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Smt. Chinti W/O Daya Ram Vs. Tarlok Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberMisc. Second Appeal No. 49 of 1969
Judge
Reported inAIR1972HP91
ActsTenancy Law; ;Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954 - Sections 2(17), 11, 11(1), 11(5) and 54
AppellantSmt. Chinti W/O Daya Ram
RespondentTarlok Chand and ors.
Appellant Advocate Kapil Dev Sud, Adv.
Respondent Advocate R.K. Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredIn Hans Raj v. Shrimati Brahmi Devi
Excerpt:
- .....95) where before the ejectment of the tenant was ordered, the tenant applied for the purchase of tenancy land under section 18 of the punjab security of land tenures act, the purchase application was dismissed after the ejectment order was passed upon which it was contended that the relationship of landlord and tenant did not come to ah end merely on the passing of the ejectment order as the tenant was still in possession of the land and the purchase application was maintainable, held, 'there was no relationship of landlord and tenant between the parties after the date on which order for ejectment of tenant was passed.'it was a case under sections 9 and 18 of the punjab security of land tenures act. in this case one smt. padma wati gave the land on rent to the petitioner. on 30th june,.....
Judgment:

Chet Ram Thakur, J.

1. In this appeal by the tenant against the order of the learned District Judge, Mahasu, dismissing her appeal against the order of the Compensation Officer the only point that falls for determination is whether the relationship of landlord and tenant comes to an end as soon as the decree for ejectment is passed against the tenant in favour of the landlord by the Assistant Collector for non-payment of the arrears of rent.

2. The respondents are owners of the land comprised in Khasra Nos. 70, 102 106 and 107, situate in village Khalini, Tahsil Kasumpti, District Mahasu. This land was under the tenancy of Smt. Chinti and her son. The tenant had fallen in arrears of rent amounting to Rs. 600/- and, therefore, the land-owners filed a suit against Smt. Chinti and her son Parma Nand on 1st October, 1963 claiming the arrears of rent and for their ejectment. When this suit was pending in the Court of the Assistant Collector, First Grade, Mahasu, the tenant made an application on 4th April, 1967 under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act (hereinafter referred to as the Act) for acquisition of the proprietary rights of the land. The landowners opposed the application on the grounds that the applicant was in arrears of huge amount of rent and they had filed a suit in the Revenue Court for ejectment and also to recover the arrears of rent and that the suit was likely to be decreed. Further that some of the land-owners were minors and they have no other means of livelihood and they were entitled to the benefit of Sub-section (2) of Section 11 of the Act. It was also contended that the latest revenue entry did not disclose that Smt. Chinti was a tenant under them and as such she was not entitled to file the application lor acquisition of proprietary rights.

3. During the pendency of the application under Section 11 of the Act, the Assistant Collector, First Grade, Kasumpti, passed a decree for ejectment against Smt. Chinti and Parma Nand on 30th December, 1967. After the passing of this decree for ejectment of the tenant from the land, the landowners made an application before the Compensation Officer to the effect that in view of the decree for ejectment an additional issue was necessary as to what would be the effect of the ejectment decree on the application of Smt. Chinti made under Section 11 of the Act. The Compensation Officer framed the additional issue as follows :--

'Whether the respondents have obtained the decree for ejectment of the applicant from the Assistant Collector 1st Grade (R. A.) Kasumpti and if so what is the effect of such a decree on these proceedings pending decision of the appeal filed against that decree in the Court of the Collector, Mahasu? O. P. R.'

4. In the meanwhile, the tenants feeling aggrieved from the ejectment decree filed an appeal in the Court of the Collector. Before the application under Section 11 of the Act was disposed of finally the Collector dismissed the appeal against the decree of ejectment passed by the Assistant Collector against Smt. Chinti and Parma Nand. The tenants again went in revision against the order of the Collector to the Financial Commissioner and it is stated at the Bar that this revision is still pending.

5. The Compensation Officer came to the conclusion that the applicant Smt. Chinti had ceased to be a tenant with effect from 30th December, 1967 when the ejectment decree had been passed against her and for that reason her application under Section 11 of the Act was not maintainable and he, therefore, dismissed the application on 28th Sept., 1968. Against this order the tenant-applicant went in appeal to the learned District Judge, Mahasu. who considered the Question as to what is the effect of the ejectment decree passed against the appellant during the proceedings under Section 11 of the Act. Relying on Giani v. Financial Commissioner, Punjab, (1969 Lah LT 50), Banarsi Dass v. Devi Dayal (1967-69 Pun LR 417) and Inder Parkash v. The Financial Commissioner, Revenue, Punjab, (1969 Punj LJ 95) he came to the conclusion that mere passing of an order or decree of ejectment by a competent authority or a Court puts an end to the relationship of landlord and tenant and further that the tenant must retain his qualification as a tenant at the time when the compensation amount is determined and paid into the treasury. So according to him the tenancy had terminated on the passing of the decree for ejectment irrespective of the fact that the decree had not been executed and the tenant had not been dispossessed. Agreeing with the order of the Compensation Officer he. therefore, dismissed the appeal. Hence, Smt. Chinti has filed this second appeal in this Court.

