Sham Kartik Singh vs Mathura

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 484 to 489 of 1958

Decision Date: 31 August, 1962

Coram: Raghubar Dayal, P.B. Gajendragadkar, K.C. Das Gupta

In the matter titled Sham Kartik Singh versus Mathura, decided on 31 August 1962, the Supreme Court of India, sitting as a bench comprising Justice Raghubar Dayal, Justice P B Gajendragadkar and Justice K C Das Gupta, heard the appeal. The petitioner was Sham Kartik Singh and the respondent was Mathura. The judgment was delivered on the same date and the case is reported in the 1967 All India Reporter at page 732 and in the 1963 Supreme Court Reports (Third Series) at page 904. The dispute arose under the Uttar Pradesh Tenancy Act of 1939, which deals with the classification of land as “sir” and the procedure for suits seeking the ejectment of tenants. The appellant‑petitioner filed a suit under that Act seeking the removal of the respondent‑defendant, who occupied the land as a tenant of sir. The petitioners submitted the requisite extracts of documents to support their claim. The trial court decreed the suit, holding that the contested land was indeed sir land, that the petitioners were the rightful sir‑holders, that each sir‑holder paid a local rate not exceeding Rs 25, that no sir‑holder possessed more than fifty acres of sir land or more than fifty acres of combined sir and khudkast land that had not been sublet, and that the respondents had not acquired the status of hereditary tenants. The respondents appealed this decision before the Commissioner. While those appeals were pending, the Uttar Pradesh Tenancy (Amendment) Act of 1947 amended section 19 of the original Act. The amended provision required that, in any suit for the ejectment of tenants of sir, the sir‑holder must, before the first day fixed for recording evidence, furnish to the court such particulars as may be prescribed; failure to do so would result in dismissal of the suit. Moreover, section 31 of the Amending Act stipulated that its provisions would apply to pending suits, appeals and other proceedings. The respondents argued that the petitioners had not complied with the newly prescribed requirements of the amended section 19 and therefore the suits should be dismissed. The Commissioner, however, affirmed all findings of the trial court and concluded that the petitioners had sufficiently complied with the amended procedural requirement, and consequently dismissed the appeals. Unsatisfied, the respondents then instituted second appeals before the Board of Revenue. The Board held that the petitioners had not complied with the provisions of the amended section 19 and the associated rules, and therefore remanded the matter to the trial court for compliance and a fresh trial. The Court ultimately observed that the amendment to section 19 did not alter the substantive law concerning the determination of whether land was sir or not; even after the amendment a sir‑holder seeking relief in an ejectment suit still needed to prove the same factual requisites as before. The only change effected by the amendment was procedural, requiring prior disclosure of particulars before evidence could be recorded.

Under the amended provisions, a holder of a sir could no longer present his evidence without first informing the Court of the material he intended to produce. After the amendment, it became mandatory for the sir‑holder to supply such information to the Court before the date fixed for recording evidence. The record showed that the required particulars had already been furnished even before the amendment came into force, and therefore the Commissioner was entitled to decide the appeals in accordance with the Act as it stood after being amended by the amending Act. The Board of Revenue was not made aware of the relevant documents filed by the appellants, and it therefore erred in concluding that there had been no substantial compliance with the amended section 19 and the rules framed under it.

