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Ambalal Vallavbhai Patel Vs. Mangalbhai Dhulabhai Bhoi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 218 of 1973
Judge
Reported inAIR1978Guj208; (1978)0GLR799
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 4 and 32; Evidence Act, 1872 - Sections 114
AppellantAmbalal Vallavbhai Patel
RespondentMangalbhai Dhulabhai Bhoi
Appellant Advocate M.C. Shah, Adv.
Respondent Advocate A.M. Peerzada, Adv.
Cases ReferredRanchhod Fakir Halpati v. Govanbhai Bhikhabhai
Excerpt:
tenancy - agreement to sale - sections 4 and 32 of bombay tenancy and agricultural lands act, 1948 - persons entered into possession of land under agreement of sale - modus operandi to claim title to land can be under specific relief act - section 4 does not have overriding effect upon provision of specific relief act - modus operandi of claiming title invoking section 4 cannot be adopted. - - 4 are satisfied. inter alia, there are two major conditions, which must be satisfied. 4 and 63 can well stand together in support of each other if possession of and the consequent cultivation 1?y an intending vendee under an agreement of sale are excluded from the area in which s.s.h. shum, j.1. petitioner is the owner of survey no. 1137/3-4 and survey no. 1138/1-2 of village vadthal in nadiad taluka. of kaira district. on 11th may 1958 he agreed to sell the lands in question to the respondent for a sum of rs. 2,501. the respondent paid to the petitioner rs. 1,501 ie. rs. 1,000 less than the consideration for the transaction of sale. the sale dead could not be executed because the respondent's house was gutted and he could not pay the balance to the petitioner. it is the petitioner's case that he thereupon returned to the respondent the amount that the latter had paid to him and took back possession of the lands in question. it is the respondent's case that the possession of the lands was forcibly taken by the petitioner. under these circumstances, the respondent.....
Judgment:

S.H. Shum, J.

1. Petitioner is the owner of survey No. 1137/3-4 and survey No. 1138/1-2 of village Vadthal in Nadiad taluka. of Kaira District. On 11th May 1958 he agreed to sell the lands in question to the respondent for a sum of Rs. 2,501. The respondent paid to the petitioner Rs. 1,501 ie. Rs. 1,000 less than the consideration for the transaction of sale. The sale dead could not be executed because the respondent's house was gutted and he could not pay the balance to the petitioner. It is the petitioner's case that he thereupon returned to the respondent the amount that the latter had paid to him and took back possession of the lands in question. It is the respondent's case that the possession of the lands was forcibly taken by the petitioner. Under these circumstances, the respondent filed the present suit before Mamlatdar, Nadiad, under S, 70 (b) read with S. 29 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act' for the sake of brevity) for a declaration that he was a tenant of the petitioner in respect of the lands in question and' for recovering possession thereof from the petitioner. He also set up in that suit the plea that his tenancy commenced much earlier than the agreement of sale executed in his favour by the petitioner.

2. The Mamlatdar disbelieved the respondent's case of anterior tenancy and held that no tenancy resulted from the agreement of sale. He, therefore, dismissed his suit on 30th Nov. 1964. The respondent appealed against that order to the Deputy Collector who upheld the, findings recorded by the Mamlatdar and dismissed the appeal.

3. The respondent challenged the appellate order in a revision application which-he filed before the Gujarat Revenue Tribunal. The Tribunal did not deal with the respondent's plea of anterior tenancy but held that since the respondent had been cultivating lawfully the lands in question under an agreement of sale, he was deemed to be a tenant in respect of the lands in question by virtue of the provision of S. 4 of the Tenancy Act. The Tribunal, therefore, allowed the revision application, granted to the respondent a declaration which he sought and ordered the petitioner to deliver the possession of the land in question to him.

