The petitioner claimed sirdari rights over Gaon Sabha land based on an unregistered patta from the zamindar. The courts below rejected the claim, finding the patta invalid for lack of registration or attestation. The High Court upheld the concurrent findings, dismissing the writ petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Neutral Citation No. - 2023:AHC:179013
Court No. - 33
Reserved A.F.R.
Case :- WRIT - B No. - 8084 of 1984
Petitioner :- Smt. Godawari Devi Respondent :- D.D.C. Deoria And Others Counsel for Petitioner :- Shashi Nandan, Udayan Nandan Counsel for Respondent :- S.C.,R.C.Singh, Shriprakash Shrivastava
Hon'ble J.J. Munir,J.
1. This writ petition arises out of title objections under Section 9-A (2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (for short, 'the Consolidation Act'), decided by the statutory Authorities against the petitioner.
2. The dispute in this petition is about the title to Plot No.337/2 (new Plot No.484) of Khata No.706, admeasuring 1.66 acres, situate in Village Jungle Belwa, Tappa Chaura Badgaon, Tehsil Padrauna, District Kushinagar (earlier District Deoria). The aforesaid property shall hereinafter be referred to as 'the property in dispute'. The petitioner, Godawari Devi, claims herself to be the sirdar of the property in dispute on ground that she has been in continuous possession since before the abolition of zamindari , holding the said property on the basis of a patta dated 28.12.1950, executed in her favour by the erstwhile zamindar .
3. It is also the petitioner's case that taking her possession to be unlawful, proceedings for eviction were initiated against her under Section 122-B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Z.A. & L.R. Act') on a report of the Lekhpal before the Tehsildar , Padrauna. These proceedings were registered as Case No.179. The defence to the petitioner's possession, based on the patta
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dated 28.12.1950 executed by the erstwhile zamindar , was accepted by the Tehsildar and the notice discharged. In a related development, the Gaon Sabha , treating the property in dispute as theirs’, executed a patta thereof in favour of Ganesh son of Rampati, since impleaded as respondent No.6 to the writ petition under orders of this Court. On the basis of the said patta , respondent No.6 claims himself to be the title-holder in possession of the property in dispute. He claims to have been recorded initially as a bhumidhar with non-transferable rights, and, subsequently, as a bhumidhar with transferable rights in the khatauni for the fasli year 1418-1423.
4. The contest in this case, therefore, is between the petitioner, claiming herself to be a sirdar on the basis of the zamindar ’s patta dated 28.12.1950, on the foot of which, she asserts continuous possession, and on the other, respondent No.6, claiming that the said land vested in the State and settled with the Gaon Sabha , who executed a patta in favour of the said respondent. According to the stand of the Gaon Sabha and respondent No.6, it is the said respondent, who is in possession and his rights have enlarged into a bhumidhari . Before this Court, effectively it is respondent No.6, who has defended his title and possession on the foot of the Gaon Sabha patta and contested the matter.
5. After the case for ejectment brought by the Gaon Sabha under Section 122-B of the Z.A. & L.R. Act was dismissed by the Tehsildar vide order dated 27.09.1971, the petitioner sued for declaration of her title based on the zamindar 's patta under Section 229-B of the Z.A. & L.R. Act. The petitioner's suit for declaration, however, abated because consolidation operations intervened. It is then that the proceedings, leading to the orders
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impugned in the present writ petition, commenced with the petitioner lodging objections under Section 9-A (2) of the Consolidation Act. The petitioner's objection before the Consolidation Officer, registered as Case No.12123, was contested by the Gaon Sabha . The following issues were framed (translated into English from Hindi):
“(1) Whether Godawari Devi is sirdar of Gata No.337/2 on the basis of possession?
(2) Whether Gata No.337/2 is Gaon Sabha land?”
6. Both the issues were answered together by the Consolidation Officer. He considered the testimony of PW-1, Ram Sanehi and PW-2, Kedar Nath. The Gaon Sabha did not produce any evidence. The evidence that was heard and considered by the Consolidation Officer, as well as his reasoning, would be dealt with in the course of this judgment. For the present, suffice it to say that the Consolidation Officer rejected the petitioner's case claiming title in herself on the basis of the zamindar 's patta as a sirdar . Instead, the Consolidation Officer directed the petitioner to be recorded over the property in dispute in Class-IV (land held as occupier without title, when there is no one already recorded in Column 4 of the khasra ).
7. The petitioner appealed the said order to the Settlement Officer of Consolidation, Padrauna. The Settlement Officer of Consolidation not only dismissed the petitioner's appeal, affirming the Consolidation Officer, but modified the Consolidation Officer's order to the extent that the direction to record the petitioner in Class-IV was set aside. This order was made by the Settlement Officer of Consolidation on 20.12.1980. The petitioner challenged the order dated 20.12.1980 before the Deputy Director of Consolidation under Section 48(1) of the
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Consolidation Act. The Deputy Director of Consolidation, by the impugned order dated 23.02.1984, dismissed Revision No. 886 preferred by the petitioner and affirmed the Authorities below.
8. Aggrieved, this writ petition was instituted before this Court on 23.05.1984. It was admitted to hearing on 23.05.1984 and by a separate order of the said date passed on the stay application, it was ordered that the dispossession of the petitioner from the property in dispute shall remain stayed, provided she has already not been dispossessed.
