Sham Kartik Singh v. Mathura

RAGHUBAR DAYAL. J.-These appeals, by special leave, against the orders of the Board of Revenue, Utter Pradesh, arise in the following circumstances: The a ppllants presented applications against each set of the respondents in these six appeals ·under s.175, U.P. Tenancy Act, I939 U.P. XVII of 1939, hereinafter called the Act, for ejectment stating that they were the sir-holders of the land occupied by the respondents as non-occupancy tenants and that the period of five years during which the respondents were entitled to retain possession under s.20 of the Act had expired. The respondents contested the notice of ejectment alleging ihat the land in suit was not sir, that the appellants were not sir-holders, that appellants paid local rate exceeding Rs. 25/-in the United Provinces, Agra and Oudh, and held more than 50 acres of sir land. They claimed to be hereditary tenants of the land in dispute, in accorda1>ce with ss. 14, 15 and 16 of the Act. The paper were thereafter forwarded by the Tehsilder to the Assistant Collector in charge of the aub-division, in accordance with the provisions of s. 179 of the Act _, 3 S.C.R. SUPREME COURT REPORTS 907 The applications which were presented for the ejectment of the respondents were deemed to be plaints and the proceedings continued as suits, in view of eub-s. (2) of s. 179 of the Act. · The Court ca.Bed upon the appellants to file necessary extracts of papers and to join all tenants of sir as parties. The sub-Divisional Officer did not accept the contention of the respondets and decreed the suits on February 28, 19(6, holding that the land in suit was sir, that the appellants were sir-holders, that each of them did not pay a local rate exceeding Rs. 25/· either in 1938 or in 1940, that he did not hold more than fifty acres of sir land or more than fifty acres of sir and khudkasht land which had not been sublet in 13i7 F., correspondin~ to the period from July l, 1939 to Jnne 30, 1940. The respondents appealed against the decree to the Additional Commissioner, Benaras, and repeated their contentions which had not found favour in the Trial Court. They also contended that the appellants had not complied with the requirements of s. 19 of the Act as amended by the U.P. Tenancy (Amendment) Act, 1947 (lJ.P. X of 1947) which came in to force on June 14. 1947 after the appeals had been instituted. ' ·The Additional Commissioner confirmed the findings of thf'l Sub-Divisional Officer and further ~· held that 'there had been substantial compliance with the spirit of the law as laid down in the amended s.19 of the Act. He accordingly dismissed the appeals. The respondents..then instituted second app· · + eals in the Board of Revenue. The Board of Revenue did not agree with the additional Comm· issioner about there having been sufficient com· p1ia.noe with the provisions of amended s. 19 of 1962 Bh•m Irartik Singh v. Malhura Raghubar D•,al J .. 1961 Sham !Lartik Singh v. Mathura Raghubar DayalJ. 908 SUPREMEUORT REPORTS [1963] the Act an.d of the rules framed thereunder. It therefore set asine the decree against the respon­ dents and remanded the cases for fresh disposal in accordance with Jaw and further directed the Trial Court to decide the further contention raised by the respondents before the Board to the effect that they had acquired adivasi rights in the land in suit after the coming into force of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. I of 1951 ). It is against these orders of the Board of Revenue that these six appeals have been filed after obtaining special leave from this Court. It appears that there was no particular procedure laid down for the progress of the pro­ ceedings in the suit before the Sub-Divisional Officer after the papers had been sent to him in accordance with the provisions of s. 179 of the Act. The ordinary procedure for the conduct of suits was followed. The Sub-Divisional Officer. there· fore called upon the itppellants to file necessary extracts of documents. Naturally evidence had to be Jed, documentary or oral, to substantiate the allegations made by the parties and, especially by · the appellants, who had to prove their right to eject the respondents. They h~d to prove that the land in suit was sir and that they were sir holders. Section 6 of the Act defines 'sir'. This section reads: ''Sir" means - (a) land which immediately before the commencement of this Act was sir under the provisions of the Agra Tenancy Act, 1926, or the Oudh I!:ent Act, 1886: .. Provided that if at the commencement ;. of this Act, the sir holder is assessed in the United Provinces to a local rate of more than SUPREME COURT REPORTS 1962 twenty-five rupees, land which waB sir under the provisions of clause (d) or clause (e) of Section 4 of the Agra Tenancy Act, 1926, or of clause (c) or clause (d) of sub-Section ( 17) of Section 3 of the Oudh Rent Act, 1886, shall on this Act coming into force cel!