AZAD SINGH Vs. BARKATULLAH KHAN

JUDGEMENT

(1.) These two appeals by special leave arise from two suits filed by Barkatullah and Shafiullah for possession of land more particularly set out at the foot of the plaint against the Zamindars and Prem Kumari and Noor Mohammad. Briefly stated the plaintiff's case was that they were Thekedars and the Theka was taken for personally cultivating the land and therefore under Section 12 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 ('1950 Act' for short), they have become hereditary tenants and they were in possession of land on 1st April, 1950. It was alleged that the Zamindars had no right to lease the land after the plaintiffs became hereditary tenants yet Prem Kumari and Noor Mohammad took land on lease from Zamindars and entered possession after 1-4-1950. It was alleged that the lessees from the Zamindar had no right to remain in possession as against hereditary tenants. On this short ground the plaintiffs sought possession of the land.

(2.) The defendants were the Zamindars and the two lessees who contested the suit. The averments made in para 4 of the plaint were not controverted specifically and it was merely stated that they are subject to additional pleas. The only plea put forward on behalf of the lessees worth noticing is that the lessees were in cultivatory possession during the year 1359-F and being not a person who has become a bhumidar, sirdar. Adhivasi or Asami is entitled to all the rights of Adhivasis under U. P. Land Reforms (Supplementary) Act, 1952 ('1952 Act' for short).

(3.) The trial court dismissed the suit observing that the plaintiffs were Thekadars of the land and under Section 12 of the 1950 Act have acquired rights of hereditary tenants but the lessees were in cultivatory possession, in 1359-F and therefore have acquired the right of adhivasi. Thekanama was held to be defective on the question of theka being given exclusively for personal cultivation. The two plaintiffs preferred two separate appeals and both the appeals were disposed of by the First Additional Civil Sessions Judge, Gonda as per his judgment dated September 1, 1958. Broadly stated, the learned Judge agreed with the findings of the trial court and dismissed the appeals. The original plaintiffs carried the matter in second appeal. Two separate appeals were preferred, but by the time the appeals came up for hearing, a statement was made that both the plaintiffs have compromised the dispute inter se and that the suit be treated as one and if the appeal is to be allowed, possession is to be given jointly to two appellants as against the respondents.