R.B. Misra, J.
1. This is a petition under Article 226 of the Constitution. It arises out of a consolidation matter.
2. The dispute between the parties relates to certain plots. All the plots in dispute are contiguous and constitute one whole with an area of 6 bighas, 6 biswas and 14 dhurs. They were admittedly owned by Smt. Dulahin Manik Rajkumari, Respondent No. 5. It appears that by a deed dated 15th November, 1949 Padam Lal Bhatia, the petitioner, obtained possession over the land in dispute for a period of nine years commencing from 1357F. to 1365F. This deed was termed as a Theka. The main stipulations in the deed were: (i) the Thekedar had the right to utilize the fruits of the grove; (ii) he could plant new trees at the expense of the lessor in place of fallen or dried up trees only with the permission of the lessor, and (iii) he could grow vegetables on the vacant land and had generally to look after the grove and the compound. The Thekedar under the deed, was required to pay a sum of Rs. 325/- per year, and in case of default he could be ejected on one month's notice. The Thekedar had also to supply certain quantity of fruits every year to the lessor. This deed is the bone of contention between the parties.
3. It appears that prior to the institution of the proceedings before the consolidation authorities there were three other litigations between the parties. Respondent No. 5 had to file Suit No. 28 of 1952 against the petitioner for his ejectment. That suit culminated in a compromise between the parties, whereunder the petitioner was allowed to continue in possession over the plots in dispute on condition that he did not defy the terms of the deed. The petitioner, however, appears to have contravened the terms of the deed in spite of the compromise, as a result of which another suit (No. 375 of 1955) had to be filed against him by respondent No. 5 on 30th April, 1955, for the ejectment of the petitioner and for the recovery of damages. This suit was decreed by the Munsif. During the pendency of the suit the village in question was brought under consolidation operations and a notification under Section 4 of the U. P, Consolidation of Holdings Act was published on 19th March, 1960. But the learned Munsif did not stay the proceedings, and chose to decide the case. The petitioner preferred an appeal against the decree passed by the Munsif, which was dismissed by the learned Judge on 30th January, 1961. In pursuance of the decree in her favour respondent No. 5 also obtained possession. The petitioner, however, preferred a Second Appeal before this Court. This Court also affirmed the decree of the lower appellate Court but so far as the claim for possession was concerned, it was abated under Section 5 of the U. P. Consolidation of Holdings Act.
4. There was yet another proceeding under Section 240-G of the U. P. Consolidation of Holdings Act (U. P. Zamindari Abolition and Land Reforms Act ?) in which compensation was awarded to respondent No. 5 on the footing that the petitioner had become Sirdar of the land in dispute.
5. As the name of the petitioner was recorded in the basic year as Sirdar in respect of most of the plots and as Bhumidhar in respect of one of the plots, an objection was filed by respondent No. 5. She claimed to be the Bhumidhar of the plots in question and alleged that the petitioner had no right or interest, in the property, and was not a Sirdar or Bhumidhar thereof, and the basic year entry should be expunged.
6. The claim was resisted by the petitioner on the ground that he had acquired the rights of a hereditary tenant under Section 12 or 13 of the U. P. Zamindari Abolition and Land Reforms Act inasmuch as respondent No. 5 had granted in his favour a Theka for the purpose of cultivation and the petitioner had actually been in cultivatory possession of the land on all relevant dates, namely, on the first day of May, 1950 or on the date immediately preceding the date of vesting.
7. The Consolidation Officer allowed the objection of respondent No. 5 and directed the expunction of the name of the petitioner from the papers. On appeal by the petitioner the Assistant Settlement Officer (Consolidation) also affirmed the order of the Consolidation Officer. He held that the land in dispute constituted a grove and still retained the character of a grove; that the lease was given mainly for maintaining the grove and collecting its fruits; it was not given for agricultural purposes at all; that though the petitioner had been cultivating a major portion of the plots in dispute, it was in infringement of the conditions of the deed; and that the status of the petitioner was only that of a licensee. Feeling aggrieved by the order of the Assistant Settlement Officer (Consolidation) dated 21st July, 1962, the petitioner went up in Second Appeal before the Deputy Director of Consolidation. The Deputy Director of Consolidation also dismissed the Second Appeal and upheld the order of the first appellate Court by his order dated 21st June, 1969. He also endorsed the finding recorded by the Assistant Settlement Officer that the land in dispute constituted a grove. He further found that the lease was not a Theka for cultivation purposes. The cultivation carried out by the petitioner was surreptitiously done and that is why respondent No. 5 had to initiate legal proceedings against him. He also held that the petitioner could not acquire hereditary tenancy or Sirdari rights in the land because the lease was not for cultivation.
