Suraj Mal And Another vs Ram Singh And Others on 7 August, 1986

    PETITIONER:

SURAJ MAL AND ANOTHER

 Vs.

RESPONDENT:

RAM SINGH AND OTHERS

DATE OF JUDGMENT07/08/1986

BENCH:

DUTT, M.M. (J)

BENCH:

DUTT, M.M. (J)

REDDY, O. CHINNAPPA (J)

CITATION:

 1986 AIR 1889 1986 SCR (3) 487

 1986 SCC (3) 699 JT 1986 90

 1986 SCALE (2)292

ACT:

     U.P. Consolidation of Holdings Act, 1953-ss. 4, 4A, 5 and 52-Consolidation
proceedings-When deemed to be closed- consequence of Notification under s. 4(2).
Uttar Pradesh (Supplementary) Act, 1952-s. 3-Benefit of-When can be claimed-
Person not having any lawful right in land-Not entitled to claim cultivatory
possession.

HEADNOTE:

     Sona Devi, mother of respondents nos. 3, 4 and 5, inherited certain
Zamindari property from her father. By a registered deed of sale she sold it to
the predecessor in interest of the appellants and one Abhey Ram. At that time
she had no son, but subsequently, respondents nos. 3 to 5 were born to her and
at the time of her death all of them were minors.

     Respondents Nos. 3 to 5 filed a suit against the appellants and others for
a declaration that their mother had only a life interest in the zamindari
property sold by her, and that the transfer not having been supported by any
legal necessity, was not binding upon them. They also prayed for recovery of
possession of the property and for mesne profits. The suit was decreed by the
Munsif. During the pendency of the appeals filed by both the parties, the
village in which the disputed land is situate, was notified for consolidation
operations and, therefore, in view of s. 5 of the Consolidation Act, all further
proceedings of the appeals were stayed.

     In the consolidation proceedings, the names of the appellants were recorded
in the revenue papers as Bhumidar in respect of the disputed land. The
respondents filed objections under s. 12 of the Consolidation Act, raising
questions of title regarding the disputed land. The Consolidation officer
referred the matter under sub-s. I of s. 12 to the statutory Arbitrator, who
made an Award in favour of the Respondents and

488

recorded the findings that Sona Devi had only a life interest in the disputed
land, that the sale deed executed by her was neither for legal necessity nor for
the benefit of the estate of her deceased father, that the transfer of the
disputed land by the sale deed was not binding on the respondents Nos. 3 to 5
and that they were entitled to reocover possession of the disputed land. Two
petitions of objections to the Award, filed by the appellants, were dismissed by
the Civil Judge. The Additional District Judge in second appeal took the view
that as the sons of Abhey Ram, who was also one of the transferees under the
said sale deed. were not made parties in the proceedings, the reference to the
Arbitrator was illegal and the Award made by him was invalid, and that the
Arbitrator was guilty of legal misconduct inasmuch as he had committed an error
of law apparent on the face of the Award, allowed the appeals, and set aside the
order of Civil Judge and also the Award of the Arbitrator.

     A Single Judge of the High Court allowed the Revision Petitions of the
respondents, set aside the order of the Additional District Judge and restored
that of the Civil Judge and also the Award of the Arbitrator. Dismissing the
appeals, this Court,

^

     HELD: 1. The object of sub-s. (2) of s. 52 of the U.P. Consolidation of
Holdings Act 1953 is that when an order has been passed by a Court under the
provisions of the Constitution or in cases or proceedings pending under the
Consolidation Act, the right or interest involved under such order or in the
pending cases or proceedings under the Consolidation Act, should not be again
subjected to the consideration in the consolidation proceedings started by
virtue of a notification under s. 4-A of the Consolidation Act. [495E-F]

     2. Section 4-A will apply only where the consolidation operations remained
closed for a period of 10 years from the date of the notification under s.
52(1). But, in view of s. 52(2), consolidation operations shall be deemed to
have not been closed in respect of two cases mentioned therein. So, s. 4A will
have no application to these two cases. Consequently, the provision of s. 4 as
also the provision of s. 5 will not apply to these two cases. [495D-E]

     3. The proceedings out of which the instant appeals arise are l l
proceedings under the Consolidation Act and, therefore, s. 5(2)(a) will

