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Mosim Ali v. Ganga Prasad
Factual and Procedural Background
This is a second civil appeal before a Division Bench (G.D. Sahgal, J.). The learned single Judge had referred the matter to a Full Bench because of an apparent conflict between two Division Bench decisions (Hub Lal v. Mst. Dulara, 1954 A.L.J. 762 and Durgapal Singh v. Kunwar Jahan Singh, A.I.R. 1957 Alld. 257) on a jurisdictional point that seemed decisive for the appeal.
The substantive dispute concerns several plots (Nos. 558/1, 558/2, 565/1, 566/2 and 567/2). Plaintiffs-respondents Nos. 1–5 sued the defendants-appellants for possession and damages, claiming they were sirdars who had obtained possession on 19 October 1947 in execution of a decree in a 1946 ejectment suit, and were later dispossessed in 1955, prompting the present suit.
The defendants-appellants asserted they were sub-tenants who had continued in occupation and, by virtue of entries in the Khasra/Khatauni for 1356 Fasli (specifically entries in column No. 6), they had become adhivasis under Sec. 20(b) of the U.P. Zamindari Abolition and Land Reforms Act and subsequently became sirdars under Chapter IX-A. The lower appellate court found as a matter of fact (a finding not challengeable in this second appeal) that the appellants had been ejected in 1947 and were not in possession until 1955 when they dispossessed the plaintiffs; accordingly the appellants were not sub-tenants for the relevant period. The appellants pressed an alternative claim based on the 1356 Fasli entries.
The first appellate court held that Explanation III to Sec. 20 applied to bar the appellants' adhivasi claim because the plaintiffs had obtained and executed a decree in 1947 and the decree had become final before the date of vesting; the single Judge referred a broader point of jurisdiction to a Full Bench because of conflicting authorities. The Division Bench ultimately heard and decided the appeal on the basis of issues stated below.
Legal Issues Presented
- Whether Explanation III to Section 20 of the U.P. Zamindari Abolition and Land Reforms Act applies to exclude an adhivasi claim where a Civil Court had granted and executed a decree for possession prior to the date of vesting.
- Whether an entry in the Khasra or Khatauni for 1356 Fasli (specifically in column No. 6) qualifies as an entry of being "recorded as occupant" under Section 20(b) of the Act, thereby making the person an adhivasi entitled to possession despite not being in actual possession in 1356 Fasli.
- Whether a Civil Court decree passed during the pendency of a suit (after amendment of the U.P. Tenancy Act) was a nullity for want of jurisdiction — a conflict of authority between Hub Lal v. Mst. Dulara and Durgapal Singh v. Kunwar Jahan Singh.
Arguments of the Parties
Appellants' Arguments
- Explanation III of Section 20 must be read together with Explanation II and limited to corrections made under or in accordance with the U.P. Land Revenue Act; consequently, Explanation III cannot apply unless there was a correction ordered in proceedings under the Land Revenue Act.
- The Civil Court decree of 1946/1947 relied upon by the lower appellate court was passed after an amendment of the U.P. Tenancy Act and, as contended for them, the amendment removed jurisdiction from the Civil Court; therefore any decree passed thereafter would be without jurisdiction and null and cannot attract Explanation III.
- The entries in the Khasra/Khatauni for 1356 Fasli (column No. 6) recorded their names as occupants, and under Section 20(b) and Chapter IX-A they were adhivasis/sirdars even if they were not in physical possession in that year.
Plaintiffs-Respondents' Position and Lower Courts' View
- Plaintiffs claimed to have obtained possession (on 19 October 1947) by execution of a decree in a 1946 ejectment suit and had possession before the date of vesting; they were dispossessed in 1955 and brought the present suit.
