MOHAN LAL Vs. JOINT DIRECTOR OF CONSOLIDATION AGRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment of a learned Single Judge of this Court quashing the orders of the consolidation authorities. The dispute relates to plots Nos. 639, 640, 641, 642 and 406 situate in village Kithot, Tahsil Shikohabad, district Mainpuri. In the basis year Mohan Lal appellant was recorded Sirdar over these plots. .Balwant Singh and Chet Singh filed objection before the consolida tion authorities against the entry of Mohan Lai's name claiming Adhivasi and Sirdari rights on the ground of their being recorded occupants in 1356 Fasli. Mohan Lal asserted that he had entered into possession of the plots in dispute under a registered lease granted to him in 1949 and he continued to be in lawful cultivatory posses sion in 1359 Fasli and as such he had acquired Sirdari rights under Section 3 of the U.P. Land Reforms (Supplementary) Act, 1952, hereinafter referred to as the supplementary Act. All the four con solidation authorities, namely, the Consolidation Officer, the Settlement Officer, the Deputy Director of Consolidation and the Joint Director of Consolidation rejected the claim of Balwant Singh and Chet Singh and upheld the basic year entry. There upon, Balwant Singh and Chet Singh res pondents filed a writ petition under Article 226 of the Constitution before this Court challenging the legality of the orders of the con solidation authorities. The Writ Petition was allowed by a learned Single Judge holding that since Balwant Singh and Chet Singh res pondents were recorded occupants they had acquired Adhivasi and Sirdari rights and the subsequent entry of 1359 Fasli of cultivatory possession in favour of Mohan Lal did not confer any right on him. Aggrieved, Mohan Lal has preferred this special appeal against the judgment of the learned Single Judge. The question which needs determination is whether Adhivasi rights conferred on a person in pursuance of his being in cultivatory possession in 1359 Fasli conferred by Section 3 of the Supplementary Act of 1952 shall prevail over the rights of a recorded occupant. In order to appreciate this question, it is necessary to refer to the ma terial portion of Section 20 (b), which reads as follows: "20. Every person who- (b) was recorded as occupant- (i)Of any land other than grove land or land to which Section 16 applies or land referred to in the proviso to sub-section (3) of Section 27 of the U.P. Tenancy (Amendment) Act, 1947, in the Khasra or Khatauni of 1356 Fasli prepared under Ss. 28 and 33 respectively of the U.P. Land Revenue Act, 1901 or who was on the date immediately proceeding the date of vesting entitled to regain possession thereof under clause (c) of sub-section (1) of Section 27 of the U.P. Tenancy (Amendment) Act, 1947, or (ii) Any land to which Sec. 16 applies, in the Khasra or Kha tauni of 1356 Fasli prepared under Sections 28 and 33, respective ly, of the U.P. Land Revenue Act, 1901, but who was not in pos session in the year 1359 Fasli. Shall unless he has become a Bhumidhar of the land under sub-section (2) of Section 18 or an Asami under clause (h) of Section 21, be called Adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof." Section 20 (b) lays down that every person who was recorded as occupant of any land other than grove land in the Khasra or Kha tauni of 1356 Fasli shall be Adhivasi of the land and shall be entitled to take or retain possession thereof. The legislature laid down that if a recorded occupant was dispossessed he could regain possession; through court and for that purpose it enacted Section 232 in the 1951 Act. THIS privilege conferred on the recorded occupant is however subject to the provisions of the Act, thus if the suit under Section 323 is filed on the expiry of the period of limitation prescribed there for, or if some other person acquired Bhumidhari rights or Sirdari rights under the provisions of the Act the right of a recorded occu pant would be subject to those rights. Section 20 (b) has been sub ject of judicial interpretations on a number of occasions, but now the controversy has been set at rest by the Supreme Court in Smt. Sonawati v. Sri Ram 1968 A.L.J. 313.The Supreme Court held that any person re corded occupant in .1356 Fasli becomes Adhivasi and he is entitled to regain possession and to retain the same. Section 20 (b) does not re quire proof of actual possession, instead a mere entry in the Khasra or Khatauni of 1356 Fasli in favour of the person concerned confers rights of Adhivasi on him. THIS legal position remains undisputed Section 3 of the Supplementary Act of 1952 is as under: 3. (1) Every person who was in cultivatory possession of any land during the year 1359 Fasli but is not a person who as a consequence of vesting under Section 4 of the IT. P. Zamindari Abolition and Land Reforms Act, 1950 U.P. Act I of 1951) (here inafter referred to as the said Act) has become a Bhumidhar. Sirdar, Adhivasi or Asami under Sections 18, 21 of the said Act shall be and is hereby declared to be, with effect from the appointed date- (a) If the Bhumidhar or Sirdar of the land was, or where the land belongs jointly to two or more Bhumidhars or Sirdars, all of them were, on the appointed date person or persons referred to in items (i) to (m) of