BHAOO SINGH Vs. SMT. RAM DEVI AND OTHERS

JUDGEMENT

(1.) The Appellant claimed to be the tenure holder of certain plots. Admittedly, these plots were the sir and khudkasht of two widows. The said widows lot out the plots to the Appellant. Under Sec. 21(1)(h) of the UP ZA and LR Act, every parson who on the date immediately preceding; the date of vesting, occupied or hold land as a tenant of sir land referred to in Sub -clause (a) of Clause (i) of the Explanation Under Sec. 16, shall be deemed to be asami thereof. It has been held that the Appellant became an asami under this provision and that he has no higher rights in the plots.

(2.) It is said that as the widows wore paying more than Rs. 250 as land revenue, Sec. 21(1)(h) will not apply. It appears that as zamindars the widows were paying less than Rs. 250 as land revenue. But at the relevant time they were also thekadars of some zamindari property. As thekedars they were paying some land revenue. If this land revenue is tacked to the land revenue which they were paying as zamindars, the total revenue swells over the ceiling of Rs. 250. This ceiling is imposed by Clause (1)(a) of the Explanation to Sec. 16. It provides that the land recorded as sir and khudkasht of "an intermediary paying Rs. 250 or less annually as land revenue, shall not be deemed to be included in the main part of Sec. 16. The word "intermediary" is defined in Sec. 3(12) of the Act. The Sec. defines an intermediary with reference to an estate. It moans a proprietor, under -proprietor, sub -proprietor, thekedar, permanent lessee in Oudh and a permanent tenure holder of such estate or part thereof. The material portion of the explanation to Sec. 16 reads:

(3.) According to the argument of the Appellant the definition of the intermediary in Sec. 3(12) should be read in the explanation. But we do not accept this argument. Sec. 3 opens with the words"...unless there is anything repugnant in the subject or context...". It is accordingly to be seen whether there is anything repugnant in the subject or context of the explanation which will exclude the definition clause. In Clause (i)(a) of the explanation "intermediary" is mentioned along with an under -proprietor, sub -proprietor and permanent tenure -holder, even though Sec. 3(12) includes the under -proprietor, sub -proprietor and permanent tenure holder in the definition of the word intermediary. Again, Clause (i)(a) contemplates that an intermediary should pay Rs. 250 or less annually as land revenue or where no land revenue is assessed in whole or part, he is assessed to a local rate, which would be payable on a land revenue not exceeding Rs. 250 annually. The word "assessed" in connection with land revenue as wall as local rate clearly shows that the liability to pay land revenue or local rate is imposed on the intermediary. Now the liability to pay land revenue or a local rats is imposed on the zamindar and not on his thekedar. Where the thekedar pays land revenue, he pays it on the ground of an agreement between himself and the zamindar under whom he holds his estate. There is no direct agreement between the thekedar and the Government for payment of land revenue or local rate. For those two considerations, we are of opinion that the definition clause in Sec. 3(12) cannot be applied to Clause (i)(a) of the Explanation to Sec. 16. In this provision the word "intermediary" means a zamindar and not a zamindar -cum -thakedar. Accordingly whatever land revenue the widows were paying as thekedars will have to be excluded in considering the ceiling of Rs. 250. In this view of the matter, the widows cannot be held to be paying more than Rs. 250 as land revenue.