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CASE NO.:

Appeal (civil) 1772 of 1980

PETITIONER:

CHANDRIKA PRASAD

RESPONDENT:

PULLO (DEAD) BY LRS. AND ORS.

DATE OF JUDGMENT: 10/04/2000

BENCH:

S.B. MAJMUDAR & S. SAGHlR AHMAD & U.C. BANERJEE

JUDGMENT:

JUDGMENT

2000 (2) SCR 1145

The Judgment of the Court was delivered by

S.B. MAJMUDAR, J. This appeal, on grant of special leave, has been referred

to a larger Bench by an order dated 27th July, 1999 of a Bench of two

learned Judges of this Court and that is how it was placed for disposal

before this Bench. A few relevant facts for highlighting the legal question

involved in this appeal deserve to be noted at the outset.

Background facts :

The appellant before us is the son of one Ram Harakh, who claimed adhivasi

rights in two plots of agricultural land being Nos. 210/1 and 549 situated

in village Kanak Sarai of Mirzapur district in the State of Uttar Pradesh.

This claim was put forward in defence to a suit filed by respondent Nos. 1

and 2 herein under Section 229-B(3) of the Uttar Pradesh Zamindari

Abolition & Land Reforms Act, 1950 (hereinafter referred to as 'the U.P.

Act'). The aforesaid claim was based on Section 20 of the said Act. In the

basic year as provided in the aforesaid U.P. Act, these plots of lands were

recorded in the names of Sri Narain, Sheo Narain, Nar Narain, Jagdish

Narain, Ghanshyam, Kripa Shanker, Kashi Shanker and Daya Shanker. The

respondent Nos. 1 and 2 herein claimed interest in these lands on the

ground that Sri Narain and others had transferred their interests to one

Shri Ram Manawan who, thereafter has executed a sale deed on 10th February,

1961 in favour of respondent Nos. 1 and 2. The appellant's father Ram

Harakh put forward his claim for the aforesaid two plots of lands before

the Consolidation Officer. The basis of his claim was that he was in

possession of these two plots of lands in the years 1356 and 1359 Fasli as

sub-tenant of mortgagees and accordingly adhivasi rights were available to

him under Section 20 of the U.P. Act.

Respondent Nos. 1 and 2 resisted the said claim of Shri Ram Harakh and

filed objections. They contended before the Consolidation Officer that

after the sale deed in their favour they were in actual physical possession

of the plots in dispute. That Ram Harakh had surrendered his rights over

the plots in dispute in favour of Sri Narain and others some time about 15

or 16 years back.

The Consolidation Officer on 19th March, 1966 allowed the objections filed

by respondent Nos. 1 and 2. It may be mentioned that pending the

consolidation proceedings, Ram Harakh died and in his place the name of the

appellant was substituted. The appellant pursued the claim put forward by

his father Ram Harakh. But his claim was rejected by the Consolidation

Officer. The appellant field an appeal before the Settlement Officer

(Consolidation) which was dismissed on 6th June, 1966.

The appellant then carried the matter in revision before the Deputy

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Director of Consolidation, who allowed the same and remanded the case to

the Settlement Officer (Consolidation). After remand, the appellant

authority, namely, the Settlement Officer (Consolidation) allowed the

appellant's appeal on llth May, 1968 and held that the appellant's father

Ram Harakh had acquired the adhivasi rights in the lands in question.

However, a finding was recorded against Ram Harakh that he had surrendered

his rights in favour of Sri Narain and others.

Being aggrieved by the aforesaid decision, the appellant as well as

respondent Nos. 1 and 2 filed two revision applications before the Deputy

Director of Consolidation. The Deputy Director, Consolidation allowed the

claim of the appellant and rejected the revision filed by respondent Nos. 1

and 2. It was held that there was no surrender by Ram Harakh in favour of

Sri Narain and others. It was further held that since Ram Harakh was in

cultivatory possession in the years 1356 and 1359 Fasli, as such, he had

acquired the rights under Section 20 of the U.R Act.

Being aggrieved by the order of the Deputy Director (Consolidation),

respondent Nos. 1 and 2 filed a Writ Petition No. 1626 of 1969 before the

Allahabad High Court. A learned Single Judge, Justice R.S. Misra, dismissed

the writ petition of respondent Nos. 1 and 2 on 5th November, 1971. The

learned Single Judge held that the father of the appellant was recorded in

column of sub-tenant and that he was a sub-tenant of the mortgagee and, as

such, he had acquired rights under Section 20 of the U.R Act. The learned

Single Judge also confirmed the findings of the courts below that the

mortgagee had let out the plots in dispute in due course of management like

a prudent owner.

Respondent Nos. 1 and 2, being aggrieved by the aforesaid decision of the

learned Single Judge, filed Special Appeal No. 257 of 1971 before the

Division Bench of the High Court. The Division Bench of the High Court by

its impugned judgment, relying upon the full Bench judgment reported in

1974 A.L.J. 706, held that if a person is recorded in sub-tenants' column

and another person is recorded as mortgagee in the remarks column, none of

them will be deemed to be a recorded occupant. The Division Bench also

rejected the contention of the appellant that, in any case, they had

acquired the rights under Section 20(a)(ii) of the U.P. Act.

