Gutti vs Mohanlal and others

P.K. Tare, J.

This is an appeal by the defendant against the decree dated 31-12-1962, passed by the 1st Additional District Judge, Jabalpur, in Civil Appeal No. 21-A of 1962, affirming the decree, dated 16-12-1961, passed by the 2nd Civil Judge II Class, Jabalpur, in Civil Suit No. 241-A of 1960.

The field Khasra No. 135 in ''Malik-Makbuza'' right was originally held by Mst. Motibai, who died in the year 1953. During her life time, she used to sub-let the field to the present appellant. However, after her death, the appellant continued in possession without any fresh contract of sub-tenancy. After her death, the respondents Nos. 1 and 2, Mohanlal and Sohanlal are her heirs. It appears that there were other co-owners, but Mst. Motibai used to manage the property on her own behalf and on behalf of the other co-owners. The interest of another co-owner, Mst. Chhuttanbai was purchased by the first respondent. Consequently, the present respondents became owners of the suit field. The sale deeds in that behalf are on record as Ex. P/1 dated 24-8-1959 and Ex. P. 2 dated 14-3-1960.

The respondents issued a quit notice, dated 30-3-1959 (Ex. P/4) intimating the appellant that they did not want to continue the sub-tenancy and that the appellant should deliver back possession of the property by the end of May, 1959. This notice mentions field Khasra No. 135, but in the concluding portion a demand was made for possession of the premises under the impression that the property was house property in respect of which 15 days'' notice ending with the tenancy month would be sufficient. A demand was also made for manse profits for wrongful use and occupation at the rate of Rs. 100 per year. Thereafter the present suit was filed on 7-5-1960 for possession on the allegation that the defendant was a rank trespasser, who had no right to be in possession of the property.

The appellant denied that he was a trespasser. According to him, he was a sub-tenant of Mst. Motibai and by virtue of the Madhya Pradesh Land Revenue Code, 1959, he had become an occupancy tenant vide section 185 of the same. Therefore, the quit notice Ex. P. 4 had no legal effect of determining his sub-tenancy as he had acquired an occupancy status.

The learned Judges of the Courts below held that the defendant was a sub-tenant of Mst. Motibai and that the agreement of sub-tenancy was never renewed by her heirs or by other co-owners. It was further found that the defendant did not acquire any occupancy status. In that view, the quit notice was considered sufficient to terminate the defendant''s sub-tenancy and the plaintiffs were held entitled to claim possession from him. That was the only basis of the decree passed by the Courts below.

In this appeal only one question of law arises whether the appellant can avail of the provisions of section 105 of the Madhya Pradesh Land Revenue Code, 1959, by claiming occupancy status, with the result that his tenancy can be terminated only in the manner provided by section 193 of the said Act. The respondents evidently do not claim that they terminated the tenancy in the manner provided by the said section. Therefore, if it be found that the appellant can invoke section 185 of the Act in his favour, the respondents cannot evidently evict him, except in the manner laid down in section 193, and the present suit, at any late, will have to be dismissed.

As has been found concurrently by the learned Judges of the Courts below, the appellant was not a rank trespasser. He was a sub-tenant of the suit field on the strength of sub-leases granted by Mst. Motibai. These subleases were denied by the respondents. However, they having been held proved, the appellant was undoubtedly a sub-tenant of ''Malik-Makbuza'' holders. Of course he could have obtained occupancy status u/s 41 of the C. P. Tenancy Act, 1920, on the ground of habitual sub-letting. But he did not care to obtain that right, with the result that as long as the C. P. Tenancy Act, 1920, was in force he was a mere sub-tenant of a ''Malik-Mukbuza'' holder.

