Planting trees by a sub-tenant does not extinguish their tenancy status or elevate it to that of a grove holder under the Zamindari Abolition Act.

1. Having felt doubtful about the principle of law laid down in Lalit Tewari v. Genda Tewari , 1974 Unreported Rev. Cas. 318, that a sub-tenant of a fixed rate tenant with specific authorisation to plant grove would become Asami u/s.21(1)(b) of UPZA and LR Act of 1951 a provision in pari materia with S. 19(b) of U. P. Urban ZA and LR Act (hereinafter referred to as Act), one of us (Hon'ble K.P. Singh, J), referred this petition directed against order of Board of Revenue and others arising out of proceedings started for eviction u/s 202 of the Act for decision by a larger bench.

2. Prior to narration of facts it may be examined who are those persons who would become Asamis under sub-cl.(b) of S.19 of Act. But before doing so it would be better if import of similar provision in ZA and LR Act (Act 1 of 1951) is understood. It is well known that when Zamindari was abolished the Legislature substituted seven classes of tenants under U. P. Tenancy Act besides Sir and Khudkast holder with three tenure holders known as Bhumidhar, Sirdar and Assami. Bhumidhari rights were conferred on these tenants who under U.P. Tenancy Act could be termed as superior class of tenants. Under this Act also their status was maintained by granting them absolute rights including right to transfer, gift or will. Sirdari rights were conferred on tenants who were to say second grade tenants. The Act while granting them absolute rights in land did not confer any right of transfer etc. The third category of tenants consisted of those persons to whom the land was let out and they were known as sub-tenants, tenants of sir or non - occupancy tenants. They had no security of tenure and were exposed to ejectment. Out of this category the Zamindari Abolition Act conferred rights of Adhivasi on tenants of Sir, sub-tenants, recorded occupants of 1356 and those who were in cultivatory possession in 1359. In 1954 even this class was made sirdar. They were rendered immune from eviction and were entitled to retain possession. And in case they were not in possession they were entitled to regain possession under S.232 of Zamindari Abolition Act . But if they held land of a person who was disabled within the meaning of S.157 of Zamindari Abolition Act then they were conferred rights of Asami u/s21 and were liable to ejectment. But no sub-tenant or recorded occupant of grove land could become adhivasi. Other non - occupancy tenants who were tenants of such lands in which hereditary rights could not accrue under Tenancy Act because they were lands of public utility or pasture land or land covered with water etc. in which casual and seasoned cultivation was done or were mortgagees of superior tenants or non occupancy tenants of intermediary grove land or sub-tenants of grove land were conferred rights of assami u/s. 21 of Zamindari Abolition Act . Such persons were liable to ejectment. When Urban Area Zamindari Abolition Act was enacted the same scheme was adhered to. Although the class of Adhivasis was obliterated but by separate sub-sec. (2) added to S.19 all those persons who were tenants of Sir or sub-tenants were made Sirdars. Thus sub-section like S. 20 of Z.A. Act 1 of 1951 provided that a person shall become Sirdar only if he did not become Assami under S. 19. S.19 of the Act like S. 21 of Zamindari Abolition Act confers right of Assami on a person covered in it irrespective of other provisions of the Act. Therefore, this section has an overriding effect and any person covered in various sub-clauses of this section shall be conferred with right of Assami. The opening