Lal Sadanand Singh vs Madan Mohan Sahu Gaontia and Others

Harries, C.J.—These are three connected Letters Patent appeals from a decision of Rowland J. The suits out of which the appeals arise were instituted by Lal Sadanand Singh against the three respondents. The latter are protected thikadars and the plaintiff claimed in each suit arrears of rent due from the defendants and in default of payment he prayed that he should be entitled to eject them from their villages and the sir lands appertaining thereto. The learned Munsif, who heard the cases in the first instance, decreed the plaintiff''s claims and ordered that in default of payment of the thika jama decreed within a certain period the plaintiff, would be en-titled to eject the defendants. The defendants appealed to the Court of the learned Subordinate Judge. They failed to pay the thika jama decreed within the time allowed and prayed that such time be extended, The learned Subordinate Judge came to the conclusion that he had no jurisdiction to extend the time and dismissed the appeals which involved the ejectment of the defendants. The defendants appealed to this Court and the appeals were heard together by Rowland J.

He came to the conclusion that the plaintiff was not entifled to eject the defendants and accordingly he allowed the appeals and set aside the decrees for ejectment passed by the learned Subordinate Judge. The appeals came in the first place before a Bench of this Court consisting of Wort and Dhavle JJ. The learned Judges were of opinion that the authorities of this Court were conflicting and at the matter was one of importance they referred the appeals to the Chief Justice for the constitution of a Full Bench. The matter has accordingly been argued before this Bench. The plaintiff is the landlord proprietor of three villages whereas the defendants are protected thikadars of the villages concerned. The only point which has to be considered is whether a landlord is entitled to obtain a decree for ejectment against a protected thikadar in the Sambalpur district upon the ground of the latter''s failure to pay the thika jama.

The legal position of a protected thikadar is dealt with in Section 65-A, C.P. Land Revenue Act, (18 of 1881). That Section enables a settlement officer to declare certain thikadars, gaontias or farmers to be "protected" for the purposes of that Section, and when a thikadar, farmer or gaontia is declared to be protected the settlement officer may, at the request of the proprietor of the village, determine the amount of the thika jama which shall be payable by such thikadar, gaontia or farmer. Sub-section (3) of the Section provides that any thikadar, farmer or gaontia who has been ejected or dispossessed may, in certain circumstances, obtain protection and be replaced in possession of the village. Sub-section (4) sets out the incidents of a tenure of a thikadar, farmer or gaontia who has been declared to be protected under the Section. The tenure is heritable but not transferable by sale, gift, mortgage or dower, and it is expressly declared that it is not saleable in execution of any decree nor can any decree be passed for the sale thereof. On the death of a thikadar leaving more than one heir bearing the same relationship to him, the eldest of such heirs is to succeed. This Sub-section contains other provisions relating to renewals of the holding on the termination of a lease or an agreement, settlement of disputes relating to the amount of the thika jama, enhancement of thika jama and such like. Sub-section (5) is an important Sub-section and is in these words:

In any proceedings before, a Court for the ejectment of a thikadar, gaontia or farmer, if it appears that the thikadar, gaontia or farmer has filed an application before a Revenue Officer to obtain a declaration that he is protected, or if he files such an application before the Court, the Court shall stay proceedings until the application has been disposed of in accordance with the provisions of this Act, and shall, if the application is filed before itself, forward such application to the Deputy Commissioner or Settlement Officer for disposal.

This Sub-section undoubtedly contemplates that a protected thikadar, gaontia or farmer should receive a measure of protection against ejectment. It expressly provides that where an application for protection has been made or if an application is made before the Court in which ejectment is sought all proceedings must be stayed until the Deputy Commissioner or Settlement Officer has decided whether the thikadar is entitled to protection. It is only after such a decision is given by the Deputy Commissioner or Settlement Officer that the case can proceed. Sub-section (7) deals with the liability of a protected thikadar, farmer or gaontia to be ejected. The precise terms of the Sub-section are as follows:

Nothing in this Section shall affect the liability of any protected thikadar, farmer or gaontia to ejectment in execution of a decree for ejectment passed in accordance with any law for the time being in force and not inconsistent with this Act, on the ground:

(a) that he has failed to pay the thika jama legally payable by him;

(b) that he has diverted the culturable land of'' the village to non-agricultural purposes, or is chargeable with some act or omission which renders him liable to be ejected.