6. The learned counsel for the appellant has tried to canvass that a tenant unless he is ejected in execution of a decree does not cease to be a tenant as the Act is a welfare legislation enacted with a view to reform the law relating to tenancies and the same should have been construed in favour of the tenant. He has drawn my attention to several provisions of the Act.

7. 'Tenant' has been defined in Sub-section (17) of Section 2 of the Act as 'a person who holds land under another person, and is. or but for a contract to the contrary would be liable to pay rent for that land to that other person. Hence according to this definition, a tenant is a person who not only holds the land, but has also a right to hold the land. The definition of 'tenant' as given in Section 4 (5) of the Punjab Tenancy Act is exactly the same. From this what I can conclude is that as soon as a decree for ejectment is passed he ceases to have a right to hold the land as the decree declares the termination of the tenancy.

8. A tenant is liable to ejectment on the grounds mentioned in Section 54 of the Act. According to the learned counsel in the case of a tenant ejected under Clauses (e). (f) and (g) of Section 54 of the Act. if the land-owner does not bring the land under his personal cultivation within one year after such ejectment, the tenant shall on application made in this behalf to the prescribed authority be restored to the possession of such land meaning thereby that the intention of the legislature is that he continues to be a tenant even after the ejectment decree and that the tenant has been given the right to apply for the restoration of the possession in case the land-owner fails to till the land within one year of his ejectment. According to him if the intention of the legislature had been that after ejectment the tenancy was terminated then the word 'tenant' should not have been used in the section. But I am afraid if this contention is correct. A tenant has been given the right to apply for restoration of the possession of the land, In case he had been ejected consequent to the area being reserved by the landlord for self-cultivation and he fails to put the same under personal cultivation within a year from the date of such ejectment. The use of the word 'tenant' to such a person does not signify that even after ejectment, the person earlier tilling the land did not cease to be a tenant.

9. He has also referred to the other sections about relinquishment, abandonment, procedure of ejectment, etc., to stress the point that in these sections the word 'tenant' has been used and the purport of his argument is that in all these sections instead of tenant there should have been used, 'a person' if it were the intention of the legislature not to protect the right of the tenant.

10. Section 55 says that 'a tenant shall not be ejected otherwise than in execution of a decree for ejectment, except in the following cases, namely--

(a) when a decree for an arrear of rent in respect of his tenancy has been passed against him and remains un-satisfied:

Provided that in respect of any arrears of rent due prior to the 26th February, 1953, the 'tenant shall not be liable to be ejected if he pays half of the amount of arrear on or before the 26th January, 1957.

(b) When he has been given the land by ejecting on or after the fifteenth day of August, 1952, a tenant to whom the provisions of Clauses (a) to (g) of the last foregoing section, could not have been applied.'

From this section it is sought to be inferred that a tenant remains a tenant even after the passing of a decree of ejectment and his tenancy is terminated only after he is ejected in execution of the decree. Further that if the tenant pays the arrears for which a decree has been passed then the tenant is not liable to ejectment and the tenancy is not determined. According to this section . a tenant cannot be ejected except when there is a decree for ejectment or in the following cases when the decree for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied and then in that case a decree for ejectment has got to be secured. But that does not mean that the tenancy subsists even after the decree for ejectment has been passed. The relationship of landlord and tenant comes to an end. the moment it is declared that he is liable to ejectment and his actual continuance in possession of the land till his physical dispossession does not mean that he is a tenant for all intents and purposes. The execution of the ejectment decree is merely a step to give effect to that determination that the tenancy had ceased. It does not mean that till the tenant is actually or physically dispossessed from the land he continues to be a tenant irrespective of the fact that the decree for ejectment has been passed by the Revenue Court. This section is quite similar to Section 42 of the Punjab Tenancy Act.

11. Section 59 of the Act provides for the time for ejectment. According to this section the order of ejectment shall not be executed between the first day of May and the fifteenth day of June and this time has been fixed because the crops are generally harvested between these dates and the land falls vacant. The tenant who had sown the crop is allowed the benefit of the crop that he had sown. According to Section 60, the Court may instead of making a decree for ejectment of a tenant order him to remedy that injury within a period to be fixed in the order or order him to pay into the Court such compensation as the Court thinks fit. Thus, if a case falls under either of these clauses it is not necessary to eject the tenant if there is some other way in which the right of the landlord can be recognized or satisfied.

