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Nathu Ram Mathura Prashad and anr. Vs. Mamleshwar Phashad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 29D of 1963
Judge
Reported in7(1971)DLT100
ActsPunjab Tenancy Act, 1887 - Sections 42
AppellantNathu Ram Mathura Prashad and anr.
RespondentMamleshwar Phashad and ors.
Advocates: C.B. Aggarwal,; Uma Jain,; S.S. Dalal,;
Cases ReferredRamji Lal v. Radhey Gopal
Excerpt:
.....and 42 of punjab tenancy act, 1887 - whether nature of possession of tenants and sub-tenants over suit land after expiry of initial period of 25 years reserved in lease was that of trespassers - mere afflux of time reserved in lease did not make possession over suit land unlawful so as to make him trespasser - tenant still continues to be in lawful occupation of land occupied by him till relationship between him and landlord determined in accordance with provisions of act - as per section 4 (7) 'tenant' includes predecessors as well as successors-in-interest - sub-tenant also entitled to hold land under landlord till eviction order - tenant and sub-tenant not to be regarded as trespassers simply by afflux of initial period of 25 years. (ii) damages - whether tenant or sub-tenant liable..........a tenant under the act is intended by the legislature to be treated as a lawful occupant of the land leased out to h)in until he wp evicted ir) accordance with the pro- visions of the act.(14) the object oi the legislature in n akir>g all these provisions was to secure undisturbed lawful possession a^d right of occupation of the land for a certain period io the tenant under the act having regard to the special purpose of the lease that the act was dealing with. it did not leave this matter to be determined by the parties to the lease it provided in effect and substance that the tenant in possession shall continue to be in lawful occupation of the lard forming the subject mat ter of his lease until the relationship of landlord and tenant was put an end to in accordance with the.....
Judgment:

S.N. Shankar and S. Rangarajan, JJ.

(1) R.F.A.205-D of 1962 and R.F.A. 29-D of 1963 arise out of suit No 131 of 1960 in which the learned Sub-Judge, First Class, Delhi, trying the suit granted a decree for possession in favor of the plaintiff-respondents. Maleshwar Pershad and Kamta Pershad, hereinafter called the plaintiffs, in respect of land measuring 968 bighas and 15 bids was situated in village Chowkri Mubarkabad, Delhi, comprised in Khasra Nos. 1 to 109, hereafter called the land in suit, and also decreed their suit for recovery of Rs. 18,000.00 against the two appellants, Messrs Nathu Ram Mathura Prshad and Permeshwar Pershad the appellants in R.F.A. 22 D of 1963, hereafter called the lessees and Messrs Delhi Cattle Breeding Farms Ltd., appellants in R. F. A. 205 D of 1962, hereafter called the sub-tenants.

(2) On November 18. 1959, the plaintiffs filed this suit against the lessees and the sub-tenants in occupation of the land in suit with the allegation that by agreement of lease dated April 17, 1928 registered on April 27, 1928, their father Lala Onkar Pershad granted a lease of this land to the Joint Hindu Family of the lesses for a fixed period of 25 years commencing from June 16, 1928 and in the year 1931, the lessees transferred their lease-hold rights in the land for the unexpired period of the sub-tenants but continued to be responsible for payment of rent to the plaintiffs and that the lease period having expired on June 15, 1933, occupation of the land thereafter by the lessees as well as their sub-tenants became unauthorised and that they occupied the same as trespassers and the plaintiffs were entitled to a decree of possession against them. They further claimed' that inspire of the sub-tenants being trespassers they were wrongly recorded as cultivator 'gair dakhilkar' under the plaintiffs in respect of a portion of this land measuring 901 bighas 18 bids was in khasra girdawari papers for the year 1953-54 onwards and on this basis the Revenue Assistant, Delhi, on September 19 1959 declared them to be bhoomidars under Section 13 of the Land Reforms Act, in respect of a portion of the land above said and this declaration, for reasons given in para 8 of the plaint, was wrong, illegal, ultra-vires without jurisdiction and as such void and ineffective against the rights of the plaintiffs. They also claimed a sum of Rs 18,000.00 by way of damages from the lessees as well as the sub-tenants for the occupation of the land by them for a wrongful period of six years previous to the filing of the suit. With these allegations the plaintiffs prayed for a decree in favor of the plaintiffs for possession of the land and for recovery of Rs.18,000.00 along with a declaration that the order of the Revenue Assistant dated September 19,1959 conferring bhoomidari lights on the sub-tenants was illegal ultra vires, without jurisdiction, void and in effective qua the plaintiffs,