Now, it may be noted that the impugned judgment of the Division Bench also

disposed of a cognate matter by adopting the same set of reasoning. It fell

for consideration in Special Appeal No. 332 of 1971. By a common judgment,

both these appeals were allowed and it was held that a sub-tenant from a

mortgagee could not get any adhivasi rights in the lands in question.

From this common judgment of the Division Bench different civil appeals

were filed before this Court on grant of special leave to appeal. The Civil

Appeal No. 3316 of 1979 sought to challenge the common judgment of the High

Court dealing with Special Appeal No. 332 of 1971 while another Civil

Appeal No. 1772 of 1981 was filed against the very same judgment in Special

Appeal No. 332 of 1971 by other set of respondents before the High Court.

So far as the present Civil Appeal No. 1772 of 1980 is concerned, it was

filed against the very same common judgment of the Division Bench of the

High Court by which Special Appeal No. 257 of 1971 was disposed of. Both

Civil Appeal Nos. 3316 of 1979 and 1772 of 1981 were allowed by a Bench of

this Court consisting of Madan Mohan Punchhi, J. (as he then was) and

Sujata V. Manohar, J. by their Order dated 22nd August, 1995. However, the

present Civil Appeal No. 1772 of 1980 was not listed for disposal before

that very Bench though it involved identical questions for consideration of

the Court and arises from the very same common judgment of the Division

Bench of the High Court. When this civil appeal reached final hearing on

27th July, 1999 before a Bench of two leaned Judges of this Court presided

over by Mrs. Sujata V. Manohar, J., the aforesaid decision of this Court

dated 22nd August, 1995 was pressed in service and it was contended that in

the light of that decision, the present appeal was also required to be

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allowed. However, learned counsel for the respondents pointed out that in

those appeals the provisions of Section 21(l)(d) of the U.P. Act were not

considered. Reliance was also placed on a decision of this Court in the

case of Ram Adhar Singh (dead) through LRs. & Ors. v. Bansi (dead) through

LRs. & Ors., reported in [1987] 2 SCC 482 and in particular, paragraph 4 of

the said judgment at page 485. This judgment was not pointed out before the

Bench which considered the earlier two appeals. The Bench of this Court, by

its order dated 27th July, 1999, therefore, directed that it is necessary

to constitute a larger Bench to consider the point in issue in this appeal.

That is how, as noted earlier, this appeal has been placed before this

larger Bench.

In order to resolve the controversy posed for our consideration in this

appeal, it will be necessary to keep in view the factual matrix on which

there is no serious dispute between the parties and which remains well

sustained on record. Both the lands in question were occupied by Sri Narain

& Ors., who were recorded as fixed rate tenants. They had mortgaged these

lands in favour of Murat Singh & Ors. before the basic year referred to in

the U.P. Act. It is also not in dispute between the parties that the said

mortgage was not redeemed by the original mortgagers-fixed rate tenants

prior to the basic year. It is also an admitted position on record that in

Khasra 1356 and 1359 Fasli, Murat Singh & Ors. were recorded as mortgagees

and the father of the appellant Shri Ram Harakh and Respondent No. 15 in

the appeal - Devi Charan was recorded as sub-tenant of the mortgagees. The

original mortga-gors-fixed rate tenants Sri Narain & Ors. had transferred

their interest in the plots in favour of Ram Manawan. The said Ram Manawan

in his turn executed a sale deed in favour of Respondent Nos. 1 and 2 on

10th February, 1961 for consideration of Rs. 4,000. These respondents filed

a suit under Section 229-B of the U.P. Act for declaration and possession.

It is this suit which, as noted earlier, was contested by Ram Harakh,

father of the appellant and the Respondent No. 15. He submitted that as he

was lessee from the mortgagees-Murat Singh & Ors., he became adhivasi. It

is this claim of the appellant's father that is on the anvil of scrutiny

before us in the present proceedings. The High Court, in the impugned

judgment, has held that the said Ram Harakh was not entitled to be declared

as adhivasi taking the view that a sub-tenant from the mortgagee recorded

as such in the Khasras of aforesaid two years was not entitled to get

benefit of Section 20 of the U.P. Act. In the cognate matter arising from

Special Appeal No. 332 of 1971 also similar view was taken. As noted

earlier, a Division Bench of this Court by its order dated 22nd August,

1995 allowed civil appeals arising out of identical decision of the

Division Bench of the High Court in the cognate matter. Question is whether

the said decision rendered by the Division Bench of this Court is well

sustained on the statutory scheme of the U.P. Act or not.

Before coming to the grips of the present question, the relevant statutory

background has to be kept in view.

STATUTORY BACKGROUND :

The U.P. Act, by Section 4 in Chapter II, provides for vesting of estates

in the State. Sub-section 1 thereof lays down that :

"(1) As soon as may be after the commencement of this Act, the State

Government may, by notification, declare that, as from a date to be

specified, all estates situate in Uttar Pradesh shall vest in the State and

as from the beginning of the date so specified (hereinafter called the

"date of vesting"), all such estates shall stand transferred to and vest,

except as hereinafter provided, in the State free from all encum-brances".

