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Gopal Narain And Another v. Kanchanlal And Others

Allahabad High Court

Apr 23, 1971

Judgment

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CITATION CODES

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CASE NO.

Special Appeal No. 367 of 1967

Attorney(S)

K.M. Dayal

JUDGES

V.G Oak, C.J

R.B Misra, J.

ACTS

Section 27 of the U.P Act X of 1947.11. U.P Tenancy Act, 1939, was repealed by Section 339 of the U.P Zamindari Abolition and Land Reforms Act,

U.P Zamindari Abolition and Land Reforms Act, 1950 or in the U.P Zamindari Abolition and Land Reforms Rules, 1952,

Section 165 or Section 171 or Section 180 of the U.P Tenancy Act. Sub-section (2) of Sec. 27 of U.P Act X of 1947

Section 5 of the U.P Consolidation of Holdings Act (hereinafter referred to as the Consolidation Act)

U.P Tenancy Act. Section 342 of the U.P Zamindari Abolition and Land Reforms Act

Section 27 of the U.P Act X of 1947.16. Section 5 of the Consolidation Act

Section 19 of the U.P Zamindari Abolition and Land Reforms Act. Section 19

provisions of the U.P Land Revenue Act, 1901 and U.P Tenancy Act, 193914.

Section 342 of the U.P Zamindari Abolition and Land Reforms Act,

Section 20 of the U.P Zamindari Abolition and Land Reforms Act.

U.P Land Revenue Act, 1901, or the U.P Tenancy Act, 1939, shall(a)

U.P Zamindari Abolition and Land Reforms Act or the Rules

sub-section (3) of Section 27 of the U.P Act X of 1947.

U.P Tenancy (Amendment) Act, 1947 (Act No. X of 1947).

U.P Zamindari Abolition and Land Reforms Act

Section 5 of the Consolidation Act.4. Gopal

Section 27(2) of the U.P Act X of 1947.19.

Section 27(5) of the U.P Act X of 1947.

Section 27(2) of the U.P Act X of 1947

Section 27(3) of the U.P Act X of 1947

Section 27(1) of the U.P Act X of 1947

Section 27 of the U.P Act X of 1947.

Section 16(1) of the U.P Tenancy Act

Section 183 of the U.P Tenancy Act.

Section 16 of the U.P Tenancy Act.

Section 59 of the U.P Tenancy Act

1947 the U.P Tenancy Act of 1939

sub-section (2) of Section 18,

U.P Tenancy Act. Section 5

sub-section (2) of Sec. 27.

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Factual and Procedural Background

The appeal arises out of consolidation proceedings concerning plots Nos. 154, 171 and 177. Originally, Gopal Narain and Tula Ram were tenants of these plots; they surrendered them in favour of the land-holder, Smt. Rani Chauhani, on 14 July 1943, and the land-holder thereafter settled the plots with four newly inducted tenants on 9 December 1944. Following amendments to the U.P. Tenancy Act in 1947 (U.P. Tenancy (Amendment) Act, 1947 — Act No. X of 1947), Section 27(2) permitted certain tenants who had surrendered plots due to fraud, undue influence or coercion to apply for reinstatement within six months of the amendment's enforcement.

Gopal Narain and Tula Ram applied for reinstatement under Section 27(2). Their application was dismissed by the Assistant Collector on 30 August 1958 and an appeal was dismissed on 31 October 1958. A revision to the Additional Commissioner was referred to the Board of Revenue, but consolidation operations intervened and, under Section 5 of the Consolidation Act, proceedings were stayed and the Board of Revenue stayed its own proceedings.

The objectors (Gopal Narain and Tula Ram) then pursued their claim before the consolidation authorities, claiming hereditary tenancy under Section 16 of the U.P. Tenancy Act and alleging coercion in obtaining the surrender. The Consolidation Officer found in their favour (recording them as tenants-in-chief and treating the newly inducted tenants as trespassers), but the Settlement Officer (Consolidation) reversed that decision. The District Deputy Director of Consolidation reinstated the Consolidation Officer's finding on coercion while upholding the Settlement Officer on hereditary tenancy. The Director of Consolidation declined to interfere. The newly inducted tenants obtained a writ from a Single Judge who quashed the consolidation authorities' order and remitted the case for fresh decision on 13 April 1967, relying on a reported decision (Shital Prasad v. Board of Revenue, 1962 All LJ 90). The present Special Appeal challenges the Single Judge's order.