(3) In reply the lessees maintained that the lease was not onlv for the initial period of 25 years fixed therein but also contained a clause that gave them option to renew it for a further period of 25 years after the expiry of the initial period on the same terms and conditions as before except that the rent payable for the holding thereafter was to be Rs. 3000.00 instead of Rs, 2500.00 per year. They also urged that they had not transferred the land in favor of the alleged-sub-tenants, but had transferred only the business and that they themselves continued to be non-occupancy tenants in respect of the land. In regard to the claim that the declaration of bhoomidari rights in favor of the sub-tenants was illegal they -upported the plaintiffs and maintained that the declaration made was illegal but urged that this declaration should have been granted in their favor as they were in occupation of the land as non-occupancy tenants at the relevant time. The liability for the plaintiffs' claim for Rs. 18,000.00 was also denied. The prayer made in the written-statement was that they may be declared to be the bhoomidars in respect of the land and the declaration in favor of the sub-tenants be set aside but the rest of the plaintiffs' claim be dismissed.

(4) The sub-tenants in their separate written-statement maintained that the original lessees transferred all their rights under the lease in their favor including the right to renew it for a further period of 25 years and that before the expiry of inititial period of 25 years they exercised this right and renewed the lease. They further maintained that they were rightly recorded in the relevant Revenue papers as 'gair maurusi' and the declaration of bhomidari rights in their favor had been validly made by the Revenue Assistant, Delhi. They also controcerted their liability to pay the sum of Rs. 18,OOC.00.claimed by the plainciffs by way of damages.

(5) On the basis of pleadings of the parties, the learned trial Court framed the following issues :

(1)Is the order declaring the third defendant to be a bhoomidar illegal, ultra virus and not binding on the plaintiffs? (2) What is the amount of mesne profits to which the plaintiffs is entitled? (3) Has the Civil Court no jurisdiction to try this suit? (4) Is the suit not properly valued for purposes of jurisdiction and court fee? (5) Are the plaintiffs estopped from filing the suit? (6) Had a valid notice been sent by the defendants for extension of the period of lease and as such defendant No. 3 is a tenant of the land in suit under the plaintiffs? (7 ) Whether defendant Nos. 1 and 2 are entitled to be declared the bhoomidars and whether the said relief can be granted in the suit? (8) Whether the plaintiffs have no locus standi to file the suit as pleaded in the amednded written-statement?

Issues Nos 3 and 4 were not pressed before the trial Court. Under issue No. , the learned Judge held that the Civil Court was not entitied to confer bhoornidari rights on any party in the face of section 185 of the Delhi Land Reform-Act read with its schedule. Underissue No. 6 he come to the conclusion that no valid notice for extension of the period reserved in the lease had been served on the plaintiffs in terms of the lease and as such there was no extension of the period of lease as claimed by the Sub-tenant. Dealing with issues 1,2, 5 and 8 together, the learned Court found that after the expiry of initial period of 25 years reserved in the lease possession of that defendants after 15th June, 1953 over the land in suit became that of trespassers, and, thereforee, the plaintiff? were entitled to the decree of possession against: them as also to a decree for recovery of Rs. 18,000.00 as claimed in the plaint. On the same ground the learned court held that no bhoomidari rights could be conferred on the sub-tenants under the Delhi Land Reforms Act and, thereforee, the declaration of the Revenue Assistant dated 19th September, 1959 was not sustainable in law. The suit was thus decreed with costs against the defendants as stated above. Shri S. N, Chopra, appearing for the sub-tenants as well as Shri C. B.Aggarwal, appearing for the main lessees strongly contended that the learned trial Court was in error in holding that possession of their clients, after the expiry of the initial period of 25 years reserved in the lease was that of trespassers and, thereforee, a decree for possession and recovery of mesne profits could be passed against them. As for the declaration that the order of the Revenue Assistant was void and illegal, Shri Aggarwal contended that this declaration in favor of the subtenants was wrong and according to the provisions of the Delhi Land Reforms Act, bhoomidari rights in respect of the land in question should have been conferred on his clients. Shri Chopra, on the other hand, maintained that the declaration had been correctly made and that in any case this matter could not be decided in this suit. The questions, thereforee, canvassed before us and which require determination in these two appeals are:

(1)Whether the possession of the tenants and the sub-tenants over the land in suit after the expiry of the initial period of 25 years reserved in the lease was that of trespassers. (2) Which of the two set of defendants, namely, the tenant or the sub-tenants were entitled to the conferment of the bhoomidari rights? (3) Whether this question can be gone into in this suit? (4) Whether the decree for recovery Rs. 18,000.00 in favor of the plaintiffs is sustainable?

(6) Taking up the first question first, the learned trial Judge, relying on N. S. Thadani v. Chief Settlement Commissioner, has held that if a tenant retamed possession of the premises after the expiry of the period reserved in the lease for a definite term it was for the landlord to determine the subsequent relationship between him and the tenant and that the tenant holding over was to be treated on the same footing as a trespasser. This case was decided on the basis of the provisions contained in Chapter V of the Transfer of Property Act It was contended both by Shri Chopra and Shri Aggarwal that these provisions did not apply in the case of agricultural leases and the finding ef the learned trial Judge was, thereforee, viatiated. The argument seems to have a good deal of merit.

(7) Chapter V of the Transfer of property Act starts with S. 105 and ends with S. 117. S. 117 m terms provides that non of the provisions of this chapter applied to leases for agricultural purposes except in so far as the State Government may,by notification published in the Official Gazette, declare all or any of such provisions to be so applicable. It is admitted before us that no notification under this section has been issued by the State Government to make any provision of this Chapter applicable to leasees of lands in. the area where the land in suit is situated. The rights and liabilities of the parties in respect of this I .ad, thereforee, have to he decided with reference to the provisions of the Punjab Tenancy Act, 1887 (hereinafter called 'the Act') and not tho of the Transfer of Property Act, 1882.

(8) The decision, of the point in controversy will depend on the question if there is any difference in the scheme of the two Acts in regard to the tenure of the leases to which they apply. The word 'lease' itself has, not been defined in the Act but the Act presupposes the existence of a lease according to the common law for otherwise the question of a person holding land under another person as envisaged in S 4,5) of the Act will not arise. This is also apparent by reference to the definition of the term 'tenancy' in S. 4(8) of the Act to mean a parcel of land held by a tenant of a landlord under one lease or one set of conditions. The tenancy under the Act thus has to commence with the grant by the landlord in favor of the tenant under whom the latter continues to hold the land demised Co him The Act, according to the preable, purports to amend the law relating to the tenancy so created. the point to he seen, thereforee, is how the rights of the parties under the contract of lease governing this Act, have been regulated, modified, abridged explicitly or by necessary intendment of its statutory pevisions in the matter of termination or determination of the lease.

