as 'the Consolidation Act'.

One Kurey was the owner of the zamindari property in Khewat _.
Nos. 23 and 34 and also in Khewat No. 2, comprising the disputed · ~
plots of land in village Daha. On his death, the zaniindari property
F
devolved upon his daughter, Sona Devi. By a registered deed of sale
dated December 21, 1935, Sona Devi sold the zamindari property to "'t-
one Hoshiara, the predecessor in interest of the appellants, and also to
one Ab hey Rani. Out of the consideration of Rs.3, 150, Sona Devi was
paid only Rs. l,300 in cash before the Sub-Registrar and the balance of
the consideration money was kept in deposit with the purchasers for
G
payment under three usufructuary mortgage deeds executed by Kurey
in favour of some of his creditors. Sona Devi had no son when she
executed the sale deed, but subsequently three sons, namely, the res· -
pondents Nos. 3, 4 and :i were born to her. She died in 1944 leaving
behind her the said respondents who were all minors at the time of her
death.
S. MAL v. RAM SINGH [DUTI, J.] 491

The respondents No. 3 to 5, the sons of Sona Devi, filed a suit A
being suit no. 1503 of 1950 in the Court of the Munsif, Meerut against
the appellants and others for a declaration that Sona Devi had only a
life interest in the zamindari property purported to have been transfer-
red by her by the sale deed dated December 21, 1935, and that the
transfer not having been supported by any legal necessity, was not B
binding upon the respondents. The respondents also prayed for recov-
ery of possession of the property and for mesne profits.

The learned Munsif by his judgment dated January 18, 1953
decreed the suit. Both the parties preferred appeals against the said
judgment and decree of the learned Munsif. During the pendency of
the appeals, village Daha, in which the disputed land is situated, was c
notified for consolidation operations under the Consolidation Act. In
view of section 5 of the consolidation Act, all· further proceedings of
the said appeals were stayed.

In the consolidation proceedings that were started in the village,
D
the names of the appellants were recorded in the revenue papers as
bhumi in respect of the disputed land. The respondents filed objec-
tions under section 12 of the Consolidation Act, as it stood at the
relevant time in November, 1956. As the objections raised questions
of title regarding the disputed land, the Consolidation Officer referred
the matter under sub-section (4) of section 12 to the statutory Ar-
E
bitrator. The learned Arbitrator came to the findings that Sona Devi
had only a life interest in the disputed land, that the sale deed executed
by her on December 21, 1935 was neither for legal necessity nor for the
benefit of the estate of her deceased father, that the transfer of the
disputed land by the said sale deed was not binding on the respon-
dents, the sons of Sona Devi, and that, accordingly, the said respon-
F
dents were entitled to recover possession of the disputed land .purpor-
ted to have been transferred by the said sale deed. In view of the above
findings, the learned Arbitrator made an Award in favour of the res-
. .pondents.

The appellants filed two petitions of objection to the Award
G
under section 30 of the Arbitration Act which were dismissed by the
learned First Civil Judge, Meerut, by his order dated November 8,
1967.

Being aggrieved by the order of the learned First Civil Judge,
Meerut, diismissing the petitions of objection, the appellants filed two H
492 SUPREME COURT REPORTS [19861 3 S.C.R.

A appeals to the Additional District Judge, Meerut, under section 39 of
the Arbitration Act. The learned Additional District Judge took the
view that as the sons of Abbey Ram, who was also one of the trans-
ferees under the said sale deed dated December 21, 1935, were not
made parties in the proceedings, the reference to the Arbitrator was
illegal and the Award made by him was invalid. Further, it was held by
B
the learned Additional District Judge that the Arbitrator was guilty of
legal misconduct inasmuch as he had committed an error of law appa-
rent on the face of the Award. Upon the said findings, the learned
Additional District Judge set aside the order of the learned First Civil
Judge, Meerut, and also the Award of the learned Arbitrator. Both
the appeals preferred by the appellants were, accordingly, allowed.
c
The respondents, being aggrieved by the said order of the
learned Additional District Judge, filed two revision petitions under
section 115 of the Code of Civil Procedure before a learned Single
Judge of the Allahabad High Court. The learned Judge, as aforesaid,
set aside the order of the learned Additional District Judge, Meerut,
D
and restored that of the learned First Civil Judge, Meerut, and also the
Award of the learned Arbitrator. Hence these two appeals by special
leave.

Before we proceed further we may dispose of two applications
which have been filed by the appellants in the two appeals. It has been
E
alleged in the applications that during the pendency of the appeals in
this Court, a notification dated June 27, 1981 under section 4-A of the
Consolidation Act was issued declaring that village Daha might again
be brought under the consolidation operations. In view of that notifi-
cation, a further notification was issued under sub-section (2) of sec-
tion 4 by the State Government deciding to start consolidation opera-
F
tions in village Daha. It is alleged that since the issuance of the notifi-
cation under section 4(2), the consolidation operations have been go-
ing on in that village.

