M.N. Shukla, J. - (1.) THIS appeal was originally heard by a learned single Judge who felt that the two division Bench decisions of this Court, namely Dularey v. Rajeshwari, 1966 ALJ 199 and Hasina Bibi v. Ram Din, 1967 ALJ 27 :, 1966 AWR 779 required reconsideration. He, therefore, referred the case to a larger Bench which endorsed his opinion and referred the following points to us for decision: (1) Whether in the circumstances of this case and on the facts stated above Ram Gharan and other Plaintiffs became adhivasis or asamis of the plots in dispute? (2) For the purposes of Section 21 (1)(h) of the UP ZA and LR Act, whose disability has to be seen? (3) Does Section 21(1)(h) of the UP ZA and LR Act apply to a tenant, subtenant or occupant as the case may be, where the landholder did not belong to anyone or more of the classes mentioned in Sub -section (1) of Section 157 of the UP ZA and LR Act on the date of vesting but belonged to such class or classes both on the date of letting or occupation and on 9 -4 -1946? (4) For the purposes of Section 21(1)(h) of the UP ZA and LR Act is the land -holder the person who was the landholder immediately preceding the date of vesting or a person who was the landholder on the material dates?
(2.) WE proceed to deal with this case on the basis of the facts which were accepted by the learned single Judge, who posed the above questions. The disputed plots belonged to one Bijain and were inherited on his death by his widow Smt. Lakshmi. When she died her minor unmarried daughter Kumari Maya became the landholder. Her elder sister Saheb Kunwar acting as her guardian executed a registered lease of the plots in favour of the Plaintiffs, Ram Charan etc., on 15 -10 -1947 for a period of five years. Later on Maya was also married to her sister's husband, Thakur Das, who was admitted to the holding as co tenant with Maya, with the consent of the Zamindar in the year 1948. Thus on the date of vesting both Maya (who was still a minor and disabled person) as well as her husband, Thakur Das were the land -holders of the plots in question. The present suit was filed by the lessee Plaintiffs in the year 1954 for a declaration that they had become adhivasis of the land on the coming into force of the UP ZA and LR Act and had subsequently acquired sirdari rights on the passing of UP Act XX of 1954. The question, therefore, arose as to the interpretation to be put on Clause (h) of Section 21(1) of the UP ZA and LR Act (hereinafter called the Act). The suit was decreed by both the Courts below and hence Maya Defendant preferred a second appeal to this Court. The success of the Plaintiffs' claim depends upon whether for the purposes of Section 21(1)(h) the disability of the land -holders who are in existence on the date of vesting is material or the disability of the land -holders who let out the land is the deciding factor. Section 21(1)(h) of the Act (UP Act No. 1 of 1951) was for the first time introduced in the UP ZA and LR Act (UP Act XVI of 1953) and was later on amended by UP Act XX of 1954 and has thereafter continued in its present form. Section 21(1)(h) as originally enacted ran as under: (h) a tenant of sir of land referred to in Sub -clause (a) of Clause (1) of the explanation Under Section 16, a sub tenant or an occupant referred to in Section 20, where the landholder or if there are more than one landholder, all of them were person or persons belonging, both on the date of letting and on the date immediately preceding the date of vesting, to anyone or more of the classes mentioned in Sub -section (2) of Section 10 or Clause (8) of Sub -section (1) of Section 157. (The underlinings -herein italicised -are ours). The section in its present form as amended by Act XX of 1954 reads as follows: (h) a tenant of sir of land referred to in Sub -clause (a) of Clause (i) of the explanation Under Section 16, a sub tenant referred to in sub Clause (ii) of Clause (a) of Section 20 or an occupant referred to in sub Clause (i) of Clause (b) of the said section where the landholder or if there are more than one landholder, all of them were person or persons belonging - - (a) if the land was let out or occupied prior to the ninth day of April, 1946, both on the date of letting or occupation as the case may be and on the ninth day of April, 1946, and (b) if the land was let out or occupied after the ninth day of April, 1946, on the date of letting or occupation, to any one or more of the classes mentioned in Sub -section (1) of Section 157.
(3.) BY the amending Act the words "both on the date of letting and on the date immediately preceding the date of vesting" were omitted. In the 1953 enactment it was provided that the landholder should be a disabled person on the date of letting and on the date immediately preceding the date of vesting. By the amending Act of 1954 the words referring to the disability of the landholder on the date immediately preceding the date of vesting were dropped.;