(9) In case of leases not governed by the Act and covered by the Transfer of Property Act, S. 108 lays down the rights and liabilities of the Lesser and the lessee. Clause (q) of this section enjoins a duly on the lessee to put the Lesser in possession of the property demised on the determination of the lease. Section 106 of this Act provides for the duration of the lease and the made in which it can he determined. After the determination of the lease in accordance with this section the relationship of landlord and tenant comes to an, end between the parties to the contract of lease and the lessee ceases to have any right in law to continue in possession of the property. Section 108(q), thereforee, enjoins him to restore possession of the demised property to Lesser. This is not the position under the scheme of the Punjab Tenancy Act, 1887. Chapter V of the Act makes provisions to regulate cases of 'relinquishment' 'abaondonment' and 'ejectment' of the tenant holding the land covered by the Act under the landlord. Sections 35. 36, 37, and 38 deal with relinquishment of land by the tenant or abandonment of tenancy by the occupancy tenant. Section 39, 40 and 41 then provide grounds on which an occupancy tenant, a tenant for a fixed term and a tenant from year to year shall be liable to beejected. This is followed by S.42 which stated that a tenant shall not be ejected otherwise than in execution of a decree for ejectment except in cases mentioned in clauses (a), and(b) of this section. Clause (a)of S. 42 gives a right to the lan^dlord to claim ejectment of tenant when a decree for arrears of rent in respect of the tenancy has been passed against the latter and remains unsatisified. Clause (b) envlsages ejectment of a tenant by the landlord when the tenant has no right of Occupancy and does not hold for a fixed.term under decree or order of competent authority, Section 43 provides that in both these cases (in cases, provided, in. clauses (b) and (a) of S ;42 the ejectment shall be by an application to the Revenue Officer. Section 44 then provides the actual mode that the Revenue officer has to follow in dealing with the application for ejectment on the grounds mentioned in clause (a) of Section 42 and reads as under:

44Ejectment for failure to satisfy decree/or arrear of rent. '--|(1) On receiving the application in any such case as is mentioned in clause (a) of section 42. the Revenue officer shall, after such inquiry with respect to the existence of the arrear as he deems necessary, cause a notice to be served on the tenant stating the date of the decree and the amount due there under, and informing him that if he does not pay that amount to the Revenue -officer within fifteen days from receipt of the notice he will be ejected from the land. (2) If the amount is not so paid the Revenue-officer shall, subject to the provisions of this Act with respect to the payment of compensation, order the ejectment of the tenant unless good cause is shown to the contrary.

(10) Section 45 like wise deals with the application for ejectment on the ground mentioned in clause (b) of Section 42 and is in the following terms:

45.Ejectment of tenant from year to year by notice. - (1) On receiving the application of the landlord in any such case as is mentioned in clause (b) of section 42, the Revenue-officer shall, if the application is in order and not open to objection on the face of it, cause a notice of ejectment to be served on the tenant. ' (2) A notice under subsection (1) shall not be served after the fifteenth day of Novermber in any agricultural year. (3) The notice shall specify the name of the landlord on whose application it is issued and describe the land to which it relates, and shall inform the tenant that he must vacate the land before the first day of May next following, or that if he intends to contest his liability to ejectment, he must institute a suit for that purpose in a Revenue Court within two months from date of the service of the notice. (4) The notice shall also inform the tenant that if he does not intend to contest his liability to be ejected and he has any claim for compensation on ejectment, he should within two months from the date of the service of the notice prefer his claim to the Revenue-officer having authority under the next following sub-section to order his ejectment in the circumstances described in that sub-section. (5) If within two months from the date of the service of the notice the tenant does not institute a suit to contest his liability to be ejected a Revenue officer, on the application of the landlord shall subject to the provisions of this Act with respect to the payment of compensation order the ejectment of the tenant. Provided that the Revenue officer shall not make the order until he is satisfied that the notice was duly served on the tenant. (6) If within those two months the tenant institutes a suit to contest his liability to be ejected and fails in the suit, the Court by which the suit is determined shall by its decree direct the ejectment of the tenant.

(11) The Revenue-officer in both the cases is authorised under these two sections to straight away pass an order of ejectment against the tenant if the conditions mentioned in these sections are satisfied without the contractual tenancy of the tenant having been terminated or determined before pausing of this order Under S, 44, the Revenue Officer is enjoined to issue a notice to the tenant staling the date of the decree and the amount due there under if that amount is not paid to the Revenue-officer by the tenant within 15 days from receipt of the notice the tenant is liable to be ejected from the land unless he shows good cause within the meaning oi sub-section (2) of this section. Simil- arly, under S 45 on receiving the application of the landlord the Revenue officer is enjoined to cause a 'notice of ejectment' to be served on the tenant in terms of the provisions of sub-sections (2), (3) and (4) o, this section and then if the conditions mentioned in sub-section (5) are satisfied, order the ejectment of the tenant. The Act thus does not envisage the termination or determination of tenancy prior to the filing of the application for ejectment by the landlord. The possession of the tenant, thereforee, on the land demised continues to be lawful ic^pite of the filing of an application for ejectment till the order of ejectment is passed against him in terms of the Act.