4. It is that order which is challenged by the petitioner in this petition.

5. This petition came up for hearing before Mr. Justice M. P. Thakkar on 5tb July 1977. The decision of Mr. Justice J. B. Mebta in Gernalsing Vakhatsing v. Abhqsing Kabhei, Special Civil Appl 'No. 1535 of 1967 decided on 5-8-190 (unreported decision) was cited before him. In that judgment Mr. Justlee J. B Mehta has taken the view that a person who enters into possession of a land under an agreement of sale is lawfully cultivating that land and must, therefore, be deemed to be the tenant in respect thereof by virtue of the provisions contained in S. 4 of the Tenancy Act. It was argued before Mr. Justice M. P. Thakkar that that unreported decision of Mr. Justice J. B. Mehta rendered nugatory several provisions of the Tenancy Act and that, therefore, it did not lay down the correct law. This argument appealed to Mr. Justice Thakkar who by his order dated 5th July 1977 referred the case to a Division Bench. It is under these circumstances that this petition has been placed before us for decision.

6. Before we refer to the unreported decision of Mr. Justice J. B. Mehta, it is necessary to have a quick glance at two sections in the Tenancy Act. Section 4 provides:

'A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not-

(a) a member of the owner's family; or

(b) a servant an wages payable in cash or kind but not in crop share or a hired labor cultivating the land under the personal supervision - of the owner or any member of the owner's family, or

.. (c) a mortagagee in possession.'

It is not necessary for the purposes of this decision to reproduce the two explanations, which are appended to S. 4. The entire controversy which has arisen before us turns upon the expression 'lawfully cultivating'. 'S. 2 (18) defines the expression 'tenant' so as to mean a person. Who holds land on lease and includes, amongst others, a person who is deemed to be a tenant under S. 4. It has been argued by 3Ar. Peerzada that a person who has entered into possession of a land under an agreement of sale is lawfully cultivating it and that, therefore. He must be deemed to be a tenant. In other words, the attempt which he has made is to divide persons who cultivate lands belonging to others into two categories The first category consuls of those who are lawfully cultivating the and the other category consists of those who are not lawfully cultivating them go for as the first category of persons In concerned, there are only exceptions to it. Those three exceptions are specified in S. 4. Therefore, the argument which Mr. Peerzada has raised is that all persons lawfully cultivating lands belonging to others are 'tenants' or 'deemed tenants' in respect of those lands except those who are members of the owner's family, servants of the owner engaged on wages payable in cash or kind and mortagagees in possession. In support of Ids argument, Mr. Peerzada has relied upon two decisions of this Court. The first is in Ghemalsing Vakhatsing v. Abhesing Kabhai, Special Civil Appln. No. 1535 of 1967 decided by Mr. Justice J. B. Mehta on 5-8-1969. It was a case in which agreement of sale was executed by. The respondent in that case in favour of. The petitioner and possession was delivered. The petitioner did not enforce that agreement of sale but claimed that he had been holding possession of the land under an agreement of sale and had, therefore, been cultivating it lawfully. He, therefore, contended that he had acquired the status of a deemed tenant under S. 4 of the Tenancy Act. Two decisions were cited before Mr. justice J. B. Mehta. One was in Gulabrao M. Wani v. Hema Kashiram Gajare, 59 Bom LR 194: (AIR 1957 Bom 198) and another was in Jasvantrai Tricdmlal v. Bai Jivi, 59 Bom LR 168: (AIR 1957 Bom 195) (FB). After having examined both those decisions, he expressed the opinion that the principle laid down in Gulabrao's case (supra) could no longer hold the field because what was laid down in the Full Bench decision in Jasvantrai's case (supra) and the Supreme Court in Dahya Lala v. Rasul Mahomed Abdul Rahim 65 Bom LR 328: (AIR 1964 SC 1320) runs contrary to it. We are shortly examining all these three decisions. He drew a distinction between the presumption which, according to the Division Bench, in Gulabrao's case (supra) arose from S. 4 of the Tenancy Act and the legal fiction, which according to the Full Bench decision and the decision of the Supreme Court, arose from that section. We will shortly point out that there is not much difference in what the Division Bench calls in Gulabrao's case (supra) a presumption and what the Full Bench of the Bombay High Court and the Supreme Court in the decisions referred to above call a legal fiction. Relying upon the said two decisions, he expressed the opinion that the relevant conditions imposed by the statute which confers status of a 'deemed tenant' was that the person claiming the status of a deemed tenant must be cultivating the land of another lawfully and nothing more. He has further observed that S. 4 of the Tenancy Act did not require that the person claiming the status of a deemed tenant -must be cultivating the land of another with the consent or the authority of that person. It has 'been further observed in that decision that to import a condition that a person who claims the status of a deemed tenant must be cultivating the land with the consent of the owner is to re-write the section and to destroy its practical utility. Referring to the licenses, he has observed that they would also fall within the class of persons lawfully cultivating the lands belonging to others even though the owners might have just permitted them to enter the land and cultivate it. Therefore, according to Mr. Justice J. B. Mehta, to exclude the persons holding the lands under agreements of sale and cultivating them from the category of deemed tenants would amount to unduly restricting the intention of the Legislature to limit the benefit of S. 4 to persons who derive the authority to cultivate from the owner. Indeed while expressing this view, he has drawn heavily upon what the Supreme Court has stated in Dahya Lala's case (supra). In his opinion. a person who enters into the possession of the land under an agreement of sale and cultivates it satisfies all the ingredients of S. 4 of the Tenancy Act and, therefore, he falls under the category of a deemed tenant. After having referred to the Full Bench decision of the Bombay High Court in Jasvantrai's case (supra) and the decision of the Supreme Court in Dahya Lala's case (supra), he has further stated that S, 4 does not create a rebut table presumption but creates an artificial class of deemed tenants.