The specified date for the purpose of Section 4(1) is 1st July, 1952.

Section 3 sub-section 8 defines "Estate" as under :

"(8) "Estate" means and shall be deemed to have always meant the area

included under one entry in any of the registers described in clauses (a),

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(b), (c) or (d) and, in so far as it relates to a permanent tenure holder

in any register described in clause (e) of Section 32 of the U.P. Land

Revenue Act, 1901, as it stood immediately prior to the coming into force

of this Act, or, subject to the restriction mentioned with respect to the

register described in clause (e), in any of the registers maintained under

Section 33 of the said Act or in a similar register described in or

prepared or maintained under any other Act, Rule, Regulation or Order

relating to the preparation or maintenance of record-of-rights in force at

any time and includes share in, or of an "estate"".

It is not in dispute between the parties that the plots in question were

covered by the aforesaid definition of the term "Estate" and, therefore,

were within the sweep of the Act, especially Section 4 thereof. Sub-section

26 of Section 3 provides as under :

"(26) words and expressions (land-holder), permanent tenure holder,

thekedar permanent lessee in Avadh, grove-holder, rent, cess, sayar, sir,

(tenant) hereditary tenant, khudkasht, fixed-rate tenant, rent-free

grantee, exproprietary tenant, occupancy tenant, non-occupancy ten-ant,

sub-tenant, holding and crops, not defined in this Act, and used in the

United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939), shall have the

meaning assigned to them in that Act."

The terms "tenant" and "sub-tenant" are not defined in the U.P. Act.

Consequently, the meaning assigned to them in the United Provinces Tenancy

Act of 1939 will govern the definition of these provisions.

Sub-section 22 of Section 3 of the United Provinces Tenancy Act, 1939

defines "sub-tenant" and Sub-section 23 defines "tenant" as under :

"(22) "Sub-tenant" means a person who holds land from the tenant there of

other than a permanent tenure-holder or from a grove-holder or from a rent-

free grantee or from a grantee at a favourable rate of rent and by whom

rent is, or but for a contract express or implied, would be payable;

(23) "Tenant" means the person by whom rent is or but for a contract

express or implied, would be payable and except when the contrary intention

appears includes a sub-tenant but does not include a mortgagee of

proprietary or under-proprietary rights a grave-holder a rent-free grantee

a grantee at a favourable rate of rent or except as otherwise expressly

provides by this Act, as under-proprietor a permanent lessee or a kadar;"

(Emphasis supplied)

As the appellant's father staked his claim for getting occupancy rights as

per Section 20 of the U.P. Act and as the respondents have relied upon

Section 21(l)(d) in support of their rival contentions for displacing the

case of the appellant, it would be appropriate at this stage to extract the

aforesaid relevant provisions.

Section 20 clauses (a) and (b), in so far as they are relevant, read as

under :

"20. Every person who -

(a) on the date immediately preceding the date of vesting was or has

been deemed to be in accordance with the provisions of this Act -

(i) except as provided in sub-clause (i) of clause (b), a tenant of sir

(other than a tenant referred to in clause (ix) of Section 19 or in whose

favour hereditary rights accrue in accordance with the provisions of

Section 10), or

(ii) except as provided in (sub-clause (i) of clause (b)), a sub-tenant

other than a sub-tenant referred to in proviso to sub-section (3) of

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Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act

X of 1947), or in sub-section (4) of Section 47 of the United Provinces

Tenancy Act, 1939 (U.P. Act XVII of 1939), of any land other than grove

land,

(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 F.

prepared under Section 28 and 33 respectively of the U.P. Land Revenue Act,

1901 (U.P. Act III of 1901), or who was on the date immediately preceding

the date of vesting entitled to regain possession thereof under clause (c)

of sub-section (1) of Section 27 of the United Provinces Tenancy (Amend-

ment) Act, 1947 (U.P. Act X of 1947), or

(ii) of any land to which Section 16 applies, in the (khasra or khatauni of

1356 Fasli prepared under Sections 28 and 33 respectively) of the United

Provinces Land Revenue Act, 1901 (U.P. Act III of 1901), but who was not in

possession in the year 1356F,

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 provision of this Act, be

entitled to take or retain possession thereof."

Section 20(b)(ii) is not relevant for our present purpose as it is not the

case of any party that Section 16 of the Act applies in the facts of the

present case as it deals with the occupancy rights of hereditary tenant.

The other relevant provision is Section 21 which deals, amongst others,

with the rights of tenant's mortgagees. The said provision, so far as it is

relevant, reads as under :

"21. Non-occupancy tenants, sub-tenants of grove-lands and tenant's

mortgagees to be asamis. - (1) Notwithstanding anything contained in this

Act, every person who, on the date immediately preceding the date of

vesting, occupied or held land as -

(a) a non-occupancy tenant of an intermediary's grove-land,

(b) a sub-tenant of a grove-land,

(c) a sub-tenant referred to in the proviso to sub-section (3) of

Section 27 of the United Provinces Tenancy (Amendment) Act, 1947 (U.P. Act

X of 1947),

(d) (a mortgagee in actual possession) from a person belonging, to any

of the classes mentioned in [clauses (b) to (e)] of sub-section (1) of

section 18 or clauses [(i) to (vii) and (ix)] of Section 19,

(e) Xxxxxx xxxxxxx xxxxxxx Xxxxxx xxxxxxx xxxxxxx

shall be deemed to be an asami thereof."

