HARNAM SINGH DEAD Vs. KHEMA KUNWAR DEAD

JUDGEMENT

(1.) In these appeals by special leave directed against the common judgment and order dated 8th December, 1972 of a Division Bench of the High Court of Allahabad, rendered in Special Appeals Nos. 948-949 of 1967, a question of somewhat importance, which arises for our decision, is as to whether a widow belonging to a class of disabled persons under Section 157 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 'the UPZA and LR Act' could be regarded as a landholder envisaged under Section 21(l)(h) respecting her Sir lands, which a 'thekadar' under a 'thekanama' executed by her had let out for occupation and cultivation by tenants prior to 9th April, 1947 and which were allowed by the 'thekadar' to continue in such occupation and cultivation on 9th August, 1947, by receiving yearly rents from the tenants.

(2.) Material facts which have led to the need to decide the said question in the present appeals, could be stated thus: That on 18th November, 1933, Smt. Khema Kunwar, respondent No. 1 in these appeals as the widow of Nathu Singh succeeded to his Sir lands --- plots 1, 6 and. 1063 among others, of Village Barai M. Khara, Pargana Ujhani, District Budaun. That on 12th December, 1939, she executed a 'thekanama' in favour of one Ganga Singh, by which he was put in physical possession of the said Sir lands, enabling him as a 'thekadar' not only to cultivate those lands personally for over a period of twenty years subject to payment to her theka money of Rs. 355 per annum, but also to lease them for cultivation to tenants and receive annual rents from them during that period. No sooner Ganga Singh got possession of the said Sir lands under the 'thekanama' from Smt. Khema Kunwar, he as 'thekadar', leased Plot Nos. 1, 6 to Harnam Singh, the appellant in C.A. No. 142 of 1976 and Plot No. 1063 to Mohar Singh, the appellant in C.A. No. 143 of 1976, on yearly rents and put them in possession of those plots in the year 1940 for their cultivation. Eversince the 'thekadar' received yearly rents from Harnam Singh and Mohar Singh, as they were his tenants or lessees. In the year 1960, when Harnam Singh, who was in occupation of Plot Nos. 1 and 6 and Mohar Singh, who was in occupation of Plot No. 1063, from the year 1940 paying annual rents as tenants to 'thekadar', Ganga Singh, found that they were shown as 'Asamis' in respect of the said plots in the Basic Years Records, they filed objections under Section 9 of the Uttar Pradesh Consolidation of Holdings Act, 1953 - 'the UPCH Act' before the jurisdictional Consolidation Officer, claiming that they should be shown in Basic Years Records as 'Adhivasis' respecting plots in their occupation. Sint. Khema Kunwar, who did not dispute the fact that Harnam Singh and Mohar Singh were occupants of the plots 1, 6 and 1063 contested their claim for recording them as 'Adhivasis' of those lands in Basic Years Records. The Consolidation Officer by his judgment and order dated 26th September, 1961 dismissed the objection raised by Harnam Singh and Mohar Singh. That order, when was carried in appeals by Harnam Singh and Mohar Singh before the Assistant Settlement Officer, their claim for recording their names in the Basic Years Records as 'Adhivasis' was upheld by his judgment and order dated 13th June, 1963. Smt. Khema Kunwar, although impugned the order of the Asstt. Settlement Officer in her appeal filed before the Deputy Director of Consolidation, and in her revision filed before the Joint Director of Consolidation, she did not succeed. So also she did not succeed in her Writ Petitions filed in the matter before the High Court of Allahabad, in that a learned single Judge of that Court dismissed those Writ Petitions by his common judgment and orders dated 4th September, 1967. But her Special Appeals filed against the said common judgment and orders of the learned single Judge before the same High Court were allowed by a common judgment and order dated 8th December, 1972 of a Division Bench of that Court, upholding her contention that the appellants herein were 'Asamis' under Section 2 l(l)(h) of the UPZA and LR Act and not 'Adhvasis' under Section 20(l)(b) thereof. It is that common judgment and order of the Division Bench of the High Court which has been impugned by Harnam Singh and Mohar Singh by filing the present appeals by special leave.

(3.) The contention raised before us by Mrs. Rachna Gupta, the learned Counsel appearing for the appellants was that even if Smt. Khema Kunwar, widow of Nathu Singh belonged to a class of disabled persons under Section 157 of the UPZA and LR Act, the judgment and order of the Division Bench of the High Court cannot be sustained since it was based on Its wrong view that Smt. Khema Kunwar was land-holder envisaged under Section 21 (1)(h) of that Act. Her contention, in other words, was that Sint. Khema Kunwar, when had under a 'thekanama' executed by her in the year 1933 in favour of Ganga Singh had granted to him as her 'thekadar' the right to lease out her Sir lands in favour of the tenants and receive rents from them and when accordingly her Sir lands, the said plots had beep leased out by that 'thekadar' in favour of the appellants and given for their occupation and cultivation long prior to 9th Apri1, 1947 and the appellants were allowed to continue in occupation of such lands by the' thekadar' on receiving rents from them even on 9th April, 1947, she (Smt. Khema Kunwar) could not have been the land-holder of such lands, envisaged under Section 21(l)(h) of the UPZA and LR Act, as has been held by the Division Bench. Whether the said contention of the learned counsel for the appellants in the present appeals, calls to be upheld, is indeed the question which now needs our consideration and decision.