- The first appellate court held that because plaintiffs had obtained a decree of possession from a competent court and executed it in 1947, and the decree became final before vesting, Explanation III applied: the decree required correction of records (or made such correction necessary) and therefore the appellants could not claim adhivasi rights under Sec. 20(b).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hub Lal v. Mst. Dulara, 1954 A.L.J. 762 | One side of a Division Bench conflict on whether a Civil Court decree remained competent after amendments to tenancy law (bearing on jurisdiction of Civil Court). | Referred to by the single Judge as supporting a view adverse to appellants' contention about jurisdiction; cited as part of the conflict the single Judge felt required Full Bench consideration. The Division Bench ultimately held it was unnecessary to resolve the conflict for this case. |
| Durgapal Singh v. Kunwar Jahan Singh, A.I.R. 1957 Alld. 257 | The other side of the Division Bench conflict on the Civil Court's jurisdictional question after tenancy-law amendment. | Referred to by the single Judge as supporting appellants' contention; again, the Division Bench found the jurisdictional conflict unnecessary to decide because Explanation III did not apply in this case. |
| Ori Lal v. Ganeshi Lal, A.I.R. 1947 Oudh 104 | Ruling of the Chief Court of Oudh that a tenant's suit against a trespasser could be maintained in a Civil Court (pre-amendment). | Used by the court to explain why the suit had been filed in a Civil Court initially and to recount the procedural history relevant to the jurisdictional argument. |
| Amba Prasad v. Mahboob Ali Shah, A.I.R. 1964 A.L.J. 805 | Supreme Court interpretation of Section 20: importance of entries in Khasra/Khatauni of 1356 Fasli, dates (30-6-1948 and 1-7-1952), and the effect of Explanations II–IV; explanation of "occupant" and reliance on records rather than disputed possession. | The court relied on this decision as authoritative on how Section 20 must be understood: entries in the 1356 Fasli record determine adhivasi status; evidence of actual possession in 1356 Fasli is not required where entries show occupation. |
| The Upper Ganges Sugar Mills Ltd v. Khalil-Ul-Rahman, 1961 A.L.J. Revenue 27 | Consideration of whether mere entry in 1356 Fasli without actual possession suffices; the Supreme Court in that case left the question open. | Cited in the discussion of the background jurisprudence on whether actual possession must be proved; the court noted the question had been left open in that case but later authorities weighed in. |
| Lala Nanak Chand v. The Board of Revenue, U.P., 1955 A.L.J. 408 (referred to as Nanakchand) | Held that mere entry in 1356 Fasli as an occupant is sufficient; the clause does not require proof of actual possession in 1356 Fasli. | Quoted and treated as an important authority supporting the proposition that the statutory words require only an entry as occupant in the 1356 Fasli records; the Division Bench accepted this line of cases. |
| Ram Dular Singh v. Babu Sukh Ram, 1963 A.L.J. 667 (Full Bench) | Full Bench endorsement of the earlier view (as in Nanakchand) about the sufficiency of entries in 1356 Fasli. | Noted by the court as part of the established line of cases that endorse treating entries in 1356 Fasli as decisive for adhivasi status. |
| L. Bhal Singh v. Bhop, 1963 A.L.J. 288 (page 291) | Approval of the passage from Nanakchand that the words of Section 20 do not require proof of actual possession in 1356 Fasli beyond the entry. | Quoted with approval as reinforcing the interpretation that an entry in the record suffices for adhivasi entitlement under Sec. 20. |
| Sugrive v. Mukhi etc., 1963 A.L.J. 17 Revenue | Also adopts the view that entries in 1356 Fasli determine occupant/adhivasi status and do not require inquiries into actual possession. | Cited as consistent with the long line of cases which the court saw no reason to reopen. |
Court's Reasoning and Analysis
The court proceeded in two stages: (1) whether Explanation III of Section 20 applied because of the plaintiffs' decree and executed possession in 1947, and (2) whether the entries for 1356 Fasli supported the appellants' claim to be "recorded as occupants" (adhivasis) under Sec. 20(b).
On Explanation III: the Division Bench closely examined the wording of Explanation III, which deems an entry to have been corrected if "an order or decree of a competent Court requiring any correction in records had been made before the said date and had become final even though the correction may not have been incorporated in the records."
