Avadh Behari, J.
1. This is a Regular First Appeal against the order of the Additional District Judge Delhi dated October 5, 1964. The material facts in this appeal are as follows:
A reference under Section 31 of the Land Acquisition Act was made by the Land Acquisition Collector Delhi to District Judge relating to the apportionment of the compensation in respect of Khasra Nos. 279/1.280/1, 283/1 and 285/1 measuring 22 bighas and 7 bids was situated within the revenue estate of Chaukari Mubarak Bagh. The land Acquisition Collector made his award No. 1233 dated 22-12-1961 for an amount of Rs. 101244.50 on account of compensation in respect of this land. The compensation amount was sent to the Court of the District Judge. There were two rival claimants before the Land Acquisition Collector to this amount. On the one hand Mamleshwar Pershad and Kampta Pershad sons of Onkar Pershad claimed this amount and on the other the appellant Amrit Lal Sehgal was the claimant. The Land Acquisition Collector ordered that the appellant should be paid Rs.88,588.94 and Mamleshwar Pershad and Kamta Pershad be paid the balance of the amount. On the pleadings of the parties the learned Additional District Judge farmed the following issue:--
'To what share in compensation are the rival claimant entitled?'
2. By this order dated October 5, 1964 the Additional District Judge decided that the entire compensation be paid to the land owners that is Mamleshwar Pershad and Kamta Pershad respondent 1 and 2 . The appellant was held entitled only to an amount of Rs. 1041/- as compensation for threes. This amount also could not be paid to the appellant as the areas of rent of three years exceed the amount of Rs.1041/-
3. Sardarkhti rights inland measuring 50 bighas and 12 bids was were sold to the appellant Amrit Lal Sehgal for an amount of Rs.87,700/- by the Custodian of Evacuee Property. To appreciate the points is controversy it is unnecessary to trace briefly his (Sic) history of this land.
4. On June 27, 1918 one Bhola son of Kaloo executed a lease deed or to be precise a Kabuliatnama which was adult registered in favor of the landlord Lala Onkar Pershad for a period of 20 years that is from June 16, 1918 to the 15th June 1938 on a fix yearly rent of Rs. 320/- in addition to the revenue. This document was marked as M-1 in the proceedings. The material clauses of this Kabuliatnama are clauses 6, 8, 9, and 11. According to clause 6, and tenant Bhola agreed not to plant non-fruit bearing tress like Kikar, Seisham, Pipal etc.,, on the land. By clause 8 the tenant undertook not a transfer by way of mortgage, sale, gift, etc., the entire Sardarkhti (trees) planted by him at any time without intimation to the owner of the land. Clause 9 is the most important clause of this a document and is reproduced below:--
' In case the whole or part of this land is acquired by the Government the owner of the land shall be entitled to compensation for the land and non fruit bearing trees and I, the executant shall be entitled to compensation for Sardarakhti fruits flowers and vegetables. I, the executant shall have no concern with the compensation of land and non fruit bearing trees and the owner of the land shall have no concern with the compensation in respect of fruit bearing trees their produce and the flowering trees. Besides the owner of the land shall first of all recover from my amount of compensation the amount of rent Canal-water rate etc., that may be due from me the lessee, at that time. I the lessee shall get the balance amount. Thereafter, a corresponding decrease to the extent of decrease in land shall be made in the rent and revenue.
5. Clause 11 of the period the owner allows the tenant to continue on the land then the tenant shall be liable to pay to the owner Rs.25/- as rent per Bigha Pukhta in further and shall execute a fresh lease in favor of the owner. In the case, the amount of the rent is not settled of the future, the tenant undertook to hand over possession of the land. In that contingency the tenant was entitled to recover from the owner of the land current price with respect to the fruit bearing and flower trees, but then on fruit bearing and vernal trees and plants were to be left to our consideration.
