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Ramhet and anr. Vs. Mandir Shri LaxminaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Case No. 72 of 1970
Judge
Reported inAIR1976MP216
ActsMadhya Pradesh Land Revenue Code, 1959 - Sections 168(2) and 168(4)
AppellantRamhet and anr.
RespondentMandir Shri LaxminaraIn and ors.
Appellant AdvocateH.G. Mishra, Adv.
Respondent AdvocateA.R. Naokar, Adv.
DispositionPetition dismissed
Cases ReferredIn Bengal Immunity Co. Ltd. v. State of Bihar
Excerpt:
.....of section 168 of the code: (5) where on the coming into force of this code, any land is held on lease from a bhumiswami who belongs to any, one or more of the classes mentioned in sub-section (2), such lease shall on the coming into force of this code be deemed to be a lease granted in pursuance of sub-section (2).'the expression 'on the lease ceasing to be in force' in sub-section (4) of section 164, refers to statutory cessation by virtue of the second proviso to section 168 (2) as well as to contractual cessation of lease, such as by effluxion of time or on the happening of a specified event. (5) the expression 'on the lease ceasing to be in force' in sub-section (4) of section 168 of the code is comprehensive enough to include statutory cessation at a lease by virtue of the second..........lease is not expressly agreed to between the parties, the lease must be deemd to be from year to year (year meaning agricultural year).23. the conclusions we have reached above may be summed up thus:--(1) in the case of a muafi devasthani (i.e. rent free grant to a temple), the temple must be presumed to be a public religious institution within the meaning of entry (viii) of section 168 (2), unless the contrary is alleged and proved. the burden is on the party which alleges that it is a private institution.(2) 'person' in entry (v) of section 168 (2) of the code includes a juristic artificial or conventional person.(3) the deity or idol installed in a temple is a person of the category specified in entry (v) of section 168 (2) and is subject to 'disability' within the meaning of that.....
Judgment:

Shiv Dayal, J.

1. At the instance of Mandir Shri Laxminarain, respondent No. 1 (hereinafter called the respondent-Mandir), proceeding started on July 27, 1964, in the court of the Sub-Divisional Officer, Sabalgarh, district Morena, under Section 168(4) of the M. P. Land Revenue Code, 1959, (hereinafter called the Code) for the ejectment of Fosuram, who died during the pendency of these proceedings, and whose legal representatives are the petitioners, Ramhet and Raghu-nandan alias Raghunath. The applicants' case was that the non-applicant Fosuram was a sub-lessee. By notice, he was asked to desist from culivation from July 1, 1964 after cutting the Rabi crop. The application was resisted by the non-applicants.

2. The Sub-Divisional Officer, by his order dated December 6, 1966 directed ejectment of the non-applicants. They appealed. By his order dated June 22, 1966. the Collector allowed the appeal and dismissed the application. The respondent-Mandir preferred a second appeal, which was allowed by the Additional Commissioner by order dated March 10, 1967. He restored the order of the Sub-Divisional Officer. The non-applicants (petitioners herein) filed a revision before the Board of Revenue, which was dismissed by order dated September 30, 1967. Their review application was also dismissed by order dated February 28, 1970. They have now moved this court under Article 226 of the Constitution for a writ to set aside the orders of the Board of Revenue and the Additional Commissioner.

3. There is no dispute that the land in question was muafi Devasthani held by the deity. The Board of Revenue has held that Fosuram was a lessee under ah oral lease from year to year. Fosuram was directed by the lessor to desist from cultivation from July 1, 1964, after cutting the Rabi crop (of Sambat 2020). The lease stood terminated on July 1, 1964 by virtue of Section 168 (4) of the M. P. Land Revenue Code, inasmuch as Fosuram was a lessee of a disabled Bhumiswami within the meaning of Clause (viii) of Sub-section (2) of Section 168 of the Code.

4. Before the Board of Revenue, it was contended for the petitioners that Fosuram had become an occupancy tenant. The Board rejected that contention. It observed that the Khasra entries show that the land is muafi Devasthani. The Pujari's name was recorded in the Khasra. The deity being a disabled Bhumiswami in terms of Section 168 (2) (viii) the pujari whose name was recorded in the Khasra, was competent to lease out the suit land in the interest of the deity, as the deity could only ,act through human agency. Fosuram was recorded in the kistabandi Khatauni of 1963-64 as a sub-tenant. The Board observed that the plea of ordinary tenant was altogether a new plea. The only status which Fosuram could have on the commencement of the Code was that of a lessee, by virtue of Section 168 (2) of the Code inasmuch as Fosuram was a lessee of disabled Bhumiswami. See Amar Singh v. Balbahadur Singh, AIR 1966 SC 1624.