Legal Issues Presented

Whether proceedings under Section 27 (particularly sub‑section (2)) of the U.P. Act X of 1947 that were pending before the Board of Revenue prior to vesting could be continued after repeal of the U.P. Tenancy Act and in view of the U.P. Zamindari Abolition and Land Reforms Act and the Removal of Difficulties Order.
What is the effect of the U.P. Consolidation of Holdings Act (Section 5) on such pending proceedings and whether the consolidation authorities could grant the relief available under Section 27 of Act X of 1947.
Whether a person who becomes a sub-tenant under the proviso to Section 27(3) of Act X of 1947 acquires the status of Adhivasi-cum-Sirdar under Section 20 of the U.P. Zamindari Abolition and Land Reforms Act, thereby preventing relief to a successful reinstated tenant.
Whether the Single Judge was correct in holding Shital Prasad (1962 All LJ 90) applicable to bar continuation or reinstitution of the Section 27 proceedings in the present factual matrix.

Arguments of the Parties

Appellants' (Objectors') Arguments

The learned Single Judge erred in holding there was no provision in the U.P. Zamindari Abolition and Land Reforms Act or the Rules for continuation of Section 27 proceedings; Section 342 empowered the State Government to remove difficulties and, by the Removal of Difficulties Order, proceedings pending on 30 June 1952 could be continued.
The application under Section 27 of Act X of 1947 had been filed within the prescribed period and was pending in the Board of Revenue as a reference; accordingly it could be continued and decided in the consolidation proceedings.
The objectors had proved that their surrender was obtained by coercion and so were entitled to reinstatement under Section 27(2).

Contestants' (Newly Inducted Tenants / Respondents') Arguments

The surrender by the original tenants was voluntary and, after settlement by the land-holder, the newly inducted tenants had been in possession and acquired the rights of Sirdar after vesting.
Alternatively, they contended they were sub-tenants under the proviso to Section 27(3) of Act X of 1947 and had become Adhivasi-cum-Sirdar under Section 20 of the U.P. Zamindari Abolition and Land Reforms Act, and thus could not be deprived of those rights even if the objectors were later reinstated.
They also pursued a writ petition which was allowed by a Single Judge on the basis that there was no provision for continuance of Section 27 proceedings or for conferring tenure-holder status on persons reinstated.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Shital Prasad v. Board of Revenue, 1962 All LJ 90	Relied on by the Single Judge to support the view that proceedings under certain tenancy provisions could not be continued or that reinstatement could not confer tenure-holder status where proceedings arose after vesting.	The Court held that Shital Prasad was not applicable on the facts of the present case because in Shital Prasad the suit under Section 59 of the U.P. Tenancy Act was filed after vesting, whereas in the present case the application under Section 27 had been filed before vesting and was pending as a reference; therefore the precedent did not govern continuation of the pending Section 27 proceedings.

Court's Reasoning and Analysis

The court's reasoning proceeded in a sequence of legal and factual determinations grounded on the statutory provisions and the findings of the consolidation authorities:

