R.B. Misra, J.
1. The present petition under Article 226 of the Constitution arises out of proceedings under the U. P. Consolidation of Holdings Act.
2. The dispute between the parties relates to plots appertaining to khata No. 174 of village Bhatkhin. District Jaunpur. The disputed plots were re-corded in the names of respondents Nos. 2 to 4 as their sirdari The petitioner Achhaibar along with certain other per-sons, who are not parties before this Court, filed an objection under Section 9 of the U. P. Consolidation of Holdings Act Their claim was that they along with Smt. Dhiraji were the tenants of the disputed plots and after the death of Smt. Dhiraji, they alone became the sole tenants. They tried to connect themselves with Smt. Dhiraji by a pedigree. They also set up an alternative case that Smt. Dhiraji, the recorded tenant, surrendered the disputed plots in favour of Iqbal Ahmad, the Lambardar, under a registered surrender deed dated 10th June, 1949. The plots were, thereafter, settled with the petitioner under a lease deed dated 12th June, 1949, by Wasi Ahmad, one of the co-sharers in the khewat. and ever since the petitioner has been in possession as a tenant and became sirdar after the date of vesting.
3. The claim of the petitioner was resisted by respondents Nos. 2 to 4. They denied the pedigree set up by the petitioner and other objectors. They also denied that any lease was executed by Wasi Ahmad in favour of the petitioner. Their stand was that after the surrender made by Smt. Dhiraji in favour of Iqbal Ahmad, the Lambardar, they got the land settled in their favour by one Gada Hussain. the Mukhtar-e-am of the lambardar. They executed a registered Qabuliyat on 13th June, 1949. in favour of Iqbal Ahmed, the lambardar. Ever since the settlement, they have been in possession. They were also found in possession in proceedings under Section 145, Criminal P. C.
4. The Consolidation Officer rejected the claim of the petitioner that he and the other objectors were co-tenants with Smt. Dhiraji and after her death, they became the sole tenants by survivorship. He, however, accepted the alternative case of the petitioner that he became a tenant by virtue of fresh settlement, vide lease deed dated 12th June, 1949. On appeal by respondents Nos. 2 to 4. the Assistant Settlement Officer (Consolidation) confirmed the order of the Consolidation Officer. Respondents Nos. 2 to 4, thereupon, went up in revision and the Deputy Director of Consolidation allowed the same by his order dated 19th June, 1971. He found that respondents Nos. 2 to 4 became tenants and. later on. sirdars of the disputed plots on the basis of the settlement made by the Mukhtar-e-am of the lambardar. The Petitioner has now come to this Court under Article 226 of the Constitution to challenge the order of the Deputy Director of Consolidation dated 19th June, 1971.
5. The material facts in this case are not very much in dispute. It is the common case of the parties that Smt. Dhiraji was the tenant of the disputed plots at one time. She executed a deed of surrender in favour of the lambardar. Shri Iqbal Ahmad, on 10th June, 1949. It is also the common case of the parties that there were eleven co-sharers in the khewat. including Iqbal Ahmad, who had been appointed as the lambardar. It is also admitted by the parties that Iqbal Ahmad migrated to Pakistan. There is however, a dispute between the parties as to whether he migrated in 1950 or 1947. On the facts found by the Consolidation Officer and the Assistant Settlement Officer (Consolidation), it is established that he migrated to Pakistan in the year 1947. This finding has not been set aside by the Deputy Director of Consolidation.
6. In the basic year, the names of respondents Nos. 2 to 4 were recorded. The petitioner, therefore, could succeed only if he proved a better title.
7. The petitioner based his title on the lease deed executed by Wasi Ahmad. one of the co-sharers in the Khewat on 12th June, 1949. Although the lease was for more than a year, it was not by means of a registered deed. If once it is established that valid tenancy in respect of the disputed plots was created in favour of the petitioner on 12th June 1949, obviously no tenancy could be created in favour of respondents Nos. 2 to 4 on 13th June, 1949, for there could be no super-imposition of a tenant over the head of a sitting tenant. The crucial question for consideration in this case, therefore, is whether the petitioner became a tenant under the lease deed dated 12th June, 1949. The Consolidation Officer and the Assistant Settlement Officer (Consolidation.) held in the affirmative, but the Deputy Director of Consolidation, on revision, set aside the finding on the two grounds:
(1) that the lease deed dated 12th June, 1949 in favour of the petitioner was executed by only one of the relevant co-sharers without the consent of the others; and.
