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Dhanbhagvati and anr. Vs. Mandsaur Electric Supply Co. Ltd., Mandsaur - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 35 of 1977
Judge
Reported inAIR1981MP259
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rules 1 and 9; Contract Act, 1872 - Sections 45; Madhya Pradesh Land Revenue Code, 1959 - Sections 185(1)
AppellantDhanbhagvati and anr.
RespondentMandsaur Electric Supply Co. Ltd., Mandsaur
Appellant AdvocateS.R. Joshi, Adv.
Respondent AdvocateS.M. Jhanwar, Adv.
DispositionAppeal allowed
Cases ReferredRao Nihalkaran v. Ram Gopal
Excerpt:
..............plaintiff-appellant herein brought the suit giving rise to this appeal on the allegations that the suit lands were acquired fot the defendant-company under the provisions of the kanoon mutallik husul aarazi, samvat 1974 (for short, the acquisition act) and were allotted to them, the defendant-company on 28-7-1938 (samvat 1995). the plaintiff and choudhari kacharsingh were co-tenants of the said lands. a patta dated 28-7-1938 (ex. p/6) was executed between the parties. the rent (annual lagan) reserved thereby was rs. 100/- per annum. term no. 4 of the said patta provided that half of the lagan will be paid to the plaintiff and the remaining half to choudhari kacharsingh. in case of the rent remaining due in arrears the defendant undertook liability to pay interest thereon at the rate of 1.....
Judgment:

H.G. Mishra, J.

1. This is an appeal by the plaintiffs against the judgment and decree dated 30-10-1971, whereby the Addl. District Judge has after reversing the judgment and decree passed by the trial Court on 20-4-1970 dismissed the suit for recovery of rent.

2. Facts essential for the decision of this appeal are as under : Shri Manoharlal, the predecessor-in-title of the plaintiff-appellant herein brought the suit giving rise to this appeal on the allegations that the suit lands were acquired fot the defendant-company under the provisions of the Kanoon Mutallik Husul Aarazi, Samvat 1974 (for short, the Acquisition Act) and were allotted to them, the defendant-company on 28-7-1938 (Samvat 1995). The plaintiff and Choudhari Kacharsingh were co-tenants of the said lands. A Patta dated 28-7-1938 (Ex. P/6) was executed between the parties. The rent (annual Lagan) reserved thereby was Rs. 100/- per annum. Term No. 4 of the said Patta provided that half of the Lagan will be paid to the plaintiff and the remaining half to Choudhari Kacharsingh. In case of the rent remaining due in arrears the defendant undertook liability to pay interest thereon at the rate of 1 % per mensem, vide term No. 6. It was further averred by the plaintiff that the defendant-respondent had paid to the plaintiff rent at the rate of Rs. 50/- per year up to 1962. However, the rent accruing due thereafter has not been paid in spite of demand by notice dated 17-4-1967 Ex. P/4, served on 20-4-1967, vide Acknowledgment Due Ex. P-5. Hence the suit for recovery of Rs. 150/- after giving up the claim for time-barred rent and Rs. 48/- by way of interest at the rate of 1% per measem -- in all Rs. 198.00.

3. The claim of the plaintiff-appellants was resisted by the defendant-respondent-company on the grounds that the suit suffers from the defect of non-joinder of the necessary parlies and status of the defendant under the Patta is that of a sub-tenant (Shikmi). This status continued up to 2-10-1959. Consequently, the defendant became the occupancy tenant and thereafter Bhumiswami. Accordingly, the suit is not maintainable and that the Patta was granted by two persons, namely, the plaintiff and Choudhari Kacharsingh. As such, the suit could not be brought by the plaintiff alone without joining Chondhari Kacharsingh.

4. The trial Court decreed the suit Aggrieved by this judgment and decree and defendant preferred an appeal, which has been allowed and the suit has been dismissed on the findings that the defendant has become Bhumiswami of the suit lands and that the suit is not maintainable on account of non-joinder of Choudhari Kacharsingh as a party to the suit. Aggrieved by this judgment and decree the plaintiff has preferred this appeal.