Repeal and Transition: The U.P. Tenancy Act, 1939 was repealed by Section 339 of the U.P. Zamindari Abolition and Land Reforms Act from the date of vesting (1 July 1952). Section 342 of the Zamindari Act empowered the State Government to make orders to facilitate transition and remove difficulties arising from repeal.
Removal of Difficulties Order: Pursuant to Section 342, the State promulgated the U.P. Land Tenures Legal Proceedings (Removal of Difficulties) Order, 1952. Section 2 of that Order provided that, except as otherwise provided in the Zamindari Act or Rules, every suit, appeal or legal proceeding in respect of rights under the U.P. Tenancy Act pending on 30 June 1952 in any revenue or civil court shall be continued in such court and heard under the provisions of the U.P. Land Revenue Act, 1901 and the U.P. Tenancy Act, 1939. The court found that the Section 27 proceeding before the Board of Revenue was pending as a reference and hence could be continued under that Order.
Applicability of Shital Prasad: The court observed that the Single Judge had relied on Shital Prasad, but distinguished that case on facts: Shital Prasad involved a suit filed after vesting (under Section 59), while here the Section 27 application was filed before vesting and pending; thus Shital Prasad did not apply.
Consolidation Act and Rights Preservation: Section 5 of the Consolidation Act stayed proceedings for correction of record and suits for declaration or possession pending in any court when consolidation was initiated, but this stay was expressly "without prejudice" to the rights of affected persons to agitate disputes before consolidation authorities. After amendment (U.P. Act XII of 1965), Section 5 required the stating of all suits or proceedings but continued to save the right to pursue matters before consolidation authorities. Hence a person affected could pursue the same relief before consolidation authorities which he could have obtained under Section 27.
Nature of Section 27 Proceedings and Entitlement to Reinstatement: The court treated a proceeding under Section 27 as akin to a suit under Section 183 of the U.P. Tenancy Act, and emphasized that Section 27(2) provided reinstatement relief to those dispossessed through surrender brought about by fraud, misrepresentation, undue influence or coercion. Section 27(5) governs accrual of rights on reinstatement, but if an applicant is entitled to reinstatement, they would be deemed tenants and entitled, under Section 19 of the Zamindari Act, to be treated as Sirdar (subject to other statutory provisions).
Statutory Rights under Zamindari Act: The court noted Sections 19 and 20 of the Zamindari Act confer rights of tenure-holders not only on persons in possession as tenants but also on those "deemed" to be tenants — i.e., those entitled to possession as tenants upon reinstatement.
Factual Finding on Coercion: The District Deputy Director of Consolidation recorded a clear factual finding that the surrender was obtained by coercion. The court accepted that factual finding as establishing the objectors' entitlement under the second category of Section 27(2) (those dispossessed through surrender on account of fraud, undue influence or coercion).
Sub-tenant/Adhivasi Argument Rejected: The court rejected the respondents' contention that they became Adhivasi-cum-Sirdar under Section 20 by virtue of being sub-tenants under the proviso to Section 27(3). The court explained that a sub-tenant under Section 27(3) is entitled to remain in possession only for three years from declaration as sub-tenant; such a sub-tenant does not become an Adhivasi under Section 20. Here the contesting respondents had remained in possession for more than three years, but that did not confer Adhivasi status.
Adverse Possession Argument Dismissed: The court noted that the contesting respondents could not mature title by adverse possession because the objectors had filed their reinstatement application well within the prescribed time.
Conclusion from Law and Fact: Given that (a) the Section 27 proceeding was pending before vesting and continued under the Removal of Difficulties Order, (b) consolidation authorities could adjudicate the same relief preserved by Section 5 of the Consolidation Act, and (c) the District Deputy Director had found coercion, the court concluded that the objectors had established entitlement to reinstatement and related rights.

Holding and Implications

Holding: The court ALLOWED THE APPEAL, set aside the order of the learned Single Judge dated 13 April 1967, and dismissed the writ petition. The parties were ordered to bear their own costs.

Implications:

Direct effect on the parties: The decision restores the conclusions of the consolidation authorities (as upheld by the District Deputy Director) that the surrender had been obtained by coercion and that the objectors (Gopal Narain and Tula Ram) are entitled to reinstatement and to regain possession of the plots, to the extent reflected by the consolidation authorities' factual findings and orders.
On statutory interpretation: The court affirmed that proceedings under Section 27 of U.P. Act X of 1947 that were pending before vesting could be continued under the Removal of Difficulties Order issued under Section 342 of the Zamindari Act, and that consolidation proceedings could afford the same relief available under Section 27 when a stay under the Consolidation Act applied.
No broad new precedent beyond this case: The court distinguished Shital Prasad and decided on the statutory instruments and facts at hand; the opinion does not state that it establishes a general new principle beyond applying the Removal of Difficulties Order and the consolidation provisions to the present factual matrix.

Show all summary ...

