AZAD SINGH & OTHERS versus BARKAT ULLAH KHAN & OTHERS

Citation: [1983] 2 S.C.R. 927 · Decided: 26-04-1983 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Dismissed

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Judgment (excerpt)

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927 
AZAD SINGH & OTHERS 
v. 
BARKAT ULLAH KHAN & OTHERS 
April 26, 1983 
[0.A. DESAI AND 0, i;:HINNAPPA REDDY, JJ.) 
U.F. Zamindari Abolition and Land Reforms Act, 1950-s. 12(1}-lirt.r-
pretation of-Hereditary tenant-Thekeiklr under a Theka for personal cultivation 
necessary. 
U.P. Land Reforms (Supplementary) Act, 1952-S. 3-lnterpretation of-
·' 
Adhivasi-Cultivatory possession mu•f be lawful. 
Words and Phrases-Cultivatory posmsion. 
• 
The plaintiffs, who wer~ Thekedars, filed two suits for possession of land 
leased out by the Zamindars to !he defendants-lessee$ on the ground that 
•ince the Thekedars had become hereditary tenants under s. 12 of the' U;P. 
Zamindari Abolition and Land Reform~ Act, 1950 and were in possession of 
that land on 1st day of May, 1950, the Zamindars had no right to grant lease 
and the lessees had no right to enter and remain in. possession of that land after 
that date. The lessees pleaded th3t they were in cultivatory possession of the 
land-during the yeilr 1359 Fasli and were entitled to all the· rights of adhivasis 
under the U.P. Land Reforms (Supplementary) Act, 1952. The trial court 
disinissed the suits observing that the Thekedars had acquired rights of 
hereditary tenants but the Jessees were in cultivatory possession in 1359 Fasli 
who had therefore acquired the right of adhivasi. The first appellate court 
dismissed the appeals. The High Court in second aJ,peal reversed ·the 
decision of the trial court and the first appellate court and decreed the suits. 
On appeal, it was contended that since there was· no authority given to the 
Thekedars for persoiial cultivation of the "lands comprised in the Theka the 
J"hekedars did not acquire the right of hereditary tenants under s. 12 of the 
1950 Act. 
Dimliuing the appeals, 
HELD: Section 12 of the 1950 Act provides that if any land was 
given to a penon for personal cultivation by him on the 1st day· of May, 
1950, as a Thekedar thereof, then because of the non-obstante clause occurring 
in sub-section (I) of section 12 the Thekedar would be deemed to be a here-
dit1ry tenant of the land entitled to hold the land as such and liable to pay 
rent at hereditary rates. If such hereditary tenant has lost Pf.?_ssession he is 
entitled to regain his possession. If, however, the land was in the personal 
cultivation of the Thekedar who was appointed merely to collect rent from 
other tenants and incidentally allowed to 'cultivate the' Sir, ot Khudkasht 
land of the lessor !hen he will be a mere as~i in ac~or\lance with se~tion 13 
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928 
SUPREME coµRT REPORTS 
(1983) 2 S.C.R. 
of the Act. Before a Thekedar can claim the status ·of a hereditary tenant, 
he must not only be a Thekedar but the Theka must be specifically granted 
for penonal cultivation of the land included in the Theka by tho Thekedar. 
-.,, 
[931 H, 932 A-CJ 
Babu Noorul Hasan Khan v. Ram Prasad Singh and Ors., [1980]1 SCR · 
977 and Raghunandan Singh and Ors. v. Brij. Mohan Singh and Ors., [1980] 
2 SCR 1063, referred to. 
In the instant case the Theka was created_ eXclusivelf for personal 
cultivation of the land involved in the Theka by tho · Thekedars and not as a 
consideration for some other duties to· be performed by the·., Thekedars to the 
Zamindars. The Thekedars were in possession of.the land and were personally 
cultivating the land on the !st day of May, 1950. The Thekedars acquired the 
status of hereditary tenants under section 12 of the 1950 Act. 
[933 C-E] 
Section 3 of the 1952 Act provides that any person who has not become 
a bhumidar. sirdar, adhivas! or asami under the 1950 Act if he is in cultivatory 
possession of any land during the year 1359 Fasli a.nd if the bhumidar or sirdar 
was not such a pe,rson, such person in cultivatory possCssion woilid acquire 
the status of an adhivasi. JO obtain the ben~fit of secti~n 3 the person 
claiming to bi: in cultivatory possession must show that his or her possession 
was Ia.wful. [933 F-G, 9'4 F] 
• 
Sonawati and Ors. v. Sri Ram and Anr., [1.968] 1 SCR 617, referred to. 
In thC instai1t case since the Thekedars had acquired the status of 
hereditary tCnant~ as· Thek8: was up to and inqlu~ive of the year 1359 Fasli, th.; 
Zamindars had no right to induct lessees in possession after depriving the 
Thekedars of their possession and therefore posses&ion of the lessees in_ 1359 
Fasli ·was not lawful. Therefore the lessees did not acquire the riatit of 
adhivasi

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