9. Pending this petition, Smt. Godawari Devi died and has been substituted by her heir and LR, Dharm Chandra son of Shiv Haran Dass, who has been arrayed as petitioner No.1/1. Any reference to the petitioner would, therefore, be construed as a reference to Smt. Godawari Devi, represented by her heir and LR, petitioner No.1/1.
10. Heard Mr. Udayan Nandan, learned Counsel for the petitioner, Mr. Sriprakash Shrivastava, Advocate appearing for respondent No.6 and Mr. A.K. Trivedi, learned Standing Counsel appearing on behalf of respondent Nos. 1, 2, 3 & 5. No one appears on behalf of respondent No.4.
11. It is submitted by Mr. Udayan Nandan, learned Counsel for the petitioner that the petitioner had, in support of her objections, filed the patta dated 28.12.1950 and rent receipt for the fasli year 1356, both of which show her possession over the property in dispute on the date of abolition of zamindari . It is also pointed out that an extract of the Khasra for the fasli year 1359 was also produced in evidence by the petitioner to prove her case of possession on the date of vesting. It is submitted that, conversely, no documentary evidence was filed on behalf
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of the Gaon Sabha to rebut the petitioner's case. It is urged that in the face of evidence on record, the Consolidation Officer, while passing the order impugned dated 23.11.1979, concluded in manifest error that the property in dispute belongs to the Gaon Sabha without any evidence to that effect being produced by them.
12. It is next submitted that the appellate order passed by the Settlement Officer of Consolidation is also manifestly illegal, inasmuch as the patta dated 28.12.1950 was duly proved by producing the Karinda of the erstwhile zamindar , Kedar Nath Lal as PW-2. His testimony was not challenged, according to Mr. Udayan Nandan, by the Gaon Sabha in the sense that no evidence in rebuttal was produced. Learned Counsel for the petitioner points out that Kedar Nath Lal proved the execution of the patta by the zamindar in the petitioner's favour, which goes to show that the petitioner was in agricultural possession of the property in dispute. This evidence, according to Mr. Udayan Nandan, was completely ignored by the Settlement Offier of Consolidation to reject the petitioner's case. It is next submitted by the learned Counsel for the petitioner that the Settlement Officer of Consolidation committed a manifest error of law in recording the finding that the zamindar had not executed the patta , which was, therefore, of no worth. Learned Counsel says that this finding is manifestly illegal because the Settlement Officer of Consolidation failed to acknowledge the fact, that at the relevant time, documents relating to grant of lease etc. were, in fact, written and executed by the Karinda of the zamindar and the zamindar would append his signatures to the document, which showed his approval to its contents. In the present case, the signature of the zamindar was duly proved by
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Kedar Nath Lal, and, thus, the execution of the patta by the zamindar was well proven.
13. It is submitted that on the basis of the said patta , the petitioner was in cultivatory possession of the property in dispute. The Appellate Authority has completely ignored the testimony of Kedar Nath Lal, the zamindar 's Karinda and the patta executed in the petitioner's favour in reaching his conclusions. It is submitted by Mr. Udayan Nandan that the Settlement Officer of Consolidation has manifestly erred in recording a finding to the effect that the patta was not executed by the zamindar and, therefore, not worth taking into consideration, inasmuch as the execution of the patta would, of course, be in the Karinda 's hand, but the zamindar had duly appended his signatures to the document. It is urged that Kedar Nath Lal proved the zamindar 's signatures on the patta , which he had scribed on the zamindar 's instructions. There is just no way that the execution of the patta can be doubted.
14. Mr. Udayan Nandan next submits that so far as finding of the Settlement Officer of Consolidation that the patta dated 28.12.1950 was not registered, and, therefore, no right on its basis accrues to the petitioner, is also manifestly illegal, inasmuch as, the Appellate Authority failed to consider the provisions of Section 57 of the U.P. Tenancy Act, 1939 (for short, 'the Tenancy Act'), which provide that any document of lease or grant that stipulates rent not exceeding Rs.100/annually need not be registered, and, the same instead, may be attested by a competent Revenue Court or an officer appointed by the State Government. It is urged that the Authorities below ought to have recorded a finding whether according to the terms of Section 57 of the Tenancy Act, the patta was
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admissible in evidence, and if those conditions were at all fulfilled for a fact. The Authorities below, ignoring from consideration the provisions of Section 57 of the Tenancy Act, passed the orders impugned.
15. It is also argued that the Deputy Director of Consolidation dismissed the petitioner's revision, in a perfunctory manner, without considering all the issues that have hitherto been pointed out. It is brought to this Court's attention that before the Deputy Director of Consolidation, the Gaon Sabha remained absent and, without any evidence being produced by the Gaon Sabha before the Authority of first instance, the Deputy Director of Consolidation committed a manifest error of law in recording a finding that the land belongs to the Gaon Sabha .