R.B Misra, J.:— The present Special Appeal arises out of consolidation proceedings. The dispute between the parties relates to plots Nos. 154, 171 and 177. Gopal Narain and Tula Ram were the tenants of these plots. They surrendered them in favour of the land-holder Smt. Rani Chauhani on 14th July, 1943. The land-holder came in possession over the plots. On 9th December, 1944, the landholder settled the plots with Kanchan Lal, Raghubir, Ram Kishan and Babu Ram (hereinafter to be referred to as the newly inducted tenants).

2. In 1947 the U.P Tenancy Act of 1939 was amended by the U.P Tenancy (Amendment) Act, 1947 (Act No. X of 1947). It was designed to give relief to certain tenants who had suffered at the hands of the zamindars. Section 27(1) of the U.P Act X of 1947 gave relief to tenants who had been ejected under Section 165 or Section 171 or Section 180 of the U.P Tenancy Act. Sub-section (2) of Sec. 27 of U.P Act X of 1947 gave relief to such tenants who had surrendered their plots on account of fraud, undue influence or coercion on the part of the zamindar. It was open to such tenants to apply for reinstatement within six months from the date of the enforcement of U.P Act X of 1947.

3. Gopal Narain and Tula Ram accordingly moved an application for reinstatement under sub-section (2) of Sec. 27. They alleged that the surrender was brought about on account of coercion of the Karindas of the land-holder. Their application was dismissed by the Assistant Collector on 30th August, 1958. An appeal filed against the order dated 30th August, 1958 was also dismissed on 31st October, 1958. Gopal Narain and Tula Ram there-upon filed a revision before the Additional Commissioner, who referred the matter to the Board of Revenue. But before the reference could be finally decided, the village, where the plots in suit are situate was brought under consolidation operations. Section 5 of the U.P Consolidation of Holdings Act (hereinafter referred to as the Consolidation Act) provided for the stay of all proceedings for correction of record and all suits for declaration of rights or for possession of land pending in any Court. This was, however, without prejudice to the rights of the persons affected to agitate the matter in dispute before the consolidation authorities. The Board of Revenue accordingly stayed the proceeding before it in view of Section 5 of the Consolidation Act.

4. Gopal Narain and Tula Ram thereafter vindicated their rights before the consolidation authorities. They filed an objection and alleged that they were hereditary tenants of the plots under Section 16 of the U.P Tenancy Act. The agents of the land-holder, by coercion, obtained surrender of the plots. They were entitled to reinstatement in view of Section 27 of the U.P Act X of 1947, and indeed they had applied for reinstatement but the proceedings were eventually stayed by the Board of Revenue.

5. The claim was resisted by the newly inducted tenants. According to them, the surrender made by Gopal Narain and Tula Ram was a voluntary surrender. After the surrender, the land-holder settled the plots with them, and ever since then they Bad been in possession over the plots. They acquired the rights of Sirdar after the date of vesting.

6. The Consolidation Officer found that Gopal Narain and Tula Ram were hereditary tenants of the plots before surrender. He further found that the surrender was obtained by coercion. On these findings the Consolidation Officer ordered the names of Gopal Narain and Tula Ram to be recorded as tenants-in-chief and the newly inducted tenants as trespassers.

7. On appeal, the Settlement Officer (Consolidation) reversed the order of the Consolidation Officer. He held that the objectors had failed to prove that they were the hereditary tenants under Section 16 of the U.P Tenancy Act or that the surrender of the plots was made by them as a result of coercion by the land-holder. He, therefore, directed the existing entry in the name of the newly inducted tenants to continue.

8. Against the order of the Settlement Officer (Consolidation) dated 17th December, 1960, the objectors filed a second appeal. The District Deputy Director of Consolidation upheld the finding of the Settlement Officer (Consolidation) that the objectors were not hereditary tenants under Section 16 of the U.P Tenancy Act. He, however, reversed the other finding of the Settlement Officer. In agreement with the Consolidation Officer (Consolidation), he held that the surrender was obtained by the land-holder by coercion. Accordingly he set aside the order of the Settlement Officer (Consolidation) and restored that of the Consolidation Officer.