6. On July 9, 1971 Bhola died. On December 26, 1921 Mutation was effected in favor of Bhola's widow Mst. Kishan Dei. On October 5, 1922 by a registered sale deed (Ex M-2) Mst Kishan Dei widow of Bhola assigned her leasehold interest in favor of Mst. Fatima Begum and Mst. Afroza Zamani for consideration of Rs.4500/- in the recital part of this document it was stated that Bhola had taken on lease for a period of 20 years land measuring 50 bighas and 12 bids was kham from Lala Onkar Pershad on any yearly rent of Rs. 320/- for the purpose of planting Sardarkhati (trees) and that every month Bhola planted on this land at his won expense rose motia flowers and fruit bearing trees of pear, guava etc. In the operative potion Mst. Kishan Dei said that she has absolutely sold the entire Sardarkhathi, fruit and flower etc., existing the land together with all right pertaining to the land for there main period in favor of Mst. Fatima and Mst Afroza. On March of 13, 1923 mutation was sanctioned in favor of Mst. Afroza and Mst. Fatima.
In the jamabandi of the year 1924-25 Mst. Fatima, and Mst. Afroza were shown in possession as sub-lessees of Mst. Kishan Dei widow of Bhola. Similarly, in the jamabandi of 1928-29 Mst. Fatima and Mst Afroza are recorded as non occupancy tenants. In the Jamabandi of the years 1932 the two Muslim ladies are shown in possession. In the Jamabandi of the years 1936-37 again the two Muslim ladies Mst. Fatima and Mst. Afroza are entered a non occupancy tenants. On February 8, 1936 Mst. Fatima and Mst Afroza are further transferred their leasehold right in the garden for a period of 15 years in favor of one Ramji Lal. Ramji Lal executed a lease deed (M-3) in favor of Fatima and Afroza. The period of 15 years of this lease which was duly registered was to commerce from March 1, 1936. It is important to notice at this stage that lease deed dated June 27 1918 expired on June 15, 1938 and Ramji Lal who was in occupation did not surrender the possession of the land of the expiry of the lease deed to the land owner. In 1947, on the partition of India, Mst. Fatima Begum and Mst. Afroza Zamani became evacuees and their right title and interest vested in the Custodian of Evacuee Property.
7. In 1953 the Displaced person (Compensation and Rehabilitation ) Act was passed. Section 12 of the said Act gave power to the Central Government to acquire evacuee property for rehabilitation of displaced persons. Section 12 reads as under:--
'Power to acquire evacuee property for rehabilitation of displaced persons:--
(1) If the Central Government is of opinion that it is necessary to acquire nay evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons including payment of compensation of such persons the Central Government may at any time acquire such evacuee property by public in the Official Gazette a notification and decided to acquire such evacuee property in pursuance of this section .
(2) On the publication of a national under sub-section (1) the right title and interest of nay evacuee in the evacuee property specified in the notification shall on and from the beginning of the date on which the notification is so published be extinguished and the evacuee property shall vest absolutely in the Central Government free form all encumbrances.
(3) It shall be lawful for the Central Government if it so considers necessary to issue form time to time the notification referred to in sub-section (1) in respect of
(a) all evacuee property generally or
(b) any class of evacuee property or
(c) all evacuee property situated in a specified area: or
(d) any particular evacuee property.
(4) All evacuee property acquired under this section shall form party of the compensation pool.
8. By virtue of a Notification published on the July 7, 1955 Sro 1535) in exercise of the powers conferred by subsection (1) of section 12 of Act the central Government acquired all evacuee properties consisting of agricultural land and crops (including gardens) in thereon urban areas in the State of Delhi except properties falling under certain categories which were specified in the schedule to the said Notification. As a result of the Notification the right, title and interest of the evacuee in the property became vested in the Central Government 'free from all encumbrances.' It was not disputed before us that horticulture is included in the agriculture and, thereforee, evacuee rights in the disputed land also vested in the Central Government .