It is submitted that by virtue of sub-section (2) of section 5 of the
Consolidation Act, the consequence of the publication of a notifica-
G tion under section 4(2) is that the present appeals along with other
proceedings out of which the appeals arise, stand abated. The parties
affected will, however, be entitled to agitate their right or interest in
dispute in the said proceedings before the appropriate consolidation
authorities under and in accordance with the provisions of the Consoli-
dation Act and the rules made thereunder, as provided in clause (b) of
H
S. MAL v. RAM SINGH [DUTT, J.] 493

section 5(2) of the Consolidation Act. Accordingly, it has been prayed A
in the said applications that an order of abatement of the instant appe-
als and also of other proceedings including the arbitration proceed-
ings, should be made under section 5(2) of the Consolidation Act.

In order to consider the contentions of the appellants as to the B
abatement of the appeals and the other 1'roceedings out of which the
appeals arise, we may refer to some of the provisions of the Consolida-
tion Act. Sub-section (1) of section 52 of the Consolidation Act pro-
vides for the issuance of a notification by the State Government dec-
laring the closure of the consolidation operations in the unit where-
upon the village or villages forming a part of the unit shall cease to be
under consolidation operations. Sub-section (2) of section 52 provides c
that notwithstanding anything contained in sub-section (1), any order
passed by a court of competent jurisdiction in cases of writs filed under
the provisions of the Constitution of India, or in cases or proceedings
pending under the Consolidation Act on the date of issue of the notifi-
cation under sub-section (1), shall be given effect to by such authori-
D
ties, as may be prescribed and the consolidation operations shall, for
that purpose, be deemed to have not been closed.

Under section 4-A(l) of the Consolidation Act, where the State
Government is of the opinion that in the case of a district or part
thereof in respect of which a notification has already been issued under
E
section 52, it is expedient in public interest so to do, it may make a
declaration by notification in the Gazette that such district or part
thereof may again be brought under consolidation operation. Under
the proviso to section 4-A(l), no such declaration shall be issued
within ten years from the date of the notification referred to in the said
section. Section 5 provides for the effect of a notification
F
under section 4(2). Sub-section (2) of section 5 runs as follows:

"S. 5(2}--Upon the said publication of the notification
under sub-section (2) of Section 4, the following further
consequences shall ensure in the area to which the notifica-
tion relates, namely-
G
(a) every proceeding for the correction of records and ev-
l ery suit and proceedings in respect of declaration of rights
or interest in any land lying in the area, or for declaration
or adjudication of 2ny other right in regard to which pro·
ceedings can or ought to be taken under this Act, pending H
494 SUPREME COURT REPORTS [19861 3 S.C.R.

A before any court or authority whether of the first instance
or of appeal, reference or revision, shall, on an order being
passed in that behalf by the court or authority before whom
such suit or proceeding is pending, stand abated:

B Provided that no such order shall be passed without
giving to the parties notice by post or in any other manner
and after giving them an opportunity of being heard:

Provided further that on the issue of a notification un-
der sub-section (1) of Section 6 in r,espect of the said area
or part thereof, every such order in relation to the land
c lying in such area or part as the case may be, shall stand
vacated;

(b) such abatement shall be without prejudice to the rights
of the persons affected to agitate the right or interest in
dispute in the said suits or proceedings before the appro-
D
priate consolidation authorities under and in accordance
with the provisions of this Act and the rules made
thereunder.

Explanation-For the purposes of sub-section (2), a pro-
ceeding under the Uttar Pradesh Imposition of Ceiling on
E
Land Holdings Act, 1960 or an uncontested proceeding
under Sections 134 to 137 of the U .P. Zamindari Abolition
and Land Reforms Act, 1950, shall not be deemed to be a
proceeding in respect of declaration of rights or interest, in
any land."
F
It is manifestly clear that where consolidation proceedings have
been held and closed, a notification under section 4(2) of the Consoli-
dation Act can be made only after the expiry of 10 years from the date
of the notification under section 52. When the consolidation proceed-
ings are over, the State Government issues a notification declaring that
the consolidation operations have been closed in the unit whereupon
G
the village or villages forming a part of the unit shall cease to be under
consolidation operations. Thus, at the time the notification under sec-
tion 4-A is made, the consolidation operations in respect of any district
or part thereof have been closed ten years before and there is no
consolidation operation in the district or part thereof to which the
H notification under section 4-A relates.
S.MAL v. RAM SINGH [DUIT, J.] 495

By virtue of sub-section (2) of section 52 of the Consolidation A
Act even though a notification under sub-section ( 1) of section 52 is
made declaring that the consolidation operations have been closed in
respect of the unit, yet it shall be deemed to have not been closed for
the purpose of giving effect by the prescribed authorities to the follow-
ing two cases:
B
(i) Any order passed by a court of competent jurisdiction
in cases of writs filed under the provisions of the Constitu-
tion oflndia.