The single Judge had read these words broadly to cover any decree whose consequence made correction of records necessary, and concluded that the Civil Court decree (executed in 1947) necessitated correction of record entries and thus Explanation III barred appellants' claim. The appellants argued Explanation III is limited by Explanation II to corrections effected under the Land Revenue Act and further argued the Civil Court decree was a nullity for want of jurisdiction.
The Division Bench rejected the need to decide the conflicting authority on jurisdiction (Hub Lal v. Mst. Dulara and Durgapal Singh v. Kunwar Jahan Singh) because it concluded that Explanation III did not apply on its terms: a decree for possession, by itself, does not "require any correction in records" in the sense used in Explanation III. The court explained that an entry in revenue records is itself an account of possession; the passing of a decree granting possession does not automatically amount to a direction that the revenue records be changed, nor does it in every case "require" a correction of such records. Thus, whether the Civil Court decree was of a competent court or not became immaterial to the application of Explanation III in this case.
Having rejected application of Explanation III, the court turned to the substantive statutory test under Sec. 20(b): whether the appellants were "recorded as occupant" in the Khasra/Khatauni for 1356 Fasli. The court relied on the Supreme Court's exposition in Amba Prasad v. Mahboob Ali Shah and the subsequent line of High Court decisions which interpret Sec. 20 to make the entries in the 1356 Fasli record decisive: June 30, 1948 and July 1, 1952 are the two datum dates, and the statutory scheme accepts the entries as determinative of adhivasi entitlement without reopening disputed possession inquiries.
The court examined the Land Records Manual as to the nature of column No. 6 (Khasra). Paragraph 87(i) (as it stood in 1356 Fasli) lists the kinds of entries that may appear in column No. 6: (a) tenants under permanent tenure-holders; (b) various categories of long-standing tenants; (c) tenants under grant; (d) sub-tenants; and (e) occupiers of land without consent of the person named in column No. 5. Crucially, while column No. 6 commonly contains sub-tenant entries, it may also contain entries of occupiers without consent (category (e)), and such category (e) entries are entries of occupation (i.e., actual occupation for the purposes of the record).
Applying these principles to the facts: given the uncontestable finding of fact that the appellants had been ejected in 1947 and were not in physical possession until 1955, if their names nonetheless continued to appear in column No. 6 for 1356 Fasli, that entry could not properly be treated as an entry of sub-tenancy. Instead, under paragraph 87(i)(e), it must be taken as an entry of occupation (an occupier without consent). Under Section 20 and the accepted jurisprudence, once an entry in the 1356 Fasli Khasra/Khatauni records a person as an occupant, that entry yields adhivasi rights regardless of whether the person was actually in physical possession in that year. The law raises a presumption in favor of the entry. Therefore, the appellants were to be treated as "recorded as occupants" (adhivasis) and could not be deprived of those rights by the present suit.
Holding and Implications
Holding:
APPEAL ALLOWED.
Implications (direct consequences on the parties):
- The appeal is allowed and the plaintiffs' suit is dismissed.
- Each party shall bear their own costs throughout.
Broader legal implications: The court did not decide the conflicting authorities on the Civil Court jurisdiction point (Hub Lal v. Mst. Dulara vs Durgapal Singh v. Kunwar Jahan Singh) because it found Explanation III inapplicable on the facts and wording; thus the court expressly declined to settle that conflict for the purposes of this case. The decision applies existing interpretations of Section 20 and the significance of 1356 Fasli entries (as explained in Amba Prasad and the cited line of authority) to hold that a column 6 entry of occupation suffices to make a person an adhivasi even if actual possession in 1356 Fasli is not proved.
Appeal allowed.
G.D Sahgal, J.:— This second civil appeal has come up before this Bench for disposal. The learned single Judge before whom it came up referred it to a Full Bench in view of the conflict between two Division Bench cases of this Court, viz. Hub Lal v. Mst. Dulara 1954 A.L.J 762. and Durgapal Singh v. Kunwar Jahan Singh A.I.R 1957 Alld. 257. as, according to him, the result of the appeal depends on whether one or the other of the two decisions was correct.