8. The petitioner also filed a revision against the order of the Deputy Director of Consolidation dated 21st June, 1969, but in view of the recent decisions of this Court no revision lay and the same was dismissed. The petitioner has now challenged the orders of the consolidation authorities by the present writ petition.
9. The sheet anchor of the petitioner has been Sections 12 and 13 of the U. P. Zamindari Abolition and Land Reforms Act. According to the petitioner, the land in question was given to him for the purposes of personal cultivation and he had actually been personally cultivating the land on the 1st of May, 1950, so he acquired the rights of a hereditary tenant, and, after the date of vesting rights of a Sirdar. Alternatively he argued that if for some reason Section 12 of the Act was not applicable to the facts of the present case, he would still acquire the rights of a hereditary tenant under Section 13 (2) (b) of the U. P. Zamindari Abolition and Land Reforms Act. It would, therefore, be desirable to read the two sections at this stage.
9-A. Section 12 (1) of the U. P. Zamindari Abolition and Land Reforms Act reads thus:--
'Where any land was in the personal cultivation of a person on the 1st day of May, 1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then notwithstanding anything in any law, document or order of Court, he shall be deemed to be a hereditary tenant thereof entitled to hold, and when he has been ejected from the land after the said date, to regain possession as a hereditary tenant thereof liable to pay rent at hereditary rates.' Section 13, so far as is material for the present case, reads thus:--
'Section 13 (1):-- Subject to the provisions of Section 12 and Sub-section (2) of this section, a thekedar of an estate or share therein shall, with effect from the date of vesting cease to have any right to hold or possess as such any land in such estate.
(2) Where any such land was in the personal cultivation of the thekedar on the date immediately preceding the date of vesting the same shall--
(a) if it was Sir or Khudkasht of the lessor on the date of the grant of the theka, be deemed for purposes of Section 13, to be the Sir or Khudkasht of the lessor on the date immediately preceding the date of vesting and the thekedar shall with effect from the date of vesting become the Asami thereof liable to pay rent at hereditary rates applicable on the date immediately preceding the date of vesting and entitled to hold the land as such for the unexpired period of the theka or for a period of five years from the date of vesting whichever is less;
(b) if it was not Sir or Khudkasht of the lessor on the date of the grant of the theka and--
(i) its area does not exceed thirty acres, be deemed for the purposes of Section 19 to have been held by the thekedar as a hereditary tenant liable to pay rent which shall be equal to the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting.
(ii) its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of the Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall be deemed to be vacant land and the thekedar shall be liable to ejectment therefrom in accordance with the provisions of Section 209.'
10. I take up first the case of the petitioner based on Section 12 of the U. P. Zamindari Abolition and Land Reforms Act. In order to attract the provisions of Section 12, two ingredients have to be satisfied. In the first place, the land has to be under the personal cultivation of the petitioner on the first of May, 1950 as a thekedar and in the second place, the theka must have been made with a view to cultivation of the land by the petitioner personally. If either of these two conditions is not satisfied, the benefit of Section 12 would not be available to the petitioner.
11. The salient terms of the lease deed have already been mentioned in the earlier part of the judgment. We have noticed that the Thekedar was given a right to collect fruits of the grove, to supervise the grove, to plant fresh trees in place of fallen or dried up trees with the permission of the lessor, and to grow vegetable 'in the vacant portion of the grove.' The lease deed has been filed as Annexure 'Z' to the rejoinder affidavit. From the tenor of the document there remains no manner of doubt that the dominent purpose was not the cultivation but the collection of the fruits of the grove and its general supervision, although the petitioner was also given the right to grow vegetable in the vacant land. Section 12 requires that the land should have been given to the Thekedar for his personal cultivation as the dominent purpose. It is the admitted case of the petitioner that he was given possession of the grove on payment of Rs. 325/- per year for collecting the fruits of the grove and was required to plant fresh trees also in place of dried up trees. The mere fact that he was also given the right to grow vegetable in the vacant piece of land lying in between the trees will not, in my opinion, make the purpose of the theka as cultivation.