The judgment concerned civil appeals numbered 484 to 489 of 1958, which were taken by special leave from the order dated 6 August 1954 of the Uttar Pradesh Board of Revenue, Allahabad, in petitions numbered 203 to 208 of 1947‑48. Counsel for the appellants was instructed by G C Mathur, while counsel for the respondents was instructed by M L Agarwala, who also appeared for respondent 3 in Civil Appeal No 488 of 1958. The judgment was delivered on 31 August 1962 by Justice Raghu Bar Dayal. The appeals arose from applications made by the appellants, under section 175 of the Uttar Pradesh Tenancy Act, 1939 (U.P. XVII of 1939), seeking ejectment of each respondent on the ground that the appellants were the sir‑holders of the land occupied by the respondents as non‑occupancy tenants and that the five‑year period for which the respondents could retain possession under section 20 of the Act had expired. The respondents contested the ejectment notices, asserting that the land in dispute was not sir, that the appellants were not sir‑holders, that the appellants paid a local rate exceeding Rs 25 per annum in the United Provinces of Agra and Oudh, and that they possessed more than fifty acres of sir land. They claimed hereditary tenancy of the land in accordance with sections 14, 15 and 16 of the Act. The papers were forwarded by the Tehsildar to the Assistant Collector of the sub‑division as required by section 179 of the Act. Because the applications for ejectment were deemed plaints, the proceedings continued as suits per sub‑section (2) of section 179. The Court directed the appellants to file the necessary extracts of documents and to join all sir tenants as parties. The Sub‑Divisional Officer rejected the respondents’ contentions and decreed the suits on 28 February 1946, holding that the land was sir, that the appellants were sir‑holders, that each appellant did not pay a local rate exceeding Rs 25 in either 1938 or 1940, and that they did not hold more than fifty acres of sir or khudka​sh​t land which had not been sub‑let during the period from 1 July 1939 to 30 June 1940.

In the present matter the respondents challenged the decree of the Sub‑Divisional Officer before the Additional Commissioner at Benaras, reiterating the same arguments that had been rejected by the trial court. They further alleged that the appellants had failed to satisfy the requirements of section 19 of the Act as amended by the Uttar Pradesh Tenancy (Amendment) Act, 1947 (U.P. X of 1947), which had become operative on 14 June 1947 after the respondents’ appeal had been filed. The Additional Commissioner upheld the findings of the Sub‑Divisional Officer, concluded that there had been substantial compliance with the spirit of the amended provision, and consequently dismissed the respondents’ appeals.

Undeterred, the respondents instituted second appeals before the Board of Revenue. The Board disagreed with the Additional Commissioner’s view that the appellants had sufficiently complied with the amended section 19 and the rules made thereunder. Accordingly, the Board set aside the decree that had been entered against the respondents, remitted the cases for fresh disposal in accordance with law, and directed the trial court to consider an additional contention raised by the respondents—that they had acquired adivasi rights in the land after the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. 1 of 1951) came into force. The six appeals now before this Court were filed after the grant of special leave.

It appeared that no specific procedural rule governed the conduct of the suit before the Sub‑Divisional Officer after the papers had been forwarded to him under section 179 of the Act. Consequently, the ordinary procedural regime applicable to suits was observed. The Sub‑Divisional Officer therefore called upon the appellants to produce the necessary extracts of documents. Both documentary and oral evidence had to be led to substantiate the parties’ allegations, particularly those of the appellants who bore the burden of proving their right to eject the respondents. They were required to demonstrate that the land in dispute was classified as “sir” and that they were the rightful sir holders.

Section 6 of the Act provides the definition of “sir”. It states that “sir” means land which, immediately before the commencement of this Act, was classified as “air” under the provisions of the Agra Tenancy Act, 1926, or the Oudh Rent Act, 1886, subject to the condition that if, at the commencement of this Act, the sir holder was assessed in the United Provinces to a local rate exceeding twenty‑five rupees, the land which was sir under the provisions of clause (d) or clause (e) of Section 4 of the Agra Tenancy Act, 1926, or of clause (c) or clause (d) of sub‑section (17) of Section 3 of the Oudh Rent Act, 1886,...