2. The dispute relates to plots Nos. 558/1, 558/2, 565/1, 566/2 and 567/2. The plaintiffs-respondents Nos. 1 to 5 filed a suit against the defendants-appellant's with respect, among others, to these plots for possession and damages. They claimed that they were the sirdars of these plots and were in possession having obtained the same on the 19th of October, 1947, in execution of a decree in a suit for ejectment against the appellants filed in the year 1946. They claim to have been dispossessed thereafter in the year 1955 as a result of which this suit was filed. The claim of the defendants-appellants, however, was that they were the subtenants of these plots and had continued to be so all along without ever being dispossessed and as such they had become adhivasis under Sec. 20(a)(i). of the U.P Zamindari Abolition and Land Reforms Act and subsequently became sirdars. This plea of theirs has been negatived by the learned Civil Judge in the first appeal who held that they had been ejected in the year 1947 and had not been in possession till they dispossessed the plaintiffs in the year 1955 when the latter had do file the suit giving rise to this appeal. Their case, in the alternative, however, was that by virtue of being re corded as occupants in the Khasra and Khaiauni of 1356 Fasli they had acquired the status of adhivasis under Sec. 20(b) of the Zamindari Abolition and Land Reforms Act. Their names had in fact continued to be recorded in column No. 6 of the Khasra even though they had been ejected, and were so recorded in the year 1356 Fasli.
3. As there is a finding of fact which cannot be challenged in second appeal, to the effect that the appellants had been ejected in the year 1947 and had not been in possession since then till the year 1955 when they dispossessed the plaintiffs they were no longer sub-tenants. On behalf of the appellants, therefore, it has not been urged that they had become sirdars under Sec. 20(a) of the Zamindari Abolition and Land Reforms Act. The only plea that has been pressed before us is that by virtue of the entry as occupant in the year 1356 Fasli in their favour they were adhivasis and in view of the provisions of Chapter IX-A, Sec. 240-B of the U.P Zamindari Abolition and Land Reforms Act they had become sirdars. This plea was repelled by the lower appellate Court on the ground that the plaintiffs-respondents having obtained a decree for possession from a competent Court against the appellants and having actually taken possession over the plots in execution of their decree in the year 1947 and the decree having become final before the date of vesting, Explanation HI of Sec. 20 of the Act applied with the result that the appellants would be debarred from claiming adhivasi right under Sec. 20(b). This view of the first appellate court was challenged by the learned counsel for the appellants on the ground firstly that Explanation III had to be read along with Explanation II which in express terms confined itself to a correction made under or in accordance with the provisions of the U.P Land Revenue Act and as such it could apply only in a case where there had been an order for correction in a proceedings under the Land Revenue Act. The second ground urged by him was that the decree of the Civil Court relied upon by the first appellate Court being without jurisdiction, was a nullity and should not have been relied upon in order to attract the application of Explanation III.
4. The learned single Judge rejected the first contention. Explanation III of Sec. 20 reads as follows:—
“For the purposes of explanation II an entry shall be deemed to have been corrected before the date of vesting if an order or decree of a competent Court requiring any correction in records had been made before the said date and had become final even though the correction may not have been incorporated in the records.”
5. According to him the expression “order or decree of a competent Court” and the expression “requiring any correction in records” occurring in Explanation III one after the other were significant. There would be no occasion for there being a decree of a competent Court if Explanation III were to be confined only to proceedings under the Land Revenue Act. According to him a distinction had to be made between the expression “an order or decree of a competent Court directing correction in records” and the expression “an order or decree of a competent Court requiring any correction in records.” In the case of the former there would be no occasion for correction unless the order or the decree specifically directs correction whereas in the case of the latter expression an occasion for correction would arise if it is found necessary in consequence of the order or decree passed by a competent Court to do so. In his opinion the words actually used in Explanation III were not be confined only to a case where the order or decree specifically directed correction but were wide enough even to cover a case where correction was necessitated as a consequence of the order or decree passed in the case. He was of the view that the order or decree passed by the Civil Court in the year 1946 which was executed in the year 1947 and as a result of which the plaintiffs-respondents obtained possession over the plots against the defendants-appellants necessitated the correction, of the records in which the names of the defendants-appellants stood recorded in column 6. Explanation III, therefore, was attracted if this was a decree of a competent Court.
