IMPORTANT POINT
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 and as such a sub-tenant from mortgagee recorded as such in khasaras is not entitled be declared as an Adhivasi.

Headnote:U.P. Zamindari Abolition and Land Reform Act, 1950-Sections 20 r/w Section 3(26)-Adhivasi right-Claim by a sub-tenant of mortgagee-Not tenable-A mortgagee s sub-tenant cannot be considered to be a "sub-tenant" at all within meaning of Section 3(26) of Zamindari Abolition Act r/w Section 3(23) of United Province Tenancy Act.
       Held : On the very definitions of "tenant" and "sub-tenant" a mortgagee, being not a tenant, cannot induct anyone as his 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 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 appellant s 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 Harak 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 tenants 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 the 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(1)(d) and Section 18(1)(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 mortgagees 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. 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. (Paras 18 and 20)
       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. Therefore he as not entitled to be declared as an Adhivasi. (Para 21)

JUDGMENT

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 :

2. 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 and 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.

3. 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.

4. 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 filed an appeal before the Settlement Officer (Consolidation) which was dismissed on 6th June, 1966.

5. The appellant then carried the matter in revision before the Deputy Director of Consolidation, who allowed the same and remanded the case to the Settlement Officer (Consolidation). After remand, the appellate authority, namely, the Settlement Officer (Consolidation) allowed the appellant s appeal on 11th May, 1968 and held that the appellant s father Ram Harakh had acquired the adhivasi rights in the lands in question.

6. However, a finding was recorded against Ram Harakh that he had surrendered his rights in favour of Sri Narain and others.

7. 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 actual cultivatory possession in the years 1356 and 1359 Fasli, as such, he had acquired the rights under Section 20 of the U.P. Act.

8. 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 5

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2000 Supreme(SC) 745

Cases Referred (7)