Jagdish Singh and Others vs Yeshwant Singh and Others

Dixit, J.—These two applications under Article 227 of the Constitution Of India are directed against a common decision of the Beard of Revenue in two revison petitions arising out of preeceeding instituted by the opponents u/s 163 Kanoon Ryatwari Gwalior State Samvat 1974 for the possession of certain lands. The undisouted facts are that the Applicant was a Jagirdar and the opponent were his Dakhilkar tenants of certain lands in a Ryatwari village.

They were also Gair Dakhalkar tenants of the Applicant with regard to certain other lands. The tenants made a default in the payment of rent. The Applicant, therefore, gave notices to the opponent to give up possession of the lands and when they failed to do so, the Applicant himself took possession of the lands in question.

Thereupon the opponents filed before the Tehsildar two separate applications u/s 163 for their reinstatement. The Tehsil Court decreed the opponents claim for possession of the lands. The decision of the Tehsil Court was upheld in appeals by the Collector and Commissioner and in revision by the Board of Revenue, and other revenue courts have proceeded on the view that even if the opponents tenancy rights were extinguish ed by their default in the payment of rent, the Applicant could not take the law into his own hands and forcibly dispossess the opponents that the Petitioner should have applied u/s 137 for the ejectment of the defaulting tenants and that as the non-Applicants were, in fact, in possession It, of the lands, they were entitled to get back the possession of the lands irrespective of the fact whether their tenancy rights were subsisting or had been extinguished.

Before us the argument of Mr. Bhagwandas Gupta learned Counsel for the Petitioner was that when the non-Applicants fell in arrears of rents, their tenancy rights and their right to remain on the lands terminated u/s 82; that thereafter the Applicant landlord was entitled to dispossess the opponents and resume possession of his own property, even by force if necessary and that under the. Kanoon Ryatwari or under any ether rule or law it was not obligatory for the Applicant to resort to court and obtain an order for possession be fore re-entering the land.

Learned Counsel relied on Dhirendra Kumar Vs. State of West Bengal and Another, and State of West Bengal Vs. Birendra Nath Basunia and Others, . It was further said that the Petitioner took possession of the lands as the right to enter arose on the extinguishment of the tenancy of the opponents and that, therefore, the Applicant''s possession of the lands even if obtained by force could not be said to be wrongful for the purposes of Section 163 and, therefore, no order of restoration of possession of the lands could be made in favour of the tenants opponents.

In reply Mr. Mungre did not dispute that the opponents'' tenancy rights became extinguished u/s 82 when they fell in arrears of rent. He, however, submitted that Sections 133 to 138 of Kanoon Ryatwari prescribe the procedure for the possession of the land, from a defaulting tenant that it was incumbent on the Applicant to follow this procedure and if without applying to the competent court for the possession of the lands the Applicant forcibly dispossessed the opponents, then his possession would be a wrongful possession for the purposes of Section 163.

Mr. Mungre further argued that in an inquiry u/s 163 the question of title of the landlord to re-enter the land could not be investigated and all that the court "had to see was whether the party complaining of dispossession was or was not in fact in possession of the land prior to his complaint.

In this case there is no dispute as to the fact that the opponents who were the tenants or the Petitioner fell in arrears of rent, It is also not disputed that u/s 82 (3) the tenancy rights are extinguished, if a tenant is in arrears of rent. It, therefore, follows that the Petitioner landlord acquired a right to re-enter the lands when the opponents'' made a default in the payment of rent. The question that arises for consideration is whether under the Kanoon Ryatwari or under the general law it was obligatory for the Applicant to approach a competent court and obtain an order for possession of the lands from the opponents.

The Ryatwari Act of Samvat 1974 does not contain any such provision, In fact that Act is silent as to the remedy available to a landlord desiring to obtain possession of the land from a tenant whose tenancy has been extinguished. Sections 133 to 138 to which learned Counsel for the non-Applicants made a reference speak of the recovery of arrears of rent and net of the ejectment of a defaulting tenant.