16. It is next argued that the patta dated 28.12.1950, which was proved by the petitioner, showed her possession over the property in dispute, prior to abolition of zamindari and the extract of the khasra for the fasli year 1359 clearly shows that the petitioner was in continuous possession of the property in dispute. It is emphatically argued by Mr. Udayan Nandan that the patta dated 28.12.1950 was valid, and, as a matter of law, not hit by the provisions of Section 24 of the Z.A. & L.R. Act. He says so because, according to him, the lease executed by the zamindar after 01.07.1948 would be void in respect of increase in the rehabilitation grant but all other rights flowing to the beneficiary of the lease, would not be nullified under Section 24 of the Z.A. & L.R. Act. In support of the aforesaid proposition of the law, Mr. Udayan Nandan has placed reliance upon the decision of a Division Bench of this Court in Ram Pyari and others v. Board of Revenue, 1983 All LJ 527 .
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17. It is next urged that the petitioner became a hereditary tenant under the provisions of Section 29 of the Tenancy Act, and upon coming into force of the Z.A. & L.R. Act, acquired rights under Sections 19 and 20 of the last mentioned Act, that is to say, sirdari rights. This position of the law that emerges from established facts has been ignored by all the three Authorities below while passing the impugned orders. It is on the foot of all these submissions that Mr. Udayan Nandan says that the impugned orders deserve to be quashed and the objections under Section 9-A (2) of the Consolidation Act allowed.
18. Mr. Shriprakash Shrivastava, learned Counsel appearing for respondent No.6, on the other hand, has contended contrariwise. He says that this is a title matter where the petitioner claims herself to be a sirdar of the property in dispute on the basis of fake documents. He submits that the patta dated 28.12.1950 is a document, to which no weight can attach, because it is undated; secondly, it is unregistered; and, thirdly, there are no signatures of the zamindar appended to it to prove its due execution. It is also urged that it has not been proved by producing counterfoils of the document. It is argued by the Mr. Shrivastava that the petitioner filed objections under Section 9- A (2) of the Consolidation Act before the Consolidation Officer and the objection was partly allowed on 23.11.1979, holding the petitioner an occupant of the property in dispute in Class-IV.
19. The petitioner filed an appeal from the said order, but the Settlement Officer of Consolidation not only dismissed the appeal but set aside the order holding the petitioner entitled to be recorded under Class-IV. It is argued by Mr. Shrivastava that the patta in the petitioner’s favour has rightly been rejected by
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the three Authorities below. It is further submitted that the Gaon Sabha has granted a patta to respondent No.6 on 29.02.1976, and, thereafter, he is in physical possession. The sixth respondent's name has been mutated in the revenue records, to wit, the khatauni as well as the khasra . A copy of these documents is annexed to the counter affidavit.
20. It is next argued on behalf of respondent No.6 that proceedings under Section 122-B of the Z.A. & L.R. Act are summary proceedings and cannot have the effect of res judicata . In title proceedings under Section 9-A (2), the petitioner, without holding title of an occupier of the property in dispute, cannot be declared a sirdar of the property by any Court, which is Gaon Sabha land. The petitioner's name was never recorded in the revenue records, that is khatauni for the period 1356-1359 fasli . It is also pointed out that under Section 11-C of the Consolidation Act, the Settlement Officer of Consolidation, while hearing an appeal under Section 11, may direct that any land which is vested in the State Government or the Gaon Sabha or any other Local Body or Authority, may be recorded in their name, even though no objection, appeal or revision has been filed by such Government, Gaon Sabha , Local Body or Authority. It is urged, therefore, that the Settlement Officer of Consolidation was perfectly right in setting aside the direction made by the Consolidation Officer, erroneously, to record the petitioner in Class-IV. The absence of an appeal would not inhibit the Settlement Officer of Consolidation in passing that order in view of the provisions of Section 11-C of the Consolidation Act. In support of these various contentions that Mr. Shrivastava has urged, he has placed reliance upon Budhan Singh (dead) by his Legal representatives and another v. Babi Bux and another, AIR
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1970 SC 1880 , Rizwan and another v. Deputy Director of Consolidation, Saharanpur and others, (2003) 6 AWC 5065 , Pravir Singh and others v. Board of Revenue and others, 2003 (94) RD 375 and Gaon Sabha, Tappal v. Sri Satya Deo Sharma, 2004 All LJ 3597 . Reference to these authorities, wherever relevant to the point urged on behalf of the sixth respondent, or the point that is considered, would be made during the course of this judgement.
21. This Court has considered the rival submissions advanced on behalf of learned Counsel appearing for the parties and perused the record.
22. The Consolidation Officer has recorded a finding that the petitioner's possession is recorded in 1363 fasli . He has also remarked that the order of the Tehsildar dated 27.09.1971 in proceedings under Section 122-B of the Z.A. & L.R. Act shows that the Tehsildar has discharged the notice on the basis of the patta dated 28.12.1950. In view of these proceedings and documents, the Consolidation Officer has concluded that the petitioner is in possession of the property in dispute, a fact also verified by the report of the Assistant Consolidation Officer in Case No.207 of 1979, which says that the property in dispute is part of Gata No.342 and in the petitioner’s possession. The Consolidation Officer has, however, held that since the possession of the petitioner is not proven to be uninterrupted for 30 years, she has no right to be declared a sirdar or bhumidhar . She is a person in occupation of Gaon Sabha land and, therefore, entitled to be recorded in Class-IV.