5. In this appeal If was contended by Shri S. R. Joshi, learned counsel for the plaintiff-appellants that in view of the term No. 4, reserving liability of the defendant to pay half of the land revenue separately to the plaintiff, the suit was maintainable without joining Choudhari Kachavsingh, the co-tenant; that the first appellate Court has acted contrary to law in holding that by virtue of Section 185 (1) (ii) (b) of the M. P. Land Revenue Code, 1959 (for abort, the Code), the defendant-company became occupancy tenant of the suit lands and thereafter Bhumiswami, and that the purpose for which the lands in dispute were acquired was non-agricultural, i. e. for establishing a factory by the respondent thereon. As such, there could be neither confenral of the status of occupancy tenant on them, nor could they become Bhumiswami of the lands in dispute.

6. Shri S. M. Jhanvar, assisted by Shri D. D. Vyas, leaned counsel for the respondent-company, argued in support of the impugned judgment and contended that the factum of the sub-lease being for non-agricultural purpose is not enough to rule out the applicability of Section 185 (1) (ii) (b) of the Code, that the plaintiff having become a Bhumiswami of the suit lands under the Code, the defendant has rightly been regarded to have become the occupancy tenant byvirtue of their being in possession of the suit lands as sub-tenant on 2-10-1959; that in the absence of resumption of the land under Section 189 of the Code, the defendant became Bhumiswami for the suit lands and that the plaintiff had lost right to recover rent (lagan) by operation of law (the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 and the Code). As such, the plaintiff has no right to maintain the suit.

7. Having heard the learned counsel for the parties I have come to the conclusion that this appeal deserves to be allowed.

8. To take up the first question as to whether the plaintiff has right to maintain the suit witlhout joining Choudhari Kacharsingh, the co-tenant of the lands in dispute, no doubt the Patta (Ex. P/6) has been executed by the plaintiff as well as Choudhari Kacharsingh, but it contains the term No. 4, which is as under : 'Nis Lagan Babu Manoharlalji Ko Banis Chodhari Kacharsingh Ko Ada Kiya Javega.'

Acting upon this stipulation the defendant, respondent had paid land rent to the plaintiff at the rate of Rs. 50/- per annum up to 1962. In spite of this factual position the learned Judge of the first appellate Court has held that the suit suffers from the defect of non-joinder of necessary party and as such, the plaintiff has no right to file the suit without joining Choudhary Kacharsingh. The approach of the first appellate Court on the point does not appear to be correct. When a person has made a promise to two or more persons jointly, then unless contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives. This is what Section 45 of the Indian Contract Act, 1872, inter alia provides. Accordingly, in absence of a contract expressing the contrary intention, the promise made by the defendant company in respect of payment of rent could not be enforced by one of the promises, i. e. the plaintiff alone without joining Choudhari Kacharsingh, the co-promisee, in the suit. In the instant case the applicability of the general rule is ruled out by the term No. 4, reproduced above. I am fortified in the view I am taking by the ratio of Guni Mahomed v. Moran, (ILR (1879) 4 Cal 96) (FB), the relevant portion thereof is extracted below :

'Where it has been arranged between the co-sharers of an estate and their tenant, that he shall pay each co-sharer his proportionate share of the entire rent, each co-sharer may bring a separate suit against the tenant for such proportionate share.

In the absence of such an arrangement no such suit can be maintained.

Such an arrangement may be evidenced either by direct proof, or by usage from which its existence may be presumed, and is perfectly consistent with the continuance of the original lease of the entire tenure.'

Thus, it appears that the approach of the trial Court on the point was correct and that of the learned Addl. District Judge it legally untenable. Accordingly, it is held that the plaintiff-appellants had right to maintain the suit and that Choudhari Kacharsingh the co-tenant, wag not a necessary party.

9. This brings me to the question as to whether the defendant can be regarded to have become occupancy tenant by virtue of the provisions of Section 185 (1) (ii) (b) of the Code. Clause (b) of Section 185 (1) (ii) of the Code reads thus :

'Section 185. Occupancy tenants-- (1) Every person who at the coming into force of this Code holds-

(i) in the Mahakoshal region ... ... .. ...

(ii) in the Madhya Bharat region--(a) .. ... .. ... ...

(b) any land as Ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari Sublessee Protection Act, 1955 (29 of 1955).....'

