LexTHE UPPER GANGES SUGAR MILLS LTD. versus KHALLIL-UL-RAHMAN AND OTHERS
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/(. Al. ,l\'atiatilzti v. The Statt of Bombay Kapur J. 564 SVPHEME COUHT HEPORTS (1961] the same subject matter a.s is contended then a.rt. 161 must prevail over art. 142(1) which is in accord with the constitutional position as above discussed. In the circumstances of this case I would grant tho petitioner r.•xemption prayed for and proceed to hear tbe special leavP. petition on merits. BY COURT: In view of t.hc majority ,Judgment, the petition is dismissed. Petition dismissed. THE UPPER GA:\GES St;CAH .MILLS LTD. v. KHALIL-UL-RAHlllA:\ A.:\'D OTHEHS. (B. P. SrnHA, C. J., B. P. GA.JENDRAGADKAR, K. N. WANCHOO, K. C. DAS GUP'l'A aud J. c. SHAH, ,JJ.) Tenancy-Adhivasi ri!;ht, acq,,isitioiz of-I'os.~,,ssion cnntin11cd under stay orders of court.~- - tl"hcthcr such poss,·ssion is on bcluilf of courts-- l'crson recorded in posscssicn as thckadar- ti' /ict11rr an occ11pant in his 01en 1'igl:t-U. 11• Z111nindari Alo!iti"ori and J.a11d Reforms Act, i950, (U. }'. I of z950). s. 20(b). The landlord granted a theka to the ccmp;rny for 10 years ending \\'ith 1350 F which \\JS rc11e\ve<l up to 1355 F (june 1948). On the company·; refusal to vacate on the cxpi1y 01 the theka the l~ndlord lilcd a suit for cjcctment under the LT. P. Tenancy Act, l9J9· The suit was resisted by the company on the ground that it has beco1nc a hereditary tenant undC'r s. 29 of that 1\ct. The suit \vas decreed on l\ovcmher 3, 1948, an<l an appeal and a second appeal a~ainst the dccrl'e al~o f<l.ilc<l, hut the curnµany rcmain<:d in possession of the land on account of stay orJe1s granted by the appellate courts. In execution t'he lamllord obtained formal possesoion on Octohcr 13, 1950, but the company resisted actual ejectment. On July 1, 1953, the com- pany instituted proceedings to recover actual possession of the land under s. 2J2 of the U. P. Zaminclari Abolition and Land Reforn1s Act, 1950, clairning to have become an Adhivasi under s. 20 thereof. Seclion 20 provi1led that every person who was recorded as occupant.of any lanri in the K/Iasra or Khataimi of 1356 F shall be called an adhivasi of the land and shall be 1 S.C.R. SUPREME COURT REPORTS 565 entitled to take or retain possession thereof. The company was 1960 recorded in r356 F in possession of the land in dispute as theke- dar. The landlord contended that the company had not acquired The Upper Gong" the rights of an adhivasi: (i) as it being in possession in r356 F SugaY Mills Ltd. under the stay orders of the courts it was in occupation not on v. its own behalf but on behalf of the court, and (ii) as it was J(halil·ul-Rahman recorded as a thekedar in r356 F its possession was not on its own &- Othm behalf but on behalf of the landlords, whose thekedar it was. \ / Held, (per Sinln C. J., Gajendragadkar, Wanchoo ··and Shah, JJ.), that the company had acquired adhivasi rights in the land and was entitled to the possession thereof. Simply because there were stay orders which enabled the company to remain in possession, the possession was not on behalf of the court. It re- mained in possession in the same right in which it was in possession before the decree was passed on November 3, r948. Though the company was recorded in possession as a thekedar it was an occupant in its own right and not on behalf of the land- lord. It was open to the court to look beyond the entry of the company as a thekedar in the Khasra. Swami Prasad v. Board of Revcnite, U. P., r960 A.L.J. 241, Parshotam Das v. Prem Na.ain, A.LR. r956 All. 665, Birjlal v. Mitrli Pd., r954 R. D. 175 and Lala Nanak Chand v. The Board of Revenite, U. P., 1955 A.L.J. 408, referred to. DAs Gu PTA, J.-The company did not acquire the rights of an adhivasi. The word "occupant" means a person in posses- sion in his own right and not on behalf of someone else. The benefit under the section is available only to those "recorded" as "occupants". It is not . permissible to look beyond the record to asCertain whether the claimant has been "recorded as occupant". The record in the khasra of the possession "as the- kedar " amounts to record of "possession on behalf of theke- dar's lessor''. Swamy Prasad v. Board of Revenue, U. P., 1960 A.L.J. 24r, referred to. CIVIL APPELLATE JuRISDIOTION: Civil Appeal No. 196 of 1952. Appeal from the judgment and order dated October 3, 1950, of the Court of Board of Revenue, U. P., Alla- habad, in Review Application No.161 of 1949-50.
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