The fact that u/s 137 recovery of anears of rent can be made inter alia by ejecting a tenant does not mean that a landlord desiring to eject defaulting tenant must always first take steps for the recovery of the arrears of rent and must pray for the recovery by the method or ejecting the tenant to the exclusion of the other methods of recovery specified in Section 137.

That Sections 133 to 138 do not lay down any procedure for the dispossession of a defaulting tenant becomes obvious enough when it is no red that no proceedjng u/s 137 can be taken if the tenant pays up the arrears of rent after the landlord makes an application u/s 134 for the recovery of the arrears of rent. To say that a defaulting tenant can be ejected only u/s 137 would then amount to holding that a landlord has been no right to eject a tenant if he pays up the arrears of rent.

Clearly it cannot be maintained that when once tenancy is extinguished u/s 82 by reason of the tenant''s default in the payment of rent and the landlord has acquired a right to re-enter the land, the tenancy is revived again and the landlord''s right is lost the moment the tenant pays up the arrears of rent. Such an argument would be clearly untenable in the face of the clear language of, Section 82. There is thus no substance in the contention of the learned Counsel for the non-Applicants that the Ryatwari Act itself lays down a procedure for the ejectment of a defaulting tenant and that it was obligatory for the Applicant to follow this procedure instead of forcibly taking possession of the lands.

As regards the question whether under the general law it was incumbent on the Petitioner landlord to resort to court for the dispossession of the opponents. I think that must also be answered in the negative. The true position is that where a right to re-enter has arisen loan owner of the land, he may enter upon it by force, if necessary, if the person in occupation refuses to quit the land after his right to remain thereon has terminated. A lawful owner if he is in possession of the property can exert the necessary force to expel a trespasser; if he is out of possession and enters on the property peaceably, he becomes owner in lawful and actual possession.

An intruder cannot treat him as a trespasser. If he enters forcibly, he may render himself liable to punishment under the Criminal Law but as against the intruder his entry has the same effect as if it was peaceable. The petition has been stated in Halsbury''s Laws of England. Hail harm Edition, Vol 20 at pases 290 and 281 thus:

Where the tenant fails to deliever up possession the landlord is -entitled to re-enter and take possession, subject only to certain statniory restrictions. Thus he can re-enter where the tenant has abandoned possession or where he can effect the entry peaceably and even if he enters forcibly, and is thus liable to criminal proceedings under the statutes, yet the tenant has no civil remedy. against him in respect of the entry, or in respector of the eviction, if no more force than is necessary is used.

The position has been further explained, if I may say so with respect, lucidly, by the learned Chief justice of the Calcutta High Court in State of West Bengal Vs. Birendra Nath Basunia and Others, ): In that case the learned Chief Justice observed:

As regards the position under the general law between a lessor and his lessee, there is no rule or principle which makes it obligaory for the lessor, to resort to Court and obtain, an order for possession before he can put out the lessee who has refused to quit the land even after his right to remain on it has terminated. He is perfectly entitled to throw out the lessee himself, if he can and resume possession of his own property.

It is true that no man can break the law, even for the purpose of enforcing a legal right,'' but that is an obligation which a citizen owes to the State and not to the person who is unlawfully, resisting his lawful claim. Such person car not come to the Court and ask for protection from force being used against him. If the lessor, in taking forcible possession, exceeds the permissible limits of force, he will, bring himself within the mischief of the criminal law and will have to answer to the State for the breach of public peace committed by him.

He then referred to the statement of law in Halsbury''s Laws of England and to Hemmings v. Stoke Poges Golf Club Ltd. (1920) 1 KB 720 (C), and to other English cases and said:

The principles laid down by the Court of Appeal are simple and I do not see why they should not apply in India. On the termination of a lease, the full rights in, the leasehold pro perty, including the right to possession, revert;to the lessor. He then becomes entitled to enter his own land and take with it what order he likes,'';. If the lessee continues to remain on the land, with nc longer any right to be there and refuses to vacate, the lessor has every right to deal with-him as a trespasser and use reasonable force against him for his eviction in defence of his right to property and in assertion of his right to posses sion which right to property embraces.