9. On November 19, 1958 the property was put to auction by the Government the appellant gave a did not Rupees 87,700/-. Being the highest did it was accepted by the Government and the appellant was declared to be the purchase of the Sardarkhathi right in the said property with effect from 28-8-1962. A certificate of sale was granted to him on 28-8-1962. In the certificate of sale the property sold to the appellate was specified as under:--
'Khasra Schedule House property bearing Nos. Sardarkhathi right in Garden known as Bhola Wala F. No 278 to 285 291 Mg. 50 Big. 12 bis. situated in Village Chawakri Mubarakabad (Delhi State), Shares:--
Bounded as per sajra of the village with Halqa Patwari'.
On the notification under Section 4 of the Land Acquisition Act was issued and it was stated that the land was required for Najafgarh Nala. On April 15, 1961 Notification under Section 6 was issued . On April 29, 1961 notice under Section 9 was issued. On December 22, 1961 as already noticed the Land Acquisition Collection made an award. After the land has been acquired by the Government on March 5, 1962 the appellant lodged a claim before the additional District Judge Delhi in the reference under Section 31(2) of the land Acquisition Act 1894. The appellants claimed compensation. On March 12, 1962 the respondent lodged their claim before the Additional District Judge. The respondent claimed that the compensation be paid to them. The compensation for the trees was assessed by the Land Acquisition Collection at Rs.1875/- Out of this amount Rs.834/- was for non- fruit bearing trees and Rs.1041 for the fruit bearing trees.
The Additional District Judge thereforee found that Amrit Lal Sehgal is entitle to only Rs.1041/- and according to the terms and the lease deed the respondent are entitled to be paid the amount of arrears of rent due to them our of the compensation for the fruit bearing trees. The tenant was found to be in arrears for the year 1956-57, 1957-58 and 1960-61. The rent of these years exceeded the amount of Rs.1041/- total compensation payable to the appellant. The result was that the respondent were found entitled to the entire amount of compensation and the appellant was not entitled to anything. Aggrieved against the order of the Additional District Judge the appellant has preferred this appeal. The appellant contends that the decision of the court below is erroneous and should be set aside.
10. At the outset. Mr. N.S. Bindra, the learned counsel for the appellant wanted us top give him permission to urge additional grounds of appeal set forth in C. M. 3870-D of 1965 which was filed by the appellant on the 15 the November 1965. In substance in the additional grounds of appeal the appellant purported to attack the validity of the acquisition proceedings. In this connection the learned counsel urged that the government was the owner of Sardarkhathi right before on sale certificate was issued to the appellant on February 28, 1962 and thereforee the Government could be have acquired its won property on December 22, 1961, the dated of the making of the award. It was further submitted that the land Acquisition proceedings were wholly illegal as the Government a cannot acquire its low property. We did not permit the learning counsel to do so was (sic) that these grounds were not and could not have been urged by him before the land Acquisition judge. The legality of the Land Acquisition proceedings could not be challenged before the special tribunal. The additional District Judge acted as a special tribunal and he could not pronounce on the validity of the acquisition proceedings.
This appeal is under Section 54 of the Land Acquisition Act in which it is claimed that the order made by the learned Additional District Judge regarding apportionment of compensation be reversed. The Land Acquisition Collector in this case was of the view that on apportionment, the appellant was entitled to 14 annas or 15 annas in a rupee, while the view of the learned Additional District Judge on reference was that the appellant was entitled only to compensation on account of fruit bearing trees etc., and was not entitled to another compensation. This being the scope of the appeal it was not fair and just to allow the appellant to set up a new case at this stage. Apart from this consideration we are also of the view that the argument that the acquisition proceedings were invalid is without substance for the simple reason that the sardarakhti rights were sold to the appellant on November 19, 1958, while the land was acquired by the Government on January 7, 1961 when Notification under Section 4 of the Land Acquisition Act was issued and, thereforee, on that date the Government had necessarily to acquire the land as a whole including the sardarkhti rights.