sub-section (2) of Section 10 of the said Act, an Asami from year to year, or (b) If the Bhumidhar or Sirdar was not such a person, an Adhivasi, and shall be entitled to all the rights and be subjected to all the liabilities conferred or imposied upon an Asami or an Adhivasi, as the case may be, by or under the said Act." The above section also confers rights of Adhivasi on a person who is found in cultivatory possession of any land during the year 1359 Fasli, Section 3 does not require that the person who may be in cultivatory possession of land in 1359 Fasli must be recorded. Once it is found that a person was in cultivator v possession of any land in the year 1359 Fasli he is entitled to the rights of Adhivasi. Section 3 also came up for interpretation in Sonawati's (supra). The Supreme Court held that the expression 'cultivatory possession' indicates that the possession must be a valid one in accordance with K' law. A trespasser having no right to be in possession cannot ac quire Adhivasi rights under the said section merely because he may have entered upon the land forcibly or surrepticiously and remained in cultivatory possession in 1359 Fasli. So far as Section 20 (b) is concerned, possession is not necessary, but in order to acquire Sirdari rights under Section 3, it is necessary to be in cultivatory possession in a lawful manner. The question whether the rights of Adhivasi under Section 3 of the Supplementary Act would prevail over that of recorded occupant came UP for con sideration before a single in Jhutan Singh v. Badri 1962 R.D. 239. The learned Single Judge held that a person acquiring Adhivasi right under the Supplementary Act was entitled to possession of land "in preference to a person who may have acquired Adhivasi rights under Section 20 (b) of the 1951 Act. A similar view was taken by another learned Judge in Tulsi Ram v. Director of Consolidation 1966 R.D. 16. We are in ag reement with the view taken in Jhutan Singh and Tulsi Ram's case (supra). The 1951 Act conferred right of Adhivasi on a recorded occupant under Section 20 (b). In case the recorded occupant was disposses sed, the Act conferred right on the recorded occupant to obtain and retain possession. If the recorded occupant was dispossessed he could file suit for regaining possession under Section 232 of the Act. The Supplementary Act of 1952 was enacted by the State Legislature later in time to confer Adhivasi rights on those persons who were in cultivatory possession of the land in 1359 Fasli. The legislature was conscious that under Section 20 (b) of 1951 Act it had conferred rights on the recorded occupants, but in addition to that it conferred Adhivasi and Sirdari rights on these persons found in cultivatory possession of the land in 1359 Fasli. The legislature further laid down that an Adhivasi by virtue of being in possession in 1359 Fasli was entitled to regain and retain possession of the land. It is note worthy that Section 3 of the Supplementary Act, 1952, was given re trospective effect, namely, from the date of vesting. Having regard to these provisions the legislative intent is quite apparent that if, gave preference to the person found in cultivatory possession in 1359 Fasli. It is well settled principle that when two provisions are en acted by the same legislature conferring similar rights and if there is any conflict of interest or right, the right conferred by the subse quent legislation would prevail over the right conferred by the ear lier legislation. In the absence of specific provision in the Act as to what would happen if there is conflict between the right of a re corded occupant and a person who may be in cultivatory possession in 1359 Fasli, the legislative intent must be given effect. As dis cussed earlier, the legislative intention is quite clear that the right of Adhivasi as conferred by Section 3 of the Supplementary Act of 1952 should prevail over the right of Adhivasi under Section 20(b). In the instant case, the consolidation authorities have recorded concurrent findings that even though Chet Singh and Balwant Singh were recorded occupants in 1356 Fasli over the plots in dispute but they were not in possession. In fact Chet Singh and Balwant Singh filed a suit under Section 232 of the Act for regaining possession but that suit stood abated on the commencement of the consolidation proceedings. The consolidation authorities have further recorded findings that Mohan Lalwas in possession over the plots in dispute in pursuance of a registered lease and he was in cultivatory posses sion in 1359 fasli also. Thus in view of the principle laid down by the Supreme Court in Sonawati's case (supra), Mohan Lalacquired Adhivasi and Sirdari rights in preference to the respondents Chet Singh and Balwant Singh. The consolidation authorities committed the manifest error of law in upholding the appellant's claim. In our opinion, the learned Single Judge was in error in interfering with the orders of the consolidation authorities. In view of the above discussion, we allow the appeal and set aside the order of the earned Single Judge dated April 4, 1969, and restore the orders of the consolidation authorities. The writ peti tion filed by repondents Chet Singh and Balwant Singh stands dis missed. Parties shall bear their own costs.