23. The Settlement Officer of Consolidation has looked more carefully into the evidence with reference to the parties' case. He has held that the property in dispute is Gaon Sabha land. It
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is remarked that the patta , on the basis of which the petitioner claims, shows that it is unregistered and not executed by the zamindar . It is signed by the Karbardar or Karinda , Kedar Nath Lal and there is no mention of a date on it. The inference drawn is that the patta cannot be regarded as a valid disposition. It has then been observed that there is no basis to grant sirdari rights on Gaon Sabha land based on mere possession. With these remarks, the appeal was dismissed, but with a further order setting aside the entry made in the petitioner's favour regarding her being an occupant in Class-IV.
24. The Deputy Director of Consolidation has, more or less, written an order of affirmation, without assigning much reasons of his own, but agreeing with the Settlement Officer of Consolidation.
25. The foremost issue to be examined here is if the patta dated 28.12.1950 executed in the petitioner's favour is a valid document. Does it create any right in the petitioner's favour on the date it was executed? It is true, as Mr. Udayan Nandan says, that no evidence has been led on behalf of the Gaon Sabha to rebut the petitioner's evidence. It is true, generally speaking, that once evidence is let in on behalf of the party, upon whom onus probandi , as distinguished from burden of proof lies, in the sense the two distinct concepts are understood under Sections 101 and 102 of the Indian Evidence Act, the onus shifts upon the other side to lead evidence in rebuttal. Else, the party, upon whom the onus has shifted, would fail on account of non-discharge of his onus or evidential burden, as it is called. Generally, applying the principles of the Evidence Act, though not strictly and proprio vigore , we are of opinion that the submission of Mr. Udayan Nandan on this this score cannot be
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accepted. The reason is that, while there is no cause to doubt the principles about the shifting and discharge of the onus, but in order that the consequence of non-discharge of the shifted onus may ensue, it is imperative to see if at all the party, who bore the initial onus, has discharged it successfully. If by the evidence that a party adduces, upon whom the onus probandi lies, the evidence is not sufficient to raise the issue for trial, the onus cannot be regarded as shifted.
26. Here, the petitioner is the objector under Section 9-A (2) of the Consolidation Act. Therefore, apart from bearing the burden of proof to establish her case on Issue No.1, it is the petitioner's onus probandi also to let in evidence, sufficient in weight, to raise the issue for trial. If the evidence by which the petitioner endeavours to discharge the onus is not sufficient to make Issue No.1 triable, the petitioner herself would fail on account of non-discharge of her onus probandi .
27. The issue is if the petitioner is sirdar of the property in dispute. That is the formal rendition of the issue. But, in order to discharge her evidential burden, by sufficient evidence led to raise this issue for trial, it is to be shown prima facie how the petitioner is a sirdar of the property in dispute. The petitioner's case is that she has acquired that kind of a right under the zamindar 's patta dated 28.12.1950. Therefore, the Authorities below have looked into the patta to find out if it is indeed a genuine disposition of his property by the zamindar unto the petitioner. The Consolidation Officer has not looked much into the validity of the patta and has endeavoured to find out if the petitioner by virtue of her long possession has become entitled to sirdari rights, upon which he has found against her. That finding is not very convincing. However, the Settlement Officer
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of Consolidation has looked into the patta claimed by the petitioner from the zamindar in order to find out what right it confers upon the petitioner. It is remarked that the patta is the document, to which the petitioner traces her possession. It is then said by the Settlement Officer of Consolidation that the patta is an unregistered document and has not been executed by the zamindar . It bears the signatures of Kedar Nath Lal, the zamindar 's Karinda . It is also said that the document does not bear a date. It is opined that on the basis of this document, the petitioner cannot be granted any rights and certainly not sirdari rights over the property in dispute, which is Gaon Sabha land.
28. To this Court's understanding, the Settlement Officer of Consultation has not found even a triable case made out by the petitioner on the first issue, based on the zamindar 's patta . The Deputy Director of Consultation in his brief remarks has said that the petitioner has failed to show by her evidence that prior to abolition of zamindari , she had any kind of a settlement or right in her favour relating to the property in dispute. This finding too holds the petitioner to have utterly failed in discharging her evidential burden.
