1924 Sale Deed, 1967 Eviction Suit and 1978 Mutation Proceedings – that ownership rights in respect of an immovable property cannot be decided casually. We are actually left with no other option but to remand these appeals back to the High Court for effective adjudication on merits.

SUPREME COURT OF INDIA

DIVISION BENCH

STATE OF UTTARAKHAND AND ANOTHER — Appellant

Vs.

RAVI KUMAR (DECEASED) THROUGH LRS AND OTHERS — Respondent

( Before : Surya Kant and J.K. Maheshwari, JJ. )

Civil Appeal No. 4983 of 2009 with Civil Appeal No. 4988 of 2009 with Civil Appeal No. 4984 of 2009 with Civil Appeal No. 4985 of 2009 with Contempt Petition (Civil) No. 165-168 of 2007 in Civil Appeal No. 4983 of 2009 with Civil Appeal No. 4989-4992 of 2009

Decided on : 18-05-2023

Counsel for Appearing Parties

Mr. A. Venayagam Balan, Advocate, Mr. Krishnam Mishra, Advocate, Mr. Rajeev Kumar Dubey, Advocate, Mr. Ashiwan Mishra, Advocate, Mr. Kamlendra Mishra, Advocate, Mr. Atul Sharma, Advocate, for the Appellant; Mr. Rakesh K. Sharma, Advocate, Mr. Satyajit A Desai, Advocate, Mr. Siddharth Gautam, Advocate, Mr. Abhinav K. Mutyalwar, Advocate, Mr. Gajanan N Tirthkar, Advocate, Mr. Vijay Raj Singh Chouhan, Advocate, Mr. Yougant Dhillon, Advocate, Ms. Anagha S. Desai, Advocate, Ms. Aishwarya Shinde, Advocate, Mr. A. Venayagam Balan, Advocate, Mr. P. N. Gupta, Advocate, For M/S. Ap & J Chambers, Advocate, for the Respondent.

Cases Referred

• U.P. Avas Evam Vikas Parishad v Friends Coop. Housing Society Ltd., 1995 Supp (3) SCC 456
• State of Uttar Pradesh v Zahoor Ahmad, (1973) 2 SCC 547
• Smith v East Elloe Rural District Council [1956] 1 All ER 855
• State of Punjab v Gurdev Singh (1991) 4 SCC 1
• State of Kerala v M.K. Kunhikannan Nambir Manjeri Manikoth Naduvil (1996) 1 SCC 435
• Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd. (1997) 3 SCC 443
• Life Insurance Corpn. of India v. Escorts Ltd. [(1986) 1 SCC 264]
• Lord Krishna Textiles Mills Ltd. v. Workmen [AIR 1961 SC 860 : (1961) 1 LLJ 211]
• M.O.H. Uduman v. M.O.H. Aslum, (1991) 1 SCC 412
• Investors Compensation Scheme Ltd vs. West Bromwich Building Society, [1998] 1 All ER 98
• Life Insurance Corpn. of India v. Escorts Ltd., (1986) 1 SCC 264
• Lord Krishna Textiles Mills Ltd. v. Workmen, AIR 1961 SC 860

JUDGMENT

Surya Kant, J. – The core question that arises for our consideration in the present set of connected matters pertains to the ownership of land measuring 183 bigha 8 biswa which is equivalent to 28.56 acres of land, bearing Khasra Nos. 2, 3/1, 3/2, 4 to 28/1, 28/2, to 49 and situated in Village Haripur, Tehsil Haldwani, District Nainital (hereinafter, Suit Land).

2. Since these appeals arise out of a complex factual scenario and different sets of legal proceedings which proceeded in parallel, it would be appropriate to discuss the same at length before delving into the issue of law, which require adjudication before us.

