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Sk. Rahiman Vs. Raje Nilkanthrao and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 6 of 1953
Judge
Reported in(1959)61BOMLR1203
ActsBerar Land Revenue Code, 1928 - Sections 73 and 73(1)
AppellantSk. Rahiman
RespondentRaje Nilkanthrao and anr.
Appellant AdvocateG.R. Mudholkar, Adv.
Respondent AdvocateR.N. Deshpande, Adv.
Excerpt:
.....of tenancy is known. therefore, a tenant cannot, under this proviso, claim the status of a tenant of antiquity if the date of commencement of his tenancy is known.;the words 'commencement of tenancy' refer to the original or the first tenancy under which the tenant or his predecessor-in-title entered into possession of the land as a tenant and since the time of which tenancy he and his predecessors-in-title have been in continuous and uninterrupted possession of the land. martand v. ganpat [1956] nag. 357 and mohammad v. kundalik [1957] n.l.j. 377, overruled. v.h. shastri v. r.b.v.p. puranik (1948) letters patent appeal no. 6 of 1945, decided by bose and mangalmurti jj. on december 31, 1948 (unrep.), approved.;shankarrao dagadujirao v. shambhu nathu patil (1940) 43 bom. l.r. 1,..........a tenancy must exist before it can be said to be tenancy must exit before it can be said to be a tenancy antiquity that this proviso is, therefore, independent of the main part of sub section (1( of s. 73 and that if the conditions mentioned in the proviso are satisfied, the tenant must be deemed to be a tenant of antiquity, irrespective of whether the commencement of the teensy of is not known. on the other hand, it has been urged by the leaned counsel, who have appeared on behalf by the landlords, be read that the main port of sub section (1) f s.73 must be read along with the proviso and that tenant cannot claim the status of a tenant of antiquity if the origin of the tenancy is known.(6) to decide which of these contentions should be accepted, it is necessary to bear in mind that.....
Judgment:

Chainani, C.J.

(1) The order of reference to the full Bench does not frmulate the question, which we have to decide. In consultation with the learned counsel on both sides, the question has been formulated as follows:

Whether the proviso to sub-section (1) of S. 73 of the Berar Land Revenue Code applies in cases in which the commencement of tenancy is known.

(2) In order to appreciate the arguments, which have been advanced before us, it is necessary to refer to the relevant provisions of the Code. sub-section (1) of S. 73, as it originally stood, was as follows:

Where by reason of the antiquity of a tenancy in n alienated village or holding no satisfactory evidence of its commencement and of its period is forthcoming and there is no usage of the locality as to such period, the period shall, as against the landlord of the tenant, be presumed to be co extensive with the duration of the tenure of such landlord and those who derive little under him.

Such tenant is called a tenant of antiquity and his rights shall be heritable and transferable in accordance with his personal law.

(3) There was an explanation to this sub section which provided that antiquity did not mean absolute antiquity but meant antiquity in reference to the difficulty of securing evidence. This sub section was in similar terms to S. 83 of the Bombay Land Revenue Code, which as follows:

And where by reason of the antiquity of a tenancy no satisfactory evidence of its commencement is forthcoming, and there is not any such evidence of the period of its intended duration, if any, agreed upon between the landlord and tenant, or those under who they respectively claim title, or any usage of the locality as to duration of such tenancy, it shall, as against the immediate landlord of the tenant be presumed to be co extensive with the duration of the tenure of such land lord and of those who derive title under him.