(2) that the lease being for more than one year should have been by a registered document or attested before the Kanungo. but it was neither registered nor attested by the Kanungo. as required by Section 55 of the U. P. Tenancy Act.
8. Shri K. L. Misra, appearing for the petitioner challenged the finding of the Deputy Director of Consolidation on both the grounds. His first contention is that the settlement made by Wasi Ahmad was a valid settlement as he was a de facto lambardar after Iqbal Ahamd, the previous lambardar, had migrated to Pakistan. He had been managing the property on behalf of the other co-sharers and, indeed, he was formerly appointed as a lambardar in the year 1952. The settlement made by Wasi Ahmad would be deemed to be a settlement by the lambardar. In any case, the settlement made by him would be the settlement made by an agent of the landholder. He referred to Sections 245 and 246 of the U. P. Tenancy Act. In order to appreciate the point, it would be convenient, at this stage, to read Ss. 245 and 248 of the U. P. Tenancy Act in so far as they are material for the purposes of this case:
'245. (1) The lambardar in an undivided mahal or in the common land of a mahal, thok or patti of which he is the lambardar. is entitled, in the absence of any contract or usage to the contrary, to collect rents and other dues.
(2) Wherever the lambardar is entitled under the provisions of Sub-section (1) to collect rents, he shall also be entitled to settle and elect tenants, to eject rent-free grantees, or grantees at a favourable rate of rent, to enhance rents and to do all acts incidental to the proper management of 'the estate with a view to the common benefit.
246. (1) Except as otherwise provided in Sub-section (3) or in Section 245, where there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them conjointly, unless they have appointed an agent to act on behalf of all of them'.
9. On a plain reading of Section 245 of the U. P. Tenancy Act, it is evident that in the absence of any contract or usage to the contrary, a lambardar is entitled to collect rent and other dues and is also entitled to settle and eject tenants. If Iqbal Ahmad had continued as lambardar on the date of settlement with the petitioner, there was no difficulty. The difficulty has arisen because he migrated to Pakistan and his right and interest in the Khewat came to an end. The remaining co-sharers could settle the land with the petitioner jointly, but the settlement with the petitioner was made only by one of them, namely, Wasi Ahmad.
10. It is contended for the petitioner that Wasi was a de facto lambardar with the tacit consent of the other co-sharers and he had been managing the property of the co-sharers on behalf of all. He had filed suits for recovery of the arrears of rent from tenants. This. according to the petitioner, is evident from the own admission of Gada Husain, who settled the land with respondents Nos. 2 to 4. The statement of Gada Husain has been filed as Annexure 'II' to the counter-affidavit. At page 6 of his deposition, he stated:
'IQBAL AHMAD JAB TAK MAU-JOOD THE LAMBARDAR THE ..... WASI AHMAD BHI LAMBARDAR HOOVYE AUR USKE BAD ZAMIN-DARI TOOT GAYEE.'
11. The statement of Gada Hussain is not of much help to the petitioner. His admission is only to the effect that Wasi Ahmad was appointed as Lambardar in 1952. The settlement with the petitioner was. however, made in the year 1949 by Wasi Ahmad; at that time, he had not been appointed as a lambardar.
12. There are, however, materials on the record to indicate that Wasi Ahmad has filed suits for recovery of arrears of rent from certain tenants, including the respondents Nos. 2 to 4. Then, there is the statement of Wasi Ahmad himself to the effect that he acted as lambardar and, subsequently, in 1952, he was appointed as a lambardar. Lambardar in a Mohal is appointed on the nomination of the co-sharers. But if a co-sharer has been allowed by other co-sharers to act on their behalf, although there was no actual order of his appointment as a lambardar, can he create tenancy on behalf of the whole coparcenary body of co-sharers in the khewat?