A. Facts

A.1 The Common Facts: 1924 Sale Deed, 1967 Eviction Suit and 1978 Mutation Proceedings

3. The genesis of these disputes began on 20.06.1924, when one Mr. John Vaughn, son of Mr. Charles Vaughn obtained a lease of the Suit Land (hereinafter, 1924 Lease Deed) from the erstwhile colonial rulers through the Secretary of State for India in Council for thirty years on payment of rent as agreed between the parties. The lease was also extendable for another thirty years and was subject to certain conditions, which are reproduced as follows: –

4. After the execution of the 1924 Lease Deed which was registered on 22.08.1925, it appears that revenue entries were made in favour of one Manohar Lal, who is said to have purchased the Suit Land through a sale deed dated 17.11.1947 (hereinafter, Sale Deed). The same Manohar Lal is also stated to be the paternal uncle of the primary contesting respondents before us, namely Virendra Kumar and Ravi Kumar (hereinafter, Respondents), as the relief sought by all the remaining private parties in connected matters flows from their claim on the Suit Land. It would be appropriate at this stage to reproduce the relevant portion of the Sale Deed, which records the factum of prior permission as required under the 1924 Lease Deed. The same is as follows –

5. Thereafter, it is to be noted that revenue records continued to depict the name of the predecessor of the Respondents as Occupancy Tenant on the strength of the said Sale Deed. Interestingly, at the expiry of thirty years in 1954, it is admitted that predecessor of Respondents applied for renewal and paid enhanced rent as per the 1924 Lease Deed. After that, consolidation proceedings took place between 1959-1960 wherein revenue entries remained in favour of Manohar Lal and even compensation was also awarded for a portion of Suit Land which was acquired by the military authorities in 1963.

6. It was not until 1967 that the State filed a suit for possession of the Suit Land along with the damages before the concerned District Judge. During the pendency of the said suit, UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 was promulgated and accordingly, the said suit stood transferred to the Prescribed Authority under the Act. In the interregnum before the final adjudication took place before the Prescribed Authority, it is pertinent to note that Bhumidhari certificates were also issued to the predecessor of Respondents under the applicable tenancy law by depositing the amount which was equal to twenty times the land revenue for the Suit Land. Eventually, the Prescribed Authority dismissed the suit on 25.03.1975 as being non-maintainable in view of the exclusion clause contained in the UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 whereby the lands which were held by any class of tenure-holder are exempted from the applicability of the said Act. The States appeal against the said order before the District Judge was also dismissed on the grounds of being time-barred and the suit being non-maintainable. The relevant extract of the District Judges order dated 30.07.1976 is as follows –

7. Hence, the suit which was instated in 1967 was never adjudicated on merits per se in respect of the claim of tenancy by the Respondents, but on the technical grounds of the bar contained in the UP Public Premises (Eviction of Unauthorised Occupants) Act, 1972 as well as on the ground that the appeal against the Prescribed Authoritys order was time barred. However, the District Judges order dated 30.07.1976 remained unchallenged and ultimately, after the demise of Manohar Lal, who died issueless, mutation proceedings were initiated in 1978 by the present Respondents on the basis of a family settlement.

8. While the relevant orders in the said mutation proceedings have not been made part of the records produced before us, it is stated that the Tehsildar, Haldwani passed an order dated 04.07.1978 in favour of the Respondents. This order was later confirmed by another order dated 30.08.1978 passed by the concerned SDM directing the Tehsildar, Haldwani to mutate the Suit Land in favour of Respondents in revenue records. Against the order of the SDM, the State preferred an appeal before the Commissioner, Kumaon which was rejected vide order dated 07.08.1980 and even the revision application against the same was dismissed on 31.12.1980. It is pertinent to note that during the proceedings, a vernacular copy of the order dated 07.08.1980 was produced before us, which we will refer to at a later stage.

9. In the end, because of the fact that the Respondents were successful in the mutation proceedings, the Pargana Officer, Haldwani passed an order dated 30.09.1981 accepting the partition between the concerned Respondents, i.e. between Virendra Kumar and Ravi Kumar, on the basis of family settlement. Meanwhile, orders dated 07.08.1980 and 31.12.1980 were challenged before the Board of Revenue in revision proceedings, but the same were dismissed via order dated 20.01.1982 with the following observation –

Thus, the issue of ownership again remained unadjudicated even at this stage.

10. For the ease of analysis, the key events in these proceedings are summarised as follows –

A.2 The Cancellation of Revenue Entries and Restraint on Sale of Land: Civil Appeal No 4983 of 2009 and Civil Appeal No 4985 of 2009

11. The subject matter of these appeals arose from an order dated 31.12.1981 passed by the District Collector, Nainital (hereinafter, Expunction Order) during the pendency of the revision proceedings before the Board of Revenue in the abovementioned mutation proceedings. In the said order, the Collector noted that on perusal of the revenue records, it was found that after the initial lease period of thirty years had expired, the Respondents had illegally gotten themselves recorded as Bhumidhar of the Suit Land in the revenue records. Accordingly, the Collector directed the expunction of the revenue entries in favour of the Respondents and recommended that eviction proceedings be initiated against them.