In this case the Court set out the statutory conditions under which land that was classified as “sir” under the Oudh Rent Act, 1886, would cease to retain that status when the new Act became operative. The provision stipulated that such land would stop being “sir” unless one of two situations applied. First, the land must have been received before 1 July 1938 in a manner that did not follow Section 122 of the United Provinces Land Revenue Act, 1901. Second, the land must have been received before the commencement of the new Act in accordance with that same Section 122, but only as a substitution for land that had previously been “sir” under clause (a), (b) or (c) of Section 4 of the Agra Tenancy Act, 1926, or under clause (a) or (b) of sub‑Section (17) of Section 3 of the Oudh Rent Act, 1886. The provision further explained that the first proviso would also apply to a sir‑holder who, at the moment the new Act began, was not assessed in the United Provinces at a local rate exceeding twenty‑five rupees, provided that either the holder or his predecessor‑in‑interest had been assessed at that higher rate on 30 June 1938, unless that assessment had subsequently been reduced because of resettlement, settlement revision, or because the sir rights were acquired after that date by succession or survivorship. An additional safeguard was stated for land that was jointly held by several owners: if all such joint owners were not persons to whom the first proviso applied, the land would not lose its “sir” character at the commencement of the new Act. Instead, it would continue to be regarded as “sir” until the portion belonging to the joint owners who met the proviso’s criteria was demarcated in accordance with the new Act. The statute also identified a second category of land that would remain “sir”: land that was “khudkasht” and that had been demarcated as “sir” under the provisions of the new Act. An explanatory note clarified that if any part of the land revenue assessed on a sir‑holder’s land was remitted because of a decline in agricultural produce prices, the local rate payable by that holder would, for the purposes of the section, be deemed to have been reduced proportionally. Applying these provisions, the appellants were required to prove three factual matters. First, that the land involved in the suit was still “sir” on 1 January 1940, the date on which the new Act came into force. Second, that each sir‑holder was not assessed at a local rate exceeding Rs 25. Third, that neither the sir‑holder nor his predecessor‑in‑interest had been assessed at a rate exceeding Rs 25 on 30 June 1938. The appellants succeeded in establishing all three facts, and consequently the trial Court concluded that the land in dispute did not cease to be “sir”. The Court also observed that, had the finding been that the first proviso of Section 6 applied, Section 16 would have become relevant, requiring a determination of whether each sir‑holder possessed more than fifty acres of sir land or of sir and khudkasht land that had not been let. However, the trial Court’s finding was that each sir‑holder possessed less than fifty acres of such land.

In this case, the Court noted that the sir holder owned less than fifty acres of sir and khudkasht land. Section 19 of the Act, before its amendment in 1947, provided that if a sir‑holder could invoke the provisions of sections 15 or 16 of the Act, the Court was to proceed under those sections. The amended provision repeated the same reference in its sub‑section (3), while sub‑sections (1) and (2) were newly introduced. Sub‑section (1) reads as follows: “(1) In a suit or proceeding for the ejectment of a tenant of sir the sir holder shall before the first date fixed for recording evidence, furnish to the court such particulars as the Board may by rule made in this behalf prescribe for ascertaining— (a) whether the sir‑holder is a person to whom the provisions of the first proviso to clause (a) of Section 6 apply; and (b) the total area and nature of the sir‑holder’s sir and khudkasht: Provided that if the sir‑holder satisfied the Court that he had sufficient cause for not filing the particulars before the date fixed, it may, subject to the payment of costs to the opposite party, extend the time.” Sub‑section (2) states: “If the sir‑holder does not file the particulars mentioned in sub‑Section (1) within the time fixed thereunder, or deliberately furnishes inaccurate particulars, the Court shall dismiss the suit or proceeding, as the case may be, and shall declare the tenant to be hereditary tenant.” It is evident that sub‑section (1) obliges a sir‑holder to provide particulars prescribed by the Board, and that the purpose of furnishing those particulars is to assist the Court in determining whether the provisions of the first proviso to clause (a) of Section 6 apply to the sir‑holder and to identify the total area and nature of the sir‑holder’s sir and khudkasht. Consequently, Section 19 did not alter the substantive law governing whether a particular parcel of land qualified as “sir” under the definition in Section 6 of the Act. After the amendment, a sir‑holder seeking relief still had to establish the same factual predicates that were required before the amendment; the amendment merely changed the procedural aspects of the suit. Prior to amendment, the sir‑holder needed only to present evidence to prove his case without beforehand informing the Court of the material on which he would rely to demonstrate that the proviso of clause (a) of Section 6 did not apply, or, if it did, how Section 16 would operate. The amended Section made it mandatory for the sir‑holder to disclose such information to the Court, and thereby to the tenant, before the parties proceeded to adduce evidence. This disclosure requirement is imposed by sub‑section (1) of the amended Section 19.