A conjoint reading of the aforesaid relevant provisions leaves no room for

doubt that if a person, like the appellant's father - Ram Harakh, was

recorded as a sub-tenant of a mortgagee in the relevant records of right

then, strictly speaking, he would not be treated to be a "sub-tenant" in

the real sense of the term as he would not be a person claiming sub-tenancy

as carved out from the larger interest of the head-tenant.

On the very definitions of "tenant" and "sub-tenant" a mortgagee, being not

a tenant, cannot induct anyone as bis alleged sub-tenant. A sub-tenant has

to claim through a tenant and not through a mortgagee. For the simple

reason that head-tenant Sri Narain & Ors. had mortgaged the lands in favour

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of Murat Singh & Ors. who were shown as mortgagees in the khasra or

khatauni 1356 Fasli and as Ram Harakh, the appellant's father, was claiming

as sub-tenant of the mortgagee and not as a sub-tenant of the original

fixed rate tenants Sri Narain & Ors., his claim was outside the sweep of

Section 20(b)(i) of the U.P. Act. When the term "sub-tenant" as employed by

Section 20(a)(ii) is read in the light of the definition of "sub-tenant" as

found in Section 3(22) of the United Provinces Tenancy Act, 1939 read with

Section 3(26) of the present U.P. Act, it becomes at once clear that Ram

Harakh, the appellant's father, was not a "sub-tenant" at all within the

meaning of Section 20(a)(ii) read with Section 20(b)(i). On a conjoint

reading of Section 20(a)(ii) and Section 20(b)(i) of the U.P. Act it has to

be held that before recording anyone as an occupant in the khasra or

khatauni 1356 Fasli prepared under Section 28 of the U.P. Land Revenue Act,

1901, on the basis of sub-tenancy, it has to be shown that the said entry

is one of a genuine sub-tenant to enable him to get the status of adhivasi

as per the said provisions. On the admitted facts on record, therefore, the

appellants father Ram Harakh, who was shown to be a sub-tenant of a

mortgagee and not as a sub-tenant of the original head tenants - Sri Narain

& Ors., who were fixed rate tenants at the relevant time, could not get the

benefit of being declared as adhivasi as per Section 20 of the U.P. Act.

Such a benefit would have accrued to Ram Harakh in either of the following

two contingencies : (1) if Ram Harakh was in fact a sub-tenant directly

from head tenants - Sri Narain & Ors. and his name was recorded as such in

khasra or khatauni 1356 Fasli, and (2) in the alternative, if Ram Harakh

was recorded as a sub-tenant in the aforesaid khasra or khatauni 1356 Fasli

after redemption of mortgage by head-tenant - Sri Narain & Ors. who were

fixed rate tenant before the date of vesting resulting in elimination of

mortgagees' rights in favour of Murat Singh & Ors. on the relevant date. In

the latter contingency it could have been urged with some emphasis by the

appellant that the entry as mortgagee in favour of Murat Singh & Ors. was

of no consequence and that he, during the subsistence of the mortgage, as a

prudent manager of the estate, had created sub-tenancy in favour of Ram

Harakh, which after redemption prior to date of vesting entitled to latter

to be recorded as sub-tenant of mortgagor head-tenants. This legal

consequence would be followed as sub-tenancy created by mortgagee, on

redemption would have remained binding on the erstwhile mortgagor. Such a

contingency never arose on the facts of the present case. Consequently,

none of the aforesaid two contingencies got attracted in favour of Ram

Harakh on the facts of the present case immediately preceding the date of

vesting. On the contrary, as laid down by Section 20 itself the accrual of

adhivasi rights to persons listed in Section 20 would itself be subject to

the operation of Section 21(h) wherein asami rights would be made available

to persons covered by that provision. When we turn to Section 21 we find

that tenant's-mortgagees are deemed to be asamis on the date of vesting, if

on the date immediately preceding the date of vesting the lands were

occupied or held by a person who was a mortgagee in actual possession from

a person belonging to any of the classes mentioned in clauses (b) to (c) of

Sub-section 1 of Section 18. When we turn to Section 18 sub-section 1

clause (c) we find listed therein a class of lands held by a fixed-rate

tenant or a rent-free grantee as such. Thus on a combined operation of

Section 21(l)(d) and Section 18(l)(c), on the date of vesting, the

following situation arose. Head-tenants Sri Narain & Ors, who were fixed-

rate tenants, had not created any sub-tenancy before that date. They had

inducted mortgagee Murat Singh prior to that date. These mortga-gees had to

be treated to be asamis. If these mortgagees in possession were asamis as

per the aforesaid provisions, they could not be held to be tenants.

Consequently, their alleged sub-tenant-Ram Harakh could not be treated to

be a "sub-tenant" in the real sense of the term. Such purported sub-tenancy

from mortgagee-in possession could not give any benefit to the appellant's

father-Ram Harakh who was no better than a mere licensee from the mortgagee

in actual possession on the date of vesting. The impugned decision rendered

by me Division Bench of the High Court, therefore, remains well sustained

on the scheme of the Act when applied to the admitted and well established

facts on record.