11. The only question in the appeal is whether the appellant is entitled to any compensation and in what manner should compensation be apportioned between the appellant and the land owners, namely, the respondents who are the sons of Onkar Pershad. This question has to be decided on the terms of the registered lease deed dated June 27, 1918. The sole question which arises for consideration is whether clause 9 which we have set out above is binding on the appellant and whether compensation should be apportioned between the parties in terms thereof. For the decision of this dispute the relevant clauses of the lease deed reproduced clauses 9, 11 and 12. We have already reproduced clause 9 above. Clauses 11 and 12 are as follows:-
'11. If, after the expiry of the period, the owner aforesaid, allows me, the executant, to continue with (the lease of the ) aforementioned land or allows my successors (to do so) we shall be liable to pay to the owner of the land Rs. 25/- as rent per Bigha Pukhta in future and shall duly execute or get executed a fresh lease. In case, the amount of the rent is not settled for the future after the expiry of the period, I shall leave possession of the aforesaid land. I shall recover from the owner of the land, the current price with respect to the fruit-bearing and flowering trees, but the non-fruit bearing and vernal trees and plants shall be left out of compensation.
12 . If, I the executant violate the aforesaid terms or do not pay the lease money for a period of two years, t he owner shall be competent to dispossess me, the executant, from the aforementioned land. No objection by the executant, in respect of the period mentioned in these lease shall be entertained and I shall get from the owner the prevailing price in respect of whatever flowering and fruit bearing sardarkhti (trees) exist on the aforesaid land at that time. However, the price of the non-fruit bearing, spontaneous and vernal trees shall not be taken into account. They shall be the property of the owner.
The three fruit bearing trees belonging to the owner which exist on this land at this time, shall always belong to the owner, I, the lessee, shall continue taking their fruit. At the time of giving up of possession of the land or taking of compensation for the trees planted by me, these (the three trees) shall not be taken into account.'
12. In all the three clauses i.e., 9, 11 and 12 it will be seen that the tenant is entitled to get only the price of the fruit bearing trees. This type of lease is generally known as Sardarkhti tenure. This term is expressly used in clauses 5, 8 and 9 of the lease deed. The nature of this lease has been lucidly defined in the Gazetteer of the Delhi District Part A 1912 in the following manner :-
'In connection with gardens a tenure exists which at first seems very intricate, but which is simple enough when the mystery is unravelled. In such cases the tenant of the land is the owner of trees and cannot be ejected until he has been paid compensation for the trees, for practical purpose he is merely a tenant at will, who has improved his holding to such an extent that the magnitude of the compensation assessable under Section 68 of the Tenancy Act prohibits his ejection. The tenant is known as a Sardarkhtidar or amaldar sardarakhti and can by custom alienate his right. The rents paid, to the owner of the land are chakota rents or one fourth of the amount for which the fruit sells, the tenant being responsible for the cost of production. The sardarkhti tenure right must not be confused with a sardarakhti muafi right which is denied in the article on assignments.'
13. According to this definition whenever the tenant looses the tenancy rights he gets compensation for the fruit and flowers and bearing trees.
14. The entire burden of the argument of the learned counsel for the appellant was that clause 9 of the lease deed dated the 27th June, 1918 did not govern the relations of the landlord and the tenant. His submission was that by reason of certain events clause 9 of the lease was extinguished and completely wiped out of existence.
15. We shall briefly notice the arguments of the learned counsel for the appellant. Firstly, he argued that the lease deed dated June 27, 1918 was for a specific period of 20 years and on the expiry of this term the lease came to an end. On this basis it was sought to be contended that the clause 9 was no longer operative. We do not agree with this contention. The terms of the lease deed dated June 27, 1918 still govern the relations of the parties. Clause 9 of the lease deed is valid and the decision of this appeal turns on clause 9. In Gadadhar Bhatta v. Lalit Kumar Chatterjee 4 Ind Case 434, it was held that a condition in a lease that if the tenancy is terminated by reason of the acquisition of the land for a public purpose, the whole amount of acquisition money shall be payable to the landlord is valid. Similarly in Radha Binode Mandal v. Surendra Nath Ghosal Air 1927 Cal 968, a Division Bench of the Calcutta High Court held that where under a contract in a maurasi mokarari lease, the Lesser was to get half of the compensation as malgani right, if the land was acquired for the purpose of the Government and the land was subsequently acquired for the public purpose, then on acquisition the Lesser was entitled to half of the compensation under the special provisions contained in the lease.