This section came up for consideration before the privy council in Shankarrao Dagadujirao v. Shambhu Nathu . The Privy Council held that the particular presumption mentioned in this S. 83 could to be made save upon two conditions: first, that there is no satisfactory evidence of the date of the commencement of the tenancy, and secondly, that his lack is due to the antiquity of the tenancy. It was observed that by a tenancies antiquity the section does not intend any reference to remote ages in the past or to time immemorial but that it is to be given the practical meaning appropriate to its context and afforded by the limits within which living testimony to past facts is necessarily restricted. In order to be entitled to the status of a tenant of antiquity under sub section (1) of S. 73 of the Berar Land Revenue Code, a tenant had therefore to prove, firstly, that no satisfactory evidence of the commencement of the tenancy any of its period was forthcoming; and secondly that this was due to the antiquity of the tenancy; in other words, he had to show that the origin of the tenancy was lost in antiquity of the origin of the tenancy was lost in antiquity or that it came into existence before the period of living memory. this naturally imposed a heavy burden upon the tenants for proving that they were tenants of antiquity./ It was also held by the courts that if during the period, for which a tenant had been in possession of on land, he had executed leases of tenancies and the consequently, in such cases, the presumption about the antiquity of a tenancy could not arise; see for instance Vijbhukandas V. Ishwardas AIR 1923 Bom 397 and Mohammed Alimulla Khan V. Maruti Janu in the last case, it was held that the execution of a kabuliyat by a tenant imports a surrender of the old tenancy and commencement of fresh one from that date, and that the commencement of the tenure being known , the requisite conditions in S. 73 of the Berar Land Revenue Code were not fulfilled in order entitle the tenant to claim a tenancy of antiquity.

(4) In 1948 the Legislature amended S. 73 of the Code. A proviso was inserted in sub section (1) of S. 73 and this was in the following terms.

Provided that where a tenant not being an ante alienation tenant proves that he had personally or through his predecessor in title held land continuously for a period in excess of twenty years shall be deemed to be a tenant of antiquity unless the landlord proves that such tenant is an annual tenant or a tenant holding the under one or more valid written leases covering the entire period of twenty years.

This amendment was given retrospective effect by a new section 73-A inserted in the Code, which also made a provision for tenants ejected after 1.1.1935 to file suits in order to recover possession of lands from which they had been evicted, sub section (3) of S. 73 A provided that the court should decide such suits as if S. 73, therefore, creates a new rule of evidence, under which if a tenant shows that he has been in continuos possession of a land in excess o twenty years, he is to be deemed to be a tenant of antiquity. It may also be said to have conferred the status of tenants of antiquity on those classes of tenants, who have been in continuous possession of their lands for more than twenty years. If a tenant proves continuous possession of his land for a little over twenty years, a presumption arises in his favor that he is a tenant of antiquity. The burden then shifts to the landlord to show either that the tenant was an annual tenant or that he was valid written leases covering the entire period of twenty years. If the landlord is to be deemed to be a tenant of antiquity.

(5) The question which we have to determine, is whether this proviso applies in cases, in which the origin of a tenancy can be ascertained or is known . On behalf of the tenants it has been urged that the proviso enacts a substative provision that this provision has been made in order to counter or destroy the effect of sub section (1) of S. 73 as it stood before its amendment, that it brings into existence a new concept as to for what period a tenancy must exist before it can be said to be tenancy must exit before it can be said to be a tenancy antiquity that this proviso is, therefore, independent of the main part of sub section (1( of S. 73 and that if the conditions mentioned in the proviso are satisfied, the tenant must be deemed to be a tenant of antiquity, irrespective of whether the commencement of the teensy of is not known. On the other hand, it has been urged by the leaned counsel, who have appeared on behalf by the landlords, be read that the main port of sub section (1) f S.73 must be read along with the proviso and that tenant cannot claim the status of a tenant of antiquity if the origin of the tenancy is known.

(6) To decide which of these contentions should be accepted, it is necessary to bear in mind that in 1948 when the legislature amended S. 73, the original provision contained in sub section (1) was not repealed, that it was allowed to stand as it was before, but that a new provision was inserted in the form of a proviso. this provision also was not enacted in the form of a separate sub section or section. The fact that the original provision of sub section (1) was not repealed or modified negatives the argument, which has been advanced, that the Legislature enacted the new provision to destroy the effect of this part of the section.