12. The definition of 'grove-land' as contained in Section 2 (6) of U. P. Tenancy Act has been adopted under the provisions of the U. P. Zamindari Abolition and Land Reforms Act It runs thus:--
''Grove-land' means any specific piece of land in a Mahal or Mahals having trees planted thereon in such numbers that they preclude, or, when full grown, will preclude, the land or any considerable portion thereof from being used primarily for any other purpose; and the trees of such land constitute a grove.'
The nature of the grove will not be changed merely because some vegetable was permitted to be grown in the vacant portion of the grove or when the trees were not fully grown. Besides, it has been concurrently held by the Assistant settlement Officer and the Deputy Director of Consolidation that the land in dispute constituted a grove and it retained its character as such. The petitioner lad claimed hereditary tenancy in respect of the entire land. If the entire land had retained the character of a grove and it was grove at all material time, it would be difficult to accept the contention that the land was given to the petitioner for the purpose of his personal cultivation. The whole tenor of the document indicates that the land was given primarily for the purpose of collecting the fruits of the grove from year to year on payment of Rs. 325/- per year for a period of nine years, and the petitioner was required to supervise the grove, to plant new trees in place of old and dried up trees with the specific permission of the lessor. In these circumstances it cannot be said that the land was given on Theka to the petitioner for the purpose of cultivation.
13. Though the other ingredient of Section 12 is satisfied in this case, because a portion of the land had been in the personal cultivation of the petitioner, the provisions of Section 12 of the U. P. Zamindari Abolition and Land Reforms Act cannot be attracted to this case for want of the fulfilment of the first ingredient.
14. This leads me to the consideration of the alternative argument of the petitioner based upon Section 13 of the U. P. Zamindari Abolition and Land Reforms Act. Counsel for the petitioner called in aid Sub-clause (i) of Clause (b) of Sub-section (2) of Section 13, U. P. Zamindari Abolition and Land Reforms Act, which has already been quoted earlier in the judgment. According to the petitioner, the land in question was grove and was neither Sir nor Khudkasht and, on the finding of the subordinate authorities itself, the petitioner was in personal cultivation, so he would become hereditary tenant and after the date of vesting the Sirdar of the said plots.
15. It may be noted that Section 33 is subject to the provisions of Section 12, and before the benefit of Section 13 (2) (b) (i) could go to the petitioner, he has to prove that he was in personal cultivation of the land as a Thekedar. 'Thekedar' again is a defined term. It is not defined in the U. P. Zamindari Abolition and Land Reforms Act, so, under Section 3 (25) of the U. P. Zamindari Abolition and Land Reforms Act 'Thekedar' shall have the same meaning as assigned to it in the U. P. Tenancy Act Section 2 (24) of the U. P. Tenancy Act defines Thekedar thus:--
''Thekedar' means a farmer or other lessee of the rights in land of a proprietor, and under-proprietor or a permanent lessee or mortgagee in possession and in particular of the right to recover rents or profits, but does not include an under-proprietor or a permanent lessee.'
This definition clearly contemplates that a Thekedar must be the lessee of the rights in the land of a proprietor. If no interest or right had been created in the land under the deed in question, the petitioner could not be a Thekedar. Under the terms of the deed, which have been quoted in extenso, no right or interest seems to have been created in the land in favour of the petitioner. The petitioner was given only the right to collect fruits and supervise the grove, besides the right to grow vegetable in the vacant place between the trees and also to plant fresh trees in place of the fallen or dried up trees with the permission of the lessor. The Assistant Settlement Officer recorded a definite finding that the document in question did not create a lease but only a licence and the status of the petitioner was no more than that of a licensee. This finding of fact has not been set aside even by the Deputy Director of Consolidation which is the last Court of facts. Now, if the petitioner was not a thekedar and merely a licensee, obviously Section 13 of the U. P. Zamindari Abolition and Land Reforms Act would have no application to the present case.
16. It was, however, strenuously contended on behalf of the petitioner that respondent No. 5 did not take up the case of a licence in her objection and the Assistant Settlement Officer (Consolidation) was not, therefore, justified in recording a finding on the plea which was conspicuous by its absence in the objection and at any rate this plea was not taken by respondent No. 5 before the Deputy Director of Consolidation inasmuch as no such finding has been recorded by him.