7. The next decision upon which reliance has been placed by Mr. Peerzada is Ranchhod Fakir Halpati v. Govanbhai Bhikhabhai, ILR (1968) Guj 1007. It was a case in which land was given to one Jogi Purshottam. for cultivation on condition that he would render service to the community by filling water trough in the village. The dispute between the parties arose in regard to that land. The claim to tenancy made to that land was examined by Mr. Justice Bhagwati. In that context, he examined the implications of S. 4 of the Tenancy Act and observed that it does not enact a presumption of tenancy, which can be rebutted by the landlord. According to him, the section does not lay down that if a person is lawfully cultivating the land belonging to another, he shall be presumed to be a tenant unless the contrary is proved by the other side. What S. 4 lays down, it has been further observed, is to enact a legal fiction whereby a person who would not otherwise be a tenant is by fiction of law deemed to be a tenant for the purpose of the Act. Proceeding further, he has observed that once the conditions specified in S. 4 are fulfilled, the legal fiction must arise and the person who is lawfully cultivating the land of another must be deemed to be the tenant of the land even though the land is not let out to him as a tenant and under the ordinary law, he would not be a tenant4 These two decisions which Mr. Peerzada has relied upon indeed lent support to his contention that those who cultivate lawfully either under an agreement of sale or otherwise become deemed tenants by virtue of the provisions of S, 4 of the Tenancy Act.

8. We will now proceed to examine the effect of the three decisions upon which Mr. Justice J. B. Mehta has placed reliance. In Gulabrao's case (AIR 1057 Bom 198) (supra), a Division Bench of the Bombay High Court was considering the case of a person who claimed tenancy after having entered into the possession of the land under an agreement o f sale and started cultivating it. It is necessary to point out that Gulabrao's case was a direct case in which the effect of S. 4 of the Tenancy Act upon the possession held under an agreement of sale was examined. In this context, we may point out that in the Full Bench decision of the High Court of Bombay in Jasvantrai's case (AIR 1957 Bom 195) (supra) and in the decision of the Supreme Court in Dahya Lala's case (AIR 1964 SC 1320) (supra) the effect of S. 4 of the Tenancy Act on possession held under an agreement of sale was not examined because that was not the issue before the Court. A Division Bench of the High Court of Bombay in Gulabrao's case (supra) held that the expression 'deemed to be' gave rise to a presumption in favour of a person lawfully cultivating the land of his being a tenant