12. According to Section 61 also the Court executing the decree would ordinarily allow the tenant to reap the crop before the decree is enforced excepting the land on which no crop is growing. Section 62 speaks about relief for wrongful dispossession or ejectment of a tenant. The tenant is entitled to recovery of possession on making an application within a stipulated period in case he is ejected from the land in his tenancy without his consent. It also says that if he is dispossessed in execution of a decree then that cannot be said to be a wrongful dispossession without his consent.

13. Section 63 provides for penalty for wrongful dispossession of a tenant. Section 78 provides for relief in case of ejectment before determination of compensation.

14. From the perusal of all these provisions of the Act it would have been noticed that there is a safe-guard to the rights of the tenant. But if a decree for ejectment is passed he is liable to ejectment and the tenancy comes to an end. The safe-guard has been provided so that a landlord may not eject the tenant at his will. A tenant cannot be ejected if he does not make a default as contemplated under Section 54 which makes him liable for ejectment. From the scheme of the Act it does not follow that the tenant can hold on or continue as a tenant even if he makes a default which entails a liability for ejectment.

15. The two authorities Sureshwari Datt v. Parma, (AIR 1963 Him Pra 34) and Mohan Lal v. Mohun Ram, (AIR 1966 Him Pra 61) relied on by the appellants' counsel do not assist him. The former case was with regard to a fixed term tenancy and the point in that case was whether a tenant who remains in possession after the expiry of the term ceases to be a tenant merely by efflux of time and whether a suit for his ejectment can be entertained by a Civil Court or a Revenue Court. In the latter case the question was of wrongful dispossession. So it was in the context of these facts that the principle in that authority was enunciated. He has also relied on (1967-69 Punj LR 417). But this authority also does not support the appellant. He has drawn my attention to paragraph 7 of the iudgment in which a reference has been made to an authority Brij Mohan v. Faqir Chand, decided on 1-12-1965 by Grover. J., of the Punjab High Court (as he then was) in which Grover, J., has held that a tenant against whom an eviction decree has been passed still continues to be a tenant. This authority was not followed in 1967-69 Punj LR 417, because the facts in that case were different. Hence this authority because of its dissimilar facts is not applicable to the instant case also.

16. According to Section 11 (I) of the Act, before a person can make an application he must be a tenant of the land in which he wants to acquire proprietary rights. After presentation of the application under Sub-section (3) of Section 11 the compensation officer shall determine the amount of compensation payable to the landowner in respect of the land in accordance with the provisions of Sections 12 and 13. The tenant may pay the amount of compensation as determined by the compensation officer under Sub-section (3) either in one lump sum or in such number of instalments not exceeding ten as may be determined by the compensation officer. After the amount of compensation has been paid the compensation officer shall grant a certificate in the prescribed form declaring the tenant to be the landowner in respect of the land specified in the certificate. So it is only on and from the date of the grant of the certificate under Sub-section (5) that the tenant shall become the owner of the land comprised in the tenancy and the right, title and interest of the landowner in the said land shall stand determined.

Hence it is a condition precedent that till the certificate is granted to him he must be a tenant, which In other words means that he must be a tenant on the date of making an application under Section 11 and he must be a tenant at the time of the determination of the compensation and he must also be a tenant at the date of the payment of the compensation and issuing of a certificate to him. In case he loses this status before the determination of the compensation or before the grant of the certificate he cannot acquire proprietary rights. So what the section contemplates is that the relationship of landlord and tenant must exist between the parties at all these stages. Since after the passing of the decree he has ceased to have the right to hold the land, therefore, the tenancy has come to an end. According to (1969 Punj LJ 95) where before the ejectment of the tenant was ordered, the tenant applied for the purchase of tenancy land under Section 18 of the Punjab Security of Land Tenures Act, the purchase application was dismissed after the ejectment order was passed upon which it was contended that the relationship of landlord and tenant did not come to ah end merely on the passing of the ejectment order as the tenant was still in possession of the land and the purchase application was maintainable, held, 'there was no relationship of landlord and tenant between the parties after the date on which order for ejectment of tenant was passed.'