6. He then proceeded to determine whether it was a decree of a competent Court and he was faced with a conflict of opinion in the two cases above referred to. The suit in which the decree was obtained in the year 1946 being by a tenant against a trespasser could, in view of a ruling of the Chief Court of Oudh in Ori Lal v. Ganeshi Lal A.I.R 1947 Oudh 104., be maintained in a Civil Court. The suit was accordingly filed in the Civil Court. During the pendency of the suit, however, the U.P Tenancy Act was amended by U.P Act No. X of 1947 on the 14th of June, 1947 as a result of which an amendment was added to Sec. 180 of the U.P Tenancy Act which made it possible even for a tenant to bring a suit for possession against a trespasser in a revenue Court within the ambit of Sec. 180. The contention put forward before him on behalf of the appellants was that the amendment having come into force during the pendency of the suit, the Civil Court ceased to have jurisdiction over the matter under Sec. 242 of the U.P Tenancy Act and if it still passed a decree; it would be without jurisdiction and so a nullity. He was referred to the case of Hub Lal v. Mst. Dulara and also to the case of Durgapal Singh v. Kunwar Jahan Singh. In the 1954 case the view was against the stand taken by the learned counsel for the appellant but the view of the 1957 case supported him. It was in this state of affairs that he thought in fit not only to refer the point decided in these two cases to a Full Bench to set the controversy at rest but referred the whole case for disposal.
7. We have carefully considered the matter and are of the opinion that it is not necessary to set at rest the conflict of authority arising out of the two cases. In our view the point does not arise in the case at all. The decree was one for possession in favour of the plaintiffs-respondents against the defendants-appellants. A decree for possession does not require any correction of records. An entry in the records is made on the basis of possession itself. The plaintiffs claimed possession and they were granted possession. Mere passing of a decree did not amount to saying that the possession had been changed and so any entry as to possession in the revenue records was not required to be changed as a result of the decree: Explanation III, therefore, did not apply as the decree, whether it was of a competent Court or not, did not by itself require any correction of records interpreting the word “require” in the broader sense in which it has been interpreted by the learned single Judge. The only point for our consideration, therefore, is as to how far the entries in the year 1356 Fasli support the contention of the defendants-appellants that they had become adhivasis of the plots in question and had under Chapter IX-A of the U.P Zamindari Abolition and Land Reforms Act now acquired rights as Sirdars.
8. Sec. 20 of the U.P Zamindari Abolition and Land Reforms Act in so far as it is relevant reads as follows:—
“Every person who………….
(b) was recorded as occupant,
(i) of any land…..in the Khasra or Khatauni of 1356 Fasli, prepared under Secs. 28 and 33 respectively of the U.P Land Revenue Act, 1901 ……. shall, unless he has become a bhumidhar of the land under sub-Sec. (2) of Sec. 18 or an asami under Clause (h) of Sec. 21 be called adhivasi of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof.”
9. It is not contended on behalf of the appellants that they had become bhumidhars of the land under sub-Sec. (2) of Sec. 18 nor is it the contention of the plaintiffs that they are asamis under clause (h) of Sec. 21. What has to be considered, therefore, is as to whether the appellants have been “recorded as occupants” of the land in dispute in the Khasra or Khatauni of 1356 Fasli prepared under Secs. 28 and 33 of the U.P Land Revenue Act, 1901. This provision of law has been the subject matter of interpretation in a recent decision of the Supreme Court, viz. Amba Prasad v. Mahboob Ali Shah A.I.R 1964 A.L.J 805..