It was further observed in that decision that it was a rebut table presumption. For melding that observation, reference was made to Explanation I to S. 4. It was further observed that S. 4 by itself does not confer any status of tenancy but it only raises a presumption. In the context of an agreement of sale, it was further observed that it created a special contractual relationship between the parties and that it was not in the nature of tenancy and, therefore, the presumption raised by S. 4 was rebutted. In jasvantrai's case, the effect of S. 4 was examined not in the context of an agreement of sale but in the context of the sub-tenancy created by the tenant. We may point out that the sub-tenancy which the tenant in that case had created was a lawful sub-tenancy. It was held that the substantial effect of S. 4 of the Tenancy Act was that on the termination of a contractual tenancy between the, tenant and the sub-tenant, provided the sub-tenancy was valid, was to bring into existence a statutory tenancy. Therefore, a sub-tenant would be a statutory tenant of the landlord when the tenancy and the tenant were eliminated. As long as the tenancy and the tenant were there, the sub-tenant was protected by the contract between him and the tenant. However, when the protection came to an end by reason of the elimination of the tenancy, the statute gave the protection to the sub-tenant, which he did not otherwise have. In that context, S. 4 of the Tenancy Act was construed by the Full Bench. It was rightly observed by the Full Bench in that case that S. 4 did not deal with the class of contractual tenants alone. It was also dealing with a class of persons upon whom artificial tenancies were conferred. The Full Bench further observed that there was no warrant for reading into S. 4 the words 'a person lawfully cultivating with the consent or authority of the owner'. Whether the character of cultivation is lawful or not varies from case to case. There is no doubt or dispute about the f act that S. 4 casts its net wider and brings within its sweep not, only the contractual tenancies but tenancies which have been created otherwise than by consent of parties if the terms of S. 4 are satisfied. In our opinion, it is not correct to say that the principle laid down by the Full Bench in Jasvantrai's case (supra) applies to the instant case on all fours. Whilst trying to apply the principle laid down in the decision of the Full Bench, it is necessary to remember that the transaction between the tenant and the subtenant was a transaction of lease itself. The landlord had leased out his land to the tenant and the tenant had leased out his interest in the land to the subtenant. The transaction between the tenant and the sub-tenant was valid. Therefore, though the sub-tenancy was created by the tenants without the consent of the owner, was it binding upon the owner? That was the question, which arose. Even under the provisions of Transfer of Property Act, a valid sub-tenancy or under tenancy would bind the owner. The provisions of S. 4 of the Tenancy Act have gone a step further and provided that not only the transaction of sub-lease between the tenant and the sub-tenant is binding upon the owner but with the elimination of the tenant and his tenancy, a sub-tenant becomes a 'deemed tenant' by virtue of the provisions of S. 4 of the Tenancy Act. It is in the context of lease to cultivate and a sublease to cultivate that the Full Bench took the view that the sub-tenant was deemed to be the tenant within the meaning of the language used in S. 4 of the Tenancy Act as soon as the tenant and the tenancy were eliminated.

