SMT. KHEMA KUNWAR Vs. HEMRAJ SINGH AND OTHERS

JUDGEMENT

(1.) This Sp. A. No. 948 of 1967 connected with Sp. A. No. 949 of 1967 arises out of the order passed by a learned Single Judge of this Court in writ petition No. 1789 of 1963 filed by Smt. Khema Kunwar against Harnam Singh connected with writ petition No. 2490 of 1963 filed by Smt. Khema Kunwar against Mohar Singh. In this appeal we are concerned only with writ petition No. 1789 of 1963 filed on September, 1963. In the writ petition Smt. Khema Kunwar, who is the Appellant in this special appeal, prayed for the issue a writ of certiorari quashing the orders of the Asstt. SO (C), DyDC camp at Budaun and the it Director of Consolidation, U.P. camp at Bareilly. The orders sought to be quashed were made as annexure D, E and G to the writ petition. Hemraj Singh Mohar Singh figure as Respondent No. 1 respectively in the two special appeals and, therefore, in the subsequent part of this judgment they have been referred to by me as such.

(2.) In the writ petition the facts as given out were that Harnam Singh, respondent no. I in this appeal, filed an objection u/S. 9 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the UP CH Act) and claimed that he was wrongly recorded on plots nos. 1 and 6 as Asami of the Appellant Smt. Khema Kunwar, which was the wrong entry and it should be corrected and he should be recorded as Sirdar. The copy of the objection filed by Harnam Singh was made Annexure A to the writ petition. A reply to this objection was filed by Smt. Khema Kunwar, the appellant in this appeal, and she stated that Harnam Singh was merely an Asami and his claim was baseless. The Consolidation Officer by his order dated 26 -9 -1961 repelled the objection of Harnam Singh, Respondent No. 1 and held that the Appellant Smt. Khema Kunwar did not remarry Ganga Singh on the date of letting and Smt. Khema Kunwar was a disabled person. He also held that the remarriage with Ganga Singh was not proved and Harnam Singh, therefore, was an Asami. Harnarn Singh, as it appears, thereafter filed appeal before the Settlement Officer of Consolidation and the Asstt. Settlement Officer of Consolidation who heard the appeal, considered both the aspects of the matter about the alleged remarriage of Smt. Khema Kunwar with Ganga Singh, and whether Smt. Khema Kunwar was a land -holder on 9th April, 1946 as a widow of Nathu Singh or Ganga Singh was the land -holder as a Thekedar. On the question of remarriage of Smt. Khema Kunwar the Asstt. Settlement Officer of Consolidation held that the remarriage was not proved but on the second question he took the view that under the registered agreement executed in the year 1940 by Smt. Khema Kunwar in favour of Ganga Singh (who was given the theka under the agreement) and he was entitled to realise rent and so he was the land -holder within the meaning of S. 3(26) of the UP ZA and LR Act (Act I of 1951) read with Sec. 3 (11) of the U.P. Tenancy Act, 1939. At this place it may also be mentioned that Harnam Singh did not take up any objection that Ganga Singh was the thekedar of the disputed plots and was the land -holder when he filed his objection Under Sec. 9 of the UP CH Act but the Asstt. SO (G)on the basis of the document Thekanama held that obviously Ganga Singh was the Thekedar and was entitled to manage the property of Smt. Khema Kunwar. He also took into consideration the facts as mentioned in the Thekanama that Ganga Singh would be entitled to manage and let out the sir and khudkast land. He, however, held that under the thekenama the necessary qualification for the purposes of definition of "land -holder" "that the rent may be payable to him (to the thekedar)" was there and Ganga Sjngh was competent to let out the sir and khudkast land even on Batai during the pendency of the theka, and that Ganga Singh was the land -holder during the period from 1940 to 1952. Therefore, he further held that for the purposes of Sec. 21(h) of the UP ZA and LR Act the land -holder was Ganga Singh and not Smt. Khema Kunwar on 9th April, 1946 and thus Harnam Singh, Respondent in this appeal, in respect of the land in dispute was entitled to be recorded as Sirdar and not as Asami. He, therefore, ordered that Harnam Singh, the Respondent, be recorded as sirdar of plot Nos. 1 and 6 and thus allowed the appeal of Harnam Singh in respect of plots Nos. 1 and 6. On the same reasoning he also allowed the appeal of Mohar Singh as well and directed that his name be recorded as Sirdar on plot No. 1063. The Dy. Director of Consolidation by his order dated 18 -10 -1962 considered that the main point involved in the second appeal before him was whether Smt. Khema Kunwar was a disabled person Under Sec. 157 of the UP ZA and LR Act on the date of letting out or occupation so as to be benefited under the provisions of that section. It was by then proved case of the parties that Smt. Khema Kunwar was the widow of Nathu Singh as all the lower courts had rejected the plea of Harnam Singh and others that she had remarried Ganga Singh. Therefore, she was held the widow of Nathu Singh. The only question, therefore, that was considered to be material by the Dy. Director of Consolidation was whether even if she was (widow) of Nathu Singh whether she was the land -holder on the date of the letting of the plots in dispute or not. On the said proved facts that plots in dispute which were in occupation of Mohar Singh and Harnam Singh on the date of vesting were admittedly the land of the proprietor of the Mahal and Smt. Khema Kunwar was admittedly the sir -holder of those plots. But the plots in dispute were let out to Harnam Singh and Mohar Singh sometimes in the year 1353 F., i.e., after the execution of the thekanama; he, therefore, considered the question whether Ganga Singh should be considered to be the person who had let out the land to Mohar Singh and Harnam Singh and was their land -holder or Smt. Khema Kunwar be considered to be their land -holder. The Dy. Director of Consolidation considered the definition of "land -holder" as given in the UP ZA and LR Act and the land Revenue Act. He has referred to Sec. 3 (26) of the UP ZA and LR Act where it has been said that the words and expressions, 'land -holder'...not defined in this Act and used in the United Provinces Tenancy Act, 1939, shall have the meaning assigned to them in that Act. He, therefore, referred to the meaning of the word "landholder" given in the U.P. Tenancy Act, 1939. Under Sec. 3(11) of the U.P. Tenancy Act, 1939, "landholder" means the person to whom the rent is or, but for a contract express or implied, would be payable, but except in Ch. VII and Ch. XIII does not include an assignee of rent or a person who has lost the proprietary or other interest by virtue of which rent became payable to him. The Dy. Director of Consolidation therefore held that the land in question was admittedly sir of Smt. Khema Kunwar and was included in the Thekanama of Ganga Singh, Ganga Singh as land -holder of the land in dispute. It was also held that Respondent being in possession as a sub -tenant became adhivasi after the date of the vesting and thereafter, sirdar on 30th of October, 1954. He, therefore, dismissed both the appeals filed by Smt. Khema Kunwar against Harnam Singh and Mohar Singh. While dismissing the appeal in the earlier part of the judgment he has held that in case of a theka the thekedar is to be considered as land -holder of the land and not the zamindar and since the land in question was let out to Harnam Singh and Mohar Singh by Ganga Singh after the execution of the thekanama in respect of the land in dispute Smt Khema Kunwar could not claim the benefit of being disabled land -holder. In the opinion of the Dy. Director of Consolidation she was not actually the land -holder of the land in dispute. The matter as it appears further went up in revision ' before the Joint Director of Consolidation. He took into consideration two questions of admitted facts that Smt. Khema Kunwar was a widow and she did not remarry and, therefore, she was entitled to let out the land and to collect the land revenue (in my opinion for the word "rent" word "revenue" has been used). He has also considered the question of fact decided by the courts below that the thekedar (Ganga Singh) was the land -holder and no disability was attached to him and the persons to whom land was let out were entitled to behold sirdari rights. He also took into consideration Sec. 13 of the UP ZA and LR Act which runs thus:

(3.) Various grounds were taken up in the writ petition but the important grounds were that Harnam Singh and Mohar Singh were asamis Under Sec. 21(h) of the UP ZA and LR Act and the findings given by the consolidation courts were manifestly erroneous. It was also taken as a ground that the Joint Director of Consolidation wrongly relied on Sec. 13 of the UP ZA and LR Act which only related to the rights which a thekedar could have on the date of vesting in the sir land. It was also taken as a ground that Mohar Singh and Harnam Singh being in cultivatory possession in the year 1359 F. would only asamis and when thekedar ceases to have any right the date of the vesting Under Sec. 14 of the UP ZA and LR Act the only person left for consideration as being the land -holder of Mohar Singh and Harnam Singh would be the Appellant. Smt. Kunwar who was a disabled person within the meaning of Sec. 157 of the UP ZA and LR Act and was entitled to get the benefit thereof. The learned Single Judge considered Ganga Singh to be the Thekedar as found out by the consolidation courts on the question of facts and interpreted the term "thekedar" as used in the U.P. Tenancy Act, 1939 for "a farmer or other lessee of the rights in land of a proprietor... and in particular of the rights to receive rents or profits but does not include an under -proprietor or a permanent lessee." This definition of the word "thekedar" has been given in Sub -section (24) of Sec. 3 of the U.P. Tenancy Act, 1939. Under Sub -section (26) of Sec. 3 of the UP ZA and LR Act for the meaning of the word "thekedar" and the word land -holder we are required to consider the definition given in the U.P. Tenancy Act, 1939. The learned Single Judge of this Court also held that even though the position of a thekedar is distinct from that of the proprietor, under -proprietor or permanent lessee but he is entitled to receive rent from the person on whom he settles the land. According to the learned Single Judge he is only liable to pay the theka money to the proprietor. He has referred to Ss. 209 to 222 of the U.P. Tenancy Act, 1939, and brought out the legal position or the relationship of a thekedar qua the proprietor. He has held that a thekedar may be liable to pay rent to the proprietor in the same way as a tenant -in -chief is liable to pay rent to the zamindar, but, as regards persons actually cultivating the land, from whom the thekedar is entitled to receive rent, the thekedar is the landholder and not the proprietor. He has also held that the proprietor does not receive the rent from the persons actually cultivating the land. Hence he has held that there is no apparent error on the face of the record and upheld the views taken by the consolidation authorities in holding that the proprietor or the land -holder in relation to the persons who were in occupation of the land let out by the thekedar were paying the rent to the thekedar. The grounds taken in the writ petition which have been quoted above according to his opinion did not snow any manifest error on the face of the record and, therefore, he rejected both the writ petitions. This special appeal has been preferred against the order aforesaid passed on September 4, 1967.