In this matter, the Court observed that the requirement to furnish the particulars prescribed under the amended provision must be satisfied before the first date fixed for recording evidence. The Court added that the period allotted for providing such information may be extended in accordance with the proviso to that sub‑section. The Court placed great importance on the new provision because sub‑section (2) of the amended section 19 stipulates that failure to file the required particulars, or filing them inaccurately, will result in the Court dismissing the suit or proceeding and, additionally, declaring the tenant to be a hereditary tenant. The appellants argued that the provisions of the amended section 19 should not apply to the present factual situation because the amendment was enacted long after the first date of recording evidence had passed. Accordingly, the appellants contended that it was impossible for them to have furnished the necessary particulars in the manner prescribed by the amendment. The appellants further maintained that, even if the amendment were held to apply, they had substantially complied with its requirements by filing Court documents that contained the particulars demanded under rules 239A and 239B issued by the Board of Revenue pursuant to section 19. The respondents, on the other hand, maintained that the amended section 19 operates retrospectively, relying on the effect of section 31 of the Amendment Act of 197. The respondents asserted that, in view of that provision, the appellants had failed to comply with the requirements of subsection (1) of section 19 and the rules framed thereunder. For clarity, the Court reproduced the text of section 31, which reads: “Disposal of pending suits and appeals (1) All proceedings, suits, appeals and revisions pending under the said Act on the date of the commencement of this Act and all appeals and revisions filed after that date against orders or decrees passed under that Act and all decrees and orders passed thereunder which have not been satisfied in full shall be decided or executed, as the case may be, and where necessary such decrees and orders shall be amended in accordance with the provisions of the said Act as amended by this Act: Provided‑firstly that if such a decree or order cannot be so amended, or the execution of or the appeal or revision from such an amended decree or order cannot be proceeded with, it shall be quashed. In such a case the aggrieved party shall, notwithstanding any law of limitation, be entitled to claim, within six months from the date on which such decree or order is quashed, such rights and remedies as he had on the date of the institution of the suit or proceedings in which such decree or order was passed, except to the extent that such rights or remedies are inconsistent with the provisions of the said Act as amended by this Act: Provided‑secondly that the proceedings under Section 53 between a landlord and his tenant and all proceedings under Section 54 shall be quashed: Provided‑thirdly that appeals and revisions arising out of the proceedings under Section 53 between a landholder and his tenant or out of those under Section 54 shall be so decided as to place the parties”.

The provision stipulated that parties should be placed back in the exact position they occupied immediately before the initiation of the proceedings. It further provided, as a fourth measure, that every suit, appeal, or revision that was pending under Section 180 of the Act on the day this Act commenced would be dismissed if it concerned the ejectment of any person who had been recorded as an occupant on or after 1 January 1938 in a record that had been revised under Chapter IV of the United Provinces Land Revenue Act, 1901, or had been corrected by an officer specially appointed for the correction of annual registers in any tract. Moreover, any decree or order for the ejectment of such persons that had not been fully satisfied by the commencement date of this Act was to be set aside. The provision also clarified, as a fifth measure, that nothing in this subsection would alter the forum of appeal or revision for a decree or order issued by a Civil Court under the said Act.