29. Along with a supplementary affidavit, learned Counsel for the petitioner has filed a xerox copy and a true copy of the patta dated 28.12.1950, as also the two receipts relating to the lagaan paid in terms of the patta . A perusal of the xerox copy of the original document shows it to be very faint, but reading it together with the true copy thereof, this Court finds that the Settlement Officer of Consolidation has committed an error apparent in saying that the patta does not bear a date. It clearly bears the date on its extreme left corner, which is 28.12.1950. It has also been incorrectly remarked by the Settlement Officer of
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Consolidation that the patta has not been executed by the zamindar and that it is signed by the Karinda or Karbardar , Kedar Nath Lal. A xerox copy of the patta , that has been filed, is, as already said, a very faint document and does not show the signatures of the zamindar , Kunwar Laxmi Pratap Narain Singh of Jagdishgarh Estate, Padrauna. But, this Court is inclined to think that the document does bear the zamindar 's signatures. This is so for the reason that the Karinda , who has proved the document has stated in his examination-in-chief before the Consolidation Officer, thus:
"२८-१२-५० को मै कुंवर लकमष प्रत नररयन ससि मरललक जगदषश गढ स्टे्ट तररननर कर करयरर तरदरर थारौ मै सन १ं६ ५ ्क उ न कर मुलरजजम रिरौ मन० जंगल वैलवर के् कुंवर लकमष प्रत नररयन जमषदरर थाे्ौ आररजष नं० ३३७ कुंवर लकमष प्रत नररयन के् हिस्से् की थाषौ आररजष नं० ३३७ हम ौ १-६५६५ डर० कर इन्जरम कुंवर लकमष प्रत नररयन ससि ने् शषम्ष गोदरवरष के् तक मे ५ रतयर १ आनर सरलरनर लगरन तर हकयरौ आररजष हनο कर तटर ौ कवर लकमष पुँ ् रत नररयन ससि क आदे् े्शरनसरर ललिर गयरु यि तटर मरे् े् लिे् म िे ैौ जजसमे् मे्रर िस ् रकर िैौ और मे्रे् मरललक कुंवर लकमष प् रत नररयन ससि कर भष िस ् रकर िैौ जजसको मै तिचारन्र िूं, और ्सदषक कर्र िूं| जो इकज० क १ िै , सन १३५ं व १३५८ फसलष कर रसषद इकज० क२ िै, जो इसष भूहम कर िैौ इस तर भष मे्रे् िस ् रकर िैौ ्भष से् गोदरवरष दे्वष इस भूहम तर करहवज दिषल िैौ"
(emphasis by Court)
30. In the cross-examination of this witness at the instance of the Gaon Sabha , all that is said is:
"जजरि हम० गरंव सभर -
इस वक मे्रे् तरस ऐसर कोई करगज निी िै जजससे् यि सरहव् िो हक मै लकमष प्रत कर करररनदर रिर िूंौ समन आयर थारौ इस वक िे ् मै निी दे्िर िैौ यि किनर गल् िै हक करगज जरलर िैौ
सुनकर ्सदषक हकयरौ"
31. The witness has not been confronted with the document, which he was proving before the Court on the point that it does not bear the zamindar 's signatures, a fact to which he has testified a few breathes away. The only inference that can be
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drawn is that the patta was signed by the zamindar. Else, there is no earthly reason why the witness would not have been confronted with this very obvious falsehood in his testimony. This Court is inclined to believe that the remarks of the Settlement Officer of Consolidation that the patta does not bear the zamindar 's signatures are perverse. Nevertheless, the Settlement Officer's finding that the patta is an unregistered document is sound and undisputed for a fact.
32. The next question to be answered is, if a patta , before the Z.A. & L.R. Act came into force, relating to agricultural land, for a period exceeding one year or from year to year on an annual rent of less than Rs.100/-, could be made without a registered instrument. The patta by its clear terms is one that demises on a yearly rent with no time period fixed. The patta is, therefore, one from year to year. The patta was admittedly executed on 28.12.1950, when the disposition was governed by the provisions of the Tenancy Act. Section 56 of the Tenancy Act provides:
“ 56 - Registration of Leases-
A lease for a period exceeding one year or from year to year shall be made by a registered instrument only.”
33. The patta , therefore, as a rule, had to be made by registered instrument and not otherwise. But, this brings in the other submission of Mr. Udayan Nandan that the patta being for a rent not exceeding Rs.100/- annually, it could validly be made without registration. Section 57 of the Tenancy Act reads:
“ 57 - Attestation in Lieu of Registration -
(1) When, under provisions of this Act or the Indian Registration Act, 1908 (XVI of 1908), or any other enactment for the time being in force any lease, counterpart, grant, or agreement is
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required to be made by registered instrument, and such lease, counterpart, grant or agreement,-
(a) is with respect to land held by a groveholder as such, or to land let or granted for the purpose of planting a grove, or
(b) relates to a tenancy, and stipulates for rent not exceeding one hundred rupees annually, the parties to such lease, counterpart, grant or agreement may, in lieu of registering the same, obtain the attestation thereto of a Revenue court or of a Revenue officer, not inferior in rank to a Qanungo or such other person as the [State Government] may, by general or special order in this behalf, appoint and subject to such conditions, if any, as the [State Government] may by rules made under this Act, direct.
(2) Such court, officer or other person shall, after satisfying himself as to the identity of the parties and their acquaintance with, and assent to, the term, of the lease, counterpart, grant or agreement, make, sign, and date an endorsement thereon to the effect that he has so satisfied himself.
(3) No such instrument shall be accepted for attestation under this section, unless presented within the period prescribed for presentation for registration under Part IV of the Indian Registration Act, 1908 (XVI of 1908).”
34. It is true that the rent of the patta here does not exceed Rs.100/- annually, the patta being admittedly granted for an annual rent of Rs.5/-. Therefore, by virtue of the exception to the rule in Section 56 of the Tenancy Act, carved out by Section 57, there is no imperative for registration. Nevertheless, Section 57 relaxes the rule of registration, in case of rent being less than Rs.100/- a year, by requiring that in lieu of registration, there must be an attestation of the document by the Revenue Court or a Revenue Officer, not inferior in rank to a Kanoongo or such other person as the State Government may, by order, general or special, appoint in this behalf.