12. Against the Expunction Order, the Respondents preferred a revision before the Commissioner, Kumaon who passed an interim order dated 20.01.1982 directing that no revenue entries should be deleted in light of the fact that the matter was pending before the Board of Revenue in mutation proceedings. However, as noted above, the Board of Revenue dismissed the said pending revision in the mutation proceedings on the same date. Consequently, it is stated that despite the abovementioned interim order dated 20.01.1982 of the Commissioner, the Tehsildar acted on Expunction Order and proceeded to expunge the revenue entries in favour of Respondents.

13. Afterwards, on 16.08.1983, the Commissioner, Kumaon dismissed the revision pending against the Expunction Order noting that the same was not maintainable in view of the fact that no provision provided for revision of an order passed under the Government Grants Act of 1895 as applicable to the then State of Uttar Pradesh vide amendment made in 1960. The relevant provisions after the 1960 amendment to the Government Grants Act of 1895 are as follows –

It must also be highlighted that the Respondents, against the aforesaid action of the Tehsildar wherein he expunged the revenue entries in favor of Respondents, preferred a contempt petition before the Allahabad High Court, which was dismissed in limine on 16.08.1986 after the concerned officials tendered unqualified apologies.

14. Aggrieved by the said order dated 16.08.1983 of the Commissioner, the Respondents filed a revision before the Board of Revenue, which was heard by a Single Member who vide its order dated 22.01.1993 (hereinafter, Single Members Order) set aside the Expunction Order. The Single Members Order noted that the Expunction Order was not passed under the Government Grants Act of 1895 but under the applicable land revenue laws, making it susceptible to revisionary jurisdiction. It furthermore noted that no enquiry report was ever obtained nor was any opportunity given to Respondents for being heard while passing the Expunction Order.

15. Against the Single Members Order, the District Magistrate of Nainital wrote a letter to the Board of Revenue seeking permission to challenge the same through a writ petition and during the interregnum, the State filed a writ petition in 1996 against the Single Members Order (hereinafter, First Writ Petition). Meanwhile, the Board of Revenue acted on the abovementioned letter addressed by the District Magistrate of Nainital and constituted a Three Member Bench to scrutinise the Single Members Order.

16. The Three Member Bench in turn vide its order dated 20.12.1996 (hereinafter, Three Member Benchs Order) held that Single Members Order was without any jurisdiction as no power for revision existed under the land revenue laws and also noted that the Expunction Order was passed under the Government Grants Act of 1895. It furthermore noted that the Collector had rightly issued the Expunction Order as the Respondents illegally obtained revenue entries in their favour in collusion with revenue officials after the expiry of the initial lease period of thirty years. Hence, it observed that the Suit Land stood automatically resumed in favour of the State after the expiry of the lease period, and no notice was required to be given to the Respondents at the time of passing the Expunction Order. Against this Three Member Benchs Order, Respondents filed a writ petition in 1997 (hereinafter, Second Writ Petition).

17. Afterwards, a review petition was filed before the Single Member of the Board of Revenue in view of the observations in the Three Member Benchs Order. Accordingly, the Single Member on 03.03.1997 directed that the review petition be placed before the same bench that rendered the Three Member Benchs Order. In turn, the said bench on 18.12.1997 is said to have passed an order stating that Three Member Benchs Order did not alter the Single Members Order and directed that the review should be filed before the Single Member only. Though, it is stated by the Respondents that no such review proceedings took place as none of the parties pursued it any further and instead the matter was kept pending in the writ proceedings as noted above. However, it has come on record that a review was indeed filed by the Appellants, which was directed to be heard urgently and later on was transferred to the revenue court of Additional Chief Revenue Commissioner, Nainital after the formation of State of Uttarakhand.