Both the learned Munsif and the learned'' Subordinate Judge were of opinion that-this Sub-section expressly gave the landlord'' proprietor a right to eject a protected thikadar when the latter had failed to pay the thika jama due from him. Rowland J., however, was of opinion that as long as the thikadar remained protected, he could not be ejected for mere non-payment of the thika jama. The learned single Judge was of opinion that before the thikadar could be ejected, steps would have to be taken to remove the protection given to him and such could be done under the provisions of Sub-section (6). It has been argued before us by Dr. Dwarak Nath Mitter on behalf of the appellant that Section 65-A(7), C.P. Land Revenue Act, gives the landlord in terms a. right to eject a protected thikadar for nonpayment of the thika jama. Counsel has relied upon a decision of this Court, namely Rai Lal Rajendra Singh Bariha Bahadur v. Sukha Pujhari Appeal from Appellate. Order No. 17 of 1926 decided by Mullick and Allanson JJ. on 1st April 1927. This case is unreported, but we have had the advantage of reading the judgment of MuLlick J. with which Allanson J. concurred. In that case a suit was brought by the proprietor landlord against a protected thikadar for ejectment of the latter. During progress of the suit a compromise was effected whereby it was agreed that the protected thikadar should pay to the plain, tiff a sum of Rs. 85 and the costs of the suit by 4th August 1925, and in default of such payment the plaintiff should get possession of the thikadari property. The protected thikadar failed to make payment on the due date and asked for an extension of time. This was refused by the learned Munsif though on appeal the learned Subordinate Judge appeared to think that the learned Munsif could have extended the time. The learned Subordinate Judge, however, was of opinion upon other grounds that the appeal failed, and it was accordingly dismissed. A second appeal was preferred to this Court and in that appeal it was argued that the proprietor landlord had no right u/s 65-A(7), C.P. Land Revenue Act, to eject a protected thikadar. This Court held that as the parties had compromised and had agreed that in default of payment of the amount due on a certain date the thikadar should be ejected the Courts below were right in ordering the ejectment of the protected thikadar.

If the Legislature intended by Section 65-A(7), C.P. Land Revenue Act, to give the land, lord proprietor a right to eject a protected thikadar for non-payment of rent, then the Sub-section has been drafted in a somewhat strange manner. The form of the Sub-section suggests that the Legislature intended to save existing rights rather than to create new ones. The Sub-section begins as saving Sections usually do; "nothing in this Section shall affect." However the manner in which the Section is drafted in no way concludes the matter, and its terms must be carefully examined. It provides that nothing in the Section is to affect the liability of any protected thikadar to ejectment in execution of a decree for ejectment passed in accordance with any law for the time being in force and not inconsistent with this Act on the ground inter alia that the thikadar has failed to pay the thika-jama payable by him. On behalf of the appellant, it has been argued that what this Section means is that nothing in the previous Sub-sections shall affect the liability of a protected thikadar to be ejected in execution of a decree for ejectment based on any of the grounds set out in (a) or (b) of the Sub-section, provided such a decree has been passed in accordance with the legal procedure in force for the time being and which is not inconsistent with the Act.