13. It has been contended on behalf of the petitioner that the settlement made by Wasi Ahmad was a valid settlement as he had done so with the tacit consent of the other co-sharers and this is evident from the materials and circumstances of this case:
(1) Wasi Ahmad has filed suits for recovery of arrears of rent from various tenants, including respondents Nos. 2 to 4;
(2) Wasi Ahmad was, later on. formally appointed as lambardar in 1952; and.
(3) No suit has been filed by any of the co-sharers to challenge the lease deed dated 12th June, 1949.
14. Reliance has been placed on behalf of the petitioner on Sukhna v. Shiam Krishna, (1930 RD 272). It was held in that case that a lease by a single co-sharer is not void ab initio, but it can be avoided by other co-sharers if they chose.
15. Next, reliance was placed on Abdul Rahim Khan v. Ramzan. : AIR1929All518 . That was a case of a de facto Mutwalli. It was held that a de facto Mutwalli of a Mohammedan religious trust, is entitled to act on behalf of trust and sue for recovery of the rent of the shops belonging to the trust without being put to prove his antecedents and the origin of his authority to manage the trust. On the analogy of this case, it has been contended that a de facto lambardar can settle the land and the settlement made by him would be a valid settlement.
16. Sri S. S. Verma. appearing for the contesting respondents on the other hand, contended that unless a person was appointed as lambardar according to law, he had no right to settle the land and a de facto lambardar is unknown to U. P. Tenancy Act. The settlement made by Wasi Ahmad, therefore, conferred no tenancy rights on the petitioner because the settlement made by Wasi Ahmad would, at the most be taken to be a settlement made by one of the co-sharers. In support of his contention, he relied on Basdeo Rai v. Bindeshwari Rai. (1942 RD 580). In that case, a person was admitted to the land by one of the several co-sharers. The other co-sharers took no action for the ejectment of the person for two or three years and eventually filed a suit for ejectment. It was held by the Board of Revenue that the mere fact that the other co-sharers took no action for the ejectment of the person for two or three years does not give rise to the presumption that the co-sharer, who admitted him. was acting as an agent for the other co-sharers and the person is liable to ejectment as a trespasser at the instance of the other co-sharers.
17. In the case, actually, the other co-sharers filed a suit for ejectment though after the expiry of two or three years. The Board of Revenue, in that case, was justified in holding that merely because no suit was filed for two to three years, it cannot be held that the other co-sharers admitted the settlement made by one of the co-sharers. It was open to the other co-sharers to challenge the settlement within the period of limitation. In the instant case, however, no suit was filed by the other co-sharers for the ejectment of the petitioner so far and. therefore, the case of Basdeo Rai v. Bindeshwari Rai, 1942 RD 580 (supra) is not of much help in this case.
18. Next, reliance was placed on the case of Raghuraj Singh v. Hamid Husain, (1935 RD 482). While dealing with. Section 266 of the Agra Tenancy Act. which corresponds to Section 246 of the U. P. Tenancy Act, the Board of Revenue held that the provisions of Section 266 of the Agra Tenancy Act are mandatory and one of several co-sharers cannot sue alone to eject a tenant unless he can show that he has been appointed agent of all the co-sharers and sues as their agent. This ruling itself indicates that there can be an agent appointed on behalf of the other co-sharers who can act on their behalf. Section 246 of the U. P. Tenancy Act also contemplates that all things required to be done by all the co-sharers must be done conjointly by all of them unless they have appointed an agent. Now, if Wasi Ahmad was acting on behalf of the other co-sharers with their tacit consent, the settlement made by him will be deemed to be a settlement made on behalf of all the co-sharers and it will be protected by Section 246 of the U. P. Tenancy Act.
19. Reliance was also placed on Mst. Batul Begum v. Khem Chandra Mukherjee : AIR1960All519 . Even in this case, it was observed, in para. 7 of the judgment at page 520. that it was possible to infer an implied contract from the circumstances that previously some suits for arrears had been decreed in favour of Khem Chandra Mukherjee. So the possibility of an implied contract or consent is not weeded out and the evidence and the circumstances of the case irresistibly show that Wasi Ahmad acted on behalf of other co-sharers and this was with their tacit consent.
