Revenue Entries Describing Plot As 'Tank' Not Conclusive To Eject Hereditary Tenant Under UP Land Reforms Act: Allahabad High Court
The Allahabad High Court has held that a tenant whose hereditary tenancy was judicially declared before the date of vesting cannot be ejected under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 merely because the revenue records later describe the plot as a tank. It held that the authority invoking the provision must establish that the tenant was admitted upon land...
The Allahabad High Court has held that a tenant whose hereditary tenancy was judicially declared before the date of vesting cannot be ejected under Section 212 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 merely because the revenue records later describe the plot as a tank.
It held that the authority invoking the provision must establish that the tenant was admitted upon land which, at the relevant time, was recorded as or was a customary tank or other land of public utility.
Section 212 of the Act of 1950 applies where a person has been admitted, on or after 08.08.1946, as a tenure-holder or grove-holder upon land which was recorded as, or was, customary common pasture land, cremation or burial ground, tank, pond, pathway or khalian, and provides for his ejectment subject to payment of such compensation as may be prescribed.
Justice Arun Kumar held,
“The provision is thus attracted only when the foundational facts bringing the case within the statutory description are established. The mere fact that a plot is subsequently described as a tank in the revenue records cannot, by itself, be treated as conclusive of the applicability of Section 212.”
The plot in dispute was allotted to the petitioner on an application made by him before His Highness Maharaja of Banaras, Vibhuti Narain Singh. He then sued under Sections 59/61 of the U.P. Tenancy Act, 1939 for a declaration that he was the hereditary tenant of the land. The suit was decreed on 7th February 1953 and upheld by the Board of Revenue on 16th March 1956 in reference proceedings.
After the abolition of zamindari, a suit was instituted against him under Section 212 for his ejectment on the ground that the plot was a tank. The Sub-Divisional Officer, Varanasi (South), decreed the suit in 1966. The Additional Commissioner, Varanasi, allowed the petitioner's appeal holding that the tank was the tenant's tank and would not vest in the State under Section 6 of the Act of 1950. The Board of Revenue allowed the Gaon Sabha's second appeal and restored the order of the Sub-Divisional Officer.
Before the High Court, the petitioner pleaded that the plot had been settled with him as land and that the tank was dug later by him as tenant, and that a suit could not lie merely on the strength of a revenue entry when the entire plot was not in the form of a tank. It was further agrued that having been declared a hereditary tenant and having continued as such until vesting, he became a sirdar and could not be evicted under Section 212, and that no compensation had been awarded while directing his ejectment.
The Gaon Sabha relied on the findings of the Sub-Divisional Officer, who had recorded that continuous entries from 1319 Fasli to 1369 Fasli showing the land as a tank used for irrigation established that it was a customary tank of public utility.
The Court held that revenue entries were relevant evidence of the nature and use of land but were not conclusive proof of the legal character of the rights of the person in possession, or of the circumstances in which a tank came into being. It held that the nature of the original settlement and the findings in the earlier tenancy proceedings had also to be examined.
Referring to Nirjhin Kumari v. Gram Samaj and Gaon Sabha, Domanpur v. Jagannath Singh, the Court observed that vesting under Section 6 of the Act of 1950 operates on the rights of intermediaries and does not by itself extinguish rights independently acquired by a tenant. It held that those decisions do not lay down that every plot later described as a tank is beyond the reach of Section 212.
“…where the foundation of the tenant's right is an earlier lawful tenancy in land which was not shown to have been a public-utility tank at the time of such settlement, and the tank was thereafter constructed by the tenant, the subsequent physical character of the land as a tank does not, without more, divest the tenant of his pre-existing statutory rights.”
The Court held that the earlier decree bound the authorities on the petitioner's status as hereditary tenant, though it did not dispense with the separate statutory enquiry under Section 212. It observed that the Sub-Divisional Officer had accepted that the Gaon Sabha could not question the petitioner's title as sirdar, yet ordered his ejectment by treating the land as a public-utility tank.
“Once the petitioner's hereditary tenancy in the disputed land had been judicially recognised, it was incumbent upon the authority invoking Section 212 to establish, by reference to the relevant evidence, that the case nevertheless squarely fell within the statutory conditions of that provision.”
The Court also noted that the order of the Sub-Divisional Officer disclosed no determination or direction regarding compensation, which Section 212 requires, but held it unnecessary to rest the decision on that ground.
Holding that the Gaon Sabha had failed to establish that the land fell within the mischief of Section 212, and the Board of Revenue had proceeded principally on the revenue entries without examining the legal effect of the earlier decree or the nature of the original settlement, the Court quashed the order dated 1st October 1980, restored the order of the Additional Commissioner and set aside the order of the Sub-Divisional Officer. The suit for ejectment was dismissed and the writ petition was allowed.
Case Title: Achhaibar Singh v. Board of Revenue And 3 Others