(7) In M/.s Ram narain Sons Ltd. V. Asst. Commr. of Sales Tax : [1955]2SCR483 . the Supreme court has observed:

It is a cardinal rule of interpretation that proviso to a particular provision of a statue only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a provision and to no other.

In Abdul Jabar Butt v. State of Jammu and Kashmir, : 1957CriLJ404 it has been observed that it is a fundamental rule of construction that a proviso must be considered with relation to the principal matter. to which it stands as a proviso and that the proviso has to be construed harmoniously with the provisions to which it is a proviso.

(8) Mr. Kherdekar on behalf of the tenants has referred us to Shankarlal v. Pandharinath, : AIR1951Bom385 in which it was held that it the proviso in clear and explicit terms enacts a substaive provision it cannot necessarily be controlled by the language of the main enactment. But in the same case it was observed that the normal function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. Mr. Kherdekar has also referred us to the observations in Keshaval v. Commr. of Income Tax : AIR1957Bom20 that a Legislature may enact a substantive provision enacted by the legislature and give effect to it as such. But in the same case, it was observed that ordinarily the field which the section itself deal with and that the duty of the court also must be to give to the proviso as far as possible a meaning so restriction as to bring it within the ambit and purview of the section itself. Therefore if a proviso is capable of a wider connotation and is also capable of anarrower connotation, if the narrower connotation brings it within the purview of the section then the court must prefer the narrower connotation rather than the wider connotation.

(9) It is clear from these authorities that the duty of the court is to effect a harmonious construction between a proviso and the provision to which it is a proviso and that as far as possible the proviso must be so interpreted and its meaning so restricted as to bring it with in the ambit and purview of the main provision itself. In this case, it possible to read the main provision in sub section (1) of S. 73 and the proviso together. That this is what the legislature intended, in is also suggested by the fact that in the proviso the legislature has not used the words, such as, notwithstanding anything contained above, or in sub section (1) The effect of reading the main provision of sub section of (1) of S. 73 and the proviso together will be that the proviso will only apply in cases in which the commencement of a tenancy cannot be ascertained. This interpretation is also in accordance with the basic concept of the expression tenancy of antiquity. The ordinary conception of such a tenancy is that the tenancy is so ancient that its origin cannot be determined.

(10) We have been referred to the statement of Objects and Reasons which held to the enactment of Objects and Reasons is not admissible as an aid to the construction of a statue. But it can be referred in for the limited purpose of ascertaining the conditions prevailing at the time, which actuated the sponsor of the Bill to introduce the same and extent and urgency of the evil which he sought to Gopal : [1954]1SCR587 and M.K. Ranganathan v. Govt of Madras : [1955]2SCR374 . This statement of objects and Reason is in the following terms;

In alienated villages in Berar ante alienation tenants and tenants of antiquity have protected status. According to the present law, a tenant has in prove facts existing before 1875 or thereabouts, or being declared an ante alienation tenant. Generally the tenants are illiterate and they are rarely in possession of documentary evidence to show what rent their ancestors or predecessors in title paid as far back as 1975. Moreover in Berar oral sales were quite common before 190 in which year the Transfer of Property act came into force and oral sales at this distance of time are often difficult of proof. A tenant is often unable to prove a continuous line of succession from 1875 and thus is not able to advantage of the protected status.

2. The position of tenants of antiquity as defined in S. 73 is equally unsatisfactory, The law does not define what is antiquity and individual judges have taken different views.............