18. During the pendency of the aforesaid writ proceedings as well as the review before the revenue court, the District Magistrate passed orders dated 02.05.2001 and 21.05.2001 (hereinafter, Restrain Orders) directing the Special Land Acquisition Officer and the concerned Tehsildar to restraint the Respondents from selling, transferring or mutating the Suit Land or any part thereof. Aggrieved by the said orders, the Respondents filed an injunction suit, but the same was dismissed on 06.06.2002 on account of being non-maintainable. Upon dismissal of the suit, the Respondents instead filed a revision petition before the Additional Chief Revenue Commissioner, who vide his order dated 22.07.2002, declared Restrain Orders as void and illegal. It also noted that the Single Members Order had attained finality, the State recognised ownership of the Respondents as they granted them compensation for the land acquired by military authorities in 1963 and that the revenue entries were longstanding in favour of the Respondents. It must be noted that the Appellants filed a writ petition against the order dated 22.07.2002 before the High Court (hereinafter, Third Writ Petition).

19. Ultimately all three writ petitions were heard together by the High Court, which vide the impugned judgement dated 07.10.2005 in Civil Appeal No 4985 of 2009 decided the matter in favour of Respondents. The High Court noted that, firstly the predecessor of the Respondents validly got the approval of the Commissioner as required under the 1924 Lease Deed, which was reflected in the order dated 07.08.1980 passed by the Commissioner in the mutation proceedings. Secondly, the revenue entries have long been standing in favour of the Respondents since 1948 which reflects that they have been accorded the status of Bhumidhar. Furthermore, it noted that these entries became final since the Appellants never initiated any proceedings for their correction, and these entries could not be deleted through an administrative order as done by the Expunction Order. Consequently, the Respondents writ, i.e.

Second Writ Petition, was allowed while the remaining writ petitions filed by the Appellants were dismissed.

20. Interestingly after the High Court passed the impugned judgement dated 07.10.2005, the pending review before the revenue court of Additional Chief Revenue Commissioner, Nainital was decided in favour of the Appellants vide an order dated 21.10.2005 wherein the authority set aside the Single Members Order and directed that in view of the Three Member Benchs Order, the Expunction Order must be complied with.

21. Consequently, the Appellants preferred review applications against the judgement dated 07.10.2005, which the High Court dismissed vide the impugned judgement dated 05.08.2006 in Civil Appeal No 4983 of 2009 wherein it was noted that no ground for review was made out by the Appellants and the observations of the order dated 07.10.2005 were reiterated. It also specifically noted that Expunction Order stood set aside in view of the Single Members Order and that order dated 21.10.2005 was passed without any jurisdiction by the Additional Chief Revenue Commissioner as the High Court already decided the matter vide judgment dated 07.10.2005. We must also hasten to add that during the hearing of the abovementioned review applications, the Additional Chief Revenue Commissioner tendered an apology via an affidavit stating that he had no knowledge that the High Court had already decided the pending writ petitions through its judgment dated 07.10.2005.

22. Again for ease of analysis, the key events in these proceedings are summarised as follows –

A.3 The Respondents 1983 Injunction Suit Proceedings: Civil Appeal No 4988 of 2009 and Civil Appeal No 4984 of 2009

23. The cause for the inception of these appeals arose when the Commissioner dismissed the revision against the Expunction Order as non-maintainable. Because of the said dismissal, the Respondents apprehended that the revenue entries in their favour would be struck off, and accordingly, they filed a suit praying for perpetual injunction restraining the Appellants from evicting the Respondents from the Suit Land as well as a mandatory injunction directing the Appellants to refrain from deleting or restoring the revenue entries in their favour.

24. The Trial Court decreed the said suit in favour of the Respondents vide its order dated 20.10.1984. The Trial Court made extensive reference to 1967 Eviction Suit proceedings and 1978 Mutation Proceedings to hold that Respondents became Sirdar and later on Bhumidhar legally and that Appellants have no claim of title over the Suit Land. The Appellants filed an appeal against the order dated 20.10.1984, which was dismissed by the First Appellate Court on 16.06.1986 on identical reasoning as given by the Trial Court. The First Appellate Court again highlighted the factum of longstanding revenue entries in favour of Respondents and the continued possession with them to uphold the order of the Trial Court. It also observed that the dispute in respect of the revenue entries should have been adjudicated by the competent revenue court instead of being decided by the Collector vide the Expunction Order.

