LexWALI MOHAMMAD (DECEASED) BY L.RS. versus RAM SURAT & ORS.
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' ~ WAL! MOHAMMAD (DECEASED) BY L.RS. v. RAM SURAT & ORS. SEPTEMBER 21, 1989 [M.H. KANIA ANDS. RANGANATHAN, JJ.] U. P. Zamindari Abolition and Land· Reforms Act 195~Section 232 and Section 20 (b)(i)-lnterpretation of-Who can be declared as Adhivasi thereunder. One Wali Mohammad (since deceased) executed on May 22, 1928 an usufructuary mortgage in favour of Ram Kumar aud Shiv Kumar in respect of two plots. According to Wali Mohammad he redeemed the said mortgage and took possession of the plots in the beginning of Fasli year 1354 (peri9<1from1.7.1946 to 30.6.1947) and continued in posses. sion thereof. On 28th December 1953, Ram Kumar moved an application under Section 232 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 for obtaining possession of the two piOts in question from \\'' ali Mohammad on the ground that his name was recorded. in the Khasra and Khatauni of 1356 Fasli and therefore he was the Adhivasi of the said plots. Wali Mohammad Contested the application before the Sub-Divisional Officer. The Sub Divisional Officer dismissed the suit finding that Wali Mohammad was in possession of the plots. This deci- sion was affirmed by the Addi. Commissioner, who held that the entry in the Khasra relied on by Ram Kumar was a fictitious one. On second appeal the Board of Revenue set aside the orders of the Sub-Divisional Officer as also of the Addi. Commissioner. The Board held that the entry in the Khasra to the effect that Ram Kumar was the occupant of the two plots in Fasli year 1356 was sufficient to confer Adhivasi rights. Thereupon Wali Mohammad filed a Writ Petition in the High Court challenging tiie-dedsion oi' the-Board. of Revenue. The Single Judge B, c D E F who heard the Writ Petition allowed the Writ Petition holding that the B_oard hac:I committed an . error of jurisdiction and consequently G quashed the orders of the Board. Ram Kumar preferred a Letter Patent appeal against the order of the Single Judge. The Division Bench -allowed the appeal and set aside the order passed by the Single Judge. The Division Bench took the view that the entry in the revenue records was enough to confer rights of Adhivasi under Section 20(b) of the Act. 211 H 212 SUPREME COURT REPORTS [ 1989) Supp. I S.C.R. A Being aggrieved by the said decision of the High Court the legal representatives of Wali Mohammad who has since died has filed this 9ppeal, after obtaining Special Leave. Dismissing the appeal, this Court, 13 HELD: Section 20(b) of the Act deals with the question as to who is entitled to take or retain possession of the land in question. The plain language of cluase (l) of Sub-Section (b) of Section 20 of the Act, sug- gests that this question has to be determined on the basis of the entry in the Khasra or Khatauni of the Fasli year 1356. An analysis of the said section shows that Under sub-section (b) of section 20, the entry in the C Khasra of Khatauni of the Fasli year 1356 shall determine the question as to the person who is entitled to take or retain possession of the land. If the entry is fictitious or is found to have been made surreptitiously then it can have no legal effect as it can be regarded as no entry In law, but merely because the entry is made incorrectly that would not lead to the conclusion that it ceases to be an entry. It is possible that the said D entry may be set aside in appropriate proceedings. [214G-H; 215A) In the present case, although the Addi. Commissioner has held that the entry was fictitious, the conclusion seems to have been arrived at merely on the basis that Wali Mohammad was in possession in Fasli year 1356, with the result that the entry in the Khasra or Khatauni E showing Ram Kumar as the occupant could not be correct. There is nothing to show that the said entry was fictitious or was made fraudu- lently or was in-correctly introduced by reason of ill-will or hostility towards,Wali Mohammad. In these circumstances, the entry may not be correct but it could not be said to be fictitious or regarded as non est. Merely because the entry might be incorrect, that would not make any F differen<JO to the determination of the question as to who is entitled to be declared to be the Adhivasi of the land under the provisions of Section 20(b) of the said Act. [2168-D) Bachan & Anr. v. Kankar & Ors., [1973) I SCR 727 and Vishwa Vijai Bharti v. Fakhrul Hasan & Ors., [1976) Suppl. SCR 519, referred G to.
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