3. This Bill is designed to facilitate the conferral of protected status on the tenants.

(11) This statement of objects and Reason shows that the principal reasons for amending the act were that the law did not divine what was antiquity and that a tenant fund it difficult to prove continuous possession of land for a very long period. It therefore, appears that in order to reduce the heavy burden , which lay on the tenants to prove continuous possession of land for a period beyond living memory, the legislature decided to amend the section so as to confer a certain status on tenants, also had been in continuous possession of lands for twenty years. The Legislature however, also decided to retain original subsection (1) ofS. 73 The object, therefore, appears to have been to confer the status of tenants of antiquity on those tenants, who were in continuous possession of lands for twenty years or more, in cases in which the origin of tenancy was not known. After the act was amended, it is not necessary for the tenant to prove that five was in continuous possession of the land or that the tenancy was in existence since long before living memory. As soon as he proves that he has been in continuous possession of the land for twenty years of more, he is presumed to be a tenant or antiquity, The burden of proof, which the tenant had to dishrag under the old law, has therefore, been considerably reduced . the Legislature has also imposed restrictions, as to make it difficult for landlord to eject such tenants who have been in continuous possession of the land s for twenty years or more, by requiring them to prove either that the tenants were only annual tenants or that they held the lands under one or more written leases covering the entire period of twenty years. A landlord can no longer obtain possession of a land merely on proof of execution by the tenant of one or more kabuliyats or leases during the long period of his tenancy. He has to prove execution of valid written leases covering the entire period of twenty years.

(12) It has been urged on behalf of the tenants that the presumption arising under the proviso can be destroyed only in two ways mentioned in the proviso and that in the view we are taking, we are not giving full effect to the provision contained in the proviso. We do not think that there is much force in the argument, because what we are doing is to give effect and meaning both to the main provisions contained in subsection (1) of S. 73 and also to the proviso to this subsection. The Legislature having decided in its wisdom to retain the original subsection (1) of S. 73, it cannot be ignored. It must be given its full meaning and the proviso must be read along with it and not independently. the whole section, as amended in 1948 must be read together in over to confer the status of tenants of antiquity on those tenants, who were in continuous possession of their lands for a period exceeding twenty years, in cases in which the origin or the commencement of the tenancy could not be ascertained.

(13) We have been referred to certain cases, in which a contrary view has been taken. n Martand V. Ganpat ILR (1956) Nag 357, was held that the presumption arising under the proviso to subsection (1) of S. 73 of the Berar Land Revenue Code can be got rid in two years ways only, viz. (I) by provising that the tenant is an annual tenant, or (ii) that the period of twenty years is covered by one or more valid written leases and that it is only when the presumption arising under the proviso is lost, that resort can be had to the main section. This decision has been followed in Mohammad Alimullakhan v. Kundalik 1957 LJ 377 and in some other unreported cases. The judgment in Martandas case ILR (1956) Nag 357 shows that the learned judges had found it difficult to interpret the section and the proviso harmoniously. With the main section and the proviso and to read them in a manner, which would give full effect and meaning both. We may also mention that a view similar to that which we are taking was also taken by another Division Bench of the Nagpur High Court in Letters Patent Appeal No. 6 of 1945 in which it was observed that.

If there is 20 years continuos possession by the person in possession, he must now succeed in all cases where the first provision in S.73 is prima facie fulfilled, unless the landlord proves the exact that the defendant is an annual tenant.

(14) We are, therefore, of the opinion that the question, which we have formulated above, for decision by us must be answered in the negative and that a tenant cannot claim the status of a tenant of antiquity. if the date of commencement of the tenancy is known. In this connection it is necessary to consider what the expression commencement of tenancy means. Except in the case of one or more isolated leases executed by a tenant during a very log period of his possession, the former view was executed a lease, the date of commencement of the tenancy was the date of which the lease came into force. This view can no longer be regarded as correct, for under the proviso, unless a landlord proves valid written leases covering a period of twenty years, he cannot displace the presumption arising under the proviso that the tenant is a tenant of antiquity. The words commencement of tenancy must therefore be held to refer to the original or the decessor in title entered into possession of the land as a tenant and since the time of which tenancy he and his predecessors in title have been in continuous and uninterrupted possession of the land.

(15) Appeal No. 6 of 1953 will now be placed before a Division Bench for further orders.

(16) Reference answered accordingly.


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