25. The Appellants proceeded to file the second appeal before the High Court against the First Appellate Courts order, and the same was dismissed vide the impugned judgment dated 05.11.2004 passed in Civil Appeal No 4988 of 2009. While dismissing the second appeal, the High Court noted that the suit was filed within limitation and that the courts below have rightly held that Respondents have lawfully acquired the status of Sirdar and later on that of Bhumidhar. Against the said judgment dated 05.11.2004, the Appellants preferred a review petition, but the same was dismissed vide the impugned judgement dated 28.07.2005 in Civil Appeal No 4984 of 2009 on identical reasoning.

26. We again proceed to summarise the litigation history in a tabular format as follows –

A.4 The 1982 Land Acquisition Proceedings: Civil Appeal(s) No. 4989-4992 of 2009

27. The commencement point for these appeals began when the state authorities issued a notification dated 13.04.1982 under Section 4 of the Land Acquisition Act of 1894 for acquiring land measuring 70 bigha 08 biswa for the construction of Model Industrial Training Institute. Out of the entire proposed acquisition, land measuring 11 bigha 06 biswa was part of the Suit Land. Subsequently, a notification dated 16.09.1982 under Section 6 of the Land Acquisition Act of 1894 was issued, possession was taken on 23.07.1983 and an award was also passed on 30.09.1985, but the Respondents were denied compensation on the ground that land belonged to the government. Aggrieved by the denial of compensation, the Respondents filed a reference which was decided in their favour on 21.02.2006 on the strength of impugned judgements in the abovementioned connected civil appeals which determined Respondents as lawful owners of the Suit Land.

28. The Appellants filed respective appeals before the High Court against the Reference Courts order, and the same was dismissed vide the impugned judgement dated 24.07.2008 in Civil Appeal(s) No 498-4992 of 2009 wherein the High Court again held in favour of the Respondents on identical grounds and granted compensation at the rate of Rs. 8 per square feet along with solatium and applicable statutory benefits.

29. To summarise these proceedings –

A.5 Contempt Petition (Civil) No 165-168 of 2007 in Civil Appeal No 4983 of 2009

30. Respondents have initiated these contempt proceedings for violation of order dated 23.02.2007 passed by this Court directing parties to maintain the status quo. The Respondents contend that the Appellants have been interfering with their peaceful possession, especially in concern with the commercial activities conducted on the Suit Land. However, since we are disposing off the appeals finally, there is no need to deal with these contempt petitions.

B. Contentions

31. We have heard learned counsel for the parties and perused the documents produced on record. We would like to point out that during the course of arguments which went on for a couple of days, the bench as well as the counsel for the parties, readily agreed that the core issue for adjudication was in respect of the status of the Respondents under the applicable tenancy law and whether the same entitled them for ownership of the Suit Land. It is in this context that we propose to consider the arguments raised by the parties.

32. Mr. Atul Sharma, learned counsel for the Appellants made the following contentions –

33. On the contrary, Mr. Harin P. Ravel, learned senior counsel for the Respondents initiated his arguments on the first day of hearing by submitting that the Respondents claimed ownership on two independent grounds, firstly through the Sale Deed and secondly, on the strength of status accorded under the applicable tenancy laws. However, on the final day of arguments, Mr. Ravel clarified the abovementioned stand by stating that the Sale Deed pertained to sale of leasehold rights and not the sale of title or ownership rights. Therefore at present, the claim of the Respondents is actually based on the strength of status accorded under the applicable tenancy laws as we will note while reiterating Mr. Ravels arguments which are as follows –

C. Analysis

34. Before we analyse the rival contentions raised by the parties, it would be appropriate to broadly highlight the issues which arise for our consideration –

C.1 Sale of Ownership Rights Or Leasehold Rights

35. At the outset, it is iterated that during the oral arguments, the Respondents have taken the stand that the Sale Deed actually pertained to sale of leasehold rights and not of title per se. However, it is pertinent to mention that their stand has been inconsistent regarding this issue in the courts below and even the High Court vide its impugned decisions have given parallel findings regarding the nature of the Sale Deed.

36. In the impugned judgement 07.05.2005, which arose from the Expunction Order Proceedings, the High Court noted –

On the contrary, in the impugned judgement 05.11.2004 which arose from the 1983 Injunction Suit, the High Court noted –

37. Therefore, the High Court while deciding the issue of ownership in favour of Respondents on the strength of the Sale Deed, have come to different conclusions as such to the nature of the instrument. In this respect, our attention is also drawn towards the contrary stands taken by the Respondents in their pleadings which have been brought on record. In the plaint filed by them in 1983 Injunction Suit, the Respondents claim to tenure holders who were later accorded the status of Bhumidhar on the basis of Zamindari Notification. On the other hand, in the Second Writ Petition, Respondents stated that the Sale Deed was actually in respect of the title per se.