9. Let us now examine the decision of the Supreme Court in Dahya Lala's ease (supra). There, the question of construing S. 4 arose before the Supreme Court in the context of a tenant of a mortagagee in possession. S. 4 which casts its net very wide excludes from its operation' mortagagees in possession. Therefore, a mortagagee in possession cannot claim the status of a tenant or a deemed tenant. If a mortagagee in possession cannot claim that status, can a tenant inducted by him into the land claim the status of a 'deemed tenant' as against the original owner or mortgagor? The Supreme Court took two facts into account. Firstly, there was a valid contract of leasing the land between the mortagagee in possession and his tenant. Therefore, so far as the mortagagee in possession was concerned, he had created a valid tenancy in favour of the tenant who -was, by virtue of the consent given by the mortagagee in possession to him, had been cultivating the land. Therefore, the tenant as against the mortagagee in possession was lawfully cultivating the land. Therefore, can it be said that he was lawfully cultivating the land as against the mortgagor or the owner? The question was answered by the Supreme Court in the affirmative because when the owner mortgagor parted with the possession of the land in.favour of the mortagagee, he, by necessary implication, conferred upon the mortagagee in possession the authority to lease out the land if he so chose, Therefore, the implied authority given by the mortgagor to the mortagagee to lease out the land if he so thought fit and the act of the mortagagee to lease out the land to the tenant, When read together, meant that as against the mortgagor, the tenant had been lawfully cultivating it. In both these eases, there was a contract of lease. In the first case, it was between a tenant and a sub-tenant. In the second case, it was between a mortagagee in possession and his tenant. Therefore, the Full Bench of the High Court of Bombay and the Supreme Court held that the persons whose claims they were examining had been lawfully cultivating the lands and had acquired the status of deemed tenants. It was in that context that they laid down that S, 4 creates a legal fiction.

10. Now, let us see the distinction between a presumption and a legal fiction. In our opinion, a legal fiction i9l one which is not an actual reality but which the law requires the Court to accept it as a reality. Therefore, in case of legal fiction, the Court believes something to exist, which, in reality, does not exist. In other words, it is nothing but a presumption of the. Existence of a state of affairs which in actual reality is nonexistent. When viewed from this context, there is not much difference between a legal fiction and a presumption.. However, it cannot be said that legal fiction and a presumption are wholly identical in all respects. A presumption may be conclusive or it may be rebut table, Al presumption gives rise to a legal fiction. It is conclusive if no evidence can be permitted to be led to deny it. In case of a presumption which is rebut table, unless the contrary is established, a fictitious state of affairs is presumed to exist as if it is an actual reality. Indeed the Division Bench of the High Court of Bombay in Gulabrao's case (AIR 1957 Bom 198) (supra) has, in terms, stated that the presumption which S. 4 raise3 is a rebut table presumption. The Full Bench of the High Court of Bombay in Jasvantrai's case (AIR 19-57 Bom195) (supra) and the Supreme Court in Dahya Lala's case (AIR 1964 SC 1320) (supra) have not stated that the legal fiction which S. 4 gives rise to is an irrevocable fiction. In our opinion, on the language of S. 4, it cannot be said to be so because the existence of the legal fiction contemplated by S. 4 depends upon the satisfaction of certain conditions precedent. Inter alia, there are two major conditions, which must be satisfied. A person must be cultivating a land belonging to another and bi must be lawfully cultivating it

11. The question, therefore, which arises for our consideration is whether merely because a person under an agreement of sale delivers possession of his land to Another, does the person to whom the possession is delivered cultivate it necessarily lawfully? In order to decide this question, it is necessary to examine the basic character of an agreement of sale and what it gives rise to. An intending vendor enters into an agreement of sale with his intending vendee with the object of conveying title to the land to him. If the intending vendee uses the agreement of sale as a spring board to jump at the tenancy, the very agreement fails because that agreement becomes unenforceable ' under the Specific Relief Act. Therefore, the transaction which it witnesses also fails. The consideration for which the transaction was entered into also fails. The only known way of enforcing an agreement of sale is by obtaining specific performance thereof under the Specific Relief Act. The moment the person. Holding possession of a land under an agreement of sale makes a claim to tenancy, its enforceability under the Specific Relief Act comes to an end. If an agreement of sale is held to give rise to a tenancy, the tenant becomes the owner not by obtaining the specific performance of that agreement of sale but by virtue of the provisions of S. 32-0 of the Tenancy Act upon the expiry of one year. The entire scheme of consideration also undergoes a complete transformation. Whereas in case of specific performance of an agreement of sale the intending vendee would pay the consideration to the intending vendor in terms' of the agreement of sale, by acquiring title through the medium of the provisions of the Tenancy Act, he would pay an entirely different consideration as determined by the Agricultural Lands Tribunal in terms of the provisions of the Tenancy Act. In our opinion, therefore, if an agreement of sale gives rise to a deemed tenancy, the offspring in the shape of deemed tenancy which it produces destroys the parent itself, viz. the agreement of sale. We are not able to conceive of a case where lawful rights can be claimed upon the destruction of something on the strength of which they are claimed.

