- (1.) THESE three second appeals arise out of three suits for ejectment filed under Section 175 of the u. P. Tenancy Act, 1939. The plaintiff in all the three actions was Bikram Singh while the defendants were different. The plaintiff claimed that he was the 'sirdar' of the plots in suit, that the defendants were mere non-occupancy tenants, that he no longer wished them to continue as his non-occupancy tenants and that therefore he asked them to quit and that on their failure to do so he had filed the suits for their ejectment. The suits were filed in the year 1944. The defence was that the defendants were hereditary tenants and the plaintiff was not the landlord and had therefore no right to eject them. The trial Court decreed the suits on the 8th of February, 1946, the defendants filed appeals and the lower appellate Court allowed the appeals on the 21st of february, 1947 and the plaintiff thereafter came to this Court in second appeal.
(2.) IT is the common case of the parties that Harbans Singh was the 'sirdar' of these plots now in dispute. He died in the year 1906 leaving two daughters, Risal Kuer and Bhagwani. Bikram singh plaintiff is the son of Bhagwani. On the 14th of October, 1915 Risal Kuer and Bhagwani partitioned the properties and each became the owner in possession of separate plots of land. The plots now in dispute fell to the share of Risal Kuer. On the 1st of November, 1939, Risal Kuer executed a deed of relinquishment in favour of Bikram Singh of the portion of the property that had fallen to her share and Bhagwani attested this document in token of her consent. Bikram singh then claimed that he was the 'sir'-holder and was entitled to eject the non-occupancy tenants. The trial Court decided in plaintiff's favour that he was the 'sir'-holder and that the defendants were his non-occupancy tenants. The lower court affirmed the finding that the defendants were non-occupancy tenants of the 'sir' land but it was of the opinion that the deed of relinquishment executed by Risal Kuer could operate only for her life-time and after her death the property vested in Bhagwani by right of survivorship and Bikram Singh therefore could not claim to be the 'sir'-holder. On the 2nd of May, 1950 the case was heard by one of us when the following issues were remitted to the lower Court: " (a) Whether any partition was effected between Bhagwani and Risal Kuer by which each gave her right of enjoyment over the properties allotted to the other during their respective lifetime? (b) Whether the deed of relinquishment was executed with the consent of Bhagwani Kuer? and (c) Whether the defendant was an occupancy tenant of the plots or a hereditary tenant?" All the three issues have been decided in favour of the plaintiff, i. e. it has been found that a partition was effected, that Bhagwani and Risal Kuer were to enjoy the property separately and that the deed of relinquisnment was executed with the consent of Bhagwani and that the defendant was a non-occupancy tenant. These findings have not been challenged by the learned counsel for the respondent and on these findings the plaintiff appellant was entitled to have the appeal allowed and the 'decree of the lower appellate Court set aside. It is urged however that the decision should now be otherwise as the defendants have acquired certain rights under the U. P. Zamindari Abolition and Land Reforms Act, 1951 (U. P. Act No. 1 of 1951 ). Reliance is placed on Section 20, Clause (a) (i), relevant portion of which is as follows: "every person, who, on the date immediately preceding the date of vesting, was or has been deemed to be, in accordance with the provisions of this Act a tenant of 'sir' shall be called 'adhivasi' of the land and shall, subject to the provisions of this Act, be entitled to take or retain possession thereof. " It is alleged that in accordance with the provisions of the clause quoted above the defendants became 'adhivasis' and were entitled to retain possession of the land in suit.
(3.) IT has also been urged by learned counsel that he can rely on the provisions of first part of clause (b) (i) of Section 20 as his name was recorded in the 'khasra' or 'khatauni' of 1356 F. prepared under Sections 28 and 32 of the U. P. Land Reforms Act, III of 1901. Learned counsel for the appellant has however pointed out that there is nothing on the record to show that the names of the defendants were entered as occupants of the land in suit in the 'khasra' or 'khatanui' of 1356 P. If we had considered that this fact would make any change in the result we might have considered the question of remitting an issue or directing the parties to produce before us certified copies of the 'khasra' or 'khatauni'. But in our view the question whether the defendants come under Clause (a) or first part of Clause (b) will make no difference and it is therefore not necessary to require any further evidence to be produced. The defendants claim that they became 'adhivasis' under Section 20 of the Act and were therefore entitled under that Section to retain possession of the land.;