Paragraph (2) explained that, when calculating the limitation period for an application to execute a decree or order passed under the Act whose execution had been stayed pending the enactment of this Act, the period during which the execution was stayed must be excluded. In view of this rule, the appeals that were pending before the Additional Commissioner at the time the Amendment Act became operative were required to be decided according to the provisions of the Act as amended. It was previously noted that the Amendment Act did not bring about any substantive change affecting the parties’ rights, except for the provision contained in sub‑section (2) of the amended Section 19, which dealt with the consequences of a land‑holder’s failure to furnish the required particulars. Consequently, if those particulars had been supplied in this case even before the Amendment Act took effect, there would have been no obstacle to the Additional Commissioner adjudicating the appeals in conformity with the amended Act. The Additional Commissioner indeed held that substantial compliance with the amended section and the rules made thereunder had been achieved. The Board of Revenue similarly expressed the view that substantial compliance with those provisions would have sufficed. However, the Board did not agree with the Additional Commissioner’s conclusion that the appellants had fully complied with the provisions of the amended Section 19 and the corresponding rules. This Court found the Board of Revenue to be incorrect in that assessment. The Board had framed Rules 239A and 239B, which required, for example, that in any suit or proceeding for the ejectment of a tenant, the land‑holder must, before the first date set for recording evidence, provide the Court with specific details such as the amount of local rate assessed on 1 January 1940, among other particulars.

In this case the Court set out the content of Rules 239A and 239B that had been framed by the Board of Revenue. Rule 239A required that, in any suit or proceeding for the ejectment of a tenant of sir, the sir‑holder had to furnish, before the first date fixed for recording evidence, a specified set of particulars. First, the sir‑holder had to state the amount of local rate to which he was assessed on 1 January 1940 in the United Provinces. If that amount was twenty‑five rupees or less, the sir‑holder also had to provide three additional pieces of information: the amount of local rate to which he or his predecessor‑in‑interest was assessed on 30 June 1938; whether that local rate had been decreased before 1 January 1940 as a result of resettlement or revision of settlement and, if so, the amount of the reduction; and whether the sir‑holder had obtained his sir rights by succession or survivorship during the period between 30 June 1938 and 1 January 1940. The rule further required the sir‑holder to disclose the area and khasra numbers of any plots, if any, that he held singly or jointly with others on 31 December 1939 as sir in the United Provinces under the provisions of clause (d) or clause (e) of section 4 of the Agra Tenancy Act 1926, or under clause (c) or clause (d) of sub‑section (17) of section 3 of the Avadh Rent Act 1886. In addition, the sir‑holder had to identify any of those plots, together with their areas, that had been received by him in exchange for land that was his sir under clause (a), (b) or (c) of section 4 of the Agra Tenancy Act, or under clause (a) or (b) of sub‑section (17) of the Avadh Rent Act, where such exchange took place either before 1 July 1938 without compliance with section 122 of the United Provinces Land Revenue Act 1901, or before 1 January 1940 in compliance with that section. The rule also required the sir‑holder to state the area and khasra numbers of any plots, if any, that he held singly or jointly with others as khudkasht in the United Provinces, together with the period of cultivation and the nature of the khudkasht for each plot, and to indicate the extent of his share in the joint air and khudkasht identified in the preceding sub‑clauses. Rule 239B prescribed that the particulars furnished under Rule 239A must be accompanied by certain documents. Where the local rate payable by the sir‑holder in the United Provinces was claimed to be twenty‑five rupees or less, the sir‑holder had to attach copies of the khewat khatas of the years 1345 Fasli and 1347 Fasli in which he was recorded as a co‑sharer. He also had to provide a certified copy of the khatauni khatas of his air and khudkasht, a certified copy of the khewat to which the sir or khudkasht pertained unless that copy had already been filed under the first sub‑rule, a list indicating the amount of local rate assessed to each co‑sharer of the joint sir and khudkasht, if any, and, in the case of a joint Hindu family, a genealogical table and a list showing the share of each living family member having an interest in the sir or khudkasht together with the share of local rate that each member would be liable to pay.