489

have no application to these proceedings. In any event, in view of s. 52(2), the
notification issued under s.4-A and the subsequent notification under s. 4(2)
and the consequence thereof as provided under s. 5(2) of the Consolidation Act,
will have no application to or affect the proceedings giving rise to the instant
appeals. [496A-B]

     4. The High Court was right in holding that the Additional District Judge
should not have entertained the objection to the maintainability of the
reference to the Arbitrator raised for the first time before him and that the
proper stage for raising such an objection was when the reference was made under
s. 12 of the Consolidation Act. [496E-F]

     5. Since the sale deed in question has been held by the Arbitrator as
invalid inasmuch as it was not supported by any legal necessity, the appellants
had not acquired any interest in the disputed land under the sale deed and, as
such, they had no intermediary interest in the disputed land on the date
immediately preceding the date of vesting under the Zamindari Abolition Act. The
appellants not being intermediaries or persons of any category as mentioned in
s. 18, they are not entitled to 1) retain the disputed land and their possession
is not protected by the provision of s. 18. [497C-D]

     6. Section 3 of the Uttar Pradesh (Supplementary) Act, 1952 does not confer
any right on a person whose possession of land during the year 1359 Fasli was
illegal. It is not the intention of the Legislature to protect the possession of
a trespasser under s. 3(1). The explanation to s. 3(1) gives sufficient
indication that a person not having any lawful right in the land. cannot claim
to be in cultivatory possession of such land. [499A-B]

     Ram Krishna v. Bhagwan Baksh Singh, (1961) ALJ 301 and Badri and another v.
Juthan Singh and others, ( 1969) ALJ 411, relied upon.

     In the instant case, in view of the findings of the Arbitrator, the
appellants did not acquire any interest in the disputed land by virtue of the
sale deed in question, and it cannot be said that they have acquired title to
the disputed land by adverse possession. After the death of Sona Devi, the
possession of the disputed land by the appellants became illegal and adverse to
the respondents Nos. 3 to 5. But before such possession could ripen into title
after the lapse of twelve years, the respondents Nos. 3 to S instituted a suit
within six years of such possession in the Court of Munsif for the recovery of
possession of the disputed land from the appellants, which was decreed. Both the
appellants

490

and the respondent Nos. 3 to 5 filed appeals, but in view of s. 5 of the
Consolidation Act, all further proceedings of the said appeals were stayed.
Thereafter, the consolidation proceedings were started giving rise to the
present appeals. Thus, the appellants have not acquired any title to the
disputed land by adverse possession. [498E-H]

JUDGMENT:

     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 273-274 of 1972

     From the Judgment and order dated 25.8.1971 of the Allahabad High Court in
C. Revn. No. 1354 and 1355 of 1969. J.P. Goel, Rajesh and R.A. Gupta for the
Appellants. O.P. Rana, P.K. Pillai for the Respondents. The Judgment of the
Court was delivered by DUTT, J. These two appeals by special leave have been
preferred by the appellants against the judgment of a learned Single Judge of
the Allahabad High Court. By the said judgment the learned judge set aside the
order of the District Judge, Meerut, passed by him on appeal under section 39 of
the Arbitration Act, 1940, upholding the order of the First Civil Judge, Meerut,
and the Award of the Arbitrator made under section 12 of the U.P. Consolidation
of Holdings Act, 1953, hereinafter referred to as 'the Consolidation Act'.

     One Kurey was the owner of the zamindari property in Khewat Nos. 23 and 34
and also in Khewat No. 2, comprising the disputed plots of land in village Daha.
On his death, the zamindari property devolved upon his daughter, Sona Devi. By a
registered deed of sale dated December 21, 1935, Sona Devi sold the zamindari
property to one Hoshiara, the predecessor in interest of the appellants, and
also to one Abhey Ram. Out of the consideration of Rs.3,150, Sona Devi was paid
only Rs.1,300 in cash before the Sub-Registrar and the balance of the
consideration money was kept in deposit with the purchasers for payment under
three usufructuary mortgage deeds executed by Kurey in favour of some of his
creditors. Sona Devi had no son when she executed the sale deed, but
subsequently three sons, namely, the respondents Nos. 3, 4 and 5 were born to
her. She died in 1944 leaving behind her the said respondents who were all
minors at the time of her death.