17. For the respondent, on the other hand, it has been argued that the finding recorded by the Assistant Settlement Officer (Consolidation) having not been set aside by the Deputy Director of Consolidation will be deemed to have been affirmed by him because the judgment of the Deputy Director was only a judgment of affirmance. He has not repeated the entire findings recorded by the Assistant Settlement Officer in his judgment and would be deemed to have endorsed those findings unless any of the finding has been set aside by him.
18. Whether a plea about license had or had not been taken by respondent No. 5 in her objection could have been ascertained by the pleadings of the parties. The pleadings of the parties have not been filed before this Court. Reliance was, however, placed by the petitioner on the recital of facts given by the Consolidation Officer in his order and on the issues framed by him, and it was urged that neither the recital of facts given in his order nor the issues framed by him indicate that any plea of licence was taken by respondent No. 5. It would not be safe, in my opinion, to rely on the recital of facts to find out what the pleadings of the parties were. There is a clear finding recorded by the Assistant Settlement Officer that the status of the petitioner was only that of a licensee. This finding must have been based on some arguments advanced by the parties before him. If the petitioner had any grievance against that finding or he thought that the finding was unwarranted on account of the absence of such a pleading, he ought to have made a grievance of it before the Deputy Director of Consolidation and the memorandum of appeal would have been the best evidence to show whether the finding recorded by the Assistant Settlement Officer (Consolidation) was or was not challenged before the appellate authority. As the memorandum of appeal filed before the Deputy Director has not been filed here it is not possible to know whether the finding recorded by the Assistant Settlement Officer about the status of the petitioner as a licensee was or was not ever challenged. Even in the petition before this Court no suggestion has been made that the plea of license was not taken by respondent No. 5 in her objection or before any of the appellate authorities. In the absence of any material on the record this Court is unable to accept the contention that no plea of the petitioner being a licensee was set up by respondent No. 5.
19. If the status of the petitioner was only that of a licensee and no interest or right in the land passed to him, Section 13 of the U. P. Zamindari Abolition and Land Reforms Act would have no application and no hereditary rights would accrue to the petitioner.
20. The main contention of the petitioner on this aspect of the matter is that the Deputy Director having recorded no such finding about licence, it will be deemed that respondent No. 5 had given up the plea of licence before the Deputy Director of Consolidation. I am unable to accept this contention. The respondent had already got an important finding in her favour from the Assistant Settlement Officer on a vital question and it passes comprehension how could she have given up such a plea; at any rate there is no warrant for any such assumption.
21. It was next contended in this connection that it is the finding of the Deputy Director which would be binding on this Court and not the finding recorded by the Assistant Settlement Officer (Consolidation).
22. In Girijanandini Devi v. Bijendra Narain Choudhary (AIR 1967 SC 1124), it was observed by the Supreme Court thus:--
'It is not the duty of the appellate Court when it agrees with the view of the trial Court on the evidence either to re-state the effect of the evidence or to reiterate the reasons given by the trial Court. Expression of general agreement with the reasons given by the Court, decision of which is under appeal, would ordinarily suffice.'
So, unless the finding recorded by the Assistant Settlement Officer (Consolidation) was set aside by the Deputy Director of Consolidation, he would be deemed to have affirmed the finding of the Assistant Settlement Officer, and in the absence of any challenge by the petitioner in the present writ petition or in the absence of any allegation that no such plea was taken by respondent No. 5 before the authorities below, there is no reason why the finding recorded by the Assistant Settlement Officer should not be accepted as a finding given by the Deputy Director of Consolidation.
23. There is yet another reason why I am inclined to hold that the finding of the Assistant Settlement Officer on the question of licence was affirmed by the Deputy Director impliedly. In paragraph 4 of his order the Deputy Director has, after quoting the essential terms of the lease deed, observed thus:--
'Accordingly, the contention of the O. P. that this was not a Theka for cultivation purpose appears, fully borne out from overwhelming documentary and other evidence on record.'
This observation in my opinion, impliedly upholds the findings of the Assistant Settlement Officer (Consolidation) that there was no Theka as contemplated by Section 12 or Section 13 of the U. P. Zamindari Abolition and Land Reforms Act.