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However, in the cognate matter, the Division Bench of this Court, by its

Order dated 22nd August, 1995 took a contrary view. A mere look at the said

decision makes it clear that the Division Bench, with respect, had not

noticed the correct legal position on the conjoint scheme of Sections 20,

21(l)(d) read with Sections 18(l)(c) and 3(26) of the U.P. Act. In fact,

the observation of the Division Bench that the question of law as raised

therein was covered by three decisions of this Court in Nath Singh and

Others v. The Board of Revenue and Others, reported in [1968] 3 SCR 498,

Wall Mohammad (Dead) through Lrs. v. Ram Surat and Others, AIR (1989) SC

2296, and Uday (Dead) through Lrs. v. Deputy Director of Consolidation,

Varanasi and Others, [1989] Supp. 2 SCC 722 cannot be said to be well

sustained on the peculiar facts of these cases. Reasons are obvious. The

aforesaid three decisions relied upon in the judgment of the Division

Bench, as we shall see presently, have not ruled on the legal rights of any

sub-tenants from mortga-gees nor have they held them to be treated as

adhivasis as per the scheme of the Act. It is, therefore, necessary for us

to refer to these judgments which were made the sole basis of the decision

of the Division Bench in the cognate matter decided on 22nd August, 1995.

In Nath Singh and Others (supra), the two learned Judges of this Court had

an occasion to consider the scheme of Section 20(b)(i) of the U.P. Act.

Mitter, J. speaking for the Bench relying on earlier decisions of this

Court took the view that when the main-tenant had created sub-tenancy in

favour of the claimant, who were recorded as sub-tenants in the record of

rights for 1356 Fasli, such sub-tenants could get the benefit of being

given the status of adhivasis under Section 20(b)(i) of the Act. Now, it

becomes at once clear that before Section 20(b)(i) can be pressed in

service by the claimant it has to be shown that immediately before the date

of vesting the claimant's name was recorded as an occupant being sub-tenant

of the lands. In the aforesaid case, the claimant was recorded as a sub-

tenant from the original tenant and his occupancy was so recorded in the

year 1356 Fasli. It is in the background of these facts that it was held

that adhivasi rights were correctly made available to such a claimant who

was an admitted sub-tenant of the head-tenant and whose name was so

recorded in 1356 Fasli. Once that conclusion was reached obviously Section

20(b)(i) of the Act came to the assistance of such claimant. It must,

therefore, be observed that the ratio of the aforesaid decision can have no

application for sustaining the claim of a sub-tenant from the mortgagee who

is recorded as such in the year 1356 Fasli as it will be the mortgagee who

will become the asami under Section 21(l)(d) of the U.P. Act and if he

becomes asami a person inducted by him as a purported sub-tenant from him

cannot claim any interest as adhivasi vis-a-vis such asami. In fact such a

mortgagee's-sub-tenant cannot be considered to be a "sub-tenant" at all

within the meaning of Section 3(26) of the U.P. Act read with Section 3(23)

of the United Provinces Tenancy Act of 1939, as seen above. The aforesaid

decision of the Division Bench, therefore, cannot be said to have concluded

the matter as with respect, wrongly assumed by the Division Bench of this

Court in its order dated 22nd August, 1995.

The second decision on which reliance was placed by the aforesaid Division

Bench of this Court was rendered in the case of Wall Mohammad (Deceased by

Lrs.) v. Ram Surat & Ors. (supra). The aforesaid decision rendered by

another Division Bench of two learned Judges of this Court consisting of

M.H. Kania (as he then was) and S. Ranganathan, JJ. is not relevant for

deciding the present controversy as that decision had also not touched upon

the question whether the purported sub-tenant of a mortgagee in possession

could claim any adhivasi rights under Section 20(b) of the Act. In para 2

of the Judgment, Kania, J., who spoke for the Bench, clearly indicated that

though one Wali Mohammad had executed a usufructuary mortgage in favour of

Ram Kumar and Shiv Kumar in respect of two plots on 22nd May, 1928, he had

redeemed the said mortgage and took possession of the said plots prior to

Fasli Year 1356 precisely in the Fasli Year 1354 and had continued to be in

possession. Thus by the Fasli Year 1354 entries of mortgagor and mortgagee

recorded between Wali Mohammad on the one hand and Ram Kumar and Shiv Kumar

on the other, had come to an end. Despite this fact, the name of Ram Kumar

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was recorded in the Khasra or Khatauni 1356 Fasli. It becomes obvious that

in Fasli Year 1356 the name of Ram Kumar could not have been shown as a

subsisting mortgagee as his mortgage was already redeemed two years back by

Wali Mohammad, the original mortgagor. It is on the basis of this entry in

favour of Ram Kumar, the erstwhile mortgagee, that it was held that Section

20(b) got attracted in favour of Ram Kumar. The observations made in paras

4 and 5, in this connection, are required to be extracted :