10. It has been explained therein that the section, generally speaking, says that certain persons “recorded” as “occupants” of lands shall be known as adhivasis and shall be entitled to retain or regain possession of them after the date of vesting which was July 1, 1952. Such persons do not include intermediaries. This comes out from Explanation IV of the section which provides that for the purpose of this section “occupant” as respects any land does not include a person who was entitled as an intermediary to the land in the year 1356F. Such person must be recorded as occupant in the Khasra or Khatauni for 1356 Fasli, i.e 1-7-1948 to 30-6-1949. If such a person is in possession he continues in possession. If he is evicted after June 30, 1948, he is to be put back in possession notwithstanding anything in any order or decree. By fiction such persons are deemed to be entitled to regain possession. Emphasis has been laid on the record of the Khasra or Khatauni of 1356 Fasli and June 30, 1948, is the datum line. The importance of an entry in these two documents is further apparent from explanations II and III. Under the former, if the entry is corrected before the date of vesting (i.e 1-7-1952) the corrected entry is to prevail and under the latter the entry is deemed to be corrected (even though not actually corrected) if an order or decree of a competent Court ordering the correction had been made before the date of vesting and the order or decree had become ‘final. There are thus two date lines. They are June 30, 1948 and July 1, 1952 and the title to possession as adhivasi depends on the entries in the Khasra or Khatauni for the year 1356 Fasli.
11. Their Lordships then proceed to consider the meaning of the terms ‘occupant’ and ‘recorded’ and observe that the word ‘occupant’ is not defined in the Act. Since the Khasra records possession and enjoyment the word ‘occupant’ must mean a person holding the land in possession or actual enjoyment. The Khasra, however, may mention the proprietor, the tenant, the sub-tenant and other person in actual possession, as the case may be. If by occupant is meant the person in actual possession, then according to this case, it is clear that between a proprietor and a tenant the tenant, and between a tenant and the sub-tenant the latter and between him and a person recorded in the remarks column as ‘Dawedar qabiz’ the “dawedar qabiz”, are the occupants. This was found to be the only logical way to interpret the section which did away with all intermediaries. If rights are not to be determined except in the manner laid down by the section, the entries must be construed as explained by the four Explanations. Once, we find out the right person in the light of the explanations, that person continues as an adhivasi after July 1, 1952, provided he is in possession on or was evicted after June 30, 1948. If he was evicted after June 30, 1948, he is entitled to regain possession in spite of to any order or decree to the contrary. The word ‘occupant’, it was further observed, thus signified “occupancy and enjoyment.” Mediate possession, (except where the immediate possessor holds on behalf of the mediate possessor) is of no consequence. The section eliminates inquiries into disputed possession by accepting the records in the Khasra or the Khatauni of 1356 Fasli or its correction before July 1, 1952. It was, it is pointed out, perhaps thought that all such disputes would have solved themselves in the four years between June 30, 1948 and June 30, 1952. The judgment then proceeds to decide whether possession in the year 1356 Fasli should be proved. It was then pointed out that there used to be some difference of opinion between the High Court and the Board of Revenue on this point. However, it was pointed out that Sec. 20 came up for consideration before the Supreme Court in The Upper Ganges Sugar Mills Ltd v. Khalil-Ul-Rahman 1961 A.L.J Revenue 27., where the correctness of Lala Nanak Chand v. The Board of Revenue, U.P 1955 A.L.J 408. was challenged on the ground that it had held that a mere entry in 1356 Fasli without possession in that year was sufficient. The Court, however, did not decide the question in that case and left it open. Reference is then made to several decision of this court including the Full Bench decision in Ram Dular Singh v. Babu Sukh Ram 1963 A.L.J 667., where the earlier view in Nanakchand v. Board of Revenue was endorsed. The expression of approval of the following passage from Nanakchand's case in L. Bhal Singh v. Bhop 1963 A.L.J 288 at page 291. was also noted with approval:—
“It seems to us that Clauses (b)(i) and (b)(ii) of Sec. 20 do not require the proof of actual possession in the year 1356 Fasli. What they require merely is the entry of a person's name as an occupant in the Khasra or Khatauni of 1356 Fasli. The words of the section are clear.
(Every person who was recorded as occupant in the Khasra or Khatauni in 1356 Fasli etc.)
