B. Dayal, J.
1. This second appeal has been referred to this Division Bench by a learned single Judge of this Court because of a conflict in two single Judge decisions of this Court.
2. The facts of the case are very simple and are not in controversy. The defendant was a zamindar of the land. He got one Bachchu Tewari and Ram Adhar Tewari who were tenants of the land ejected under Section 171 of the U. P. Tenancy Act. After ejecting these two tenants on the 19th of April 1944 the defendant let out this land for agricultural purposes by a registered Patta in favour of the plaintiff. In that transaction the defendant accepted Rs. 950 as premium or Nazrana and settled the land with the plaintiff at Rs. 7 per year as rent and conferred hereditary rights upon the plaintiff. Subsequently by an amendment of the U.P. Tenancy Act it was enacted that Bachchu Tewari and Ram Adhar Tewari could take back possession of the land and consequently they filed a suit which was decreed and it was held that they would be entitled to take back possession after 1357F Thus having lost possession of the land after 1357F the present plaintiff has filed this suit for realisation of Rs. 950 which he paid as premium with interest at six per cent per annum from the defendant landlord. The defendant contested the suit and denied his liability to pay the same. Both the Courts below have dismissed the suit and the present second appeal has been filed by the plaintiff.
3. Learned counsel for the appellant has argued the claim for realisation of Rs. 950 plus interest on two grounds. In the first place his contention is that there was a clear agreement in the document of lease itself that if the plaintiff was ejected upon any ground whatever he would be entitled to take back the premium of Rs. 950 and secondly his contention is that in any case on account of the legislation the contract between the parties became void and under Section 65 of the Indian Contract Act the landlord defendant was bound to refund the advantage which he obtained from the plaintiff under the contract and he contends that this sum of Rs. 950 was the advantage which the defendant landlord obtained under the contract and which he must refund after the contract became void.
4. After hearing learned counsel on both the points we are of opinion that none of them has any force. So far as the first basis of contract between the parties is concerned there are several grounds on which this claim must be rejected. In the first place under Section 90 of the U. P. Tenancy Act realisation of any premium or Nazrana was prohibited and, therefore, the original contract by which Rs. 950 was paid by the plaintiff to the defendant was an Illegal contract and the payment was also illegal. The plaintiff, therefore, having made an illegal payment against the express provision of law cannot take the assistance of the Court for realising that amount back. Moreover, the contract itself being against law cannot be enforced and the plaintiff, therefore,I cannot ask the Court to enforce a contract I which was against law.
And lastly this it not a case in which the defendant is in default. Under the contract the landlord performed his part of it and handed over possession of the land to the plaintiff. He had nothing more to do thereafter and, therefore, when by a subsequent legislation the lease itself came to an end it cannot be said that the plaintiff was ejected from the land on account of any default of the landlord or any defect in his title. In the contract the relevant term of the agreement was that if the plaintiff was ejected from the land he would be entitled to file a suit to recover the property and also to realise not only the costs of litigation but also to get back the premium of Rs. 950 which he had paid. This contingency necessarily contemplated that the plaintiff was ejected while his tenancy still subsisted. If under the circumstances the tenancy came to an end he has no right to take back possession and the clause in question has no application to the facts of the case. We, therefore, see no force in the argument that the plaintiff was entitled to Rs. 950 under the terms of the contract itself.
5. Coming to the next basis upon which the claim is made, namely, Section 65 of the Contract Act there are several objections. In the first place after the contract terminated in a transfer of property the transaction went out of the domain of the contract. All that remain ed to be seen was the rights between the landlord and the tenant. Where a tenancy for an indefinite period is created and the tenant loses possession of the land for some reason for which the lessor is not responsible all that the tenant is entitled to is to stop payment of rent. He is not entitled to any refund for the amount which he might have paid earlier for obtaining the tenancy.
In the second place under Section 65 of the Contract Act the party who obtains an advantage under the contract is bound to refund the same. Whereas in the present case the defendant having obtained Rs. 950 under the contract gave possession of the land and conferred tenancy rights upon the plaintiff according to the agreement. The defendant gave an equivalent of that amount which he received and having given the equivalent to the plaintiff it cannot be said thereafter that the defendant has obtained any advantage over the plaintiff. If he had not given the property in exchange for the amount and before the plaint tiff could be put into possession in accordance with the contract the contract had become void then it could be said that the plaintiff had got an advantage by receiving Rs. 950 in lieu of which he had given nothing to the plaintiff In this case, therefore, it cannot be said that the defendant had received an advantage under the contract which he was bound to refund when the contract became void.
Such a question arose in Mewa Ram v. Karan Singh : AIR1943All327 . In that case also after creation of a tenancy there was achange in legislation and the tenant had to hand over possession of the land to a third party. He claimed refund of the premium and it was held that he had no right to any such refund. We entirely agree with this decision but learned counsel for the appellant relied upon Muhammad Hashim v. Misri, 1922 All LJ 41: (AIR 1922 All 6). This was a single Judge decision and the facts of the case were that after a tenancy had been created, the land was acquired by the Government and on account of the acquisition of the land by the Government the land went out of the possession of the tenant and he filed a suit for recovery of compensation against his landlord. The suit was decreed. The principle of Section 66 of the Contract Act was applied to the case.
We think that this case was not rightly decided for the obvious reason that this was not a case where the contract had become void. This was a case where the rights both of the landlord and the tenant were acquired by the Government and the Government was bound to pay compensation to the tenant for the tenancy rights and to the landlord for proprietary rights. This case was, therefore, analogous to the tenant transferring his rights in favour of a third person and getting the value for it. In such a case the tenant cannot say that he has been ejected from the tenancy. It is impossible to hold in such a case that the plaintiff has any right to claim compensation against the landlord for the loss of his rights. We are, therefore, unable to accept the principle laid down in this case.
6. Having considered the matter carefully we think that there is no force in this appeal and dismiss it with costs.