'Ryotwari sub-lessee' has been defined by Section 2 (b) of the Madhya Bharat Ryotwari Sub-lessee Protection Act, 1955, thus :

'Section 2. In this Act--(a) .. ... ... ... ...

(b) 'Ryotwari sub-lessee' means a person to whom a Pakka Tenant of any Ryotwari land has sublet on sub-lease any part of his Ryotwari land.'

The term 'Pakka tenant' has been defined by Section 54 (vii) of the M. B. Land Revenue and Tenancy Act No. 66 of 1950 (for short, the Tenancy Act) thus :

'Section 54. Definitions -- In this Part, unless there be something repugnant in the subject or context :-- (vii) Pakka tenant -- means a tenant who has been or whose predecessor-in-interest had been lawfully recorded in respect of his holding as a

'Ryot Pattedar', 'Mamuli Maurusi', 'Gair Maurusi', and 'Pukhta Maurusi' when this Act comes into force or who may in future be duly recognised as such by a competent authority.

Explanation-- The term 'Pukhta maurusi' includes tstmurardar tenants, Malikana Haqholder tenants, hakkiyal Mutafarrikat, Sharah Muyyana and Sakitulmilkiyat tenants.'

The term 'tenant' has been defined by Section 54 (xviii) of the Tenancy Act, thus :

'Section 54. Definitions.-- In this Part, unlessthere be something repugnant in the subject or context :--

(xviii) Tenant means a person who holds land for agricultural purposes, from the Government or from an assignee of the proprietary rights and who is, or but for a contract would be liable to pay rent for his holding; but does not include :--

(i) a concessional bolder as defined in Sub-clause (x);

(ii) a bolder of a service holding, as defined in Section 99;

(iii) a person to whom only the right to cut grass or graze cattle or propagate of collect lac has been granted.'

Section 73 of the Tenancy Act provides 'that no pakka tenant shall sublet for any period whatsoever any land comprised in his holdings except in the cases provided for in Section 74.' Section 74 deals with sub-leases by disabled persons. Section 75 of the Tenancy Act provides that the sub-lessee will be treated as a trespasser after the expiry of the period of sub-lease and provides for the method of his ejectment.

10. It is implicit in the aforesaid provisions that they apply to those cases only where the sub-lease is of land for agricultural purpose. They have no applicability to cases of sub-lease of land for non-agricultural purpose. When the Madhya Bharat Ryotwari Sub-lessee Protection Act, 1955. was enacted, it was intended to protect those subtenants merely to whom land had been sublet for agricultural purposes. Protection against ejectment does not appear to have been extended thereby to cases of sub-lease for non-agricultural purposes. The object with which the agrarian laws (Madhya Bharat Land Revenue and Tenancy Act No. 66 of 1950, Madhya Bharat Zamindari Abolition Act No. 13 of 1951 and the Madhya Bharat Abolition of Jagirs Aet No. 28 of 1951) were enacted was to improve the conditions of the agriculturists and to remove middlemen between the State and the tiller of the soil. It was for the benefit of the tenants and sub-tenants that the Madhya Bharat Muafi and inam Tenants and Sub-Tenaat Protection Act, 1954 (No, 32 of 1954) and the Madhya Bharat Ryotwari Sub-Lessee Protection Act No. 29 of 1955, were enacted. Their object was to provide for stay of ejectment of tillers of land by eliminating middlemen between them and the State. This is what flows from the observations made by the Supreme Court in paras 4 to 11 in Rao Nihalkaran v. Ram Gopal (AIR 1966 SC 1485). Thereafter on formation of the new State of Madhya Pradesh under the States Reorganisation Act, 1956, the Madhya Pradesh Land Revenue Code, 1959 was enacted. It aims at creation of one class of tenure holders of land, i. e. Bhumiswami (vide Section 157). By Section 158, the Code enumerate those persons who shall be called Bhumiswamis. Section 185 of the Code categorised those persons who shall be regarded as occupancy tenants. On a reference to the persons classified in Section 185, it is clear that the status of occupancy tenant was intended to be conferred by operation of statute on those persons only who held land for agricultural purposes on 2-10-1959, in one of the capacities enumerated therein.

