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Bimaleswar Rout and anr. Vs. Chandrasekhar Dhurva - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 42 and 52 of 1949
Judge
Reported inAIR1953Ori91; 18(1952)CLT104
ActsTenancy Laws: ;C.P. Tenancy Act, 1898 - Sections 3, 62(1) and 70(2)
AppellantBimaleswar Rout and anr.
RespondentChandrasekhar Dhurva
Appellant AdvocateG.K. Misra, Adv.
Respondent AdvocateM.S. Rao, Adv.
DispositionAppeals dismissed
Cases ReferredAditya Prasad v. Parmananda Patel
Excerpt:
.....appear to be capable of waiver by him. therefore, any such term in a lease executed after the commencement of the act, would be clearly invalid and inoperative of course in the present case, we do not even have the terms of the document dated 15-1-1901, under which this tenancy was created. i should also like to add that the unreported decision of his lordship the chief justice in s......decree. in other words, he was of opinion that the judgment-debtor's interest was not that of an ordinary tenant, as defined in the c. p. tenancy act, on appeal, the learned subordinate judge differed from this view and held that the judgment-debtor was an ordinary tenant and that section 70 (2) of the act prohibited the sale of his interest in execution of a decree, inasmuch as the document under which he acquired an interest was executed subsequent to the commencement of the act. the result of this appeal would depend upon a decision as to which of these two views is correct.2. the scheme of the c. p. tenancy act shows that it contemplates five classes, of tenants and they are classified in section 3 of the act. an ordinary tenant is described, rather than denned, in section 62,.....
Judgment:

Panigrahi, J.

1. In this appeal we are asked to revise an order of the learned Subordinate Judge, Sambalpur, who held that the lands, sought to be attached by the appellants, are not liable to attachment and sale in execution of a decree obtained by them. The respondent is the judgment debtor against whom there are two decrees for money. The decree-holders attached some lands measuring about 3 1/2 acres in extent which are admittedly 'bhogra' lands of the gountia of the village. The judgment-debtor has leasehold interest in them, created by a document dated 15-1-1901. The document itself is not produced and all the information that we got regarding the interest held by the judgment-debtor is from the remarks column of the Khatian, Ext. 1 which says that Shyama Dhuruva, father of the judgment-debtor, was in possession of these lands under a document dated 15-1-1901, on payment of a salami of Rs. 120/- and that he was paying a malguzari of Rs. 4-0-0. The learned Munsif held, relying on a case reported in -- 'Aditya Prasad v. Parmananda Patel', 4 Pat L J 505 that the judgment-debtor was permanent occupancy tenant and as such his interest was attachable and saleable in execution of decree. In other words, he was of opinion that the judgment-debtor's interest was not that of an ordinary tenant, as defined in the C. P. Tenancy Act, On appeal, the learned Subordinate Judge differed from this view and held that the judgment-debtor was an ordinary tenant and that Section 70 (2) of the Act prohibited the sale of his interest in execution of a decree, inasmuch as the document under which he acquired an interest was executed subsequent to the commencement of the Act. The result of this appeal would depend upon a decision as to which of these two views is correct.

2. The scheme of the C. P. Tenancy Act shows that it contemplates five classes, of tenants and they are classified in Section 3 of the Act. An ordinary tenant is described, rather than denned, in Section 62, Sub-section (1). It says:

'Every tenant who is not an absolute occupancy tenant, or an occupancy tenant, or a village service tenant, or a sub-tenant, is an ordinary tenant.'

In other words, all those tenants who do not fall within one or other of those categories are to be regarded as ordinary tenants. The rights and liabilities of these tenants are provided in Chapter VII of the Act. Mr. Misra, learned counsel for the appellant, contends that the classification of tenants made in the Act is not exhaustive, and there may be another class of tenants created by contract between parties; or, in alternative, it is argued that even if the status of a judgment-debtor is that of an ordinary tenant, assuming that the classification is exhaustive, there is nothing in the Act to prevent the landlord from conferring a higher right on his tenant. It is pointed out that the provisions in the Act, restricting the right of the ordinary tenant, are made in the interest of the landlord, and if he is to confer a higher right by contract, the Act does not prevent such right being created. It is accordingly contended that when the Khatian, Ext. 1, shows that the judgment-debtor was conferred a permanent leasehold interest, it should be assumed, as one of the incidents of the ownership of the property, that that interest or right was also heritable and transferable. So far as heritability is concerned, it is clear from the document itself that the land in question has devolved upon the descendants of the lessee. But jt is by no means clear that heritability should necessarily be accompanied also by the incident of transferability, having regard to the nature of the lease in this case, namely its being an agricultural lease. But, on the particular facts of this case, it is not necessary to enter into an examination of that aspect of the question though, as at present advised, I would hold that the status of the judgment-debtor is that of an ordinary tenant. Sub-section (2), Section 70, fully meets the contentions raised on behalf of the decree-holders, and Mr. Rao, appearing for the judgment-debtor, has invited our attention to that section which says;

'Save in pursuance of a document duly registered 'before the commencement of this Act' no decree or order shall be passed for the sale of the right of an ordinary tenant in his holding, nor shall such right be sold in execution of any decree or order'.