12. Next when a person who holds possession of a land under an agreement of sale makes a claim to tenancy which the agreement of sale does not contemplate, goes back upon the agreement and therefore, the possession which was delivered to him under the agreement of sale ceases to be lawful. Therefore, there is no lawful cultivation by him as and from the date on which he makes a claim foreign to the agreement of sale. Such a foreign claim repudiates the entire agreement of sale and its very basis. Thirdly, parties by entering into an agreement of sale create one type of contract. It is difficult to imagine that the Legislature by enacting S. 4 contemplated a substitution of juralrelationship different from one contemplated by the parties. Where there is no such contract or where there is a contract which is in conformity with the juralrelationship of landlord and tenant, different considerations would prevail. But the same considerations cannot prevail where one contract is sought to be substituted for another or where a juralrelationship, not conceived by the contract, is claimed on the ashes of the contract itself. The situation which obtained in Jasvantrai's case (AIR 1957 Bom, 195) (supra) decided by the Full Bench of the High Court of Bombay and in Dahya Lala's case (AIR 1964 SC 1320), (supra) decided by the Supreme Court was in conformity with the first mentioned proposition. The two propositions cannot stand together. They are in conflict with each other.

13. In our opinion, so far as the agreements of sale are concerned, the modus; operandi to claim title to the land which can be adopted can only be under the Specific Relief Act. The modus operandi of claiming title to it by invoking the provisions of S. 4 cannot be adopted because S. 4 does not have an overriding effect upon the provisions of Specific Relief Act. Section 4 does not open with any non obstinate clause. Under these circumstances, we feel that an agreement of sale which is compulsorily enforceable under the Specific Relief Act cannot be enforced by invoking the provisions of See. 4 read with S. 32-0 of the Tenancy Act because the provisions of the Tenancy Act do not exclude the provisions of Specific Relief Act. In our opinion, therefore, though the Division Bench of the High Court of Bombay in Gulabrao's case (AIR 1957 Boin 198) (supra) did not say so much as we have been required to say, the view which they took was correctly taken by them in so far as the agreements of sale were concerned. It is, ther0ore, wrong to say that the principle laid down by the Supreme Court in Dabya Lala's case (AIR 1964 SC 1320) (supra) and by the Full Bench of the High Court of Bombay in Jasvantrai's case (supra) militates against the principle laid down by the High Court of Bombay in Gulabrao's case (supra) and that, therefore, the principle laid down in Gulabrao's case (supra) has become inapplicable. On the analysis of the facts of those cases, the provisions of Ss. 4 and 32-0 of the Tenancy Act and the implications flowing from agreements of sale, we are of the opinion that so far as the agreements of sale are concerned, they are governed by the decision of the High Court of Bombay in Gulabrao's case (supra). That decision still holds the field in that class of cases. In other class of cases, particularly in cases of tenancies created by the mortagagees in possession and lawful sub-tenancies created by the tenants,. The decisions of the Full Bench of the High Court of Bombay in Jasvantrai's case (supra) and of the Supreme Court in Dahya Lala's case (supra) would hold the field. These two sets of decisions operate in altogether different fields. The areas in which they operate do not overlap. It is, therefore, wrong to come to the conclusion that there is any conflict between the decision of the High Court of Bombay in Gulabrao's case (supra) on one hand and the decisions of the High Court of Bombay in Jasvantrai's case (supra) and of the Supreme Court in Dahya Lala's case ~(supra) on the other hand. We see no conflict between them because, as we have stated earlier. They operate in altogether different fields. With great respect, therefore, we are unable to concur in the view expressed by Mr. Justice J. B. Mehta in the unreported decision, to which we have referred.