If the lessor in making a forcible entry infringes the criminal law, he will make himself liable to be punished under a prosecution, but he will infringe no right of the lessee. If he uses force more than necessary, he may even expose himself to a civil liability to pay damages for the excess force used, but there can be no doubt of his right as against the lessee, to enter upon the land upon the expiration of the term and the accrual of the right of entry, by force, if necessary. For forcible entry, the lessee himself, if, he has become a trespasser, has no cause of action against: the lessor merely on the ground that it was forcible.

The same pronosition of law has been laid down in Dhirendra Kumar Vs. State of West Bengal and Another, , relying on State of West Bengal Vs. Birendra Nath Basunia and Others, . Applying these principles here, mint be held that it was not obligatory for the Petitioner to have re-course to any court for obtaining possession of the lands from the opponents when they refused to vacate it on the extinguishment of their tenancy and that the entry of the, Petitioner on the lands even if effected forcibly had as against the opponents, who were no better - than intruders on the extinguishment of their tenancy, the same effect as if it was peaceable.

If then the Applicant''s entry upon the lands as against the opponents was peaceable,: then it could not be said to be wrongful. It was an entry of the rightful owner, no doubt with force, but peaceable against the opponents. The dispossession for which Section 163 provides a remedy has to be wrongful. The dispossession by a rightful owner cannot be said to be wrongful. Mr. Mungre suggested that the: words " Hknk[kyr Hkstk meant dispossession otherwise than in due course of law and that u/s 163 the title of the Party could not be enquired into and only the fact of de facto possession was material.-

I would have acceded to this connection if learned Counsel had been able to convenience us that under the general law or the Ryatwari Act it was obligatory for a landlord to resort the court for obtaining possession of the land from a tenant whose tanancy has been extinguished and that there was a special procedure which the landlord could have followed.

The words Hknk[kyr Hkstk used in Section 163 involve that in proceedings under that section it is not sufficient to determine the de facto possession but that it is necessary to enquire also, as to whether the dispossession is or is not wrongful. I am quite aware of the decisions given with reference to Section 145 Code of Criminal Procedure, where it has been held that the word "wrongful" as used in the proviso to Clouse (4) of Section 145 means no more than otherwise than in due course of law and that a forcible, entry is wrongful unless it is in execution of a legal process.

Those decisions can hardly be of any guide here where the question is not of preventing a breach of the peace u/s 145 Code of Criminal Procedure, but of entering the civil rights of the parties to the possession of the lands. In my opinion having regard to the fact that the Ryatwari Act does not provide any remedy to a landlord desiring to obtain possession of the land from a tenant whose tanancy has been extinguished, the question of the landlord''s title for re-entering the land can be put in issue in an inquiry u/s 163. I, however. wish to guard myself by saying that this does not mean that the same rule will apply to claims u/s 326 Kanoon Mai relating to lands governed by Kanoon Mai Gwalior state Samvat, 1983.

Mr. Mutigre also submitted that even if the decision of the Board of Revenue is wrong this Court should not disturb it in the exercise of Its power under Article 227 of the Constitution of India. It is true that the power under Article 227 cannot be exercised for correcting mere errors of law or of facts. But I think it is equally well sattled that when a court or a tribunal has approached the matter entrusted to it in on altogether, wrong manner, disregarding the settled principles of law, then its decision can be disturbed. (See Waryam Singh and Another Vs. Amarnath and Another, . and Jagannatb v. Mst. Puniya AIR 1952 MP 51 (E)).

In the instant case the Board of Revenue wrongly applied Section 137 when it had no relevance whatsoever. It missed altogether the significance of the word Hkstk in Section 163 and overlooked the legal position about the right of a landlord to re-enter the property and eject a tenant when the tenancy is extinguished.

In the result I would accept these petitions and reversing the decision of the Board of Revenue, dismiss the claim of the opponents for the possession of the lands. Having regard to the circumstances of the case and the point for determination, I would leave the parties to bear their own costs throughout.

Khan, J.

I agree.