-se to be sir unless it was - Sham Kartik Sirig'h '· v ... ~ ·--. Math~'!'.. R~g~ui•r Dayal J', (i) 'before the first day of July, 1'938,received otherwise than in accordance with the provisions of Section 122 (if the United Provinces Land Revenue Act, 1901, or . . (ii) before the comntflncement of this Act, received in accordance with the provisions of that section, in exchange for land which was sir under .the provisions of clause (a) or clause (b) or clause ( c) of · Section 4 of the .Agra Tenancy. Act, 1926, or of clause (a) or clause (b) of sub-l:lectioq (17) of Section 3 of the Uudh Rent Act,' 1886. . Provided further that the provisions of the first proviso shall apply to a sir holder'. who was not at the commencement of this . Act assessed in the United Provinces to a local rate of more than tw'enty-five rupees if he .or his predecessor'.ill-interest was so as!Jess~ ed on the 30th June, l 938 unless the local I . rate assessed on him has been decreased by resettlement or by· revision of · settlunent or unless since-that day he obtained his sir'rigtits' by suc~ession or survivorship : ' Frovided also that if the land to which the. provisions of the first proviso apply was i joint sir of several sir ho_lders and aH sucli · joint sir holde~s are not eir holders to whom such ~provisions. apply, such land shall not -. .. I 1962 8A.llm Karlik Singh · v. Mathura I [ lla1!iubar Dayal J. ' 910 SUPHEME CoURT REPORTS [I963] cease to be sir at the commencement of this Act, but shall remain sir until that portion of it which is the sir of those joint holders to whom such provisions apply ~s demarcated under the provisions of this Act; (b) land which was khudkasht and which is demarcated as air under the provisions of this Act. ' Expl&'l_ation- If any portion of the land revenue assessed on the sir holder'~ land ha• been relJ!itted owing to a fall in the price of · agricultural produce, the local rate payable by him shall, for the purposes of this section, be deemed to have been reduced in the 11ame proportion." It follows from these prov1s10n11 that the appellants had to establish the following facts : (i) ,The land in suit was 'air' on January 1, 1940, when the Act came into force. (ii) Each air-holder was not assessed in the United Provinces to a local rate of more than Rs~ 25/-. (iii) The sir holder or his predecessor in interest was not assessed to a local rate exceeding R1. 25/- on June 30, 1938. · The appellants proved them fads end the trial Cohrt held that the land in rnit did not cease to be 'sir'. Further, if the finding had been that the first proviso to a. 6 applied, s. 16 would have come into play end it would have been neces- - sary for the Court to determine whether each of. the sir holders possessed more than fifty acres of sir or of sir and khudkasht land which had not been let. On this point too, the finding of the Trial Court, however, i1 that each 1ir holder had les1 than fifty acreil of ,sir_ and khudkasht_ lilnd. Section IQ of the Act, before its amendment, in 1947, provided that if a sir-holder could apply under the provisions of s. 15 or 16 of the Act, the •· + 3 S.C.R. SUPREME COURT REPORTS 911 1968 Sham Kartik Singh v. Jlathitra Court was .to take action under those sections. The ._ amended 11ection al1!!0 repeated these provisions in its sub-a. (3). Its sub-as. (1) and (2) were, however new and re_a.d as follows: Raghubar Dayal J. ' . "(l) In a suit or proceed in!!' for the ejectment of a tenant of sir the sir holder shall before the first date fixed· for recording evidence, furnish to the cotrrt such particulars as the Board may by rule made in this behalf prescribe for a~certaining- (a) whether the sir-holder is a person to whom ~ the provisions of the first proviso to ·clause (a) of Section 6 apply; and (o) the total area and nature of the sir-holder's sir and khudlrnsht: Provided that if the sir-holder satisfied the Court that he had sufficient cause for not filing