These decisions will show that the present clause 9 is a valid clause and was in consonance with the general practice prevailing in those days when the lease was executed. This is true that the lease deed dated June 27, 1918 was executed fro the specific term of 20 years, but on the expiry of that period the tenant continued to hold over and, thereforee, principles underlying Section 116 of the Transfer of Property Act apply to this case. The result is that the provisions of the original lease continue to apply and govern the relations of the parties. Section 116 of the Transfer of Property Act reads as under:-
'If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the Lesser or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.'
16. Shri Bindra placed reliance on Section 117 of the Transfer of Property Act which exempts leases for agricultural purposes from the provisions of Chapter V of the Transfer of Property Act. In Anantmal v. Lala, , it was held that the principle underlying Section 116 of the Transfer of Property Act is based upon considerations of equity, justice and good conscience and in the absence of anything to the contrary the provisions are applicable to cases not governed by the Transfer of Property Act. The principles of Section 116 are applicable to leases of agriculture lands. Similarly in Alphanso Pinto v. Thukru Hengsu : AIR1955Mad206 . it was held if there is no agreement fixing the terms of a new lease, the terms of the old lease must be deemed to be applicable. Where the tenant holds over after the expiration of the term, he holds subject to all the covenants in the lease which are applicable tot he new situation. thereforee, clause 9 must be held to be one of the terms of the tenancy by holding over.
The tenancy must be held to be one subject to the convenants in respect of Sardarkhti rights contained in the original lease deed. The rule that principles of equity, justice and good conscience apply to agricultural leases and that the principle contained in Section 116 of the Transfer of Property Act is a principle of equity, justice and good conscience has been enunciated in a number of rulings, for example in Krishna Shetti v. Gilbert Pinto 2nd 42 Mad 654 : AIR 1919 Mad 12, Gangamma v. Phommakka (1910) 33 Mad 253, Mt. Kesarbai v. Rajabhau Sadasheo Rao , Nanjappa Goundan v. Rangaswami Gounda Air 1940 Mad 410, E. W. C. Moore v. Makhan Singh : AIR1919Pat254 , Eayo George v. Kacki Muthaliyar Air 1953 Tra 299, Bainani Properties Private Ltd. v. M. Gulamali Abdul Hossain and Co. : AIR1967Cal390 and Namdeo Lokman v. Narnadabi, : 4SCR1009 .
17. The result of above discussion is that the tenancy arising by implication in favor of a tenant who holds over after the expiration of his lease and pays rent is only deemed to be on the terms of the old lease in the absence of evidence of a different understanding. (Sec Halsbury's Laws of England, Third Edition, Volume 23, page 515).
18. As noted above, by a registered deed of sale Kishan Devi assigned her lease-hold rights in favor of Mst. Fatima and Afroza for a consideration of Rs. 4500/-. The period of the original lease expired in 1938. After the period of the lease had expired, a suit was filed on January 7, 1941 against Mst. Fatima by the respondent Mamaleshwar Pershad. This suit was for arrears of rent from Rabji 1938 to Kharif 1940. On November 29, 1941, the suit was decreed. It appears that on the expiry of 20 years the rent was enhanced to Rs.25/- per bigha Pukhta as was provided in the lease. Decree in the suit was passed on the basis of the enhanced rent at the rate of Rs.25/- per Bigha Pukhta. (Copy of the judgment is Ex. M-4). On November 17, 1948, two suits regarding rent and rejectment were filed by the present respondents against 1. Mst. Fatima, 2, legal representatives of Mst. Afroza, 3. Ramji Lal and 4. Custodian of Evacuee property and these were decided on May 30, 1953.