The words are not ‘every person who was an occupant in 1356 Fasli’ nor are the words ‘every person who was recorded as an occupant in the year 1356 Fasli’ and who was also in possession in that year. There is no warrant for introducing words in the section which are not there. This conclusion is reinforced by what is stated in Explanation II.”
12. The same view which has been adopted in Sugrive v. Mukhi etc. 1963 A.L.J 17 Revenue. was also noted and it was observed that in view of the long established line of cases their Lordships saw no justification for reopening the question.
13. It would thus appear that what has been laid down in the case is that though the term ‘occupant’ means a person in possession or actual enjoyment, enquiries are not to be made as to disputed possession. The person who is to be found, in the year 1356 Fasli “recorded as occupant” has to be treated as one in actual enjoyment. The adhivasi rights were created as from the coming into force of the U.P Zamindari Abolition and Land Reforms Act which came into force from July 1, 1952 or 1360 Fasli. Those dissatisfied with the entries in 1356 Fasli, it was thought, would get them corrected during the period of four years. Thus what we have to determine in the case is whether the entry in favour of the appellants is an entry of as occupation or not, i.e whether the a appellants can be said to be “recorded as occupant.” For this we have to look to the Land Records Manual under which the entries are made to find out as to whether the entry in this case is an entry of occupation or not. The entry in this case is to be found in column 6. Under the Land Records Manual, Paragraph 87(i) as it stood in the year 1356 Fasli, entries were made of persons of the following description in this column:—
(a) Tenants under permanent tenure-holders in Agra;
(b) Tenants of sir, tenants of Khudkasht of 1333-1334 Fasli admitted in 1335 Fasli or subsequently and tenants of Khudkasht of not less than 12 years' standing in 1309 Fasli and still so recorded,
(c) Tenants under rent-fee grantees and grantees at a favourable rate of rent.
(d) Sub-tenants,
(e) Occupiers of land without consent of the person whose name is entered in column 5 of the Khasra. Column No. 6, therefore though it is generally described as a sub-tenants; there may be entries in this column of occupiers of land without consent of the person whose name is entered in column 5 of the Khasra. The person whose name is entered in column No. 5 is the cultivator, i.e the tenant of the land or the proprietor if the land is his sir or Khudkasht. The entry in column 5 is not necessarily an entry of occupation; the person may be a cultivator but he may not be in actual occupation. Similarly in column No. 6, if the entry is that of a sub-tenant it may not necessarily be an entry of occupation but if it relates to a person under paragraph 87(1)(e) as occupier of land without consent of the person whose name is entered in column 5, it is certainly an entry of occupation. As we know there was a decree obtained against the appellants who claimed themselves to be sub-tenants of the plaintiffs-respondents in the suit filed in the year 1946 which decree was even executed in the year 1947. The defendants did not actually come in possession thereafter till the year 1955 when they ousted the plaintiffs-respondents making it necessary for them to file the suit which is the subject matter of this appeal. Even then if the defendants continued to the entered in column No. 6, the entry cannot be an entry as sub-tenants. It will be an entry as occupiers only. The entry may be wrong inasmuch as the appellants may not actually have been in possession in the year 1356 Fasli but under Sec. 20 we have only to look to the entry if it is of occupation and not whether it is correct or not. It is not necessary to find out as to whether the person who is entered as an occupant, is actually in occupation or not. The law raises a presumption that he is in occupation. The particular entry in column No. 6 in this case is an entry of occupation in the circumstances stated above. It cannot be an entry as a sub-tenant, for after the appellants who claim themselves to be sub-tenants, had been ejected in the year 1947 and if they are shown to have come in possession thereafter they cannot so come except under category (e) of para. 87(i) of the Land Records Manual, i.e as persons occupying land without consent of the person entered in column 5. This is thus an entry of occupation. The appellants, therefore, must be held even though they may not have been in actual possession in the year 1356 Fasli, to have been “recorded as occupants” with the result that they were adhivasis and have not become sirdars. The suit, therefore, could not be decreed against them and the appeal has to be allowed.
14. The appeal is accordingly allowed and the suit dismissed. In the circumstances of the case the parties shall bear their own costs throughout.
Appeal allowed.
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