491

     The respondents No. 3 to 5, the sons of Sona Devi, filed a suit being suit
no. 1503 of 1950 in the Court of the Munsif, Meerut against the appellants and
others for a declaration that Sona Devi had only a life interest in the
zamindari property purported to have been transferred by her by the sale deed
dated December 21, 1935, and that the transfer not having been supported by any
legal necessity, was not binding upon the respondents. The respondents also
prayed for recovery of possession of the property and for mesne profits.

     The learned Munsif by his judgment dated January 18, 1953 decreed the suit.
Both the parties preferred appeals against the said judgment and decree of the
learned Munsif. During the pendency of the appeals, village Daha, in which the
disputed land is situated, was notified for consolidation operations under the
Consolidation Act. In view of section S of the consolidation Act, all further
proceedings of the said appeals were stayed. In the consolidation proceedings
that were started in the village, the names of the appellants were recorded in
the revenue papers as bhumi in respect of the disputed land. The respondents
filed objections under section 12 of the Consolidation Act, as it stood at the
relevant time in November, 1956. As the objections raised questions of title
regarding the disputed land, the Consolidation officer referred the matter under
sub-section (4) of section 12 to the statutory Arbitrator. The learned
Arbitrator came to the findings that Sona Devi had only a life interest in the
disputed land, that the sale deed executed by her on December 21, 1935 was
neither for legal necessity nor for the benefit of the estate of her deceased
father, that the transfer of the disputed land by the said sale deed was not
binding on the respondents, the sons of Sona Devi, and that, accordingly, the
said respondents were entitled to recover possession of the disputed land
purported to have been transferred by the said sale deed. In view of the above
findings, the learned Arbitrator made an Award in favour of the respondents.

     The appellants filed two petitions of objection to the Award under section
30 of the Arbitration Act which were dismissed by the learned First Civil Judge,
Meerut, by his order dated November 8, 1967.

     Being aggrieved by the order of the learned First Civil Judge, Meerut,
dismissing the petitions of objection, the appellants filed two

492

appeals to the Additional District Judge, Meerut, under section 39 of the
Arbitration Act. The learned Additional District Judge took the view that as the
sons of Abhey Ram, who was also one of the transferees under the said sale deed
dated December 21, 1935, were not made parties in the proceedings, the reference
to the Arbitrator was illegal and the Award made by him was invalid. Further, it
was held by the learned Additional District Judge that the Arbitrator was guilty
of legal misconduct inasmuch as he had committed an error of law apparent on the
face of the Award. Upon the said findings, the learned Additional District Judge
set aside the order of the learned First Civil Judge, Meerut, and also the Award
of the learned Arbitrator. Both the appeals preferred by the appellants were,
accordingly, allowed.

     The respondents, being aggrieved by the said order of the learned
Additional District Judge, filed two revision petitions under section 115 of the
Code of Civil Procedure before a learned Single Judge of the Allahabad High
Court. The learned Judge, as aforesaid, set aside the order of the learned
Additional District Judge, Meerut, and restored that of the learned First Civil
Judge, Meerut, and also the Award of the learned Arbitrator. Hence these two
appeals by special leave.

     Before we proceed further we may dispose of two applications which have
been filed by the appellants in the two appeals. It has been alleged in the
applications that during the pendency of the appeals in this Court, a
notification dated June 27, 1981 under section 4-A of the Consolidation Act was
issued declaring that village Daha might again be brought under the
consolidation operations. In view of that notification, a further notification
was issued under sub-section (2) of section 4 by the State Government deciding
to start consolidation operations in village Daha. It is alleged that since the
issuance of the notification under section 4(2), the consolidation operations
have been going on in that village. It is submitted that by virtue of sub-
section (2) of section 5 of the Consolidation Act, the consequence of the
publication of a notification under section 4(2) is that the present appeals
along with other proceedings out of which the appeals arise, stand abated. The
parties affected will, however, be entitled to agitate their right or interest
in dispute in the said proceedings before the appropriate consolidation
authorities under and in accordance with the provisions of the Consolidation Act
and the rules made thereunder, as provided in clause (b) of