35. There is no case at all that the patta dated 28.12.1950 was ever attested by the Kanoongo or by any other person
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empowered in this behalf by the State Government. The said case not being raised at all, there was no reason for the Authorities below to have looked into evidence about the fact, if the document was attested in the manner provided by Section 57. This Court may dare say that the argument about the patta being valid by resort to the provisions of Section 57 of the Tenancy Act is a submission based on Mr. Udayan Nandan's ingenuity. Unfortunately, it has no foothold in the parties' case pleaded before the three Authorities below. For this reason, the submission of Mr. Udayan Nandan, though admirable for its incisive approach, cannot be accepted.
36. Mr. Udayan Nandan has placed reliance upon the authority of the Supreme Court in Sher Singh (dead) through LRs v. Joint Director of Consolidation and others, AIR 1978 SC 1341 , where it has been observed by their Lordships:
“ 25. A close scrutiny of the facts and circumstances of the case in the light of the above quoted provisions of law leaves no room for doubt in our mind that Sher Singh acquired the rights of a Bhumidhar as hereinafter stated. As already indicated, there is nothing on the record before us to establish that the aforesaid lease deed in favour of Sher Singh was fictitious or that the entries made in the revenue record on the basis of that deed were not genuine or did not conform to the true factual position and that Sher Singh was not in actual possession of the fields in question on his own behalf. Consequently as Sher Singh was holding the said fields as a hereditary tenant on the date immediately preceding the date of vesting he became entitled to retain possession thereof as a Sirdar under S. 19 of the Act and on depositing to the credit of the State Government in the manner provided in S. 134 and other allied provisions of the Act an amount equal to ten times the land revenue payable or deemed to be payable, he became entitled to a declaration that he had acquired the rights of a Bhumidhar mentioned in S. 137 of the Act, in respect of the said fields and to the grant of a certificate to that effect.”
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37. This Court is of opinion that the said decision hardly has application to the facts here. In Sher Singh , it was not much in issue that there were entries in favour of Sher Singh based on the registered lease deed dated 30th July, 1945, executed by Chaudhari Vijay Kunwar Singh and Virendra Kunwar Singh, Zamindars of Mitthanpur, leasing him out ten plots of land admeasuring 6.63 acres, situate in Mahal Safed, Mauza Mahendri, Sikandarpur, Pargana Amroha, District Moradabad. The land was khudkast and the lease was for a period of ten years commencing 1353 fasli and ending 1362 fasli . The issue arose out of a pre-emption suit after the two Zamindars and their mother executed a sale deed dated 6th September, 1945, conveying their proprietary right and interest in the leased land in favour of Kale Singh, Harbansh Singh and Nihal Singh, brothers of Sher Singh and another Chhajju Singh. Sher Singh claimed to be in possession of the property in dispute and was recorded as a hereditary tenant in the revenue records. This is all what makes for the difference in Sher Singh and the present case. There, there was no quarrel that Sher Singh was recorded on the date of vesting and, therefore, a hereditary tenant, who under Section 19, after the date of vesting, was entitled to become a sirdar . In the present case, there are no recorded rights in favour of the petitioner, except the unregistered patta and the two rent receipts. The earliest entry that finds mention in the orders of the Authorities below relates to 1363 fasli , which is much after the date of vesting. Also, in Sher Singh , the lease deed was a registered instrument, unlike the present case, where the unregistered document seems to have spelt doom for the petitioner's case.
38. The next judgment/ authority on which reliance has been placed by Mr. Udayan Nandan is Smt. Ram Pyari ( supra ). The
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principle in Ram Pyari , to which our attention was drawn, reads:
“17. There is nothing in the above Section to limit its application to only those leases which were executed after the first day of July, 1948 with a view to enhance the rent under the existing lease. The words used in the aforesaid Section are very wide whereby even any new lease executed after the first day of July, 1948, entitling an intermediary to receive a higher amount of rehabilitation grant would also be covered by the aforesaid. Section. To our mind, the interpretation put forth by Hon'ble B. Dayal, J. in Ranjit Singh v. Ram Singh is correct to this extent but the learned Judge in his judgment dated 6-4-1962 (an uncertified copy of the judgment is on the record) has observed as below:
“……….. If has not been said in that section that they will be considered as void only for the purposes of calculating rehabilitation grant. Since the section declares them null and void it must be assumed that this declaration is for all purposes. The lease, therefore, in favour of the plaintiff was null and void and no suit could be based on such a lease……….”
18. We think that the above extract from the judgment of brother B. Dayal, J. does not lay down correct position. The heading of the aforesaid S. 24 of U.P. Act agreement to defeat the provisions of this Act to be void. It is noteworthy that letting out of even banjar land by the Zamindar before the date of vesting was not prohibited under the provisions of U.P. Tenancy Act. In view of the provisions of S. 19 of the U.P.Z.A. and L.R. Act all land held by a hereditary tenant shall be deemed to have been settled by the State Government with the hereditary tenant and the hereditary tenant would become sirdar of the land and would be entitled to retain possession thereof, hence we think that the lease executed by the Zamindar after 1st July, 1948 in favour of a tenant whereby his rehabilitation grant would be increased would be void only for the purposes of determining rehabilitation grant. In short, by executing such leases the Zamindars would not be entitled to claim higher amount of rehabilitation grant. The right of such lessee would not be nullified due to the provisions of S. 24 of U.P. Act No. I of 1951 especially when S. 19 and other Sections,
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namely, 246 and 247 of the Act as well as the observations by their Lordships of the Supreme Court in AIR 1963 SC 1019 Mahendra Lal Jaini v. State of U.P. do contemplate existence of valid leases executed by the Zamindar between 1st July, 1948 and 30th June, 1952.”
