SHYAM SINGH Vs. D D C

JUDGEMENT

(1.) UNCERTAINTY and change in the meaning of expression 'recorded occupant' In Section 20 (b) of UP ZA Act I of 1951 by Judicial interpretation has made petitioner rush to this court twice but with no result. When petitioner came earlier by way of Civil Misc. Writ Petition No. 1187 of 1962 decided on 10th October 1966 against the order of the Consolidation Authorities the law which held the field was Upper Ganges Sugar Mills v. Khalil Rahman, 1961 AWR 78 SC. It was more or less settled that a person who was in possession in his own right and not on behalf of any one else in 1356 fasli was entitled to adhivasi rights even if the entry was as proprietor. The court therefore quashed the order and directed Deputy Director of Consolidation to decide whether petitioner donee of proprietary and Sir land from limited owners could be deemed to be recorded occupant of 1356 fasli although the entry was In column 5 as Sir holder and the limited owner died in 1355 fasli therefore the petitioner could not be deemed to be Intermediary thereafter. In pursuance of this direction the Deputy Director decided this controversy afresh on 12-5-71 but unfortunately for the petitioner against him. It was held that for determining recorded occupant there should be two persons one in main column and other in possession. And as petitioner was entered as Sir holder in column 5 it could utmost be considered as an entry descriptive of his title but not of possession. Consequently the petitioner, according to Deputy Director of Consolidation, could not be held to be recorded occupant. So the petitioner approached this court again.

(2.) BY the time the petition matured for hearing this court in Basdeo v. Deputy Director of Consolidation, 1974 ALJ 766= 1974 RD 188 a five Judges Full Bench went back to the theory of benefitting a person who was in possession In his own right and confined it to cases of persons who were in possession without any right or title. It was held, "Record as an occupant is authorised to be made in special circumstances and after proper inquiry and in accordance with the provisions of paragraph 84. An entry made in accordance with those provisions alone can be read as recording a person as an occupant." Reason for this limited interpretation was, that,

(3.) FACTUALLY also the decision in the Upper Ganges Sugar Mills is not very helpful. Admittedly one Jagoo Singh was the proprietor. After his death his interest devolved on his widow who executed a gift deed of proprietary share and Sir in village in dispute in favour of petitioner. She died in 1947 i. e. 1355 fasli. For three years opposite parties who are reversioners did not move at all. In 1951 they filed the suit for possession which abated due to enforcement of consolidation when the matter was pending in second appeal. It was held by this court earlier that after death of a limited owner in 1947 the petitioner could not be deemed to have continued as intermediary. Even assuming it to be so it was open to reversioners to abide by the transaction that is ratify it (See AIR 1972 SC 2669). What was the effect of non-filing the suit by opposite parties or not exercising the option for four years and whether the rule of estoppel applied against them is not up for consideration in this case but he could not certainly be treated as trespasser as in case of Upper Ganges Sugar Mills. There the term of theka had come to an end in 1355 fasli and it was not renewed therefore possession of thekadar was of trespasser and not as thekadar. In the case of an alienee from a limited owner title vests in him during her life time. After her death the alienee does not become trespasser. His rights are subject to challenge by reversioners. As the suit was filed in 1951 the opposite parties shall be deemed to have exercised their option only on that date. It could not reflect to earlier period and petitioner could not be deemed to be trespasser in 1948-49, i. e. 1356 fasli.