GAJADHAR SINGH Vs. HARNANDAN SINGH

JUDGEMENT

(1.) I agree with the conclusions drawn by my brother Bishambhar Dayal in his judgment.

(2.) What is required under Sections 240-A and 240-B of the Act is that the land should be held "or be deemed to be held" by an adhivasi. "Held" in this context means "owned by", "belonging to", "included in the holding of". A person can own. land, or land can be included in the holding of a person, without his being in actual possession of it; whether he owns the land or it is included in his holding is essentially a question of title quite distinct from the question, of possession. Title may synchronise with possession but can also be in one person while the possession is in another. Sections 240-A and 240-B do not take possession at all into consideration; if a person has title as an adhivasi over the land it is within their scope irrespective of whether he is in actual possession or not. If the legislature had intended that the land should, not only be held by an adhivasi but also, be in his possession one would have expected it to use some additional words. In the law of tenancy the word "hold", Goes not include the idea of possession. Of course there must be title, i.e., it must not have been extinguished such as by the lapse of time within which possession may be recovered. A person having an adhivasi right over a land but not in possession of it is entitled to recover possession either by an application under Section 232 or by a suit under Section 209 read with Section 232-A. Section 209 permits a bhumidar, sirdar or asami to eject a trespasser by a suit and Section 232-A added by Section 48 of the Act No. XX of 1954 confers such a right upon an adhivasi also. So since 1954 an adhivasi dispossessed from his holding has a remedy against the trespasser by a suit to be brought within, the prescribed period of limitation. Adhivasi rights were conferred by the Act even upon persons who were not in actual possession on 1-7-1952 and Section 232 gave them a right to be put in possession by an application made within a certain time. If an adhivasi entitled to make an application under Section 232 or to file a suit under Section 209 did not make the application or file the suit within the prescribed period of limitation his right was extinguished, Section 210 extinguishes the title of bhumidar, sirdar or asami who does not file a suit under Section 209 against his trespasser within the prescribed period of limitation. This section is not expressly made applicable to an adhivasi, but this was only a lacuna on the part of the legislative. An adhivasi has no tenure such as a bhumidar, sirdar or asami has and the only right conferred upon him by the Act is to remain in possession subject to all the rights and liabilities to which he was subject on 30-6-1952, vide Section 231. An adhivasi who was in possession on that date got no better right than merely to continue to be in possession and an adhivasi who was not in possession got only the additional right to be put into possession by an application under Section 232; otherwise his rights and liabilities remained as they were before. When the legislature decided to determine the tenure of a bhumidhar, sirdar or asami on account of his failure to bring a suit under Section 209 within the prescribed period of limitation it would not have intended, that an adhivasi should retain, his right as such in spite of his failure to bring a suit under Section 209 within the prescribed period of limitation. Limitation Act applies to proceedings under this Act (vide Section 341), but Section 28 of the Limitation Act does not apply because Section 29 of the Limitation Act itself makes it not applicable. So reliance cannot be placed upon Section 28 for holding that on the expiry of the period of limitation for a suit under Section 209 by an adhivasi his right is extinguished but the extinction of his right to be put into possession must be held to amount to extinction of his adhivasi rights. In any case it can be said that after the lapse of the prescribed period of limitation the land cannot be said to be "held" by him. In the result I find that land was held by an adhivasi within the meaning of Sections 240-A and 240-B not only when he was in actual possession of it but also when he was out of possession provided that his right to recover possession or to be put into possession had not become barred by time.

(3.) It is not quite clear why the legislature used the words "deemed to be" in Sections 240-A and 240-B. There is no provision in the Act under which a person is deemed to be an adhivasi or land is deemed to be held by an adhivasi. There are persons deemed to be bhumidhars, sirdars and asamis but no provision lays down which persons are deemed to be adhivasis. It may be that the legislature used the words to mean a person to whom adhivasi rights were conferred without his being in possession on 1-7-1952, Since he was not in possession on 1-7-1952 it might be , argued that though adhivasi rights were conferred upon him the land could not be said to be "held" by him and to prevent such an argument the legislature might have added the words. Another explanation offered is that under the U. P. Land Reforms (Supplementary) Act No. 31 of 1952, which came into force on 7-11-1952, a person who was in cultivatory possession of the land in 1359 Fasli became an adhivasi with effect from 1-7-1952 [if he did not become a bhumidhar, sirdar or asami) and that the words "deemed to be" were used with reference to him. Since he became an adhivasi on 7-11-1952 with retrospective effect from 1-7-1952 he could be said to be deemed to be an adhivasi from 1-7-1952.