14. So far as the decision of Mr. Justice Bhagwati in Ranchhod Fakir's case, (ILR (1968) Guj 1007) referred to above, is concerned, it also operates in a different field. It has no application to the case It also operates in a Hold where contract of cultivation has been created by one in favour of another. Broadly speaking,

Therefore, the Full Bench decision of the High court of Bombay in Jasvantrai's case (supra) of the decision of the Supreme court In Dahya Lala's case (supra) and the decision of Mr. Justice Bhagwati in Ranchhod Fakir's case (supra) operate in one field, while the decision of the High Court of Bombay in Gulabrao's case (supra) operates in an altogether different field.

15. It is necessary in this context to refer to S. 63 of the Tenancy Act. It, inter alia, provides as follows:

'Save as provided in this Act, (a) no sale including sales in execution of a decree of a Civil Court for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue. Gift, exchange or lease of any land of interest therein . ... ... *** ***

shall be valid in favour of a person who is not an agriculturist ............

The first proviso lays down that the. Collector or an officer authorized by the State Government in that behalf may grant permission for such sale, gift, exchange, lease or mortgage on such conditions as may be prescribed. The lease of an agricultural land from an agriculturist to a non-agriculturist is, therefore, prohibited except in a case in which it has been permitted by the Collector or by an officer authorised by the State Government in that behalf. Now, if S. 4 is to be so construed as to give rise to a 'deemed tenancy' from the possession held under an agreement of sale, it would provide an easy way to defeat the provisions of S. 63. An agriculturist would enter into an agreement of sale with a non-agriculturist without the permission of the Collector, hand over possession of his land to him and would inspire the non-agriculturist to make a claim to tenancy. If the claim to tenancy made by a non-agriculturist under the aforesaid circumstances

Succeeds as it should, the provisions of 63 of the Tenancy Act would defeat. We do not think that the Legislature contemplated that S. 4 should be used as a medium for defeating any other provision in the Act. The enforcement of one section of an Act must be consistent with the entire scheme of the Act. To interpret one section in a manner which defeats the provisions of another section is, in our opinion, not a correct canon of construction. Therefore, Ss. 4 and 63 can well stand together in support of each other if possession of and the consequent cultivation 1?y an intending vendee under an agreement of sale are excluded from the area in which S. 4 operates.

16. Next, S. 4 is not an instrument for a dishonest person to dupe a simple, unwary and honest. person. If a dishonest person enters into an agreement of sale with another, pays a small amount towards the earnest money, enters into possession in anticipation of the conveyance of the title to him, deliberately commits breach of the agreement, goes back upon it and claims tenancy when the intending vendor seeks to recover possession of his land from him, what happens? Shall the dishonest person succeed? Will he be able to achieve his evil design successfully under the protection of law? Has Section 4 been enacted to protect the dishonest and to penalise the honest? Is S. 4 an instrument to demolish basic moral values of the society? Is it a perpetrator of fraud and deceit? Is it intended to create chaos in society? As between a small landholder and his intending vendee, is it intended to strip the small landholder naked to clothe his dishonest and crooked vendee? Is it an instrument, which creates poverty or distributes it? Or is it an instrument, which levels down the peaks? If we take the view, which Mr. Peerzada has canvassed, it will be removed from achieving its last mentioned laudable objective and will operate as a fountain of dishonesty and crookedness creating poverty where there is none without removing it from any other social pocket. We do not think that the Legislature, by enacting S. 4 in a very wide language, thought of trapping the honest and the simple for making them prey of the wily and the dishonest. Therefore, in our opinion, S. 4 does not operate in the field of agreements of sale under which possession has been delivered to the intending Vendee.

17 to 20 x X X X X

21. Order accordingly.


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