5. Learned counsel for the petitioners strenuously urged before us that the Bhumiswami deity does not come within the expression 'a public, charitable or religious institution' within the meaning of Section 168 (2) (viii) of the Code which reads as follows:--

(2) 'A Bhumiswami who is- (viii) a public charitable or religious Institution, may lease the whole or any part of his holding.'

6. There was much argument before us that the expression 'public, religious or charitable institution' contemplates only two kinds of institutions that is public religious institution and public charitable institution and that the comma after the word 'public' is misplaced and misleading. Otherwise entry (viii) in Section 168 (2) will contemplate three things (1) A charitable institution; (2) a religious institution; and (3) any other public institution which may not be religious or charitable. But the law did not envisage the benefit of Section 168 (2) to be extended to a private religious institution nor to any and every public institution which was neither religious nor charitable. Reliance was placed on a single Bench decision of one of us (Shiv Dayal, J.) in Maloji Rao Narsingh Rao Shitole v. Hiralal, Civil Revn. No. 113 of 1971 (Madh. Pra.) (Gwalior Bench) decided on 27-2-1975 where it was said:--

'Undoubtedly, the comma after the word 'public' is misplaced and misleading because it gives an idea that instead of two purposes, namely, religious or charitable, there is a third independent purpose which can be a public purpose. The word 'public' in the definition is used in contradistinction to 'private'. That is to say in the case of a private religious trust this Act will not apply. There can be nothing like a private charitable trust because a trust which is charitable must necessarily be a public trust.'

Now, it must be recalled that this was said while dealing with the definition of 'public trust' as contained in Section 2 (4) of the M. P. Public Trust Act, 1951. The question in that case was whether 'Maloji Rao Narsingh Rao Shitole Litigation Conduct, Cost and Benefit Trust', could bring a suit for eviction of a tenant under the provisions of the M. P. Accommodation Control Act, 1961. The expression 'public trust' there is defined as follows:--

'Public trust means an express or constructive trust for a public, religious or charitable purpose and includes a temple, a math, a mosque, a church, a wakf or any other religious or charitable endowment 'and a society formed for religious or charitable purpose.'

In that definition, undoubtedly, the comma after the word 'public' is inept and misleading. Only two purposes are evidently contemplated namely a public religious purpose (and a public charitable purpose). The use of the expression 'any other religious or charitable endowment' and 'a society formed for a religious or charitable purpose' lends support to the above interpretation. If in a public trust were included three purposes namely public purpose, religious purpose and charitable purpose, then there was no reason why after the words 'any other' the word 'public' followed by a comma would not have been there and likewise after the words 'formed for a' the word 'public' followed by a comma would not have been there. It will indeed be repugnant to the context, if, in the definition of 'public trust', a private religious purpose is included. That will be an absurdity.

7. However, for the purposes of the present case, it is not necessary to express any considered opinion on the question whether the comma, after the word 'public' has the effect of separating it from religious or charitable, so that even a private religious institution and every public institution irrespective of its nature, is also included in entry (viii) of Section 168 (2). So far as the present case is concerned, the land is admittedly 'muafi Devasthani' i.e. rent free grant to a 'Devasthan' (Temple). By its very nature it must be presumed that the temple would be a public religious institution and for that reason muafi was granted to it. In the case of a muafi Devasthan, the burden will be upon him to prove that it is a private institution, who will so allege. The petitioner did not prove nor allege anywhere that it is a private institution. Even in the writ petition before us a vague and, sweeping objection was taken that 'Mandir Shri Laxminarayan is not a public charitable or religious institution. It is not specifically alleged that it is private institution.

8. Besides, in our opinion, an idol is also a disabled person within the meaning of Clause (v) of Section 168 (2). That sub-section reads thus:--

(2) A Bhumiswami who is--

(i) a widow; or

(ii) an unmarried woman: or

(iii) a married woman who has been deserted by her husband; 'or

(iv) a minor; or

(v) a person subject to physical or mental disability due to old age or otherwise; or

(vi) a person detained or imprisoned under any process of law; or

(vii) a person in the service of Armed Forces of the Union; or

(viii) a public, charitable or religious institution; or

(ix) a local authority or a co-operative society; may lease the whole or any part of his holding.'