493

section 5(2) of the Consolidation Act. Accordingly, it has been prayed in the
said applications that an order of abatement of the instant appeals and also of
other proceedings including the arbitration proceedings, should be made under
section 5(2) of the Consolidation Act. In order to consider the contentions of
the appellants as to the abatement of the appeals and the other proceedings out
of which the appeals arise, we may refer to some of the provisions of the
Consolidation Act. Sub-section (1) of section 52 of the Consolidation Act
provides for the issuance of a notification by the State Government declaring
the closure of the consolidation operations in the unit whereupon the village or
villages forming a part of the unit shall cease to be under consolidation
operations. Sub- section (2) of section 52 provides that notwithstanding
anything contained in sub-section (1), any order passed by a court of competent
jurisdiction in cases of writs filed under the provisions of the Constitution of
India, or in cases or proceedings pending under the Consolidation Act on the
date of issue of the notification under sub-section (1), shall be given effect
to by such authorities, as may be prescribed and the consolidation operations
shall, for that purpose, be deemed to have not been closed. Under section 4-A(1)
of the Consolidation Act, where the State Government is of the opinion that in
the case of a district or part thereof in respect of which a notification has
already been issued under section 52, it is expedient in public interest so to
do, it may make a declaration by notification in the Gazette that such district
or part thereof may again be brought under consolidation operation. Under the
proviso to section 4-A(1), no such declaration shall be issued within ten years
from the date of the notification referred to in the said section. Section S
provides for the effect of a notification under section 4(2). Sub-section (2) of
section S runs as follows: "S. 5(2)-Upon the said publication of the
notification under sub-section (2) of Section 4, the following further
consequences shall ensure in the area to which the notification relates, namely-

   (a) every proceeding for the correction of records and every suit and
proceedings in respect of declaration of rights or interest in any land lying in
the area, or for declaration or adjudication of any other right in regard to
which proceedings can or ought to be taken under this Act, pending

494

   before any court or authority whether of the first instance or of appeal,
reference or revision, shall, on an order being passed in that behalf by the
court or authority before whom such suit or proceeding is pending, stand abated:

        Provided that no such order shall be passed without giving to the
parties notice by post or in any other manner and after giving them an
opportunity of being heard:

        Provided further that on the issue of a notification under sub-section
(1) of Section 6 in respect of the said area or part thereof, every such order
in relation to the land lying in such area or part as the case may be, shall
stand vacated;

   (b) such abatement shall be without prejudice to the rights of the persons
affected to agitate the right or interest in dispute in the said suits or
proceedings before the appropriate consolidation authorities under and in
accordance with the provisions of this Act and the rules made thereunder.

   Explanation-For the purposes of sub-section (2), a proceeding under the Uttar
Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested
proceeding under Sections 134 to 137 of the U.P. Zamindari Abolition and Land
Reforms Act, 1950, shall not be deemed to be a proceeding in respect of
declaration of rights or interest, in any land."

     It is manifestly clear that where consolidation proceedings have been held
and closed, a notification under section 4(2) of the Consolidation Act can be
made only after the expiry of 10 years from the date of the notification under
section 52. When the consolidation proceedings are over, the State Government
issues a notification declaring that the consolidation operations have been
closed in the unit whereupon the village or villages forming a part of the unit
shall cease to be under consolidation operations. Thus, at the time the
notification under section 4-A is made, the consolidation operations in respect
of any district or part thereof have been closed ten years before and there is
no consolidation operation in the district or part thereof to which the
notification under section 4-A relates. 495

     By virtue of sub-section (2) of section 52 of the Consolidation Act even
though a notification under sub- section (I) of section 52 is made declaring
that the consolidation operations have been closed in respect of the unit, yet
it shall be deemed to have not been closed for the purpose of giving effect by
the prescribed authorities to the following two cases:

   (i) Any order passed by a court of competent jurisdiction in cases of writs
filed under the provisions of the Constitution of India.

   (ii) In cases or proceedings pending under the Consolidation Act on the date
of issue of the notification under sub- section (1).