38. Nevertheless, even if the clarification on behalf of Respondents which is taken for the first time at this stage is allowed, we must note that the tenor of the Sale Deed completely contradicts the said modified stance. The relevant portion of the Sale Deed is as follows –

These recitals of the Sale Deed highlight that the relationship between Mr. John Vaughn and Mr. Manohar Lal seemed more akin to that of a vendorvendee in a title sale than that of the sale of leasehold rights.

39. We must again take note that in respect of the two parallel findings given by the High Court, the Respondents for the first time before this Court have given up the finding which treated the Sale Deed as a sale of title. However, we must note that both these parallel findings by the High Court have been without any serious examination of the nature of the Sale Deed itself. In our opinion, High Court erred in respect of these findings and as the same was essential to determine the present dispute on merit, we deem it a fit case to exercise our power of remand.

40. Additionally, despite these findings being a serious lacuna for us to reach a conclusive decision, the Appellants have raised no serious objection to the modified stand taken by the Respondents wherein they stated that the Sale Deed was in respect of leasehold rights only. However, we would like to highlight several other aspects of the present disputes which further warrant the exercise of the power of remand.

C.2 Determination of the 1924 Lease Deed: The Breach of the Condition of Prior Approval and Expiry of Initial Lease Deed Period

41. During the course of hearing, the bench raised a query in respect of the earliest stand taken by the Appellants on the aspect of breach of clause (e) of the 1924 Lease Deed in respect of prior approval. In response to the same, our attention was towards the plaint filed by the State in the 1967 Eviction Suit, the relevant part thereof is as follows –

42. Hence, it can be safely deduced that the Appellants did contend the issue of prior approval from the initial stage itself. Apart from the said eviction suit, two other proceedings need to be highlighted, i.e. consolidation proceedings which occurred between 1959-1960 and acquisition proceedings for a portion of land initiated by the military authorities in 1963. In respect of the consolidation proceedings, we cannot deduce the stand taken by State as no document or order in respect of the same has been produced before us. However in respect of the acquisition, order dated 22.11.1965 passed by the concerned Land Acquisition Officer, which granted compensation to the predecessor of Respondents has been brought on record wherein it must be noted that compensation was granted on the basis of revenue entries and without any serious examination of the validity of the same. Hence, both these proceedings cannot be treated as an admission of validity of revenue entries or as accepting the waiver of breach of the condition in respect of prior approval from the Deputy Commissioner.

43. Coming back to the aspect of prior approval, the Respondents drew our attention towards the vernacular copy of the order dated 07.08.1980 passed by the Commissioner, Kumaon, in the mutation proceedings to support the plea of grant of valid approval. The relevant part of the said order in the vernacular language is as follows –

The following order makes it apparent that the approval from the appropriate authority as per the lease deed, i.e. Deputy Commissioner was granted only on 06.12.1948 which is more than a year later than the Sale Deed.

44. On the contrary, as per the recitals contained in the Sale Deed as extracted in Para 4 of this judgment, it is mentioned that due permission was obtained and the consequent mutation was effected in the office of Superintendent, Tarai and Bhabar, Nainital before its execution. Hence, this abovementioned recital leads to immense confusion as to whether any approval was ever granted at the first instance. Even if such approval was granted, no indication is given as such to actually who granted the approval and if it is assumed that a subordinate authority granted the approval, no statutory instrument is produced before us to highlight whether this delegation was possible or not. The subordinate courts as well as the High Court have merely relied on the order dated 07.08.1980 passed by the Commissioner, Kumaon to come to a sweeping conclusion that a valid approval existed in favor of the predecessor of the Respondents despite glaring contradictions which were on the face of the record. Consequently, on this issue of breach of the conditions of the 1924 Lease Deed, we again fail to arrive at a decisive conclusion as neither the original record nor its true copies have been placed on record of this Court or the High Court as well as the other forums.