(ii) In cases or proceedings pending under the Consolida-
tion Act on the date of issue of the notification under sub- C
section (1).

Thus, in regard to the two cases mentioned above, the consolida-
tion operations shall be deemed to have not been closed. As noticed
already, section 4-A will apply only where the consolidation opera-
D
tions remained closed for a period of ten years from the date of the
notification under section 52(1). But, in view of sub-section (2) of
section 52 of the Consolidation Act, the consolidation operations shall
be deemed to have not been closed in respect of the two cases men-
tioned above, and so section 4-A will have no application to these two
cases. Consequently, the provision of section 4 as also the provision of
E
section 5 will not apply to these two cases~ The object of sub-section
(2) of section 52 is that when an order has been passed by a court under
the provisions of the Constitution of India or in cases or proceedings
pending under the Consolidation Act, the right or interest involved in
such order or in the pending cases or proceedings under the Consolida-
tion Act, should not be again subjected to the consideration in the
F
consolidation proceedings started by virtue of a notification under
section 4-A of the Consolidation Act.

It may be noticed that the suit and proceedings referred to in
section 5(2)(a) are different from the cases and proceedings mentioned
in sub-section (2) of section 52. While cases or proceedings referred to
G
in sub-section (2) of section 52, the order passed in writ cases under
the Constitution of India apart, must be pending under the Consolida-
tion Act, under clause (a) of section 5(2) the proceedings which will
stand abated upon an order being passed in that behalf by a court or
authority, are either a pending suit or pending proceedings, but such
proceedings are not pending under the Consolidation Act. H
496 SUPREME COURT REPORTS [1986] 3 S.C.R.

A The proceedings out of which the instant appeals arise are pro-
ceedings under the Consolidation Act and, therefore, section 5(2)(a)
will have no application to the proceedings out of which the present
appeals arise. In any event, in view of sub-section (2) of section 52 of
the Consolidation Act, the notification issued under section 4-A and
the subsequent notification under section 4(2) and the consequence
B thereof as provided under section 5(2) of the Consolidation Act, will
have no application to or affect the proceedings giving rise to the
instant appeals.

The applications are, therefore, misconceived and are dismissed. j
c We may now come to the merits of the appeals. It is urged by Mr.
J.P. Goyal, learned counsel appearing on behalf of the appellants in
both these appeals, that the High Court should have held that as the
sons of Abbey Ram, one of the transferees under the sale deed dated
December 21, 1935, were not made parties in the arbitration proceed-
ings, it was invalid. This contention challenging the maintainability of
D the rderence and the invalidity of the arbitration proceedings, was
raised for the first time before the learned Additional District Judge
who, as stated already, upheld the same. In our opinion, the High
Court was right in overruling the contention on the ground that the
learned Additional District Judge should not have entertained the
objec.ion to the maintainability of the reference itself at that stage.
E The High Court has pointed out that before the learned Arbitrator all
the parties concerned appeared and no objection to the competency of
the reference was raised and that the proper stage for raising such an
objection was when the reference was made under section 12 of
the Consolidation Act. The contention of the appellants is, accord- '
ingly, rejected.
F
It is next contended on behalf of the appellants that the High
Court was not justified in setting aside the finding of the learned
Additional District Judge that the learned Arbitrator was guilty of
legal misconduct. It has been held by the learned Additional District
Judge that there was an error apparent on the face of the Award
G inasmuch as the learned Arbitrator failed to properly consider the
provision of section 18 of the U .P. Zamindari Abolition and Land
Reforms Act, 1950, hereinafter referred to as 'the Zamindari Aboli-
tion Act', and to give effect to the rights conferred upon the appellants
under the said provision. It is submitted that the learned Additional
District Judge was, therefore justified in holding that the learned
H Arbitrator was guilty of legal misconduct.
S. MAL v. RAM SINGH [DUTT, J.] 497

Let us now consider whether the Arbitrator has committed any A
~ error of law in not giving effect to the provision of section 18 of the
Zamindari Abolition Act in favour of the appellants. Section 18 con-
fers on the intermediaries and certain cultivators the right to retain
land in their possession, as bhumidhars. The appellants claim that they
are intermediaries in possession of the disputed land and, accordingly,
B
they are entitled to retain the disputed land as bhumidhars under the
provision of section 18. In our opinion, this claim of the appellants is
without any foundation. It is true that by the sale deed dated
December 21, 1935 the appellants purported to have acquired the
proprietary interest of Sona Devi in the land. The sale deed has,