     Thus, in regard to the two cases mentioned above, the consolidation
operations shall be deemed to have not been closed. As noticed already, section
4-A will apply only where the consolidation operations remained closed for a
period of ten years from the date of the notification under section 52(1). But,
in view of sub-section (2) of section 52 of the Consolidation Act, the
consolidation operations shall be deemed to have not been closed in respect of
the two cases mentioned above, and so section 4-A will have no application to
these two cases. Consequently, the provision of section 4 as also the provision
of section 5 will not apply to these two cases. The object of sub-section (2) of
section 52 is that when an order has been passed by a court under the provisions
of the Constitution of India or in cases or proceedings pending under the
Consolidation Act, the right or interest involved in such order or in the
pending cases or proceedings under the Consolidation Act, should not be again
subjected to the consideration in the consolidation proceedings started by
virtue of a notification under section 4-A of the Consolidation Act. It may be
noticed that the suit and proceedings referred to in section 5(2)(a) are
different from the cases and proceedings mentioned in sub-section (2) of section
52. While cases or proceedings referred to in sub-section (2) of section 52, the
order passed in writ cases under the Constitution of India apart, must be
pending under the Consolidation Act, under clause (a) of section 5(2) the
proceedings which will stand abated upon an order being passed in that behalf by
a court or authority, are either a pending suit or pending proceedings, but such
proceedings are not pending under the Consolidation Act. 496

     The proceedings out of which the instant appeals arise are proceedings
under the Consolidation Act and, therefore, section 5(2)(a) will have no
application to the proceedings out of which the present appeals arise. In any
event, in view of sub-section (2) of section 52 of the Consolidation Act, the
notification issued under section 4-A and the subsequent notification under
section 4(2) and the consequence thereof as provided under section 5(2) of the
Consolidation Act, will have no application to or affect the proceedings giving
rise to the instant appeals. The applications are, therefore, misconceived and
are dismissed.

     We may now come to the merits of the appeals. It is urged by Mr. J.P.
Goyal, learned counsel appearing on behalf of the appellants in both these
appeals, that the High Court should have held that as the sons of Abhey Ram, one
of the transferees under the sale deed dated December 21, 1935, were not made
parties in the arbitration proceedings, it was invalid. This contention
challenging the maintainability of the reference and the invalidity of the
arbitration proceedings, was raised for the first time before the learned
Additional District Judge who, as stated already, upheld the same. In our
opinion, the High Court was right in overruling the contention on the ground
that the learned Additional District Judge should not have entertained the
objection to the maintainability of the reference itself at that stage. The High
Court has pointed out that before the learned Arbitrator all the parties
concerned appeared and no objection to the competency of the reference was
raised and that the proper stage for raising such an objection was when the
reference was made under section 12 of the Consolidation Act. The contention of
the appellants is, accordingly, rejected.

     It is next contended on behalf of the appellants that the High Court was
not justified in setting aside the finding of the learned Additional District
Judge that the learned Arbitrator was guilty of legal misconduct. It has been
held by the learned Additional District Judge that there was an error apparent
on the face of the Award inasmuch as the learned Arbitrator failed to properly
consider the provision of section 18 of the U.P. Zamindari Abolition and Land
Reforms Act, 1950, hereinafter referred to as 'the Zamindari Abolition Act', and
to give effect to the rights conferred upon the appellants under the said
provision. It is submitted that the learned Additional District Judge was,
therefore justified in holding that the learned Arbitrator was guilty of legal
misconduct. 497

     Let us now consider whether the Arbitrator has committed any error of law
in not giving effect to the provision of section 18 of the Zamindari Abolition
Act in favour of the appellants. Section 18 confers on the intermediaries and
certain cultivators the right to retain land in their possession, as bhumidhars.
The appellants claim that they are intermediaries in possession of the disputed
land and, accordingly, they are entitled to retain the disputed land as
bhumidhars under the provision of section 18. In our opinion, this claim of the
appellants is without any foundation. It is true that by the sale deed dated
December 21, 1935 the appellants purported to have acquired the proprietory
interest of Sona Devi in the land. The sale deed has, however, been held by the
learned Arbitrator as invalid inasmuch as it was not supported by any legal
necessity. The appellants, therefore, had not acquired any interest in the
disputed land under the sale deed and, as such, they had no intermediary
interest in the disputed land on the date immediately preceding the date of
vesting under the Zamindari Abolition Act. The appellants not being
intermediaries or persons of any category as mentioned in section 18, they are
not entitled to retain the disputed land under the provisions of section 18.
There is, therefore, no substance in the contention made on behalf of the
appellants that their possession in the disputed land is protected by the
provision of section 18. It is, however, urged by Mr. Goyal that in any event
the appellants are entitled to the benefit of section 3 of the Uttar Pradesh
Land Reforms (Supplementary) Act, 1952. Sub-section (1) of section 3 of the said
Act provides as follows:

   "S. 3. Persons in cultivatory possession in 1359 Fasli to be adhivasis or
asamis. -(1) Every person who was in cultivatory possession of any land during
the year 1359 fasli but is not a person who as a consequence of vesting under
Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act I
of 1951) (hereinafter referred to as the Act), has become a bhumudhar, sirdar,
adhivasi or asami under Sections 18 to 21 of the said Act shall be and is hereby
declared to be, with effect from the appointed date-

        (a) if the bhumidhar or sirdar of the land was, or where the land
belongs jointly to two or more bhumidhars or sirdars, all of them were, on the
appointed date person or persons referred to in items

498

        (i) to (vi) of sub-section (2) of Section 10 of the said Act, an asami
from year to year, or

        (b) if the bhumidhar or sirdar was not such a per son, an adhivasi,

   and shall be entitled to all the rights and be subject to all the liabilities
conferred or imposed upon an asami or an adhivasi, as the case may be, by or
under the said Act.

   Explanation. -A person shall not be deemed to be in cultivatory possession of
the land, if he was cultivating it as a mortgagee with possession or a thekedar
or he was merely assisting or participating with a bhumidhar, sirdar, adhivasi
or asami concerned in the actual performance of agricultural operations."

     It is submitted by the learned counsel for the appellants that as the
appellants had been in cultivatory possession of the disputed land during the
year 1359 Fasli, they have acquired the status of adhivasi and are entitled to
all the rights conferred upon an adhivasi under the Zamindari Abolition Act.
This contention is based on the assumption that the appellants were in
cultivatory possession during the year 1359 Fasli. In view of the findings of
the learned Arbitrator, as noticed above, the appellants did not acquire any
interest in the disputed land by virtue of the sale deed executed by Sona Devi.
In view of the facts already noticed and stated hereafter for convenience, we
are unable to accept the contention of the appellants that they have acquired
title to the disputed land by adverse possession. After the death of Sona Devi
in 1944, the possession of the disputed land by the appellants became illegal
and adverse to the respondents nos. 3 to 5. But before such possession could
ripen into title after the lapse of twelve years, the respondents nos. 3 to 5
instituted a suit in 1950, that is, within six years of such possession, in the
court of the Munsif at Meerut for the recovery of possession of the disputed
land from the appellants. The suit was decreed by the learned Munsif against the
appellants. Both the appellants and the respondents Nos. 3 to 5 filed appeals
against the decree, but in view of section 5 of the Consolidation Act, all
further proceedings of the said appeals were stayed. Thereafter, the
consolidation proceedings were started and the present appeals arise out of such
proceedings. Thus, the appellants have not acquired any title to the disputed
land by adverse possession.

499

     Section 3 of the Uttar Pradesh (Supplementary) Act, 1952 does not confer
any right on a person whose possession of the land in question during the year
1359 Fasli was illegal. In our opinion, it is not the intention of the
Legislature to protect the possession of a trespasser under section 3(1). The
explanation to section 3(1) gives sufficient indication that a person not having
lawful right in the land, cannot claim to be in cultivatory possession of such
land.

     The Allahabad High Court in Ram Krishna v. Bhagwan Baksh Singh, [1961] ALJ
301 and in Badri and another v. Juthan Singh and others, [1969] ALJ 411 has
rightly held that a trespasser cannot be said to be in cultivatory possession
within the meaning of section 3 of the U.P. Land Reforms (Supplementary) Act,
1952. The appellants were not, therefore, in cultivatory possession of the
disputed land during the year Fasli 1359 and, consequently, they are not
entitled to the benefit of section 3(1). No other point has been urged on behalf
of the appellants.

     For the reasons aforesaid, both the appeals are dismissed with costs
assessed at a consolidated sum of R.S.. 3,000.

A.P.J. Appeals dismissed.

500