A copy of the judgment dated May 30, 1953 of these two suits has been placed on the record and was exhibited as M-11. From the judgment, it will be noticed that the court held that the lease dated June 27, 1918 was binding on the Custodian. The court further held that by registered lease deed the rent after the expiry of 20 years was Rs. 25/- per Bigha Pukhta per annum and at this rate a decree for arrears of rent was passed against the defendants, for the period from Kharif 1945 to Rabi 1948. The suit for ejectment was stayed under Section 2 of Delhi State Act No. Vii of 1953 which had come into operation and had stayed eviction of tenants.
19. Secondly, the learned counsel for the appellant submitted that as the Displaced Persons Act of 1955 had come into operation, it washed away the effect of clause 9, as in his submission this clause was in the nature of a fetter and when the property vested in the Central Government on July 7, 1965 it vested free from all encumbrances and there was no fetter of any kind on the rights of the Central Government in the land. We are of the opinion that clause 9 is not in the nature of an encumbrance on the property. Encumbrance is defined in Earl Jowitt's Dictionary at Page 610 as follows:--
'to encumber land is to make it subject to a charge or liability, for example, by mortgaging it.'
Wharton's Law Lexicon, encumbrance is defined as;
'as claim, lien, liability attached to property as a mortgage etc.'
20. In our opinion clause 9 is neither a burden, nor a fetter. Clause 9 is one of the covenants of the leased and it defines the right of the lessee. thereforee, this argument cannot be accepted.
21. Thirdly, the appellant's counsel submitted that leasehold rights were assigned by Kishan Dei on October 5, 1922 by means of a registered deed in favor of Mst. Fatima and Afroza without the written permission and consent of the land-owner. thereforee, the assignment was not governed by the terms of the original lease deed. As regards this submission it is enough to say that the question whether consent in writing was obtained by the tenant at the time of assignment is essentially a question of fact and there is no proof on the record that the tenant at the time of assignment did not obtain the consent of the landlord. Assuming for the sake of argument that no consent was obtained then it will be noticed that the clause No. 8 which required that consent of the landlord should be obtained was a clause for the benefit of the landlord and it was open to the landlord to waive this clause. From the various proceedings instituted by the landlord in the courts against the tenants it appears that the landlord, at no stage, insisted that his consent had not been obtained.
22. Lastly, it was submitted that after the enactment of the Delhi Land (Urban Areas) Tenants Relief Act (Act 30 of 1961) a security of tenure or a status of irremovability had been conferred on the tenants in Delhi and as a result thereof the tenant was no longer governed by the terms of the lease deed and the appellants was entitled to claim the protection of the said Act. We find ourselves unable to agree with the learned counsel on this submission also. In our view, clause 9 of the lease deed is a wavier or a relinquishment of the rights by the tenant to receive compensation for tenancy rights when compensation becomes payable to him on the land being acquired by the Government. He agreed that in the event of his dispossession he will be content with the payment of compensation as regards the fruit bearing and flower trees. The tenant had given up his rights to compensation and was not entitled to have anything more than the price of the fruit bearing and flower trees.
In our opinion, no advantage can, thereforee, be taken, by the appellant from the fact that in consequence of the Delhi (Urban Area) Tenants Relief Act of 1961 certain additional safeguards came to be provided to persons holding any land as a tenant in the areas to which that Act extended. A Division bench of this Court in Daryodh Singh v. Union of India, R., F.A. No. 149-D of 1965 decided on 5-4-1972 : AIR1973Delhi58 , of which one of us (Jagjit Singh, J.) was a member has also taken this view of the effect of Act No. 30 of 1961 on the clause where under the tenant waives or relinquishes his right to claim compensation. For another reason also the appellant cannot take any benefit of the provisions of the Act 30 of 1961. This Act the notifications under Section 4 and 6 had been issued before the Act came into operation, and as a result the land had been acquired before the Act came into force.
23. In our opinion, the learned Additional District Judge was right in holding that the appellant is only entitled to compensation for fruit bearing trees. In the result, the appeal fails and is dismissed with costs.
24. Appeal dismissed.