20. Sri Verma strenuously contended that the petitioner had not taken up a case before the subordinate authorities that Wasi Ahmad settled the plots with the petitioner as an agent of the other co-sharers. His definite case was that Wasi Ahmad settled the plots as de facto lambardar and so the petitioner cannot be allowed to take . up a new plea. I am afraid, this contention can-not be accepted. When the petitioner alleged that Wasi Ahmad was acting on behalf of other co-sharers in filing suits for recovery of arrears of rent, he obviously took the plea that he was acting as agent on behalf of other co-sharers. At least respondents Nos. 2 to 4 have, in no way, been prejudiced, as the plea taken by the petitioner was wide enough to include that Wasi Ahmad was acting as agent on behalf of him. Indeed, the petitioner has produced evidence in the case to prove that.
21. For the respondents, however, it has been contended that Iqbal Ahmad migrated to Pakistan in the year 1950 and he was in this country in the year 1949 and, therefore, the settlement by Wasi Ahmad as a lambardar was incompetent This question need not detain me long as the Consolidation Officer and the Settlement Officer (Consolidation) both have recorded a finding that Iqbal Ahmad migrated to Pakistan in the year 1947. This finding has not been set aside by the Deputy Director of Consolidation. On the finding of fact, recorded by the Settlement Officer (Consolidation). Iqbal Ahmad ceased to be a co-sharer or a lambardar since 1947 and, thereafter, Wasi Ahmad acted on behalf of other co-sharers, who was formally appointed in 1952. If the settlement made in favour of the petitioner was a valid settlement on 12th June, 1949, there was no question of settlement of the disputed plots with respondents Nos. 2 to 4 on 13th June, 1949; for there could be no super-imposition of a tenant over the head of a sitting tenant
22. Besides, the settlement made with respondents Nos. 2 to 4 is alleged to have been made by Gada Husain, the Mukhtar-e-am of Iqbal Ahmad. The Power of Attorney is there on the record and it has been found as a fact that the Power of Attorney did not authorise Gada Husain to settle the land on behalf of the lambarder. In the absence of any power under the Power of Attorney, he had no power to settle the land with respondents Nos. 2 to 4. The contention on behalf of the respondents that there was an oral direction by Iqbal Ahmad to Gada Husain to settle the land is belied by the own statement of Gada Husain, as will be dear from the deposition of Gada Husain, quoted below:
'UNHONE ES ARAZI KE BABAT KOYEE HIDAYAT AAJ UNAHIN KIYA THA.'
The Deputy Director of Consolidation, in my opinion, has committed a manifest error in holding that the settlement made by Gada Husain with respondents Nos. 2 to 4 was a valid settlement.
23. This leads me to the second ground which weighed with the Deputy Director of Consolidation to discard the lease dated 12th June, 1949. in favour of the petitioner. He took the view that the lease of 1949 being for a period of more than one year was required to be registered under Section 56 of the U. P. Tenancy Act or attested in lieu thereof by a revenue Court or revenue officer under Section 57 of the said Act But the same being unregistered or un-attested conferred no tenancy rights on the petitioner.
24. Sri K. L. Misra, appearing for the petitioner, contended that Section 55 of the U. P. Tenancy Act provides for an oral settlement and a valid tenancy was created in favour of the petitioner and the written lease was only by way of proof.
25. In order to appreciate the point it is necessary to read Sections 55, 56 and 57 of the U. P. Tenancy Act Sections 55, 56 and 57 of the said Act, in so far as they are material for the purposes of the present case, read:
'55(1). On admission to a holding, the tenant is entitled to receive, from his land holder, a written lease consistent with the provisions of the Act and the land holder, upon delivering or tendering to a tenant such a lease, is entitled to receive, from him counterpart thereof.
(4) ..... If the lease or counterpart is not received by the person entitled to receive it under the provisions of Sub-section (1), he may bring a suit for such lease or counterpart as the case may be.