In this case, the Court observed that the appellants had filed with the Trial Court a collection of documentary evidence intended to satisfy the statutory requirements for ratable distribution. The first group of documents comprised the khewats of the various villages for the Fasli years 1345, 1346 and 1347, which correspond to the calendar periods from 1 July 1937 to 30 June 1940. The second group consisted of the khatauni jamabandis of the same villages for the Fasli years 1345 and 1347, covering the periods 1 July 1937 to 30 June 1938 and 1 July 1939 to 30 June 1940 respectively. The third group included two statements. Sub‑part (a) was a statement showing the shares of the appellants as recorded in the khewats and khatauni of the year 1347 Fasli; this statement disclosed that the appellants held a total air area of 152.33 acres, a khudkasht area of 19.93 acres, and that the aggregate local rate payable by them amounted to Rs 75.5.11. Sub‑part (b) was a statement of the air, khudkasht and local rate of each plain in the year 1317 Fasli, which demonstrated that none of the appellants possessed sir or sir together with khudkasht exceeding fifty acres, nor were any of them assessed a local rate greater than Rs 25. The fourth document filed was a copy of the pedigree. The Court held that these documents collectively provided the particulars mandated by the applicable rules because the time‑frames covered by them included the critical dates of 30 June 1938, 31 December 1939 and 1 January 1940. Rule 239A‑I required disclosure of the amount of local rates payable on 30 June 1938 and on 1 January 1940, as well as information on whether sir‑holders had acquired their sir‑rights by succession or survivorship during the intervening period. The Court found that the statements supplied satisfied the requirements of sub‑rules (3) and (4) of Rule 239A‑II. Rule 239B further demanded copies of the khewat khatas for the years 1345 and 1347 Fasli, certified copies of the khatauni khatas of sir and khudkasht, certified copies of the khewats to which such sir or khudkasht pertained, a list recording the local rate assessed against each co‑sharer of the sir‑holder, and, where the sir or khudkasht belonged to a joint Hindu family, a genealogical table showing the share of each living family member. The Court noted that the only particulars not directly derivable from the documents on record were those required by sub‑rules (1) and (2) of Rule 239A‑II. Those sub‑rules called for details about any sir that qualified under clauses (d) and (e) of section 4 of the Agra Tenancy Act, 1926 – specifically land that had become sir because the landlord cultivated it at the commencement of the Act on 7 September 1926 and that had been recorded as khudkasht in the preceding agricultural year (1333 Fasli), or land that had become air because the landlord had continuously cultivated it for ten years after the Act took effect. The Court observed that the findings of the Trial Court indicated that the land in dispute had been sir since the time of the first settlement, which was apparently undertaken in the 1890s. This inference appeared to be based on the fact that the khatauni

The records of the jamabandhi entries for the years 1345 and 1347 Fasli failed to show any period of cultivation against the sir entry, which indicated that the sir was not of the type described in clauses (d) and (e) of section 4 of the Agra Tenancy Act, 1926. The Trial Court was able, and did, record findings on every fact that the appellants were required to prove in order to establish their case, and those findings were affirmed by the first Appellate Court. The particulars demanded by subsection (1) of the amended section 19 of the Act, together with the rules made thereunder, were intended to enable the ascertainment of those facts. In view of the evidence, it was reasonable to conclude that there had been substantial compliance with the provisions of the amended section 19 and the accompanying rules. Consequently, the Board of Revenue erred in stating that the appellants had not disclosed the amount of local rate to which they were assessed in Uttar Pradesh on 1 January 1940, and in contending that compliance with rule 239AII of the Revenue Court Manual had not been demonstrated, as well as in holding that the mandatory provisions of rules 239A and 239B had not been sufficiently complied with. The Board’s judgment revealed that it had not considered several relevant documents that the appellants had filed in the trial court. The Court was convinced that, had the Board examined those documents, it would not have concluded that section 19 had not been substantially complied with. Accordingly, the Court held that the Board of Revenue was in error in setting aside the decree of the Additional Commissioner and in remanding the matter for a fresh trial on the ground of alleged non‑compliance with the amended section 19 and its rules. The Court therefore allowed the appeals, set aside the order of the Board of Revenue, and remanded the cases back to the Board for decision in accordance with law. The Court further directed the Board to determine, on its own, the contention raised by the respondents that they had acquired adivasi rights under the Uttar Pradesh Zamindari Abolition and Reforms Act, and, should the Board consider a factual finding necessary for that issue, it may obtain such a finding from the trial court before proceeding to decide the appeals on their merits. In view of the circumstances, the Court directed that each party bear its own costs, and recorded that the appeals were allowed.