39. This Court finds that the principle in Ram Pyari also does not further the petitioner's case. It hardly applies. In Ram Pyari , the issue, that was decided, upon which the petitioner places reliance, is one about the validity of leases executed by a Zamindar between 1st July, 1948 and 30th June, 1952, vis-a-vis the rights of the lessee. It was held that the lease may be void so far as the Zamindar is concerned and would not add to his rehabilitation grant either, but would, nevertheless, enure to the benefit of the lessee. The lessee of such a lease would become a hereditary tenant under the Tenancy Act and by virtue of Section 19, a sirdar .
40. In the present case, that is hardly the point involved. Here, the point is about the validity of the lease or any kind of possession relating to the property in dispute, held lawfully by the petitioner so as to entitle her to sirdari rights, upon enforcement of the Z.A. & L.R. Act. There is no such lawful possession found by the Authorities below as may entitle the petitioner to sirdari rights under Section 19 of the Z.A. & L.R. Act, upon its enforcement. The lease itself has been found to be not one validly executed for the want of registration.
41. In Budhan Singh ( supra ), the question was as to what is the connotation of the word 'held' in Section 9 of the Z.A. & L.R. Act. This Court may dare say that the principle in Budhan Singh was laid down in the context of extreme facts that would bring to the fore in, sharp relief, the distinction between what may be regarded as 'held' and 'lawfully held'. In Budhan Singh , their Lordships observed:
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“ 9. Before considering the meaning of the word "held" in Section 9, it is necessary to mention that it is proper to assume that the law-makers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, as observed by Crawford in his book on Statutory Constructions that the entire legislative process is influenced by considerations of justice and reason. Justice and reasons constitute the great general legislative intent in every piece of legislation. Consequently, where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute was not the one intended by the law-makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the Legislature, there is little reason to believe that it represents the legislative intent.
10. We are unable to persuade ourselves to believe that the Legislature intended to ignore the rights of persons having legal title to possession and wanted to make a gift of any building to a trespasser howsoever recent the trespasser might have been if only he happened to be in physical possession of the building on the date of vesting. We are also unable to discernany legislative policy in support of that construction. It was urged before us by the learned counsel for the appellants that the Legislature with a view to put a stop to any controversy as to any rights in or over any building directed that whoever was in physical possession of a building on the date of vesting shall be deemed to be the settlee of that building. Further urged that it would have been a hard and laborious task for the State to investigate into disputed questions relating to title or possession before making the settlement contemplated by Section 9 and therefore the Legislature cut the Gordian Knot by conferring title on the person who was in possession of the building. We see no merit in this argument. The settlement contemplated by Section 9 is a deemed settlement. That settlement took place immediately the vesting took place. No inquiry was contemplated before that settlement. If there is any dispute as to who is the settlee, the same has to be decided by the Civil Courts. The State is not concerned with the same. Section 9 merely
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settles the building on the persons who was holding it on the date of vesting.
11. It is true that according to the dictionary meaning the word "held" can mean either a lawful holding or even a holding without any semblance of a right such as holding by a trespasser. But the real question is as to what is the legislative intent? Did the Legislature intend to settle the concerned building with a persons who was lawfully holding or with any persons holding lawfully or otherwise? Mr. Misra contended that there is no justification for us to read into the section the word "lawfully" before the word "held". According to him, if the Legislature intended that the holding should be a lawful one, it would have said "lawfully held". He wanted us to interpret the section as its stands.
12. It is true that the Legislature could have used the word "lawfully held" in place of the word "held" in Section 9 but as mentioned earlier, one of the dictionary meanings given to the word "held" is "lawfully held". In Webster's New Twentieth Century Dictionary (2nd Edn.), it is stated that in legal parlance the word "held" means to possess by "legal title". In other words, the word "held" is technically understood to mean to possess by legal title. Therefore, by interpreting the word "held" as "lawfully held", we are not adding any word to the section. We are merely spelling out the meaning of that word. It may further be seen that the section speaks of all buildings...within the limits of an estate, belonging to or held by an intermediary or tenant or other persons.....The word "belonging" undoubtedly refers to legal title. The words "held by an intermediary" also refer to a possession by legal title. The words "held by tenant" also refer to holding by legal title. In the sequence mentioned above, it is proper to construe the word "held" in Section 9 when used in relation to the words "other person" as meaning "lawfully held" by that person. That interpretation flows from the context in which the word "held" has been used. We have earlier mentioned that the said interpretation accords with justice.