the particulars before the 1 date fixed, it may, subject to the payment of costs to tlte opposite party, extend the time. (2) If the sir-holder does not file the particulars mentioned in sub-ISection (1) within the time fixed thereunder, or deliberately furnishes inaccurate particulars, the Court. shall dismiss the sujt or proceeding, as the case may be, and shall decla1e the tenant to be hereditary tenant.'' · It is to be noticed that sub-s. (1) requires a sir-holder to furnish particulars presc,..ibed by the Board and that the purpose of furnishing those particulars is to assist the Court in ascertaining whether the provisions of the first proviso to clause (a} of s. 6 apply to the sir-holder and· ~bat is the total area and nature of tbe Fir-holder's sir and khudkasht. Section 19, there.fore, did not ~ring / 1962 51.m liartl/f Sinth I I y. Mat!lura 912 SUPREME COURT REPORTS. [1963] about any real change in the substantive law affec- ' ting the question wheth.er certain land is •sir' or not, according to the definition .of 'sir' in. s. 6 of the Act. After the amendment, a sir-holder, in order. to succeed in his suit, had to establish the same facts which he had to establish prior to the amendment. What proof he had to lead to support bis case, he has to give even after the . amendment. The only difference brought about by the amendment is in the procedural conduct of the suit and is that prior to the amendment the sir-holder had simply to lead eTidence to prove his case, without informing the Court before-hand about the material on which ·he would rely to establish that the provisions of the proviso (a) of s. 6 did not apply to him and in case they applied how effect would be given to the provisions of s 16. The amended Section made it incumbent on· the sir-holder to furnish such information to the Court and thereby to the tenant before the parties proceeded to lead evidrnce. Sue h information has to be furnished according to sub-s. ( 1) of amended s, 19, before the first date fixed for recording evidence. The time for furnishing such information can be extended under the proviso to that sub-section. Grtat importance however, has been attached to the new provision as 1mb-s. (2) of amended s.19 provides that the consequences of not filing those particulars, or filing those particulars inaccurately, would be that the Court shall dismiss the suit or proceeding and also declare the tenant to be a hereditary tenant. Now, it is contended for the appellants, th 1t the provisions of amended s.19 do not apply to the facts of this case as the amended section was enacted long after the first date of recording evidence .and tha.t therefore it could not ha.ve been possible for the appellant to furnish the necessary particulars in accordance with its pr~visions and that" if itii provisions apply to the fac~s of this acas ..... '• -3 S.C.R . SUPREME OVlJRT REPORTS 913 . the appellants have substanti~lly complied with · those provisions inasmuch as they had actually filed in Court \}ocumentfl which gave the necessary particulars required under rr. 239A and 239B made by the Board of Revenue under s· 19. The contention for the respondents is that amended section 19 is retrospective in view of the provisions · of s. 31 of the Amendment Act of l!? '7 and thi:i.t the appellants had not complied with requirements of s. 19 (l) and rules framed thereunder. _ ·'The aforesaid s. 31 reads : "Disposal of pending suits and appeals-· (1) All proceedings, suits, appeals and revi­ -sions pending under the said Act on the date of the commencement of this Act and all appeals and revisions filed after that date against orders or decrees passed under that Act and all decrees· and orders passed there- ~ under which have not been satisfied in full, shall be decided or executed, as the case may be, and where necessary such decrees and orders shall be amended, in accordance with the provisions of the said Act as amended by this Act: . _ - Provided firstly that if such a decree or . order cannot be so amended, or the execu· tion of or the appeal or revision from 1mch an amended decree or 9rder cannot be proceeded with, it shall be quashed. In such a caae the aggrieved pa.rty shall, notwithstanding any r. law of limitation be entitled to claim, within six months from. the date on which such decree or order is quashed such rights and remedies as he had on the date of the institu­ tion· of the suit or proceedings in which