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Damodar Vs. Smt. Son Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 186 of 1984
Judge
Reported inAIR1986Raj9
ActsRajasthan Tenancy Act, 1955 - Sections 42, 46, 46A, 175 and 183(1); Rajasthan Tenancy (Amendment) Act, 1970
AppellantDamodar
RespondentSmt. Son Dei and ors.
Advocates: K.K. Mehrish, Adv.
DispositionAppeal dismissed
Cases ReferredCentral Bank of India v. Their Workmen
Excerpt:
.....of section 183. we are clearly of the view that section 183 permits a member of scheduled caste or scheduled tribe to file a suit against a trespasser, who is not a member of scheduled caste or scheduled tribe, if such transaction is illegal according to sections 42 and 46a of the act. usually, if not invariably, such an act contains a preamble and also the word 'declared' as well as the word 'enacted'.a remedial act, on the contrary, is not necessarily retrospective; ' 8. we see no force in the above contention as well of mr. he had claimed compensation on the ground of breach of instructions, he did not in the alternative claim on the ground of failure of consideration, the amount credited by the defendants in the promissory note account and which credit disappeard by reason..........to ejectment, subject to the provision contained in sub-section (2), (on the suit of the person or persons entitled to eject him) as tenant, and shall be further liable to pay as penalty for such agricultural year, during the whole or any part whereof he has been in such possession, a sum which may extend to fifteen times the annual rent.(2) in case of land which is held directly from the state government or to which the state government, acting through the tehsildar, is entitled to admit the tresspasser as tenant; the tehsildar shall proceed in accordance with the provisions of section 91 of the rajasthan land revenue act, 1956 (rajasthan act 15 of 1956).it may be mentioned at this stage that in sub-section (1) of section 183 as mentioned above, the words 'on the suit of the person or.....
Judgment:

Kasliwal, J.

1. Brief facts leading to this appeal are that Chhotey and Chhidda filed a civil suit under Sections 183 and 188 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act') against Damodar and Samunder Singh for parpetual injunction and eviction in respect of agricultural land Khasra Nos. 1898, 1899/1, 1899/2, and 1958 corresponding to new Khasra Nos. 2017 and 2022 situate at village Bagthar Tehsil-Baseri District Bharatpur (now District Dholpur). The case of the plaintiffs was that they were members of Scheduled Caste and Khatedar tenants of the land in question, while the defendants were not members of Scheduled Caste. It was further alleged that defendant No. 1 Damodar wrongly got entries made in Samvat year 2019 as sub-tenant in whole ofKhasra Nos. 1898 and 1958 and half of Khasra No. 1899/1. The plaintiffs had never given the aforesaid land for cultivation to the defendants and in the alternative, if any land was given on sub-lease, the same was illegal, void ab initio and as such the plaintiffs were entitled to obtain a permanent injunction restraining the defendants not to interfere in the cultivation of plaintiffs and in case it was found that the defendants had come into possession of the lands, then they should be evicted from such land. Defendant No. 2 Samunder Singh filed the written statement and admitted the allegations made by the plaintiffs. Defendant Damodar filed a written statement and contested the suit and his main contention was that the plaintiffs themselves had given the lands in dispute to Ratan Singh father of defendant Damodar on Jan., 12, 1961 by executing Patta and the defendants were also inducted as sub-tenants and they obtained possession of the said lands on partition between them and Ratan Singh.

2. The Assistant Collector, Dholpur, arrived at the conclusion that the plea of the defendant was justified that Ratan Singh was inducted as sub-tenant by the plaintiffs by means of the Pattas Ex. D1 and D2. He also arrived at the conclusion that Damodar defendant was found to be sub-tenant and in continuous possession from Samvat 2118. The Assistant Collector, in these circumstances, dismissed the suit by his order dated March 28, 1969. On appeal by the plaintiffs, the Revenue Appellate Authority, Alwar by judgment dated Feb. 27, 1973 allowed the appeal and held that the plaintiffs were members of Scheduled Caste and any sublease executed by them in favour of Ratan Singh was contrary to the provisions of Section 46A of the Act. He further found that in view of an amendment made in Section 183 of the Act, the plaintiffs were entitled to bring a suit against the defendants, who were trespassers as subletting was illegal. Defendant Damodar filed a second appeal in the Board of Revenue but the Board of Revenue dismissed the second appeal by order dated March, 1, 1975.

3. Damodar, in these circumstances, filed a writ petition under Article 226 of the Constitution of India and the learned single Judge by order dated Feb. 2, 1984, dismissed the writ petition. Aggrieved against the orderof the learned single Judge, Damodar has filed the present appeal.