Each category of Bhumiswami enumerated in Sub-section (2) of Section 168 refers to a person who is by his very nature unable to cultivate the land himself. There is nothing to confine the word 'person' to human beings. The word 'person' in this clause refers not only to a natural person but also to a juristic or artificial person.

In 70 CJS 688 it is stated:--

'While in its primary sense the term 'person' means a natural person only, the generally accepted meaning of the word as it is used in law includes artificial as well as natural person, or, as it is sometimes stated, the term 'person' includes natural persons and artificial, conventional, or juristic persons'.

There is nothing in the Code which expressly or by necessary intendment excludes a juristic person from Clause (v) of the section. This view was also taken by a Division Bench of this court in Anandji Kalyanji v. Daulat Singh, 1962 MPLJ 506. The idol cannot itself act; it has to act through human agency. This is physical disability and is covered by the word 'otherwise', which is not used ejusdem generis. The result of this discussion is that the deity installed in the Laxminarayan temple is a Bhumiswami of the category within the meaning of Clause (v) as also Clause (viii) of Sec. 168 (2) of the Code

9. It is clear that on October 2, 1959, when the Code came into force, the lease in the present case must be treated to be a lease granted in pursuance of Section 168 (2).

10. The next contention advanced for the petitioners was that since the lease granted to Fosuram did not cease to be in force within the meaning of Subsection (4) of Section 168, they could not be ejected. Shri Mishra strenuously argued that the only manner in which a lease ceases to be in force is that which is laid down in the second proviso to Section 168 (2) which reads thus:--

'Provided further that any lease made in pursuance of the sub-section shall cease to be in force after one year of the determination of the disability by death or otherwise.'

The argument is that each of the 9 categories in Sub-section (2) has one or the other disability attached to it. When that disability is determined, either by death of by any other reason, then after one year of such determination of disability, the lease ceases to be in force. According to Shri Mishra this is the only manner in which a lease can cease to be in force and there is no other mode prescribed for the determination of a lease under Section 168 (2). Since in the case of a deity installed in a temple, the disability is not determined, the lease does not cease to be in force at any time. The lessee can be ejected only on the ground of contravention of any material term or condition of the lease.

11. In our view this- contention cannot be accepted. The second proviso to Section 168 (2) has a very special object. The Code aims at abolition of intermediaries. It does not contemplate leases which may create subordinate relationship between the Bhumiswami and the tiller of the soil. It is on the ground of necessity and public policy that exceptions have been made in Section 168 itself but at the same time checks and balances have been provided to prevent any abuse of the exceptions. Now the second proviso really aims at preventing a mischief; for instance, where a widow having granted a lease, remarries; or a minor on whose behalf a lease was granted, attains majority. A lease, in either of these cases cannot continue from year to year, nor can it continue for the agreed term of the lease; it shall, by operation of the second proviso, ipso facto, cease to be in force after one year of the widow getting remarried or a minor attaining majority and so on. Likewise, where any such lessor died, the lease cannot be continued by the heirs of the deceased beyond the period of one year after the death of the lessor. It will automatically cease to be in force after one year of the death. To put it differently, the second proviso enacts for an automatic cessation of a lease on the determination of the disability whether by death or otherwise. When the disability ceases, the lease-- ipso fact ceases. It cannot be continued beyond one year of the determination of the disability, merely because when it was granted, it was valid, or merely because the term of the lease has not expired; this is statutory ceasing of a lease.

12. Now it will be clearly seen that the automatic cessation of the lease under the second proviso to Section 168 (2) is not the same as a lease ceasing to be in force under Sub-section (4), although the lease ceasing to be in force under the second proviso to Section 168 (2) is also covered by the expression 'on the lease ceasing to be in force' in Subsection (4).

Sub-sections (4) and (5) of Section 168 of the Code:--

'(4) Where a lease is granted in pursuance of Sub-section (2), the lessee shall hold the land on such terms and conditions as may be agreed upon between him and the Bhumiswami and may be ejected by an order of a Subdivisional Officer on the application of the Bhumiswami on the ground of contravention of any material term or condition of the lease or on the lease ceasing to be in force.

(5) Where on the coming into force of this Code, any land is held on lease from a Bhumiswami who belongs to any, one or more of the classes mentioned in Sub-section (2), such lease shall on the coming into force of this Code be deemed to be a lease granted in pursuance of Sub-section (2).'