13. The expression "held" has been used in the Act in various other sections-see Sections 2 (1) (c), 13, 17, 18, 21, 144, 204, 240-A, 298, 304 and 314 to connote possession by legal title. Mr. Misra, learned counsel for the appellants, does not deny that the expression "held" in those sections means held lawfully. But according to
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him that is because of the context in which the word is used. Mr. Misra is right in saying so but he overlooks the context in which that expression is used in Section 9. We have already made reference to that context. He failed to point out to us any section in the Act, leaving aside Section 9 for the time being where the word "held" has been used as meaning mere holding, lawful or otherwise. In K. K. Handique v. Member, Board of Agricultural Income-tax, Assam, AIR 1966 SC 1191, this Court was called upon to consider the meaning of the word "holds" in Sections 12 and 13 of the Assam Agricultural Income-tax Act. Subba Rao J.(as he then was), speaking for the Court, observed that the expression "holds" includes a twofold idea of the actual possession of a thing and also of being invested with a legal title though sometimes it is used only to mean actual possession. After reading Sections 12 and 13 together, he observed that the word "holds" in these sections mean holding by legal title. In Eramma v. Verupana, (1966) 2 SCR 626 = (AIR 1966 SC 1879), this Court considered the meaning of the word "possessed" in Section 14 (1) of the Hindu Succession Act which laid down that "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner". It held that the property possessed by a female widow, as contemplated in the section, is clearly a property to which she has acquired some kind of title whether before or after the commencement of the Act. It is true that in arriving at that conclusion the Court took into consideration the language of the provision as a whole and also the explanation to the section. The scheme of the Act is to abolish all estates and vest the concerned property in the State but at the same time certain rights were conferred on persons in possession of lands or building. It is reasonable to think that the persons who were within the contemplation of the Act are those who were in possession of lands or buildings on the basis of some legal title. Bearing in mind the purpose with which the legislation was enacted, the scheme of the Act and the language used in Section 9, we are of opinion that the word "held" in Section 9 means 'lawfully held'. In other words, we accept the correctness of the view taken by Mukerji and Dwivedi JJ. For the reasons already mentioned, we are unable to agree with Desai, C. J. that the fact that the appellants had demolished the buildings put up by the respondents and put up some other building in
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their place had conferred any rights on them under Section 9.”
42. As already remarked, Budhan Singh turned on extreme facts, but the principle there is absolutely clear. A mere trespasser or one physically holding land at the time of enforcement of the Z.A. & L.R. Act, cannot be regarded by extension of the principle in Sections 9 to 19 or the other provisions, holding a right which may be recognised to confer a sirdari . If the petitioner's possession is not traceable to some kind of a lawful right, the mere fact of possession would not entitle her to claim the benefit of Section 19. The requirement about being recorded on the date of vesting, as a hereditary tenant, is a fact on which the legal right to a sirdari under Section 19 can be founded. That is utterly missing in the present case. It is for this reason that the Consolidation Officer thought of classifying the petitioner as an occupier without title, when there is no one already recorded in column 4 of the khasra . The Settlement Officer of Consolidation thought that the petitioner having no semblance of title, ought not to be acknowledged at all. Both opinions are possible and we think that the Settlement Officer’s choice was better in disregarding the petitioner's possession altogether, there being no semblance of a right or title attached to it. Even if both were lawful courses to adopt, it is not this Court's province under Article 226 of the Constitution to choose, which would be the better one, unless there is a violation of the law. Here, there is none.
43. In the opinion of this Court, no case for interference with the impugned orders, passed by the three Authorities below concurrently, is made out in the exercise of our jurisdiction under Article 226 of the Constitution.
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44. This petition fails and is dismissed . Costs easy.
45. The interim stay order is hereby vacated.
Order Date :- 15.9.2023 Anoop
Digitally signed by :- ANOOP KUMAR SINGH High Court of Judicature at Allahabad
3 issues framed by the court
Whether the petitioner acquired sirdari rights over the disputed land based on an unregistered patta from the zamindar.
Whether the patta dated 28.12.1950 was a valid document under the U.P. Tenancy Act, 1939 despite being unregistered and lacking attestation under Section 57.
Whether the petitioner's possession could be regarded as lawfully held to claim rights under Section 19 of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
Colour shows how this judgement treated each authority
Ram Pyari and others v. Board of RevenueReferred¶9
Ram Pyari and others v. Board of Revenue, 1983 All LJ 527
Budhan Singh (dead) by his Legal representatives and another v. Babi Bux and anotherReferred¶20
Budhan Singh (dead) by his Legal representatives and another v. Babi Bux and another, AIR 1970 SC 1880 · Who else cites this
Rizwan and another v. Deputy Director of Consolidation, Saharanpur and othersReferred¶20
Rizwan and another v. Deputy Director of Consolidation, Saharanpur and others, (2003) 6 AWC 5065
Pravir Singh and others v. Board of Revenue and othersReferred¶20
Pravir Singh and others v. Board of Revenue and others, 2003 (94) RD 375
Gaon Sabha, Tappal v. Sri Satya Deo SharmaReferred¶20
Gaon Sabha, Tappal v. Sri Satya Deo Sharma, 2004 All LJ 3597
Sher Singh (dead) through LRs v. Joint Director of Consolidation and othersReferred¶36
Sher Singh (dead) through LRs v. Joint Director of Consolidation and others, AIR 1978 SC 1341 · Who else cites this
7 provisions across 4 enactments
Smt. Godawari Devi
D.D.C. Deoria And Others
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