45. Finally, while the Respondents have argued that until there existed an express refusal by the Deputy Commissioner for sale of leasehold rights, the sale was valid especially in light of post facto approval granted by the Deputy Commissioner as has been recorded in order dated 07.08.1980 passed by the Commissioner. They have relied on the following observation in U.P. Avas Evam Vikas Parishad[2] –

46. It is now settled law that any contractual term or condition is to be interpreted as per the natural and ordinary meaning appended to the language used by the parties unless the same leads to absurdity.[4] In the present case, condition (e) of the 1924 lease deed makes it clear that no rights in the Suit Land are allowed to be transferred or created “without the written approval of the Deputy Commissioner of Nainital” which bears the crystal clear requirement of the prior assent needed from the Deputy Commissioner. This interpretation is also supported from the fact that leases under the Government Grants Act of 1985 are to be strictly constructed as per the terms of the grant, regardless of any other provisions of the law as noted in State of Uttar Pradesh v Zahoor Ahmad[5] which states that –

47. Additionally, the bench in U.P. Avas Evam Vikas Parishad[6] furthermore relied on the decisions rendered in Life Insurance Corpn. of India v. Escorts Ltd., (1986) 1 SCC 264 and Lord Krishna Textiles Mills Ltd. v. Workmen, AIR 1961 SC 860 wherein the terms permission and approval were used within same statute which necessitated the distinction between these terms. Hence, the present case is distinguishable on this aspect also, as no such distinction is warranted in the case at hand.

48. Even otherwise, the High Court and other authorities have proceeded on the premise of a valid approval. They are completely silent on whether the post facto approval could be granted and if so, who granted such approval. Again, no records are produced and its not known whether any approval was ever actually granted and when or by whom?

49. In our opinion, a reasoned finding on both the nature of Sale Deed as well as whether the same was violative of conditions of the 1924 Lease Deed goes to the heart of the present dispute, because of which the issue of determination of lease remains unanswered. Hence, in light of the same we must also note that the Respondents claim on the strength of doctrine of holding over or through doctrine of acquiescence as well as the reliance on the conduct of Appellants, remains in doldrums as the same are hinged on the finding in respect of determination of lease. However, before moving forward, we must highlight another aspect which requires application of mind by the High Court. We observe so for the reason that decades have passed in litigation, and it would be extremely iniquitous to remand the case to revenue authorities at such a belated stage.

C.3 Respondents Title Claim through Tenancy Law: The Conundrum of Validity of Revenue Entries

50. In the present case, revenue entries starting from 1948 have recorded the Respondents predecessor as Occupancy Tenant on the strength of which they were accorded the status of Sirdars vide the Zamindari Notification. Consequently, this led to predecessor of Respondents being accorded the status of Bhumidhar as per the applicable statutory scheme. Since these entries carry the statutory presumption of correctness in their favour, we must address them.

51. However, before delving into the issue of the tenancy status of the Respondents, it would be appropriate to highlight the legislative history of the term Occupancy Tenants. Under the U.P. Zamindari Abolition and Land Reforms Act, 1950[7], it is assigned the same meaning as employed in the 1939 Act which is as follows-

Hence by virtue of this definition, Occupancy Tenants are the ones who have acquired a right of occupancy under the Agra Tenancy Act of 1926 and its legislative pre-enactment, i.e. Agra Tenancy Act of 1901 or the Oudh Rent Act of 1886. Nevertheless, this provision only confirms the occupancy rights which were enjoyed at the commencement of the 1939 Act. Therefore, new occupancy tenancies cannot be created even if it is assumed that all the concerned parties consented to the same.[8]

52. Even assuming arguendo that Mr. John Vaughn was deemed to have been granted status as an Occupancy Tenant under the 1939 Act, it should be noted that his status as an Occupancy Tenant cannot be transferred to the predecessor of Respondents in light of Section 33 of the 1939 Act which is as follows –

The only exception to the bar on transfer of status as an Occupancy Tenant in the abovementioned section is under sub-clause (b) of clause (2) wherein reference is made to Section 251 which in turns deals with sale of occupancy rights when the tenant himself is facing the execution of a decree for arrears of rent. As no factual situation has been indicated stating that Mr. John Vaughn had suffered a decree for rent arrears, we are unsure as to how any transfer of Occupancy Tenant status in favour of the predecessor of Respondents was sustainable. This confusion further indicates that the predecessor of Respondents could not have been accorded the status of Sirdar under the Zamindari Notification on the strength of revenue entries which recorded him as an Occupancy Tenant.