The expression 'on the lease ceasing to be in force' in Sub-section (4) of Section 164, refers to statutory cessation by virtue of the second proviso to Section 168 (2) as well as to contractual cessation of lease, such as by effluxion of time or on the happening of a specified event. There is nothing to restrict the impact of that expression in Section 168 (4) to statutory cessation of a lease in Sub-section (2). The expression in Sub-section (4) is of wide and general import and must be given effect to as such.

13. Shri Mishra's contention is that the cessation of lease in Sub-section (4) of Section 168 has exclusive reference to and must be confined to cessation of a lease under the second proviso to Subsection (2).

14. It is not the correct reading of the second proviso that it is exhaustive of the conditions in which a lease shall cease to be in force for the purposes of Sub-section (4). In Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661, S. R. Das Actg. C. J. speaking for the court said (at p. 674):--

'It is a sound rule of construction of a statute firmly established in England as far back as 1584 when--Heydon's case, (1584) 3 Co Rep 7a was decided that --'..... for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered :

1st. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth, and

4th. The true reason of the remedy, and then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief and 'pro private commodo', and to add force and life to the cure and remedy according to the true intent of the makers of the Act, 'pro bono publico'.'

15. Adverting to the scheme of the Code it will be seen that:-- (1) In this Code, there is only one class of tenure holders. The different tenures which existed under the correponding laws of the various regions constituting the Madhya Pradesh State were superseded and were brought under one class of tenure holders called 'Bhumiswami' as defined in Section 158 of the Code. (2) The system of intermediaries was done away with. (3) However, an exception was made in appropriate cases. The predominant consideration is that there should 'be no intermediary. It is the tiller of the soil alone who should have the recognised status and a direct relationship with the State which alone is the owner of the land (Section 57). Therefore a Bhumiswami was prohibited from granting a lease. This rule is enacted in Section 168 and also its exceptions. The first exception is that Bhumiswami is entitled to lease any land comprised in his holding for one year during the consecutive period of three years. Then Sub-section (2) of that section enumerates 9 categories of Bhumiswami who are permitted to lease the whole or any part of their holding. Checks and balances are provided in the section itself so that the provision may not be abused.

16. The consequence of a lease ceasing to be in force for the purposes of Sub-section (4) of Section 168 on the ground of contravention of any material term or condition of the lease is that the lessee can be ejected on the application of the Bhumiswami. There is no other consequence. But where the second proviso to Sub-section (2) comes into play. the consequence is not merely that the lessee can be ejected, but all other consequences will follow which entail the cessation of the lease, i. e. after one year of the determination of the disability within the meaning of the second proviso The lessee automatically ceases to be a lessee and from that point of time his rights and liabilities will be quite different and will not be governed by the relationship of lessor and lessee, except for the purpose of ejectment within the meaning of Sub-section (4),

17. Under Sub-section (4), a lessee can be ejected on the application of the Bhumiswami (i) on the ground of contravention of any material term or condition of the lease or (ii) on the lease ceasing to be in force. Under the first, the Bhumiswami has to prove that there was a term or condition of the lease which was material and then to prove that there has been contravention of it by the lessee. The second proviso comes into play when the lease ceases to be in force by efflux of time for which the lease was granted or for any other reason which in the eye of law, means cessation of the lease. Where a lease has been granted for a fixed term, it will cease to be in force on the expiry of that term. On the ground of contravention of any material term or condition, the lessee can be ejected even before the lease ceases to be in force, that is even before the expiry of the lease period, or the happening of the event on which it was agreed that the lease would cease to be in force.

18. The lessor and the lessee can always agree that the lease will stand determined on the happening of an event or on the expiry of a term certain, whichever is earlier. There is no impediment in law to such an agreement being made between the parties. In accordance with such an agreement the lease will cease to be in force on the happening of the specified event or by effluxion of time, as the case may be. Such a case would be within the purview of the expression 'on the lease ceasing to be in force', within the meaning of Sub-section (4) of Section 168 This can be demonstrated by numerous illustrations, but the following three will suffice:--

(i) A lease granted on behalf of a minor up to such time that the minor passes Higher Secondary School Examination, will expire as soon as he passes the examination, the intention being that the minor should receive education up to the Higher Secondary School and not to prosecute the studies further but to do his cultivation. In this case, as soon as the minor thus completes his education the lease will cease to be in force.

(ii) A lease granted by a person in service of armed forces of the Union, for a period of six years, but subject to the condition that if his brother would retire from service earlier, the lease will stand determined because his brother would then personally cultivate the land. In such a case, if the lessor's brother retires after two years of the grant of the lease, the lease, by virtue of the agreement, ceases to be in force from the date of his brother's retirement.