'
~
however, been held by the learned Arbitrator as invalid inasmuch as it
was not supported by any legal necessity. The appellants, therefore,
had not acquired any interest in the disputed land under the sale deed
and, as such, they had no intermediary interest in the disputed land on
the date immediately preceding the date of vesting under the
Zamindari Abolition Act. The appellants not being intermediaries or
c

persons of any category as mentioned in section 18, they are not entitled
D
to retain the disputed land under the provisions of section 18. There is,
therefore, no substance in the contention made on behalf of the appel-
!ants that their possession in the disputed land is protected by the provi-
sion of section 18.
It is, however, urged by Mr. Goyal that in any event the appel-
lants are entitled to the benefit of section 3 of the Uttar Pradesh Land E
Reforms (Supplementary) Act, 1952. Sub-section (!) of section 3 of
the said Act provides as follows:
"S. 3. Persons in cultivatory possession in 1359 Fasli to be
adhivasis or asamis.-(1) Every person who was in culti-
( vatory possession of any land during the year 1359 fasli but
F
is not a person who as a consequence of vesting under

r Section 4 of the U.P. Zamindari Abolition and Land Re-
forms Act, 1950 (U.P. Act I of 1951) (hereinafter referred
to as the Act), has become a bhumidhar, sirdar, adhivasi or
asami under Sections 18 to 21 of the said Act shall be and is
hereby declared to be, with effect from the appointed
G
date-

(a) if the bhumidhar or sirdar of the land was, or
• where the land belongs jointly to two or more
bhumidhars or sirdars, all of them were, on the ap-
pointed date person or persons referred to in items H
498 SUPREME COURT REPORTS [1986] 3 S.C.R.

A (i) to (vi) of sub-section (2) of Section 10 of the said
Act, an asami from year to year, or

(b) if the bhumidhar or sirdar was not such a per-
son, an adhivasi,
B
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.

Explanation.-A person shall not be deemed to be in culti-
vatory possession of the land, if he was cultivating it as a
c mortgagee with possession or a thekedar or he was merely
assisting or participating with a bhumidhar, sirdar, adhivasi
or asami concerned in the actual performance of agricul-
tural operations."

It is submitted by the learned counsel for the appellants that as
D
the appellants had been in cultivatory possession of the disputed land
during the year 1359 Fasli, they have acquired the status of adhivasi
and are entitled to all the rights conferred upon an adhivasi under the
Zamindari Abolition Act. This contention is based on the assumption
that the appellants were in cultivatory possession during the year 1359
Fasli. In view of the findings of the learned Arbitrator, as noticed
E
above, the appellants did not acquire any interest in the disputed land
by virtue of the sale deed executed by Sona Devi. In view of the facts
already noticed and stated hereafter for convenience, we are unable to
accept the contention of the appellants that they have acquired title to
the disputed land by adverse possession. After the death of Sona Devi
in 1944, the possession of the disputed land by the appellants became
F
illegal and adverse to the respondents nos. 3 to 5. But before such
possession could ripen into title after the lapse of twelve years, the
respondents nos. 3 to 5 instituted a suit in 1950, that is, within six years
of such possession, in the court of the Munsif at Meerut for the recov-
ery of possession of the disputed land from the appellants. The suit
was decreed by the learned Munsif against the appellants. Both the
G
appellants and the respondents Nos. 3 to 5 filed appeals against the
decree, but in view of section 5 of the Consolidation Act, all further
proceedings of the said appeals were stayed. Thereafter, the consoli-
dation proceedings were started and the present appeals arise out of
such proceedings. Thus, the appellants have not acquired any title to
H the disputed land by adverse possession.
S. MAL v. RAM SINGH (DUIT, J.J 499

Section 3 of the Uttar Pradesh (Supplementary) Act, 1952 does A
not confer any right on a person whose possession of the land in
question during the year 1359 Fasli was illegal. In our opinion, it is not
the intention of the Legislature to protect the possession of a trespas-
ser under section 3(1). The explanation to section 3(1) gives sufficient
indication that a person not having lawful right in the land, cannot
B
claim to be in cultivatory possession of such land.

The Allahabad High Court in Ram Krishna v. Bhagwan Balcoh
Singh, [1961] AU 301 and in Badri and another v. Juthan Singh
and others, [1969] AU 411 has rightly held that a trespasser cannot be
said to be in cultivatory possession within the meaning of section 3 of
the U .P. Land Reforms (Supplementary) Act, 1952. The appellants c
were not, therefore, in cultivatory possession of the disputed land
during the year Fasli 1359 and, consequently, they are not entitled to
the benefit of section 3(1). No other point has been urged on behalf of
the appellants.
D
For the reasons aforesaid, both the appeals are dismissed with
costs assessed at a consolidated sum of Rs.3,000.

A.P.J. Appeals dismissed.