4. Mr. Mehrish, learned counsel for the appellant, argued that even if it may be admitted that sub-tenancy granted in favour of the defendants was illegal as being contrary to the provisions of Section 46-A of the Act, no suit could have been filed by the plaintiffs under Sections 183 and 188 of the Act. The only remedy in this regard was provided under Section 175 of the Act and under that section both the transferor as well as the transferee were liable to ejectment on the application of the landholders i.e. the State of Rajasthan in the present case. It was submitted that Section 175 was a section specially providing for ejectment for illegal transfer or sub-letting and in case of such special provision, the general provision contained in Section 183 for ejectment of trespassers could not be applied. In order to appreciate the argument of Mr. Mehrish, we would reproduce the relevant provision of the Rajasthan Tenancy Act as applicable at the relevant time. Section 42, Section 46-A, Section 175(1) and Section 183 of the Act are reproduced hereunder--

'Section 42-- General restrictions on sale, gift & bequest-- The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if--

(a) -- it is not of a survey number except when the area of the survey number so sold, gifted or bequeathed is in excess of the minimum area prescribed for the purpose of Sub-section (1) of Section 53, in which case also the area not transferred shall not be fragmented.

Provided that this restriction shall not apply if the area so transferred becomes merged into a contiguous survey number.

Provided further that this restriction shall not apply if the sale, gift or bequest is of the entire interest of a tenant in the survey number.

(b) -- such sale, gift or bequest is by a member of a Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe.'

'Section 46A. Special provision for letting or subletting by members of schedule castes and scheduled tribes -- Notwithstanding anything contained in Sections 44, 45 and 46, no person whois a member of a scheduled caste or a scheduled tribe shall let or sub-let the whole or any part of his holding under the said sections to any person who is not a member of a scheduled caste or a scheduled tribe.'

'Section 175-- Ejectment for illegal transfer or sub-letting-(1)-- If a tenant transfers or sub-lets the whole or any part of his holding otherwise than in accordance with the provisions of this Act and the transferee or sub-lessee has entered upon or is in possession of such holding or such part in pursuance of such transfer or sublease, both the tenant and any person who may have thus obtained, or may thus be in possession of the whole or any part of the holding shall, on the application of the landholder, be liable to ejectment from the area so transferred or sub-let.

(2) to (5)......'

'Section 183.-- Ejectment of certain trespassers--

(1) Notwithstanding anything to the contrary in any provision of this Act, a trespasser who has taken or retained possession of any land without lawful authority shall be liable to ejectment, subject to the provision contained in Sub-section (2), (on the suit of the person or persons entitled to eject him) as tenant, and shall be further liable to pay as penalty for such agricultural year, during the whole or any part whereof he has been in such possession, a sum which may extend to fifteen times the annual rent.

(2) In case of land which is held directly from the State Government or to which the State Government, acting through the Tehsildar, is entitled to admit the tresspasser as tenant; the Tehsildar shall proceed in accordance with the provisions of Section 91 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956).

It may be mentioned at this stage that in Sub-section (1) of Section 183 as mentioned above, the words 'on the suit of the person or persons entitled to eject him', have been substituted in place of the words 'on the suit of the person or persons entitled to admit him as tenant' vide Section 2 of Rajasthan Act No. 17 of 1970 published in Rajasthan Gazette Extraordinary Part IV dated Nov. 27, 1970.

5. The scope of Sections 175 and 183 is entirely different. Section 175 envisages for ejectment for illegal transfer or sub-letting in violation ofthe provisions of the Act and on the application of the landholder both the tenant as well as the transferee or sub-lessee are liable to ejectment from the area so transferred or sublet. Under Section 175 it is only landholder who is entitled to move an application for ejectment. So far as Section 183 is concerned it governs the case of ejectment of trespassers. The above section starts with a non obstante clause 'Notwithstanding anything to the contrary in any provision of this Act,' and permits any person or persons entitled to eject the trespasser as tenant to file a suit. There can be no manner of doubt that Section 42(b) makes a sale, gift or bequest as void, if it is made by a member of Scheduled Caste in favour of a person, who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe. Similarly Section 46-A provides that notwithstanding anything contained in Sections 44, 45 and 46 no person, who is member of Scheduled Caste or Scheduled Tribe shall let or sub-lease the whole or any part of his holding under the said sections to any person who is not a member of a Scheduled Caste or a Scheduled Tribe. Thus, there is total prohibition of any transfer by sale, gift or bequest or sub-letting by a member of a scheduled caste or a scheduled tribe to any person, who is not a member of a Scheduled Caste or a Scheduled Tribe. Thus, any person not being a member of Scheduled Caste or a Scheduled Tribe coming into possession of the land of any member of Scheduled Caste or Scheduled Tribe will be considered as a trespasser. Section 183 not only permits the members of Scheduled Castes or Scheduled Tribes but also other persons to file a suit against the trespasser. As already mentioned above the section itself starts with a non obstante clause and overrides other provisions of the Act, if the same are contrary to the provisions of Section 183. We are clearly of the view that Section 183 permits a member of Scheduled Caste or Scheduled Tribe to file a suit against a trespasser, who is not a member of Scheduled Caste or Scheduled Tribe, if such transaction is illegal according to Sections 42 and 46A of the Act. Such member of Scheduled Caste or Schedule Tribe cannot file an application under Section 175 of the Act and his remedy only lies under Section 183 of the Act. We find no force in the argument of Mr. Mehrish that in theexistence of Section 175, no suit can be filed by a member of Scheduled Caste or Scheduled Tribe for ejecting a trespasser under Section 183 of the Act.