24. The counsel for the petitioner next tried to point out the difference between a lease and a licence and cited a number of authorities of the Supreme Court on the point to contend that one of the essential criterion for determining whether a particular deed amounts to a lease or licence is whether the lessee was in exclusive possession of the land in dispute. If he was in exclusive possession the deed would be taken to amount to a lease and not a licence, The case of 'Associated Hotels of India Ltd. v. R.N. Kapoor' (AIR 1959 SC 1262) cited by the petitioner among other cases, itself lays down the following four principles to determine whether a particular deed is a lease or a licence. The Supreme Court observed thus:--
'The following propositions may, therefore, be taken as well established:--
(1) to ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form;
(2) the real test is the intention of the parties whether they intended to create a lease or a licence;
(3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and
(4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease.'
It is not necessary to refer to the other cases cited by the petitioner as the above four principles laid down by the Supreme Court still hold the field. Judging the document in question by the standard laid down by the Supreme Court in the above case relied upon by the petitioner himself I have no doubt in my mind that the document does not create any interest or right in the property in favour of the petitioner, it only permits the petitioner to use the fruits of the grove and supervise the grove by planting fresh trees in place of the dried up trees with the permission of respondent No. 5.
25. The case can be looked at from yet another angle. Even if the document in question was capable of two interpretations and the authorities below have accepted one, which is rather plausible and not unreasonable, the mere fact that there could also have been another interpretation would be no ground for interference in exercise of the power under Article 226 of the Constitution.
26. A feeble attempt was made by the petitioner to take up a new plea for the first time before this Court that the petitioner had acquired the right of a Bhumidhar and, at any rate, he would become a co-Bhumidhar along with respondent No. 5. This argument has been advanced for the first time before this Court, and the petitioner cannot be permitted to raise it now. It was contended for the petitioner that if on the admitted position a legal consequence flows the petitioner is entitled to urge this point and the Court may consider it.
27. Even if the petitioner is permitted to argue this point I do not find any force in it. The argument is based on Section 18 of the U. P. Zamindari Abolition and Land Reforms Act. The contention is that as a Thekedar is also an intermediary as defined in the Act, the grove in question would be the grove of an intermediary, and in that view of the matter it would as much be a grove of the petitioner as of respondent No. 5. But in the view that I have taken in the earlier part of the judgment that the petitioner is not a Thekedar but only a licensee, the benefit of Section 18 would not be available to him.
28. The circumstances of this case speak for themselves. When the terms of the deed in question were contravened respondent No. 5 was obliged to file a suit for the ejectment of the petitioner. That suit culminated in a compromise. The petitioner agreed to abide by the terms of the deed. The ground on which the suit was filed was that the petitioner was a defaulter in the payment of the premium and that he used the land for the purposes of cultivation by sowing sugarcane etc. The petitioner thereupon entered into a compromise and agreed to abide by the terms of the document, which obviously meant that he would not cultivate the land in future in contravention of the terms of the document.
29. The mere fact that the petitioner had been permitted to grow vegetable in some open space did not militate with the theory of the land in question being a grove. In order to protect the grove itself it sometimes becomes necessary to cultivate the available vacant land in order to make the trees in the grove healthier as was held by the Board of Revenue in the case reported in '1940 R. D. 14 (BR) (Bechan Singh v. Ram Sagar Singh).' It was observed there thus:--
'Agriculturists have found that in order that the grove may prosper the land should not be left uncultivated. The barren patches must be cultivated, and put under a cover crop. This is the only way to stop erosion of fertile soil particles. Far from derogating from the grove character if some portion of the area is put under cultivation of Juari and Arhar type, which is cultivation for fodder production, the cultivation helps in the maintenance of the grove character.'
It is no wonder, therefore, that respondent No. 5 permitted the petitioner to grow vegetable in the grove actuated by this motive. On the mere fact that the petitioner was permitted to grow vegetable in the barren patches in the grove it is not possible to hold that the land was let out to him for the purpose of cultivation. As observed earlier, the whole tenor of the document indicates that the land was given to the petitioner not for the purpose of cultivation but for the purpose of gathering the fruits of the grove on payment of Rs. 325/- per year and to plant new trees in place of the cut or dried up trees in the grove with the specific permission of the respondent, the expenses whereof were to be borne by her.
30. For the reasons given above I find no force in this writ petition. It is accordingly dismissed with costs.