such decree or order was passed, -except in so far as such rights or remedies ~rtl incopsistent with 1J62 - Sham _Karlik Singfa - v. Mathura Raghub-;;-,.D-;;yal J, ' I I I I 1962 Sham Karlik Singh v. Mathur" Raghubar Dajal J. 914. SOPREME COURT REPORTS [1963] the provisions of the said Act as am.ended by this Act: Provided secondly that the proceedings under Section· 53 between a landlord and his tenant and all proceedings under Section 54 shall be quashed: Provided thirdly that appeals and reyi­ sions arising out. of the proceedings under Section 53 between a landholder and his tenant or out of those ·under Section 54 shall be so decided as tci · place the parties in the same position in which they w.ere immediately before the institution of such proceedings: Provided ·fourthly that all suits, appeals and revisions pending under Section 180 of the said Act, on t,he date of the commence­ ment of this Act for the ejectment of any person who was ·recorded as an occupant on or after the first day of January, 1938, in a. record revised under Uhapter IV of the United " Provinces I.and Revenue Ac~, 1901, or cor­ rected ·by an officer specially appointed· foF the correction of annual registers in any tract shall be dismissed, and all decrees and orders . for . the ejectment pf such persons, which have not been satisfied in full on the date of the commencement of this Act shall ,be quashed: Provided · fifthly that nothing in this sub-section shall affect the forum of appeal or revision from a decree . or order passed by a Civil Court under the said Act. (2) Ii:J. counting the period of limitation in. \. respect of an application for the execution of a decree or Qrder which was passed under · the.said Act and the execution of which was 3 S.C.R. SUPREME COURT REPORTS I 915 stayed pending the enactment of this Act, 1962 the period during which execution was so Sham Karlilc, Singh stayed shall be excluded." v.. • Mathura In view or' this section, the appeals which were. -- l pending before the additional Commissioner when Raghubar Da;ml J, · the amendment Act came into force had to be deci- ded in ·accordance with the provisions of the Act as amended. It has been stated above that ·no change in the substantive law affecting the rights of the parties has been brought about by the Amendment Act. The only provision which could affect the rights of the parties is contained in sub-s.(2) of amended s.19 and provides the conseqy.ences of the failure of the sir-holder to furnish the necessary particulars. It follows therefore that if the neces- sary particulars had been furnished in this case even prior to the Amendment Act coming into force, there could be no difficulty in deciding the appeals by the Additional Commissioner in accor- dance with . the provisions of the Act as amended by' the ·Amending Act. This is exactly what the Additional Commissioner did. He held that subs- tantial comJ?liance has been made with the provis- ions of the amended section and the rules framed thereunder. The Board of Revenue is itself of the opinion that if substantial compliance bad been ·made of those provi<lions that would have been sufficient. It however did not agree with the Addi· tional Commissioner's view .that the appellants had s_ufficiently complied with the provisions. of amen- ded s.19 a'ld the rules framed thereunder. We are of opinion that in this the Board of Revenue was wrong. Rules 239A and. 239R framed by the Board are: "239A. In a suit or proceeding for' the• ejectment of a tenant of sir,- the sir-holder shall before the first _date fixed for recording -,--- Sham Karlik Singh •• Mathura 916 SUPREME COURT REPORTS [fa63J evidence, furnish to the Court the follow­ ing particulars: · (1) . The amount of local rate to which the sir-holder.was assessed on 1st January, 1940, in the United Provinces. · (2) If the amount shown under the prec- eding sub-clause (I) is Rs. 25, or less, then- ( a) · the amount of local rate to which · the sir-holder or his predecessor-in-interest was assessed on June 30, 1938. · ( b) Whether the local rate assessed on 30th June, 1938, was decreased 'before lat January, 1940, as a result of resettlement or revision of settlement, and if so, the amount by which it .was decreased; · • ( c) Whether the sir-holder obtained his sir rights by succession or sur'vivorship between 30th June, 1938; and lat January, 1940. II. (1) The area and khasra nllmbers of the· plots, if any, held by