(12) This is not all. The Act also prescribes the time for ejectment. According to S. 47 the decree or order for efectment of a tenant is not executable at any other time than between 1st day of May, and ISth day of June, both days inclusive, unless otherwise expli- citly directed. Possession of tenant in between these dates also has to be treated as lawful and as sarctioned by the statute and during this period he is not a terspasser in respect of the land.

(13) It is also relevant on this aspect to notice the mandatory pro- vision of sub-clause (c) of S. 110 which reads as under:

110.Nullity of certain agreements contrary to the Act.-(1) Not- hing in any a^rernent made between a landlord and a tenant after the passing of tins Act shall- (a) (b) (c) entitle A landlord to elect a tenant otherwise than in acco rdarce with the provisions of this Act (2)

Clause (c) of S. 110 wholly precludes the landlord to reserve to himself the right to terminate the lease under this Act and c^aim eviction of the tenant under the con)iror(r) law on the ground that the tenancy had been terminated ar'd he vas, thereforee, entitled in law to be in possession of the lard. This also suppeits the conclusion that a tenant under the Act is intended by the Legislature to be treated as a lawful occupant of the land leased out to h)in until he wp evicted ir) accordance with the pro- visions of the Act.

(14) The object oi the Legislature in n akir>g all these provisions was to secure undisturbed lawful possession a^d right of occupation of the land for a certain period io the tenant under the Act having regard to the special purpose of the lease that the Act was dealing with. It did not leave this matter to be determined by the parties to the lease It provided in effect and substance that the tenant in possession shall continue to be in lawful occupation of the lard forming the subject mat ter of his lease until the relationship of landlord and tenant was put an end to in accordance with the provisions of the Act.

(15) The lease of a tenant for a fixed term under the Act was also governed by the same principle. Mere afflux of time reserved in the lease did not make his possession over the land unlawful so as to make ^ him a trespasser in respect of it. He still continue to be in lawful occupation of the land occupied by him till the relationship between him and his landlord was determined in accordance with provisions of the Act by the Revenue Officer or the Court. The term 'tenant', according to S. 4 (7) of the Act,.included his predecessors as well as his successors-in-interest. The sub-tenant, thereforee, was also entitled to hold the land under the landlord till such time as an order of his eviction was passed in accordance with the provisions of the Act. This, in our view, is the position of a tenant or a sub-tenant holding land under this Act.

(16) No case dealing directly with this point was brought to our notice and we have based our-above conclusions on the scheme and the provisions of the Act. Reference may, however, be made to Suresh' wari Datt v. Parma, which was a case under the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act (15 of 1954) where a similar view was taken in respect of the tenancy for agricultural purposes under that Act though on different grounds. This decision was later followed in the same Court in Mohan Lal v. Mohun Ram. Strong reliance was also placed by Shri Aggarwal on the Full Bench decision of the Allahabad High Court in Ram Dular Singh and another v. Babu Sukhu Ram, where the view taken by the Full Bench in respect of a similar tenancy was that inspire of expiry of the term of 'qabuhat', the defendants continued to be the sub-tenants of the plots in suit till the commencement of the U. P Zamindari Abolition and Land Reforms Act and the only effect of the afflux of prescribed time was that he became liable to be ejected but so long as he was not ejected he continued to be sub-tenant because his interest in the land was not extinguished. The facts of this case were of course different and S. 295-A of the U, P. Tenancy Act had also come into force in that case to affect the rights of the defendant-appellant but for arriving at the conclusion mentioned above it can be said, and we say so with respect, that the line of reasoning adopted by the full Bench is helpful to some extent.