In short the Sub-section gives the landlord a right to sue for ejectment on either of [the grounds set out in (a) and (b) and to eject the thikadars if he has obtained a decree on any such grounds in accordance with the procedural law then in force. On the other hand, it has been argued on be half of the respondents that all that this Sub-section means is that nothing in the previous Sub-sections is to affect the landlord''s right to eject a protected thikadar upon the grounds given in (a) and (b) of the Sub-section provided such a right is given to him by any law for the time being in force which is not inconsistent with the provisions of the Central Provinces Land Revenue Act. According to the respondents the Sub-section gives the landlord no new right but merely saves rights in certain instances which he may have under the general law for the time being in force.

The whole controversy has turned on the meaning of the words decree for ejectment passed in accordance with any law for the time being in force and not inconsistent with this Act." According to the appellant, the Sub-section gives the land lord a right to eject the tenant on any of the grounds in (a) or (b) of the Sub-section provided he obtains a decree according to the procedural law in force for the time being and not inconsistent with the Act. This was the view of Mullick J. in the unreported case to which I have already made reference. In the course of his judgment he observed:

Section 65-A on a proper reading would seem to mean that a protected thikadar is liable to ejectment for non-payment of rent provided that the decree for ejectment is obtained under the provisions of some law prescribing the procedure for such ejectment. The decree for ejectment in this case was made under the provisions of the CPC and it has not been shown that it was incompetent or that it was inconsistent with the Central Provinces Land Revenue Act.

From this observation it seems clear that Mullick J. appeared to think that the words "decree for ejectment passed in accordance with any law for the time being in force and not inconsistent with this Act" meant a decree for ejectment passed in accordance with the law of procedure for the time being in force and which was not inconsistent with the provisions of the Act. The decision however in that particular case can be sustained upon a very different ground. There had been a compromise between the parties by which the landlord was given the right to eject the tenant in case the latter failed to pay the thika jama by a certain date. It may well be argued that the landlord had in such circumstances a right by the substantive law of the land to eject the tenant and therefore the decree for ejectment had been passed in accordance not only with the procedural law but also with the substantive law for the time being in force and which was not inconsistent with the Act. In my view it is impossible to construe Section 65-A(7), Central Provinces Land Revenue Act, as giving the landlord a right to eject the protected thikadar merely for non-payment of thika jama or upon the grounds mentioned in (b) of that Sub-section. It must be remembered that Sub-section (5) of this Section provides that all proceedings before a Court for ejectment of a thikadar must be stayed in cases where an application has been or is made by the thikadar for protection, and it is clear that such proceedings for ejectment cannot be continued until the application for protection has been disposed of. This Sub-section clearly contemplates that the liability of a protected thikadar to be ejected is something less than the liability of an unprotected thikadar to be so ejected. Otherwise, there would be no purpose whatsoever in staying the proceedings until the thikadar''s right to protection had been determined.

Thikadars, gaontias or farmers in the Sambalpur district hold an interest very similar to that of a permanent tenure. It has not been seriously contended that apart from the terms of the lease or agreement under which he holds a thikadar gaontia or farmer can be ejected merely for nonpayment of the thika jama. It has been held repeatedly that holders of interests similar to that of a thikadar, gaontia or farmer cannot be ejected solely on the ground of non-payment of rent: see Mohunt Buloram Doss v. jogendro Nath Mullick (1873) 19 W.R. 349 and Mumtaz Bibee v. Grish Chunder Choudhry (1874) 22 W.R. 376. In the latter case it was expressly held that Act 8 (B.C.) of 1869, Section 52, did not apply to the case of a talukdar who has power to transfer his land and is liable under the terms of his kabuliyat to immediate ''ejectment in the event of default. The question whether a talukdar is liable to ejectment must be determined by the provisions of his lease. In other words, these two early cases show that holders of interests of the nature of a permanent tenure could not be ejected for non-payment of rent unless the terms of their leases so provided. In short there could be no ejectment for non-payment of rent unless the lease or agreement contained something in the nature of a proviso for reentry. Counsel for the appellant has failed to show that there is any special] provision of law or that there is any custom in the Sambalpur district giving a landlord a right to eject an unprotected thikadar, farmer or gaontia for non-payment of rent without there being a term in the lease or agreement giving him such a right. The landlord has, in my view, no common law right in India to eject a tenure-holder for non-payment of rent. His right to obtain ejectment depends in each case upon the terms of the agreement or lease. Where a right to eject the tenure-holder is not given by the agreement or lease, mere failure to pay the thika jama does not entitle the landlord to eject the thikadar. Reference has been made to an unreported Bench decision of this Court in Iswar Naik v. Raja Lal Rajendra Singh Civil Revision No. 99 of 1934 decided by Courtney-Terrell C.J. and Saunders J. A decree for ejectment had been passed against a thikadar in that case for non-payment of rent and it would appear that such was an unprotected thikadar. This case is no authority for the proposition that an unprotected thikadar can be ejected for non-payment of rent apart from any term in the lease or agreement permitting ejectment. The point was never raised nor discussed and no objection appears to have been taken to the decree on this ground.