him in severa­ lty or jointly with others, on 31st December, 1939, as sir in the United Provino.es under the provisions of cla­ use (d) or clause (e) of section 4 of the Agra Tenancy Act 1926, or of clause (c) or clause (d) of sub-section (17) of section 3 of the Avadh Rent Act, 1886. (2) · Such of the plots, if any shown under the preceding sub<olause (1) along with their areas, as were recei • · ved by him in exchange for the land Which was his liir under the provi- • sions of ·clause (a)"or clause (b) or SUPREME COURT REPORTS 917 'clause (c} of S~ction 4 of the Agra· Tenancy Act, 1926, or clause (a) or clause (b) of sub-section ( 17) of the Avadh Rent Act, 1886- 1962 Sham Ka•tik Singh "· Milthura ;(a) before the first day of July 1938 RaghubarDaialJ. 'otherwise than in accordance with the provisions of Section 122 of the United Provinces Land Revenue Act, 1901, or (b) ·before the first day of January, 1940, in accordance with the provisions of that section. (3) · The area and khasra numbers of the plots, if any, held by him in severa­ lty or jointly with others and khud­ ··kasht in the United Provinces, along 'with' the· period of. cultivation and nature 'of khudkasht of each such I plot. . (4) ·The extent of his share in the joint sir a1,1d · khudkaaht, if any shown under the· 1preceding sub-clauses ( 1) f and (3). 239B.. The particulars furnished in accordance with rule 239A shall be accompanied by the following documents: (1) If the local rate payable by the air-holder in the United Provin· oes is claimed 'to be Rs.25 or less, copies of the khewat khatas of 1345 Fasli and of 1347 Fasli in whicli he' was recorded as a' co- ' sharer; I .1 I J96B · SI.am Aart1k Sing/a v. Mathwa -- ·, (2) a· certified cop:Y of the kbatauni -.4_• lihatas of his sir and khudkasht; (3) a certified copy of the khewat · to which such sir or khudkasht appertains, unless s1,wh copy is filed under sub-rufo (l); (4) a list giving the amount of local rate to which each oo~eharer of the sir-holder in the joint sir and khudkasht, if any, is assessed; (.5) in the case of sir or khudkasht of a joint Hindu family, a genea­ logical table and a list showing the share of each living member of the family having an interest in euch sir or khudkasht and the share of local rate whiob each member.would be liable to pay on rateable distribution." The documents filed by the appellants in the Trial Court consisted of ( 1) kbewats of the various villages for the years 1345, 1346 and 134 7 Fasli, i.e. for the periods between July l, 1937 to June 30, 1940; (2) khatauni jamabandis of the variouii· villa­ ges for the years 1345 and 1347 Fasli, corresponding to July 1, 1937 to .J1J.ne 30, 1938 and July J, 1939 to June 30, 1940, respectively; (3) (a) a statement showing the shares of the appellants as recorded in the khewat11 and khataunis of 1347 .Fasli, this state­ ment showed the total of the eir area held by the appellants to be .152.33 acres, their khudk:asht area to be 19.93 acres and the total of the local rate payable by them to be Hs. 75.5.11; (b) a statement Hhowing the sir, khudkasht and local rate of each plaintiff in 13! 7 Fasli. This shows that none of them held air or sir and khudkasht in excess of 50 .. > 3 S.C.R. SUPREME COURT REPORTS 919 acres, or was assessed .to local rate exceeding Rs. 25/· ( 4) Copy of the pedigree. Thef!e documents clearly furnish the particu­ lars required by the rules as the periods covered by these documentB include June 30, 1938, Decem­ ber 31, 1939 and January 1, 1940. Rule 239AI required particulars regarding the amount of local rates on June 30, 1938 and January 1, 1940 and also about sir-holders' obtaining sir-rights by succession or survivorship during the period. The particulars required under sub-rules (3) and (4) of rule 239AII were available from these documents. Rule 239B required copies of the khewat khatas of 1345 Fasli and of 1347 Fasli; .cer­ tified copies of kha.tauni khatas of sir and khud­ kasht; certified copies of the khewats to which that sir or khudkasht appertained; a list giving the &mount of local rate to which each CO·Sharer of the sir-holder was assessed and a genealogical table in the case of.sir or khudkasht of a joint Hindu fami­ ly showing the spare of each living member of the family. '.l'he only particulare which can possibly be not had directly from the documents on record are those required by sub-rules (1)• and (2) of rule 239AII. 