"4. The said section deals with the question as to who is entitled to take

or retain possession of the land in question. The plain language of the

aforesaid Cl. (i) of sub-sec, (b) of S.20 of the said Act suggests that

this question has to be determined on the basis of the entry in the Khasra

or Khatauni of 1356 Fasli Year prepared under Ss. 28 and 33 respectively of

the U.R Land Revenue Act, 1901. An analysis of the said section shows that

under sub-sec, (b) of S.20 the entry in the Khasra-or Khatauni of the Fasli

Year 1356 shall determine the question as to the person who is entitled to

take or retain possession of the land. It is, of course, true that if the

entry is fictitious or is found to have been made surreptitiously then it

can have no legal effect as it can be regarded as no entry in law but

merely because an entry is made incorrectly that would not lead to the

conclusion that it ceases to be an entry. It is possible that the said

entry may be set aside in appropriate proceedings but once the entry is in

existence in the Khasra or Khatauni of Fasli Year 1356, that would govern

the question as to who is entitled to take or retain possession of the land

to which the entry relates.

5. It was submitted by learned counsel for the appellants that if entry was

not correct, it could not be regarded as an entry made according to law at

all and the right to take or retain possession of the land could not be

determined on the basis of an incorrect entry. He placed reliance on the

decision of this Court in Beckan v. Kankar,[l973] 1 SCR 727 : AIR (1972) SC

2157. in that judgment the nature of the entries in Khasra or Khatauni is

discussed and it is also discussed as to how this entry should be made.

This Court held that entries which are not genuine cannot confer Adhivasi

rights. It has been observed that an entry under S.20(b) of the said Act,

in order to enable a person to obtain Adhivasi rights, must be an entry

under the provisions of law and entries which are not genuine cannot confer

Adhivasi rights. In that judgment it has been stated that the High Court

was wrong when it held that though the entry was incorrect, it could not be

said to be fictitious. That observation, however, has to be understood in

the context of what follows, namely, that an entry which is incorrectly

introduced into the records by reason of ill-will or hostility is not only

shorn of authenticity but also becomes utterly useless without any lawful

basis. This judgment, in our view, does not lay down that all incorrect

entries are fictitious but only lays down that a wrong entry or incorrect

entry which has been made by reason of ill-will or hostility cannot confer

any right under S.20(b) of the said Act. This decision is clarified by a

subsequent judgment of this Court in Vishwa Vijai Bharti v. Fakhrul Hassan,

[1976] Suppl SCR 519 : AIR (1976) SC 1485 where it has been held as follows

(at p. 1488 of AIR) :

"It is true that the entries in the revenue record ought, generally, to be

accepted at their face value and courts should not embark upon an appellate

inquiry into their correctness. But the presumption of correctness can

apply only to genuine, not forged or fraudulent, entries. The distinction

may be fine but it is real. The distinction is that one cannot challenge

the correctness of what the entry in the revenue record states but the

entry is open to the attack that it was made fraudulently or

surreptitiously. Fraud and forgery rob a docu-ment of all its legal effect

and cannot found a claim to possessory title.".

(Emphasis supplied)

In the background of fact situation in that case, it was then observed in

para 6 of the report firstly, that there was nothing to show that the entry

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of Ram Kumar as the occupant was fictitious, or was made fraudulently or

was incorrectly introduced by reason of ill-will or hostility towards Wali

Mohammad. Secondly, it was held that Ram Kumar, being noted as occupant on

the relevant date, was entitled to the benefit of Section 20(b) of the U.P.

Act. We fail to appreciate how this decision also could have persuaded that

Division Bench in its order dated 22nd August, 1995 to come to the

conclusion that the law on the point in question was concluded by the said

decision, amongst others. It has to be kept in view that, on the facts of

the present case, there is no escape from the conclusion that the entry of

mortgagee, Murat Singh, clearly indicated that the so-called entry of Ram

Harakh as sub-tenant was a fictitious one as Ram Harakh, as already seen

earlier, was by no stretch of imagination could have been treated to be a

sub-tenant from the head-tenant Sri Narain & Ors. On this finding even the

ratio of the decision in Wali Mohammad v. Ram Surat and Others (supra)

also, instead of helping the appellant, would go against him. That takes us

to the consideration of the last of the trinity of the judgments relied

upon by the Division Bench of this Court for supporting its conclusion in

its order dated 22nd August, 1995. In the case of Uday (Dead) through Lrs.

v. Deputy Director of Consolidation, Varanasi and Others (supra), a

Division Bench consisting of two learned Judges, S. Ranganathan and M.M.

Punchhi, JJ. (as he then was), has to consider a fact situation which is

entirely different from the one before us. The original appellants before

this Court, Udai and Pargash, claimed to be sub-tenants of the land who

were recorded as such in the year 1357 Fasli which was a relevant year for

areas situated within the Varanasi District. They were not claiming to be

sub-tenants of any mortgagees-in possession as is the claim of Ram Harakh

in the present case. Relying on the entries as sub-tenants so far as Udai

and Pargash were concerned, it was held by this Court upholding the

decision of the High Court, that both Udai and Pargash were entitled to get

the benefit of Section 20(b)(i) of the U.P. Act. Ranganathan, J., speaking

for the Bench, made the following pertinent observation in para 5 of the

report.