56. A lease for a period exceeding one year or for year to year shall be made by a registered instrument only.
57(1). When, under provisions of this Act or the Indian Registration Act 1908, or any other enactment for the time being in force, any lease ..... required to be made by registered instrument ..... the parties to such lease ..... may in lieu of registering the same, obtain the attestation thereto of a revenue Court or of a revenue officer, not inferior in rank to a Kanungo or such other person as the State Government may, by general or special order in that behalf, appoint and subject to such conditions, if any, as the State Government may ..... direct'.
26. The opening words of Section 55 (1) of the U. P. Tenancy Act clearly indicate that tenancy can be created orally. In that case, the section confers a right on the tenant to demand a written lease from the land holder consistent with the provisions of this Act. A corresponding right has been conferred on the land-holder to obtain from the tenant a counter-part of the lease so delivered or tendered. Sub-section (4) of Section 55 of the said Act provides that either of them may file a suit for the lease or counterpart as the case may be. The section further provides that the written lease must be consistent with the provisions of this Act. Section 56 of the U. P. Tenancy Act requires registration of the lease for a period of more than a year. It must be registered or attested, as required by Section 57 of the said Act.
27. Section 55 of the U. P. Tenancy Act confers a right on the tenant for demanding a lease consistent with the provisions of the Act from the landholder. In case the land-holder fails to execute the lease, the tenant can enforce his right by a suit within the meaning of Sub-section (4) of Section 55 of the said Act Sections 56 and 57 of the U. P. Tenancy Act only contemplate that if the lease is for more than a year, it should be either registered or attested.
28. The right conferred on the tenant under Section 55 of the U. P. Tenancy Act cannot be converted into his liability to penalize him. Reliance was placed on Mowasi v. Board of Revenue. U. P., Allahabad, (1965 All LJ 1072), In that case, it was laid down that the tenancy conies into existence only by admission of the zamindar. Even if there was no registered document, the tenant could have sued the zamindar for executing a document in terms of the settlement Therefore, proof of admission only is necessary in order to create tenancy in favour of a person.
29. Next reliance was placed on Om Pal v. Khilari. (1970 RD 528). It was held in that case that the wordings of Section 55 of the U. P. Tenancy Act show that a person becomes a tenant on admission to the holding. Thereafter, he is given a right to ask for and receive from the land-holder a written lease consistent with the provisions of this Act Sections 56 and 57 of the U. P. Tenancy Act only provide that when a written lease is executed, it should be in accordance with the provisions contained therein; if it is for more than a year, the tenant was given a right to sue for a registered lease and the tenancy came into existence as soon as he was admitted to the holding. The tenancy comes into existence only by admission of the zamindar and that the proof of admission only is necessary in order to create a tenancy in favour of a person. The fact that Wasi Ahmad admitted the petitioner to tenancy has been accepted by Wasi Ahmed. Even now, no other co-sharer has come forward, at any stage, to challenge the settlement made by Wasi Ahmad, It has been amply proved that Wasi Afamad acted on behalf of the other co-sharers after the migration of Idbal Ahmad, the lambardar, to Pakistan. Later on. he was formally appointed as a lambardar in 1952.
30. If a lambardar has ceased to be a lambardar either on account of migration or on account of his death and no lambardar has been appointed, it is own to the co-sharers to authorise some of them to act on their behalf. This authorisation may be either express or implied. I feel, great hesitation in accepting the contention on behalf of the respondents that no co-sharer can act on behalf of the other co-sharers unless he has been appointed as lambardar. The case of the petitioner is fully covered, in my opinion, by Section 246 of the U. P. Tenancy Act The Deputy Director of Consolidation was not correct in saving that there was nothing on the record to show that he acted on behalf of the other co-sharers with their consent. There are materials on the record and there are other circumstances which clearly indicate that he acted on behalf of the other co-sharers as well.
31. For the foregoing discussions, the settlement made by Wasi Ahmad was a valid settlement on behalf of all the co-sharers.
32. For the reasons given above, the writ petition must succeed. It is, accordingly, allowed. The order of the Deputy Director of Consolidation dated 19th June, 1971. is quashed. The parties will bear their own costs.