9. The newly inducted tenants filed a revision against the order of the District Deputy Director of Consolidation. The Director of Consolidation, however, refused to interfere with the order of the District Deputy Director and dismissed the revision by his order dated 4th January, 1962. The newly inducted tenants thereafter challenged the order of the Director of Consolidation by filing a writ petition. A Single Judge of this Court allowed the writ petition and quashed the order of the consolidation authorities, sending back the case to the Consolidation Officer for fresh decision according to law, by his order dated 13th April, 1967. The learned Single Judge has found that there was no specific provision in the U.P Zamindari Abolition and Land Reforms Act providing for the continuance of proceedings pending under Section 27 of the U.P Act X of 1947. Nor there was any provision for conferring the status of one or the tenure-holders on the person reinstated. It was, therefore, not possible to reinstate any person as a tenant. Support for the order was taken from a reported decision in Shital Prasad v. Board of Revenue, 1962 All LJ 90. The objectors, Gopal Narain and Tula Ram, have now filed the present Special Appeal against the order of the learned Single Judge.

10. Sri R.K Srivastava, appearing for the appellants, contended that the learned Single Judge has erred in law in holding that there is no provision in the U.P Zamindari Abolition and Land Reforms Act or the Rules framed thereunder to continue the proceedings under Section 27 of the U.P Act X of 1947.

11. U.P Tenancy Act, 1939, was repealed by Section 339 of the U.P Zamindari Abolition and Land Reforms Act, from the date of vesting, i.e, from the first of July, 1952. After the repeal a difficulty arose with regard to proceedings pending under the U.P Tenancy Act. Section 342 of the U.P Zamindari Abolition and Land Reforms Act authorised the State Government to make orders for facilitating the transition. Pertinently, Section 342 reads thus:—

“(1) …… The State Government may, for the purpose of facilitating the said transition, by order—

(a) …… .. …… …… ….

(b) make such other temporary provisions for the purpose of removing any such difficulties as aforesaid as may be specified in the order.”

12. Pursuant to the power conferred under Section 342 of the U.P Zamindari Abolition and Land Reforms Act, the State Government passed the “U.P Land Tenures Legal Proceedings (Removal of Difficulties) Order, 1952” (hereinafter referred to as the Removal of Difficulties Order), Section 2 of this Order provides as follows:—

“Except as expressly provided in the U.P Zamindari Abolition and Land Reforms Act, 1950 or in the U.P Zamindari Abolition and Land Reforms Rules, 1952, every suit, appeal or legal proceeding in respect of any right, privilege, obligation or liability acquired, accrued or incurred under or in pursuance of the U.P Land Revenue Act, 1901, or the U.P Tenancy Act, 1939, shall—

(a) where pending on thirtieth day of June, 1952, in any revenue or civil Court, be continued in such Court.

(b) .. …. …. …. …… ….

13. And every such suit, appeal or legal proceeding shall be heard, inquired into and decided under and in accordance with the provisions of the U.P Land Revenue Act, 1901 and U.P Tenancy Act, 1939”

14. Admittedly the proceeding under Section 27 of the U.P Act X of 1947 was pending before the Board of Revenue in the form of a reference. It could, therefore be continued in view of Section 2 of the Removal of Difficulties Orders. It appears that this provision was not brought to the notice of the learned Single Judge. The case of Shital Prasad (supra) has no application to the present case. The facts of that case were materially different. In that case a suit under Section 59 of the U.P Tenancy Act was filed after the date of vesting for a declaration of tenancy rights. But in the case in hand, the application for reinstatement under Section 27 of the U.P Act X of 1947 had been filed long before the date of vesting and was pending before the Board of Revenue in the form of a revision or reference. Such a proceeding, in our opinion, could certainly continue even after the date of vesting.

15. As stated earlier, the village in question was brought under consolidation operation. We have now to examine the effect of the U.P Consolidation of Holdings Act on the proceeding under Section 27 of the U.P Act X of 1947.

16. Section 5 of the Consolidation Act provided for the stay of the proceedings pending under the U.P Tenancy Act. Section 5 was subsequently amended by U.P Act XII of 1965. The amended Section 5 provided for the statement of all suits or proceedings pending before any Court. But the amended Section 5 also saved the rights of the persons affected by abatement to agitate their right or interest in the said suits or proceedings before consolidation authorities. Indeed there could be no stay or abatement unless the person affected had a corresponding right to agitate the matter before the Consolidation authorities.

