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1971 Supreme(All) 189
Allahbad High Court
E.B.MISRA
Padam Lal Bhatia - Appellant
Versus
Dy. Director of Consolidation, U.P. Lucknow - Respondent
Decided On : 08/26/1971
Inamul Haq, B.A. Kazmi, Rajeshwari Prasad for Petitioner; Ram Awadh Misra, Harihar Pd. Dube, Sridhar Ashok Mohiley, and Standing Counsel, for Respondents.
Headnote:
LAND REFORMS - THEKA - LICENSE - INTERPRETATION OF DEED - U.P. ZAMINDARI ABOLITION AND LAND REFORMS ACT, 1950 - SECTIONS 12, 13 - U.P. TENANCY ACT - SECTION 2(24) - U.P. CONSOLIDATION OF HOLDINGS ACT - SECTION 4 - CONSTITUTION OF INDIA - ARTICLE 226.
Fact of the Case:
The petitioner, Padam Lal Bhatia, claimed hereditary tenancy rights over certain plots of land based on a Theka deed granted by the respondent, Smt. Dulahin Manik Rajkumari, in 1949. The deed allowed the petitioner to utilize the fruits of the grove, plant new trees, and grow vegetables on vacant land. The petitioner argued that the Theka was for cultivation purposes and that he had been in personal cultivation of the land, satisfying the conditions of Section 12 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Alternatively, he claimed hereditary tenancy rights under Section 13(2)(b)(i) of the same Act.
Finding of the Court:
The Court held that the Theka deed did not create a lease but only a license, as the petitioner was not given any interest or right in the land. The Court found that the dominant purpose of the Theka was not cultivation but the collection of fruits from the grove. The Court also held that the petitioner was not a Thekedar as defined under Section 2(24) of the U.P. Tenancy Act, as he was not a lessee of the rights in the land of a proprietor. Therefore, the Court concluded that the petitioner could not claim hereditary tenancy rights under Sections 12 or 13 of the U.P. Zamindari Abolition and Land Reforms Act.
Issues: 1. Whether the Theka deed created a lease or a license? 2. Whether the petitioner satisfied the conditions of Section 12 of the U.P. Zamindari Abolition and Land Reforms Act to claim hereditary tenancy rights? 3. Whether the petitioner could claim hereditary tenancy rights under Section 13(2)(b)(i) of the U.P. Zamindari Abolition and Land Reforms Act?
Ratio Decidendi: 1. The Court interpreted the Theka deed and found that it did not create a lease but only a license, as the petitioner was not given any interest or right in the land. The Court relied on the terms of the deed, which focused on the collection of fruits from the grove and supervision of the grove, rather than cultivation. 2. The Court held that the petitioner did not satisfy the conditions of Section 12 of the U.P. Zamindari Abolition and Land Reforms Act because the Theka was not made with a view to the cultivation of the land by the petitioner personally. The Court found that the dominant purpose of the Theka was not cultivation. 3. The Court held that the petitioner could not claim hereditary tenancy rights under Section 13(2)(b)(i) of the U.P. Zamindari Abolition and Land Reforms Act because he was not a Thekedar as defined under Section 2(24) of the U.P. Tenancy Act. The Court found that the petitioner was not a lessee of the rights in the land of a proprietor.
Final Decision: The Court dismissed the petitioner's writ petition, upholding the orders of the consolidation authorities that expunged the petitioner's name from the records as a Sirdar or Bhumidhar of the disputed plots.
2. The dispute between the parties relates to certain plots. All the plots in dispute are contiguous and constitute one whole with an area of 6 bighas, 6 biswas and 14 dhurs. They were admittedly owned by Smt. Dulahin Manik Rajkumari, Respondent No.5. It appears that by a deed dated 15th November, 1949 Padam Lal Bhatia, the petitioner, obtained possession over the land in dispute for a period of nine years commencing from 1357F, to 1365F. This deed was termed as a Theka. The main stipulations in the deed were: (i) the Thekedar had the right to utilize the fruits of the grove; (ii) he could plant new trees at the expense of the lessor in place of fallen or dried up trees only with the permission of the lessor, and (iii) he could grow vegetables on the vacant land and had generally to look after the grove and the compound. The Thekedar under the deed, was required to pay a sum of Rs.325/- per year, and in case of default he could be ejected on one month's notice. The Thekedar had also to supply certain quantity of fruits every year to the lessor. This deed is the bone of contention between the parties.
3. It appears that prior to the institution of the proceedings before the consolidation authorities there were three other litigations between the parties. Respondent No.5 had to file Suit No.28 of 1952 against the petitioner for his ejectment. That suit culminated in a compromise between the parties, where-under the petitioner was allowed to continue in possession over the plots in dispute on condition that he did not defy the terms of the deed. The petitioner, however, appears to have contravened the terms of the deed in spite of the compromise, as a result of which another suit (No.375 of 1955) had to be filed against him by respondent No.5 on 30th April, 1955, for the ejectment of the petitioner and for the recovery of damages. This suit was decreed by the Munsif. During the pendency of the suit the village in question was brought under consolidation operations and a notification under Section 4 of the U.P. Consolidation of Holdings Act was published on 19th March, 1960. But the learned Munsif did not stay the proceedings, and chose to decide the case. The petitioner preferred an appeal against the decree passed by the Munsif, which was dismissed by the learned Judge on 30th January, 1961. In pursuance of the decree in her favour respondent No.5 also obtained possession. The petitioner, however, preferred a Second Appeal before this Court. This Court also affirmed the decree of the lower appellate Court but so far as the claim for possession was concerned, it was abated under Section 5 of the U.P. Consolidation of Holdings Act.
4. There was yet another proceeding under Section 240-G of the U.P. Consolidation of Holdings Act (U.P. Zamindari Abolition and Land Reforms Act?) in which compensation was awarded to respondent No.5 on the footing that the petitioner had become Sirdar of the land in dispute.
5. As the name of the petitioner was recorded in the basic year as Sirdar in respect of most of the plots and as Bhumidhar in respect of one of the plots, an objection was filed by respondent No.5. She claimed to be the Bhumidhar of the plots in question and alleged that the petitioner had no right or interest, in the property, and was not a Sirdar or Bhumidhar thereof, and the basic year entry should be expunged.
6. The claim was resisted by the petitioner on the ground that he had acquired the rights of a hereditary tenant under Section 12 or 13 of the U.P. Zamindari Abolition and Land Reforms Act inasmuch as respondent No.5 had granted in his favour a Theka for the purpose of cultivation and the petitioner had actually been in cultivatory possession of the land on all relevant dates, namely, on the first day of May, 1950 or on the date immediately preceding the date of vesting.
7. The Consolidation Officer allowed the objection