(iii) A person in the service of Armed Forces of the Union granted a lease for a term of six years subject to the condition that the lease will automatically stand determined if he is posted to the place where the Land in question is situate, so that he would be personally able to supervise the cultivation. In this case, the lease will cease to be in force if the lessor is so posted even before the expiry of the fixed period.

19. There is yet another obvious reason for holding that the expression 'on the lease ceasing to be in force' is not confined to the automatic and statutory cessation of lease under the second proviso to Sub-section (2), when attention is focussed on entry (viii) and entry (ix). In these two cases, there will be no determination of the disability within the meaning of the said proviso, so that every lease granted by a Bhumiswami who comes under entry (viii) or (ix), will be a perpetual lease. This would be repugnant to the context and the intention of the Legislature.

20. For the above reasons, we must hold that the expression 'the lease ceasing to be in force' in Sub-section (4) of Section 168 is not restricted to 'the automatic and statutory cessation of the lease by virtue of Sub-section (2) of that section, but is wide and comprehensive enough to include also every case where the lease ceases to be in force under the contract.

21. Where a lease is from year to year it is determinable by notice given reasonably in advance, calling upon the lessee to desist from cultivating the land from the first day of the ensuing agricultural year and calling upon him to return the possession to the lessor on the ensuing first day of July.

22. On the basis of the continuous and consistent practice and traditions in all the parts of this State, it can be said that where the period of lease is not expressly agreed to between the parties, the lease must be deemd to be from year to year (year meaning agricultural year).

23. The conclusions we have reached above may be summed Up thus:--

(1) In the case of a muafi Devasthani (i.e. rent free grant to a temple), the temple must be presumed to be a public religious institution within the meaning of entry (viii) of Section 168 (2), unless the contrary is alleged and proved. The burden is on the party which alleges that it is a private institution.

(2) 'Person' in entry (v) of Section 168 (2) of the Code includes a juristic artificial or conventional person.

(3) The Deity or idol installed in a temple is a person of the category specified in entry (v) of Section 168 (2) and is subject to 'disability' within the meaning of that entry.

(4) The cessation of a lease contemplated in the second proviso to Section 168 (2) of the Code is automatic and mandatory. Cessation of the lease is effected notwithstanding any contract to the contrary and irrespective of the wishes of the parties or either of them.

(5) The expression 'on the lease ceasing to be in force' in Sub-section (4) of Section 168 of the Code is comprehensive enough to include statutory cessation at a lease by virtue of the second proviso to Section 168 (2) as well as contractual determination of & lease for instance by effluxion of time or on the happening of an event specified in the lease agreement.

(6) A lessee under Section 168 (2) of the Code can be ejected even before the expiry of the lease period if there is- contravention of any material term or condition of the lease.

(7) The Bhumiswami and the lessee can always agree that the lease will stand determined on the happening of specified event and the lease will cease to be in force on the happening of the specified event and will come within the purview of Section 168 (4).

(8) The second proviso to Section 168 (2) of the Code does not apply to entry (viii) or entry (ix) of that sub-section, However the lease can cease to be in force under Section 168 (4).

(9) Where a lease under Section 168 (2) is granted for a fixed period, it will cease to be in force within the meaning of Section 168 (4), on the expiry of that period.

(10) In this State when an agricultural lease is granted without expressing any term it must be deemed to be from year to year (meaning agricultural year), Such a lease is determinable by notice given reasonably in advance requiring the lessee to desist from cultivating the land from the first day of the ensuing agricultural year, (i. e. 1st of July).

(11) Whether the expression 'public, religious or charitable' institution, in entry (viii) of Section 168 (2) of the Code, carries the same meaning and must be read as employed in the definition of 'public trust' in the M. P. Public Trust Act, 1951, ('public religious purpose' and 'public charitable purpose') is left open.

24. When the present case is judged by the above tests, we have no doubt that Fosuram father of the petitioners, from whom they claim to have derived possession, was a lessee from year to year and his lease could be and was determined by notice (Ex. P-1) with effect from July 1, 1964 which called upon Fosuram to desist from cultivating the land from that date. Thus the lease ceased to be in force on July 1, 1964 within the meaning of Section 168 (4) of the Code and on the application of the Bhumiswami deity, Fosuram was liable to be ejected. This is what the Board of Revenue has held. There is no case for issuance of a writ to quash the order of the Board of Revenue

25. The petition is dismissed. The petitioners shall pay Rs. 150 as costs to the first respondent. The outstanding amount of the security deposit shall be refunded to the petitioners.


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