53. Hence, the High Court again made sweeping remarks in respect of the tenancy status without any serious consideration as to whether the same were legally tenable or not. We must highlight that no reference is made to any proceedings wherein the status as an occupancy tenant was ever granted to the predecessor of the Respondent and, if so, how and when the same culminated into the status of Sirdar under the Zamindari Notification. These proceedings which ultimately led to the grant of status of Bhumidhar in favour of the predecessor of Respondents for the first time, could have potentially served as the litmus test for the validity of these revenue entries.

54. Additionally, we must also take note of the finding of the High Court via its impugned judgement dated 07.10.2005 wherein it is held that predecessor of Respondents was rightly accorded the status of Sirdars under the Zamindari Notification on the ground that they were leaseholders governed by the Government Grants Act of 1895. However, this finding again appears unsustainable because there is no proper factual analysis as to when the 1924 Lease Deed stood determined or whether the same subsisted after the initial period of thirty years.

55. Before parting, we must also point out that initially the 1939 Act was not applicable to the Suit Land as the concerned area where it is situated was excluded from the purview of the 1939 Act, as it was specifically included in the First Schedule. Any future application of the 1939 Act in respect of the Suit Land was supposed to be through a separate notification, but the same has again not been produced in these proceedings or before any forum, which further dissuades us from rendering any final opinion at this stage.

56. The same aspect has been highlighted by Appellants who contend that the area in which the Suit Land is situated was governed by the Kumaon Tenancy Rules of 1918. On the other hand, Respondents have produced on record a – G.O. No. 5678/ 1-B-1212~B-19 dated the 30.04.1948 titled Tarai and Babbar Government Estates (Kham norms), Revised norms issued by Revenue (B) Department which notes as follows –

This notification indicates the possibility of hereditary rights being accrued on predecessor of Respondents under the 1939 Act but again, we are constrained to give any finding on the same because of the lack of proper documents on record to ascertain the tenancy status of the Respondents. Hence, on this ground also the present appeals are liable to be remanded back so that the relevant statutory notifications, original records can be placed before the High Court to enable it to determine the applicable tenancy law and their impact on the alleged rights of the Respondents.

D. Conclusion

57. We are conscious of the fact that these appeals have been pending before this Court for more than 15 years. In normal circumstances, we would have ventured to decide the issues ourselves but in light of the abovementioned observations and dearth of appropriate records, we are constrained to hold that ownership rights in respect of an immovable property cannot be decided casually. We are actually left with no other option but to remand these appeals back to the High Court for effective adjudication on merits.

58. Our hands are further tied because of the fact that the ownership of certain portions of the Suit Land has apparently changed hands on account of subsequent sale by the Respondents. Furthermore, we must also note that the value of the Suit Land has increased exponentially during the entire period of litigation and the relevant parties have also done certain valuable developments. Any decision now cannot be based on conjectures and surmises or on the basis of mere guesswork. Hence, we are reluctant to give a final opinion on the matter until the Court is satisfied on the basis of the entirety of documents which showcase how the ownership or possessory rights were created on the Suit Land.

59. There are indeed compelling circumstances which have been left unanswered by the courts below, because of which determination of several factual issues have been left in limbo. Therefore, in light of the peculiar situation, we find it expedient to remand the present appeals back to the High Court for fresh adjudication on the issues formulated in Para 34 of this judgement and the observations made above. However, we hasten to add that these observations may not to be treated as final determination on the merits of the dispute.

60. Furthermore, in light of the long-drawn pendency of these disputes, we request the High Court to take up these matters at the earliest and dispose of the same as early as possible, preferably within a period of upcoming 12 months. However, all the original records, including revenue entries as well as that of the office of Deputy Commissioner, Nainital may be requisitioned. In this regard, we direct the Appellant State to produce entire records and notifications before the High Court and render assistance in the early disposal of these matters.

61. Consequently, these appeals are allowed in part; the impugned judgments of the High Court are set aside, and the matters are remanded to the High Court for a fresh adjudication. It is made clear that casual findings/observations made by Revenue Authorities or the Civil Court shall not be accepted at their face value unless the High Court is satisfied on a thorough inspection of the original or certified copies of the relevant record. The parties are directed to keep status quo until the matters are decided afresh by the High Court.

62. Ordered accordingly. Pending applications, if any, are also disposed of in above terms.