6. It was next contended by Mr. Mehrish that the present suit was filed on May, 27, 1966 and on that date the suit under Section 183 could have been filed by person or persons entitled to admit the trespasser as tenant. It is contended that the amendment in Section 183 introducing the words 'on the suit of the person or persons entitled to eject him 'in place of on the suit of person or persons entitled to admit him as tenant' were substituted on Nov., 27, 1970 and as such the plaintiffs were not entitled to bring the present suit. It is contended that as there is prohibition under Sections 42 and 46-A on the members of Scheduled Castes and Scheduled Tribes to admit any person as tenant, who were not members of Scheduled Castes or Scheduled Tribes as such the law as stood on the date of suit did not permit them to bring a suit under Section 183 of the Act. It is submitted that the amendment has not been made retrospective and further no amendment has been made in the plaint. It is further submitted in this regard that even if such law may be considered as remedial, it cannot be applied retrospectively. Reliance is placed on the following observations in Central Bank of India v. Their Workmen, AIR 1960 SC 12 (at p. 27) :-

'For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble and also the word 'declared' as well as the word 'enacted'. A remedial Act, on the contrary, is not necessarily retrospective; it may be either enlarging or restraining and it takes effect prospectively, unless it has retrospective effect by express terms or necessary intendment.'

7. Reliance is also placed on Trojan & Co. v. RM.N.N. Nagappa Chettiar, AIR 1953 SC 235, in which it has been observed as under (at p. 240) : --

'The decision of a case cannot be based ongrounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for.'

8. We see no force in the above contention as well of Mr. Mehrish. It is no doubt correct that an amendment has been made in Section 183 of the act on Nov., 27, 1970 while the suit was filed on May, 27, 1966. This amendment had come into force when the appeal, was pending before the Revenue Appellate Authority. The appellate Court was certainly entitled to take note of subsequent change in law. By this change in law neither the plaintiffs were seeking any change in relief nor any change in the pleadings. By this amendment in Section 183, defect, if any, for bringing a suit by the plaintiffs was removed and they had become entitled to bring the suit as being person or persons entitled to eject the trespasser as tenant. The case of Trojan & Co., (AIR 1953 SC 235) (supra) is a case where the plaintiff had pleaded that the transaction was not authorised by him and that it had been made in contravention of his instructions. He had claimed compensation on the ground of breach of instructions, he did not in the alternative claim on the ground of failure of consideration, the amount credited by the defendants in the promissory note account and which credit disappeard by reason of the failure of the suit on the promissory note. It was argued before the appellate bench of the High Court that having pleaded one thing, and having led evidence in support of that thing, but later on having forced to admit in the witness-box that the true state of things was different, the plaintiff had disentitled himself to relief as regards these transactions and he cannot be granted the relief that he had not asked for. The High Court negatived this contention on the ground that though the claim for damages in support of a particular transaction may fail, that circumstance was no bar to the making of a direction that the defendant should pay the plaintiff the money actually due in respect of that particular transaction. The Supreme Court did not uphold the above view of the High Court on this point and held that it was well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. It was further observed that without anamendment of the plaint, the Court was not entitled to grant relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.

9. The facts as mentioned above clearly indicates that in the case before the Supreme Court the plaintiff wanted to make out a case on grounds outside the pleadings of the parties and to ask for a relief for which no prayer was made in the plaint. The situation before us is entirely different. In the case before us the change has been made in the law itself by the legislature and the result of which is that the plaintiffs have been made entitled to bring the suit. Revenue Appellate Authority in these circumstances, was perfectly justified to take note of subsequent change in law and as there was no change in relief nor on any grounds in the plaint as such there was no necessity of any formal amendment. Be that as it may, the change in law was made on Nov. 27, 1970 and the plaintiffs have been held entitled to bring the suit by the Revenue Appellate Authority, Board of Revenue as well as the learned single Judge and there is hardly any ground or justification in the arguments advanced by Mr. Mehrish. That apart, the object behind putting a restriction on any transfer or sublease by a member of Scheduled Caste or Scheduled Tribe to members not belonging to such Scheduled Caste or Scheduled Tribe, is to protect the interest of weaker sections of the society. The appellant being not a member of Scheduled Caste or Scheduled Tribe and as trespasser has already remained into illegal possession for more than two decades and as such also there is no ground or justification for invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

10. Thus, we find no force in this appeal and it is dismissed summarily.


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