'lhese require particulars about such sir which was the eir of the appellants under the · pruvisions of els. (d) and {fl) of s.4 of the Agra Tenancy Act, 1\126 i.e., land which. became sir on account of the landlord's cultivation at · the commencement of that Act. i.e., on September 7, 1926, and had been recorded as khudkasht in the previous agricultural year,· i.e., in 1333 Fasli, or land which became oir on account of the landlord's continuously cultivating it for a period of ten years subsequent to the enforcement of the Agra Tenancy Act. It is clear from the fl.ridings of the Trial Court that the land in suit had been sir from the time of Sham Kar tik Singh v. Maihura Raghubar DaJ•l J. 1962 S4am Kartik Sirigh . v. Mathura · , Raghubar DllyaJ J. I 920 SUPREME COURT REPORTS (1963] the settlement, presumably, the first settlement, which t()ok place in the Nineties of the last Century. This seems to be baaed on the fact that khatauni jamabandhis of 134:5 and 1347 Fasli did not record a period of cultivation against the sir entry, indicating 'thereby that the sir is not of the kind mentioned in cls. (d) and (e) of s.4 of the Agra. Tenancy Act, 1926. The Trial Court could and did record findings on all the faota which had to be proved by the appellants to establish their case. The. first Appellate Court confirmed them. The particulars required by sub-a. (1) of amended s. 19 of the Act and the rules framed thereunde·r, were for the pur­ pose of ascertaining those facts. In the circumstan­ ces1 it, is reasonable to hold that there had been substantial compliance with the provisions of · a.mended s. 19 and the rules framed there­ under. The Board of Revenue was therefore· in error in stating that the appelJants liad not given the amom;1.t of local rate to which they were assessed in U.P. on January . I, 1940, and that COIQ.f liance did not appear to have been made of rule 239AII of the Revenue Court Manual and that there had not been suffici ent compliance with. the mandatory provisions of rules 239A and 239B. · From the judgment of the Board it is clear that its attention was not drawn to the several relevant documents filed by the appellants in the trial Court.· We have no doubt that if the Board had considered the said document it would not have held that a. 19 had not been substantially complied with . · We therefore hold that the Board of Revenue was in error in setting aside the · decree of the Additional Commissioner and remanding the case for fresh trial on the ground that there had not been comr Hance with the provisions of amended s. 19 of the Act and the rules framed thereunder. > 3 ·s.c.R. SUPREME COU.B.T REfORTS 921 We accordingly allow the appeals, set aside the order of the Board of Revenue and remand the cases to it for decision in accordance with law. We further direct it to decide itself the contention raised by the respondents about their having acquired adivasi rights under the U.P. Zll.mindari Abolition and Reforms Act. In case the Boll.rd takes the view that for deciding the. said issue any finding of fact is necessary, it may call for the said finding from the Trial Court and, on rece1vmg it, proceed to deal with the ,appeals on the merits. In the circums~anoes of these cases, we direct that the parties on either side bear their own costs. Appeals allowed. RAJA BAHADURi DHANRAJ GIRJI v. RAJA P. PARTHASARATHY RAYANIMVARU AND OTHERS. (P. B. G.A.JENDR.A.GADKAR and K. a. D.A.s GUPTA, JJ.) Surety Bond-Executed in favour of Court-Compromise decree in the Jiroceeding, if effects a discharge-Equitable rule­ _lndian Contract Act, 1872 (9 of 1872), ss. 135, 126. Although s. 135 of the Indian Contract Act does not in terms apply to a surety bond executed in favour of the court, there can be no doubt that the equitable rule underlying that section must apply to it. The reason for the said rule which entitles the surety to a discharge is that he must be able at any time either to require the creditor to call upon the princi­ pal debtor to pay off his debt, or himself to pay the debt and seek his remedy against the principal de~tor. · The question as to whether the liability of the surety is discharged by a compromise in the judicial proceeding in which the surety bond is. executed must depend on' the term, of the bond ~tsc:l'.. If the ter~s indicate ~hat the surety undertook the habihty on the basis. that the dispute should be 1962 Sham Karlik Si11gll v. Mathura Raghubar Day'l.I J. 1962 Septemb1(4.