(17) For the reasons aforesaid, we are unable to sustain the finding of the learned court that the possession of the lessees and sub-tenants in this case over the land in suit became that of a trespassers simply by afflux if the initial period of 25 years reserved in the lease and the same, thereforee, has to be set-aside which we hereby do.

(18) Connected with this is the question of the liability of the lessees and the sub-tenant to pay damages for the use and occupation of the land as trespassers, (the controversy covered by point No. 4 mentioned abve). As stated earlier, the plaintiffs in this case sued them for recovery of Rs. l8,000.00 on account of damages for their continued wrongful occupation of the land after the expiry of the initial period of 25 years mentioned in the lease. If the lessees and the sub-tenants did not become trespassers of persons holding the land unlawfully for reasons that we have set out above there is no escape from the conclusion that they were not liable for any damages as claimed by the plaintiffs in terms of paragraph 11 of the plaint. The decree of the learned trial Court for Rs. 18,000.00 against the two appellants for this reason is not sustainable, and consequently we set aside the same also.

(19) Coming now to the question as to which of the two sets of defendants were entitled to the conferment of the bhoomidari rights and whether this question can be gone into in this suit (points 2 and 3 mentioned above) reference may straight be made to the proviso to clause (a) of section 4 of the Delhi Land Reforms (Amendment) Act, 1966, which enables a suit to this effect being filed but on a limited ground. The relevant part of the section reads as under :

4.'Validation of action taken under section 11 and 13-Not-withstanding anything to the contrary contained in the principal Act or in any other law for the time being in force or in any judgment, decree or order of any court,- (a) all declarations (whether general or individual) conferring or purporting to confer Bhumidari rights in favor of any person or class of persons under any of the clauses (a) to (c) of sub-section (1) of section 11. or in favor of any tenant or class of tenants under any of the clauses (a) to (h) of sub-section (1) of section 13, of the Principal Act, made before the 5th day of February, 1966, by the Deputy Commissioner or a Revenue Assistant (whether or not such Revenue Assistant was empowered by the Chief Commissioner to discharge all or any of the functions of a Deputy Commissioner), shall be deemed to be, and to have always been, made by such Deputy Commissioner or as, the case may be, Revenue Assistant in accordance with law and the persons of class of persons or the tenants or class of tenants in whose favor any such declaration had been made shall be deemed to have been validly and lawfully declared as Bhumidars : Provided that nothing herein contained shall affect the right of any person to call in question any such declaration on the ground only that the entries in the revenue records on the basis of which such declaration has been made are incorrect ;

(20) In face of this proviso to clause (a) of S. 4 the finding of the learned trial Judge that the suit was barred under S. 185 of the Act read with item 4 of its schedule is not correct. In arriving at the conclusion, we are not unmindful of the decision of Division Bench in 'Ramji Lal v. Radhey Gopal which did not concern itself with the above proviso

(21) It is, however, not necessary in the peculiar facts of this case to give any decision on the merits of the controversy covered by this point because it is not at all necessary for the decision of the plaintiffs case. The moment it is held that the possession of the lessees and the sub-tenants over the land in suit was not that of trespassers after the expiry of initial period of 25 years mentioned in the lease...as we have held already, the bhoomidari rights in respect of the land covered by the lease could be conferred on one or the other of the defendants to the suit. That being the position the plaintiffs are completely non-suited. The dispute covered by the first part of issue No. 7 is a dispute inter se the defendants to the suit. Any decision of this dispute, being unnecessary for the decision of the main case, will not be resjudicata even between the two defendants. We, thereforee, refrain from recording any finding on this controversy and leave the point in question open to be dealt with between the defendants in accordance with law.

(22) In the result, as a result of our above findings, the judgment and decree of the learned trial Court is set-aside. The plaintiffs' suit is dismissed and the two appeals are accepted to the extent indicated above ; but having regard to the circumstances of the case and the nature of the points involved the parties are left to bear their own costs.


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