On a plain reading of this section, it appears to me that the only class of cases which are liable to sale in execution of a decree or order are those which were created by registered document before the year 1898, the date of commencement of the Act, and that, too, only in those cases in which the document expressly conferred the right of sale by execution of a decree or order. Mr. Misra frankly admits that the document on which reliance is placed being one which was executed subsequent to the passing of the Act, the case would he governed by Sub-section (2), Section 70. We are of opinion that this position does not admit of any controversy and that the view taken by the learned Subordinate Judge, based on this provision, must be upheld. The appeals therefore fail and are dismissed with costs.

Jagannadhadas, J.

3. I agree.

4. One of the main contentions of learned counsel for the appellants is that the enumeration of the five classes of tenants in Section 3, C. P. Tenancy Act, is not exhaustive and that there may be cases of contractual tenancies outside the categories so enumerated. The first question that arises in all such cases is whether the person holding the land is a tenant at all. That depends upon the definition of the word 'tenant' in Sub-section (10), Section 2. If having regard to the evidence or to the terms of a particular document, it is possible to say that he is an inferior proprietor, then he falls outside the category of a tenant. But if, on the terms of the particular document, he is not an inferior proprietor (and of course also not a farmer, mortgagee, or the kadar of proprietary rights) and holds the land of another person, on a liability to pay rent for it, he is tenant by the very definition. Once a person is found to be 'tenant' it appears to his having regard to Section 3 and Section 62; that it is impossible to maintain the contention that there is any class of tenants not contemplated in the enumeration. Sub-section (1), Section 62 is categorical and says:

'Every tenant who is not an absolute occupancy tenant, or an occupancy tenant, or a village service tenant, or a sub-tenant, is an ordinary tenant.'

It appears to me with respect, that the terms of the section leave no room for any argument that there is a different class of tenancy contemplated by the C. P. Tenancy Act. It has to be noticed that the preamble of the Act shows that it is an Act to 'consolidate and amend',' the law relating to agricultural tenancies in the Central Provinces. Such an enactment is, prima facie, exhaustive in respect of the matters which it deals with. This view is supported by the decision in--'Durga Patel v. Ganpati Patel', 9 C P L R 27. No doubt cases have held that the classes of tenancy contemplated in the enumerated categories may have variations, by virtue of certain contractual provisions to the extent that they are not inconsistent with the terms of the Act itself. For instance, in --'Aditya Frasad v. Parmananda Patel', 4 Pat L J 505 it has been held that a permanent lease with a provision that the lessee is to have a permanent right in the tenancy and paying a fixed rent, is nothing more than an ordinary tenancy with the special right of non-ejectability and non-alterability of the rent; and it has been pointed out that there is nothing to prevent a landlord from waiving the benefit of the sections relating to ordinary tenants under which he gets the limited right of ejecting the tenant or altering the rent. That may be so, but whether or not by virtue of a contract he can get over every incident attached to the particular class of tenancy within which the tenancy may fall, would depend upon the construction of the particular statutory provision which it hits.

5. In the present case, it is not contended before us that the document, under which the purchaser from the judgment-debtor held the land, was one which made him an inferior proprietor. It must, therefore, follow that he was only a tenant. If he is a tenant, obviously he must be only ordinary tenant; and whatever other additional rights he may be able to get superadded to his ordinary tenancy by virtue of this contract, it is clear from the provisions of Sub-section (2), Section 70, that any contract imposing on his tenancy the incident of ejectability in execution of a decree or order would be opposed to the very terms of that sub-section. This provision is clearly not meant for the benefit of the particular Gountia alone and does not appear to be capable of waiver by him. Therefore, any such term in a lease executed after the commencement of the Act, would be clearly invalid and inoperative of course in the present case, we do not even have the terms of the document dated 15-1-1901, under which this tenancy was created. This discussion may hence, be academic. It is therefore unnecessary to express any final opinion on the general question raised. I should also like to add that the unreported decision of His Lordship the Chief Justice in S. A. 147 of 1948 has been brought to our notice. The question that has arisen before us is not exactly that which was dealt with by His Lordship in that judgment; nor did the same question arise in the case in --'Aditya Prasad v. Parmananda Patel', 4 Pat LJ 505. Whether the incident of transferability can be created by virtue pf a contract in the case of an ordinary tenant is a matter also upon which it is unnecessary for us to express any final opinion in this case.

6. With these observations. I entirely agree with the judgment of my learned brother.


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