After the repeal of the said Act by the Madhya Pradesh Land Revenue Code, 1954, which came into force with effect from 1-10-1955, the appellant became an ordinary tenant vide section 166 of that Act. Section 168 of the said Act provided that subject to the terms of the contract, the right of an ordinary tenant, would on his death pass by inheritance of survivorship in accordance with his personal law and further section 167 provided that except as otherwise provided for in this Code, an ordinary tenant would hold land on such terms as might be agreed upon between him and his tenure-holder. Therefore, under the 1954 Code, the ordinary tenancy of the appellant could undoubtedly be terminated. It was so purported to have been terminated by the issue of a quit notice, dated 30-3-1959 (Ex. P. 4). But the appellant continued in possession despite that quit notice; and in the meantime, the Madhya Pradesh Land Revenue Code, 1959 came into force with effect from 2-10-1959. The present suit was filed after that Code had come into effect. Therefore, the question arises whether the appellant can invoke section 185 of the 1959 Code in his favour so as to claim occupancy status.

So far as the Madhya Bharal and Bhopal regions were concerned, the sub-tenants of Jagirdars or Zamindars or other tenure-holders, had been granted special protection so that the tenure-holders could not evict them in spite of decrees or orders passed by the Courts of law. That statutory protection continued till the Madhya Pradesh Land Revenue Code, 1959 came into effect. However, no such protection was granted to sub-tenants who from 3-10-1955, became ordinary tenants, probably in view of the provisions entitling them to apply to the Revenue authorities for conferal of occupancy rights. Be that as it may, the appellant''s status was never that of an occupancy tenant; and at least till 1-10-1959, he was an ordinary tenant of a ''Bhumiswami''.

With reference to the Madhya Bharat region, a Division Bench of this Court in Rao Nihalkaran v. Ramchandra 1963 M P L J 314. laid down that in order to be entitled to protection as occupancy tenant, it was not necessary that sub-lease should have validly subsisted on the date of" coming into force of the said Code. Therefore, even if a decree might have been passed against such a sub-tenant, he being protected by virtue of section 4 of the Madhya Bharat Ryotwari Sub-Lessee Protection Act, 1955 (No. 29 of 1955), section 185 of the Madhya Pradesh Land Revenue Code, 1959, could be invoked by a sub-tenant to claim occupancy status. That was also the view expressed by the same Division Bench in another case of a slightly different type, namely, Khanderao v. Ganpat-rao 1963 M P L 1 666. The view of the Division Bench in the former case has been approved by their Lordships of the Supreme Court in Rao Nihalkaran Vs. Ramgopal, . Thus, with respect to Madhya Bharat and Bhopal regions, the sub-tenant got protection as also occupancy status, although his status of a sub-tenant may have been terminated by a contract or by a decree passed by a Court of law. In that view, a sub-tenant continuing in possession and not actually dispossessed by the tenure-holder, was held entitled to claim the status of an occupancy tenant. The question is whether the same consideration ought to be applied to the Mahakoshal region, where no such statutory protection was afforded to a sub-tenant or an ordinary tenant.

In this connection, I might mention that I had an occasion to consider this aspect in Ritai v. Mohanlal and others Second Appeal No. 482 of 1962 decided on the 13th October 1966. wherein I had expressed the opinion that an ordinary tenant could be evicted according to the terms of the contract between him and his landlord. But although a landlord might have given a notice purporting to terminate the sub-lease, the Madhya Pradesh Land Revenue Code, 1959, intervened so as to confer a better status on the ordinary tenant. Consequently, a tenant holding over or even a person whose tenancy might have been terminated, bur who was not dispossessed, would he entitled to claim the benefit of section 185 of the Madhya Pradesh Land Revenue Code, 1959. Such a person can neither be termed as a trespasser, nor a person holding land without any right. At the most, he might be considered to be a tenant holding over on the principles laid down by their Lordships of the Federal Court in AIR 1949 124 (Federal Court) . and by their Lordships of the Supreme Court in Karnani Industrial Bank Ltd. v. The Province of Bengal and others A I R 1951 S C 286. Or, at any rate, he could claim to be a statutory tenant, as laid down by their Lordships of the Supreme Court in Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, .