"5. The answer to the above question seems self-evident if one were to go

by the purely etymological meaning of the word "occupant". In the absence

of any statutory definition; that word would clearly cover any person who

has been recorded as having been in occupation of the land in question in

the relevant fasli irrespective of the capacity in, or title under, which

he so occupied it. There will therefore be no reason, normally speaking, to

exclude a person whose occupancy is recorded on the basis of his sub-

tenancy..."

It becomes at once clear that the aforesaid decision also had no occasion

to consider the question of right of any alleged sub-tenant from a

mortgagee-in possession who was recorded as such in the relevant year 1356

Fasli. It was also a case of a sub-tenant from the original tenant and not

a case of alleged sub-tenant from a mortgagee-in possession. This decision,

therefore, also falls in line with the decision of this Court in Nath Singh

and Others v. The Board of Revenue and Others (supra). The aforesaid three

decisions, therefore, cannot said to have covered the question of law

raised in the present case or in a similar case before the Division Bench

which, with respect, wrongly assumed them to have so ruled. On the scheme

of the Act and the background of the relevant facts which were established

on record it has to be held that the alleged sub-tenant-Ram Harakh through

whom the appellant claims seeking his right to possession on the relevant

date through mortgagee-in possession cannot get the benefit of Section

20(b)(i) of the Act read with Section 20(a)(ii) of the Act and the entry of

sub-tenancy in his favour in the year 1356 Fasli had to be treated to be

fictitious and not a genuine one. On this finding even the ratio of me

decision of this Court in Wali Mohammed v. Ram Surat and Others (supra)

would get squarely attracted against the appellant.

This discussion puts and end to the dispute in controversy and clearly

indicates that the impugned decision of the Division Bench of the High

Court against the appellant is well sustained. However, we may also refer

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to other decisions of this Court to which our attention was invited by

learned counsel for the contesting parties in support of their respective

cases. In the case of Ram Adhar Singh (dead) through Lrs. & Ors. v. Bansi

(dead) through Lrs. & Ors. (supra) another two-Judge Bench of this Court,

speaking through Sen, J., held that usufructuary mortgage of an occupancy

holding is invalid. A mortgagee acquires no right other than the right to

retain possession and fall back upon the stipulation in the so-called

mortgage bond till his money is paid. There is no transfer of an interest

by the occupancy tenant The right of an occupancy tenant under Section 6 of

the Recovery of Rents (Bengal) Act was not transferable. However, under the

U.P. Debt Redemption Act, 1940 all usufructuary mortgages became self-

liquidating mortgages. Observations in para 4 of the report were pressed in

service by learned counsel for the respondents. They read as under :

"4. We find that it has been the consistent view of the Allahabad High

Court that a usufructuary' mortgage of an occupancy holding was not valid

as a mortgage with all its incidents and subject to the provisions of law

relating to usufructuary mortgage but was valid only in a qualified sense

i.e. in the sense of subletting with a covenant that the mortgagor will not

be entitled to recover possession without payment of the mortgage money,

and further that under such a mortgage there is no transfer of the right of

an occupancy tenant and consequently no suit for redemption was

maintainable nor was there any extinguish-ment of the right of an occupancy

tenant upon the expiry of the period of limitation fixed for redemption

under Article 148 of the Limitation Act, 1908. There is a long catena of

decisions dealing with the question starting from Khiali Ram v. Nathu Lal,

down to Samharu v. Dharamraj Pandey. It follows that it has been the

settled law as administered in the then United Provinces that a

usufructuary mort-gage of an occupancy holding was invalid and there was no

transfer of an interest by the occupancy tenant and the mortgagee acquired

no right other than the right to retain possession and fall back upon the

stipulation in the so-called mortgage bond till his money was paid. As

pointed out in the Full Bench decision in Samharu v. Dharamraj Pandey, the

view that a usufructuary mortgage by an occupancy tenant was not valid in

the eye of law has been accepted by the legislature in clause (d) of

Section 21(1) the U.P. Zamindari Abolition & Land Reforms Act, 1951. The

matter stands concluded by the doctrine of stare decisis. If we were to

subscribe to the contention advanced by the learned counsel for the

appellants, it would imply not only unsettling the law which has stood the

test of time for over 100 years but have the effect of reopening

transactions past and closed and unsettling titles over the State".

This decision clearly indicates that mortgagee-in possession is no better

than an asami and has no right to create a genuine sub-tenancy. His alleged

sub-tenant will be no better than a pure licensee from him.

On the facts of that case it was, therefore, held that successor-in-

interest of the original mortgagees had no right to get the benefit of

occupancy under the Act. Even though the said judgment had no occasion to

examine the occupancy rights of the sub-tenant from a mortgagee, its ratio

can rightly be pressed in service by the respondents for submitting that

when Section 21(l)(d) of the U.P. Act is given its full play, the

mortgagee-in possession cannot be treated to be on a higher level than an

asami and consequently the alleged sub-tenancy created by him will not

enure for the benefit of the so-called sub-tenant to claim any independent

adhivasi rights.