11. The view I am taking finds support from the various provisions placed in Sections 185 to 202 in Chapter No. XIV of the Code. A perusal of the classes of tenants enumerated in the different clauses of Subsection (1) of Section 185 shows that they are tenants or sub-tenants holding land for agricultural purposes only. Section 189 of the Code provides for resumption of Bhumiswami of land held by his occupancy tenant for his personal cultivation. Section 190 provides for conferral of Bhumiswami rights on occupancy tenants in case the land held by them had not been or could not be resumed by a Bhumiswami in the manner provided by Section 189. Section 191 provides for restoration of occupancy tenant, if the Bhumiswami in whose favour an order of resumption is passed under Sub-section (2) of Section 189 fails to cultivate such land personally during the agricultural year next following the date on which the order is passed. Section 193 (c) provides that the tenancy of an occupancy tenant in his holding shall be liable to termination by an order of the Sub-Divisional Officer on the ground that he has used such land for a purpose other than agriculture. Section 194 of the Code contains the provisions applicable to occupancy tenant whose tenancy is terminated and inter alia deals with right to the crops sown or ploughed on the land held by him. Thus, it is implicit in the aforesaid sections and other provisions placed in Chapter XIV that they are intended to apply only to cases of those sub-lessees, who held land on the date of coming into force of the Code for agricultural purposes.

12. Now, in the instant case, the purpose of acquisition and the grant of lease evinced by the Patta, Ex. P/6, was for non-agricultural purposes. On the date of coming into force of the Code, i.e. on 2-10-1959, the lands in dispute were held for other thanagricultural purpose by the defendant-respondent-company. Since the lands in question were not held by the defendant-company for agricultural purposes, they could not be regarded as occupancy tenants.

13. The further argument which was advanced by Shri Jhanvar was to the effect that since by virtue of Section 158 of the Code the plaintiff has become Bhumiswami of the suit lands, the defendant-company should also be regarded to have become occupancy tenant for purposes of determining the question regarding the conferment of status of occupacy tenant under Section 185. What is to be decided here is not whether the plaintiff has become Bhumiswami or not, but what is to be decided is whether the defendant-company held the lands in question on 2-10-1959 in the capacity specified in one of the sub-clauses of Section 185 (1) (ii). Accordingly, even if it be assumed that the plaintiff had become Bhumiswami of the suit lands, nothing will turn on it in favour of the defendant-respondent-company. In order that the defendant-company may be regarded as occupancy tenant, the defendant-company had to show, and which they have failed to show, that they held the lands as Ryotwari sub-lessee, as defined in the Madhya Bharat Ryotwari Sub-lessee Protection Act, 1955. The further contention put forward by Shri Jhanvar was that since the lands were not resumed by the plaintiff under Section 189 of the Code it ought to be held that the defendant-company became the occupancy tenant and thereafter Bhumiswami. There is no force in this contention either. The resumption of land is for purposes of personal cultivation and of land held by occupancy tenant for agricultural purposes. So also conferral and/or acquisition of Bhumiswami status under Section 190 is envisaged in respect of land held for agricultural purposes and not for land held for purposes other than the agricultural purpose.

14. As a sequel to the aforesaid discussion, it has to be concluded that the liability of the defendant-company to pay and the right of the plaintiff to recover rent payable to him by virtue of term No. 4 of the Patta. Ex. P/6, continues and is not terminated by operation of law, as contended by the defendant-respondent-company.

15. On roe basis of Section 3 of the Tenancy Act Shri Jhanvar advanced a contention to the effect that the Acquisition Act has been repealed by the said Section 3 and as such, the right of the plaintiff to recover tent under the Patta cannot be regarded tobe subsisting. The question whether the Acquisition Act it in force or stands repeated is of no significance in view of the fact that the rights and liabilities of the parties are not shown to have ceased. Thus they continue to be regulated by the terms and conditions stipulated between the parties. Therefore, the plaintiff has right to recover his share of the rent payable thereunder along with interest according to terms Nos. 4 and 6 of the Patta.

16. As a result of the discussion aforesaid, this appeal succeeds and is hereby allowed. The impugned judgment and decree are set aside and those passed by the trial Court are restored. The suit brought by the plaintiff for recovery of Rs. 150/- after giving up the claim for time-barred rent and Rs. 48/-by way of interest at the rate of 1% per mensem in all for Rs. 198.00 stands decreed with costs throughout. Counsel's fee as per schedule if certified.


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