Further, there can be no doubt that even though there may not be a written deed, the appellant''s position will be that of a sub-tenant holding from year to year. In a series of cases, the Nagpur Judicial Commissioner''s Court as also the Nagpur High Court has expressed the opinion that where agricultural lands are let out without any registered deed or without creating any permanent tenancy or sub-tenancy, the presumption will be that the letting was from year to year. In this connection, I may only refer to the observations made in Jadoonath Jamadar v. Pathadi 4 C P L R 47, Kasiba v. Vithoba 4 C P L R 56, AIR 1927 320 (Nagpur) . and AIR 1949 265 (Nagpur) . That status cannot be denied lo the appellant merely because of the death of Mst. Motibai and because of the reluctance of the respondents to renew the sub-lease. It is to be noted that they issued a quit notice soon after the death of Mst. Motibai and also filed the present suit soon thereafter.

Further, I may observe that as has been laid down by their Lord ships of the Supreme Court in Ahmad Hafiz Khan v. Mohammad Hasan Khan 1963 M P L J 660. although a village share might, have been attached before the date of vesting as per the provisions of the Madhya Pradesh Abolition of Proprietary-Rights Act, 1950, the same could not be attached and sold because of the bar provided by section 43 of that Act. The contrary view expressed in Govind Prasad v. Pawan Kumar 1955 N L J 678. was not approved of by their Lordships of the Supreme Court. For that reason, section 43 of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, was held to have governed the pending cases. Relying on the said case, a Division Bench of this Court in Ithoba v. Bhagchand L P A No. 9 of 62 decided on the 12th April 1963 (1964 M P L J 221). held that although a decree might have been obtained by a person before the enactment of the Madhya Pradesh Land Revenue Code, 1959, in view of the bar provided by section 165(7)(a) of the said Code, the land be longing to a ''Bhumiswami'' could not be attached and sold, if his holding was less than 10 acres of un-irrigated or less than 5 acres of irrigated land. This would be so despite the fact that the attachment might have been effected before the coming into force of the Madhya Pradesh Land Revenue Code, 1959.The learned Judges dissented from a Full Bench decision of the Punjab High Court, namely, Firm Radhe Sham Roshan Lal Vs. Kundan Lal Mohan Lal, . wherein it was laid down that the right to execute a decree being a vested right, could not be adversely affected, if some legislation was enacted during the pendency of the litigation. The Full Bench had laid down that right to execute the decree having been already obtained, the subsequent legislation could not adversely affect that right.

In my opinion, the same reasoning will be applicable to the question of interpretation of section 185 of the Madhya Pradesh Land Revenue Code, 1959. The said section confers a better right on the ordinary tenant, who prior to the Madhya Pradesh Land Revenue Code, 1954, was a sub-tenant of a tenure-holder. Consequently, even if the suit had been filed before the enact ment of the said Code, I am of opinion that the ordinary tenant would be entitled to take the benefit of the said section, if he has not been actually dispossessed in accordance with the provisions of law. From this point of view, the said section will be available to a person holding over or to a person continuing in possession, who has not been legally dispossessed in accordance with the legal procedure. For this reason, I would reiterate the view expressed by me on the earlier occasion in Ritai v. Mohanlal and others Second Appeal No. 482 of 1962 decided on the 13th October 1966, In the present case, the Madhya Pradesh Land Revenue Code, 1959 had already come into force before the suit was filed. Consequently, the quit notice Ex. P. 4, could not be legally effective so as to terminate the appellant''s status as an ordinary tenant, because in the meantime he had acquired the status of an occupancy tenant. Therefore, I am of opinion that the learned Judges of the Courts below were in error in holding that the appellant could not claim the occupancy status.

As a result of the discussion aforesaid, this appeal succeeds and is accordingly allowed with costs throughout. Counsel''s fee in this Court according to schedule or certificate, whichever be less.