In the case of Amba Prasad v. Abdul Noor Khan & Ors., [1964] 7 SCR 800,

Hidayatullah, J. (as he then was), speaking for the Bench of two learned

Judges, had to interpret the words "recorded as occupants" as found in

Section 20 of the U.P. Act. It was held on the facts of that case that the

appellant before this Court was not entitled to raise the plea of the

correctness of the entry in khasra because the entry was not corrected

before the date of vesting as required by Explanation (ii) to Section 20 of

the U.P. Act. It was further observed that the title to possession as

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adhivasi depends on the entries in the khasra or khatauni for the year 1356

Fasli. Section 20 of the U.P. Act does not require the proof of actual

possession. These observations, on the facts of that case, cannot be of any

assistance to the appellant for the simple reason that this Court, in the

aforesaid cases, was not concerned with the examination of a situation like

the present one wherein alleged sub-tenant of a mortgagee-in possession

claimed the benefit of Section 20 of the U.P. Act. Learned counsel for the

appellant vehemently relied upon a decision of the Constitution Bench of

this Court in the case of Prabhu v. Ramdeo & Ors., AIR (1966) SC 1721. In

that case the Constitution Bench was concerned with the interpretation of

the relevant provisions of the Rajasthan Tenancy Act. In the light of the

said statutory scheme, it was observed that rights of tenants inducted by

mortgagee-in possession, under the provisions of Transfer of Property Act,

1882, may conceivably be improved by statutory provisions which may

meanwhile come into operation. The definition of "tenant" under Section

5(43) of the Rajasthan Tenancy Act was pressed in service for deciding the

legal rights of three respondents before the Court. The contention of the

appellant, Prabhu, before the Court for treating the respondents as

"trespassers" as defined by Section 5(44) of the Rajasthan Tenancy Act was

repealed. The relevant observations made in paras 6 and 7 deserve to be re-

produced to appreciate and ratio of the Constitution Bench decision in this

case. They read as under :

"(6) Before dealing with the specific provisions of the said section we may

refer to two definitions which are relevant. "Tenant" has been defined by

S.5(43) of the Act as meaning a person by whom rent is or but for a

contract, express or implied, would be payable and except when the contrary

intention appears, shall include a co-tenant or a groveholder or a village

servant or a tenant of khudkasht or a mortgagee of tenancy rights but shall

not include a grantee at a favourable rate of rent or an ijaredar or a

thekedar or a trespasser. That is how the definition stood at the relevant

time. The test prescribed by this definition is that the person can claim

to be a tenant if it is shown that rent is payable by him in respect of the

land. That test is clearly satisfied by three respondents in the present

case.

(7) The next definition to which it is necessary to refer is that of a

trespasser. The appellant, in his present suit, has contended that the

respondents are trespassers. A "trespasser" has been defined by S.5(44) of

the Act as meaning a person who takes or retains possession of unoccupied

land without authority or who prevents another person from occupying land

duly let out to him. That is how the definition read at the material time.

It is plain that the respond-ents do not fall within the definition of

"trespasser" as prescribed by this clause."

A mere look at these observations shows that on the peculiar scheme of

Sections 5(43) and 5(44) of the Rajasthan Tenancy Act, it was held that a

tenant of the mortgagee-in possession could not be treated as a trespasser.

As already seen earlier, the statutory scheme of the U.P. Act is entirely

different. The aforesaid decision, therefore, also cannot advance the case

of the appellant.

Reliance was also placed on another Constitution Bench judgment of this

Court in Dahya Lal & Ors. v. Rasul Mohammed Abdul Rahim, [1963] 3 SCR 1.

That was a case under the Bombay Tenancy and Agricultural Land Act, 1948.

Question was whether tenant of a mortgagee-in possession could be treated

to be a deemed tenant under Section 4 of the Bombay Act, 1948. Section 4 of

the said Act, in so far as it is material, provided :

"A person lawfully cultivating any land belonging to another person shall

be deemed to be a tenant if such land is not cultivated personally by the

owner and if such person is not (a) a member of the owner's family, or (b)

a servant on wages payable in cash or kind but not in crop share or a hired

labourer cultivating the land under the personal supervision of the owner's

family, or (c) a mortgagee in possession...."

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In the light of the aforesaid statutory scheme, it was observed that only a

mortgagee-in possession could not be a deemed tenant but tenant of a

mortgagee-in possession, being not falling in the excluded category, would

be covered by the main part of Section 4, being a person lawfully

cultivating and land belonging to another person. It becomes at once clear

that the aforesaid decision rendered in the light of an entirely different

statutory scheme cannot advance the case of the appellant for getting his

father, Ram Harakh, the so-called "sub-tenant" of the mortgagee-in

possession, to be treated as an adhivasi under Section 20 of the U.P. Act.

As a result of the aforesaid discussion, therefore, it must be held that

the impugned decision of the High Court lays down the correct legal

position in the background of the admitted and well established facts on

record and calls for no interference. On the contrary, the decision

rendered in the cognate matter by the Division Bench of this Court on 22nd

August, 1995, with respect, must be held to be not laying down the correct

law and would remain binding only as res judicata between the parties to

that decision and cannot bind the present respondents.

The appeal, therefore, fails and is dismissed with no order as to costs.