It was a case under Sections 9 and 18 of the Punjab Security of Land Tenures Act. In this case one Smt. Padma Wati gave the land on rent to the petitioner. On 30th June, 1962, Smt. Padma Wati obtained an order of ejectment of the petitioner from the Assistant Collector, First Grade, Hoshiarpur, and it was maintained by the Collector, Additional Commissioner, Jullundur Division, and the Financial Commissioner. In the meantime, on 28th June. 1962, an application was made by the petitioner for the purchase of the land under Section 18 of the Punjab Security of Land Tenures Act, 1953 to the Assistant Collector, 1st . Grade, Hoshiarpur, on the ground that he had held this land as a tenant for over six years and was still in possession of the same. This application was dismissed by the Assistant Collector on 8th November, 1962. Against this order, the petitioner went in appeal before the Collector but it was also rejected by the Additional Commissioner, Jullundur Division, on 9th March, 1964. A further revision to the Financial Commissioner also met the same fate on 5th July, 1965, hence a writ petition was filed by the petitioner before the Punjab and Haryana High Court. It was contended by the petitioner's counsel before the High Courtthat relationship of landlord and tenant did not come to an end merely on the passing of the eiectment order as the petitioner was still in possession of the land and the purchase application of the land was maintainable.

Repelling this contention of the petitioner the learned Judge laid down the above quoted principle. The phraseology of Section 11 of the Act and Section 18 of the Punjab Security of Land Tenures Act is almost identical and this authority is on all fours with the case in hand. Het Ram v. Dal Chand, (AIR 1933 Lah 481) is a preemption case in which it had been held that a pre-emptor should have his right to pre-empt on three important dates, namely. (11 the date of the sale; (2) the date of the institution of the suit; and (3). the date of the first Court's decree. However, this is a case under the Punjab Pre-emption Act. But the principle can be usefully applied to the present case also that a tenant under the Act must also possess the qualification at the time of the making of an application, at the time of depositing the compensation amount and at the time of the grant of the certificate and if he loses his status at any time before the grant of the certificate or the decision of the application he ceases to be a tenant so as to avail of the right provided to a tenant under Section 11 of the Act.

The respondent's learned counsel has also placed reliance on Suriit Singh v. Gurnam Singh, (1964 Cur LJ 480) (Puni) which is also a case under the Punjab Pre-emption Act and it also lays down the same principle as in AJR 1933 Lahore 481. Reliance is also placed on an authority Bishan Singh v. Kishan Singh, (1968 Puni LJ 279) decided by the Financial Commissioner Punjab holding that 'once the tenant was ordered to be ejected, he could not then purchase the land under Section 18 of the Punjab Security of Land Tenures Act.' According to Raman Menon v. Mammali, (AIR 1918 Mad 1159) 'a decree in eiectment, which recognizes the termination of the tenancy and decrees possession to the landlord, operates as a severance of the relationship between the parties as landlord and tenant and subsequent possession by the tenant is wrongful and must be deemed to be the possession of a trespasser, unless there are express and overt acts of the parties creating the relationship afresh'. In Hans Raj v. Shrimati Brahmi Devi, (1960 Pun LJ 71) it has been laid down that--

'The moment the court on the landlord's petition passes a decree or order for ejectment, it clearly, does no more than to declare that henceforth the parties cease to be landlord and tenant. The fact that the decree or order has to be executed in order to dispossess the tenant and put the landlord in physical possession does not and cannot mean that till the decree or order is not executed the status of the parties qua one another has not been determined. The decree or order determines the rights of the parties inter se and the execution of that decree or order merely gives effect to that determination. Thus on first principles it cannot but be held that the final order of eiectment puts an end to the relationship of landlord and tenant and the tenant cannot after the date of the order be held to be occupancy tenant on the ground that the tenant remained in possession or that the tenant was illegally dispossessed in execution of the order.'

In the light of the aforesaid authorities which though under different provisions of different acts, it is abundantly clear that the relationship of landlord and tenant comes to an end the moment a decree for ejectment is passed by the Court and the execution of the decree is only to give effect to the determination which has already been made by the Court. If after the decree the tenant continues in possession then under Section 30 of the Act, he is liable to pay compensation for use or occupation of the land at the rate of the rent as was payable in the preceding agricultural year.

17. In the light of the above I am of the view that the tenancy, therefore, had been determined on the passing of the decree for ejectment by the Revenue Assistant. It has. further, been contended by the learned counsel for the appellant that because of the appeal having been filed before the Collector, the order of the trial Court had been suspended. It may be stated here without discussing further that not only the Collector but even the Commissioner has dismissed his appeal and now it is only a revision which is lying pending before the Financial Commissioner. The decree of the Courts below does not become inoperative merely because a revision has been filed by the appellant before the Financial Commissioner. If he succeeds in that revision he is not precluded again from applying for the acquisition of the proprietary rights in the land and the question of res judicata does not apply in these proceedings.

18. The net result of the aforesaid discussion is that the appeal fails and is hereby dismissed with costs.


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