17. It is the common case of the parties that the application under Section 27 of the U.P Act X of 1947 had been filed within the prescribed period of limitation. The objectors could, therefore, get the same relief from the consolidation authorities which they could have got in proceedings under Section 27 of the U.P Act X of 1947. A proceeding under Section 27 virtually is like a suit under Section 183 of the U.P Tenancy Act. The objectors were tenants at the time when the surrender was made. If they could succeed in establishing that the surrender by them was obtained as a result of coercion, they could certainly be reinstated over the plots in question. It is true that the rights could accrue to the objectors only on reinstatement, in view of Section 27(5) of the U.P Act X of 1947. But if the objectors were entitled to be reinstated, they would be deemed to be tenants and consequently they would be entitled to be declared as Sirdar under Section 19 of the U.P Zamindari Abolition and Land Reforms Act. Section 19 provides thus:—

“All land, held or deemed to have been held on the date immediately preceding the date of vesting by any person as—

(i)-(iii) …. …. …. …… ….

(iv) a hereditary tenant,

(v)-(ix) …… …. …. …… ..

shall, …., be deemed to be settled by the State Government with such person, who shall, subject to the provisions of this Act, be entitled except as provided in sub-section (2) of Section 18, to take or retain possession as a Sirdar thereof.”

18. Similarly, Section 20 of the Act also confers rights not only on tenants of Sir but on persons deemed to be tenants of Sir. It is therefore clear that the U.P Zamindari Abolition and Land Reforms Act confers the right of a tenure-holder not only on the person who is in possession as a tenant but also on one who is entitled to get possession as a tenant. The objectors were certainly entitled to get reinstatement over the plots if they succeeded to bring their case within the four comers of Section 27(2) of the U.P Act X of 1947.

19. As mentioned above, the District Deputy Director of Consolidation recorded a clear finding that the surrender by the objectors was obtained from them by the land-holder by coercion. It would be noticed that Section 27(2) of the U.P Act X of 1947 confers right of reinstatement on two categories of persons: (i) tenants of Sir who had acquired right under Section 16(1) of the U.P Tenancy Act and had been ejected from their holdings or part thereof; and (ii) tenants dispossessed of their holding or any part thereof through surrender or otherwise in consequence of any fraud, misrepresentation, undue influence or coercion practised upon or against them by the land-holder or by any person acting on behalf of the land-holder.

20. In the present case, from the findings of the District Deputy Director of Consolidation, it is evident that the objectors had succeeded in bringing their case under the second category.

21. Sri P.N Singh, on behalf of the contesting respondents, argued that the contesting respondents were sub-tenants under the proviso to sub-section (3) of Section 27 of the U.P Act X of 1947. They became Adhivasi-cum-Sirdar under Section 20 of the U.P Zamindari Abolition and Land Reforms Act. And once they acquired the rights of Adhivasi-cum-Sirdar, they could not be deprived of those rights even if the objectors are reinstated over the plots.

22. We are unable to accept this argument. A sub-tenant under Section 27(3) of the U.P Act X of 1947 does not become an Adhivasi under Section 20 of the U.P Zamindari Abolition and Land Reforms Act. He is entitled only to remain in possession for a period of three years from the date of declaration as sub-tenant under Section 27(3). The contesting respondents have already remained in possession for more than three years according to the findings of the consolidation authorities themselves.

23. The contesting respondents could not mature title by adverse possession also, as the objectors had filed the application for reinstatement well within time. The appellants were, therefore, entitled to get back possession on their establishing the ingredients of Section 27(2) of the U.P Act X of 1947. On the findings of fact recorded by the last authority on facts, the objectors have established that the surrender made by them had been obtained as a result of coercion by the land-holder or her agent.

24. We, therefore, allow the appeal, set aside the order of the learned Single Judge dated 13-4-1967, and dismiss the writ petition. The parties shall bear their own costs, throughout.

25. Appeal allowed.