If in the absence of any provision in the lease for ejectment a landlord is not entitled to eject a thikadar for non-payment of rent, then, if the appellant''s contention be accepted, the protected thikadar is in a worse position than the unprotected thikadar. As I have stated, the appellant contends that Sub-section (7) of Section 65-A, C.P. Land Revenue Act, gives the landlord, apart from the terms of the lease or agreement, a right to eject a protected thikadar on the ground of non-payment of rent, whereas the general law does not give the landlord a right to eject an unprotected thikadar for such nonpayment except where the lease or agreement so provides. If the effect of Sub-section 7 is to give the landlord a right against the protected thikadar which he did not possess previously against an unprotected thikadar, then I am wholly unable to understand why Sub-section (5), Section 65-A, C.P. Land Revenue Act, was ever enacted. "Why should all proceedings in ejectment against an unprotected thikadar be stayed in cases where application has been or is being made by the thikadar for protection. If the appellant''s contention be sound, the only result of obtaining protection would be that in cases where there was no proviso for reentry the thikadar would render himself liable to ejectment under Sub-section (7) whereas no such liability would exist if he remained unprotected. In my view all that Sub-section (7) does is to save for the landlord any rights which he might have under the law for the time being in force, and, which is not inconsistent with the Act, to ejeot the thikadar on certain grounds. According to the general law, a thikadar could be ejected by the landlord in all cases provided for in the lease or agreement. Sub-section (7) limits the landlord''s rights in the case of protected thikadars to decrees obtained on either of the grounds mentioned in (a) and (b). If the lease or agreement permitted a landlord to eject a thikadar on grounds other than those stated in. (a) and (b) then such rights are taken away by Sub-section (7). On the other hand, if the agreement or lease gives the landlord a right to eject the thikadar for non-payment of the thika jama, he will have such right though the thikadar has become protected. If the lease or agreement does not provide for re-entry in the case of non-payment of rent, then the landlord has no right under Sub-section (7) to eject his thikadar. All that Sub-section (7) does is to save any rights which the landlord might have in accordance with the law for the time being in force and not inconsistent with the Act to eject his thikadar on either of the grounds mentioned in (a) and (b). If by the general law he has no such right, then the protected thikadar cannot be ejected.

To construe the words "decree for ejectment passed in accordance with any law for the time being in force" as meaning a decree for ejectment passed in accordance with the law of procedure for the time being in force is open to a further objection. Following those words are the words '' and not inconsistent with this Act''. Counsel for the appellant has failed to show us any provisions in the Central Provinces Land Revenue Act dealing with procedure relating to ejectment. As there are no such provisions, I cannot understand how the words " not inconsistent with this Act" were introduced if all that was intended was that the decree for ejectment should be passed in accordance with the procedural law then in force. If the Act does not deal with procedure for suits for ejectment, how could the procedural law in force at any time be inconsistent with the Act? If these words are construed as meaning a decree for ejectment passed in accordance with the substantive law for the time being in force, then the addition of the words "and not inconsistent with this Act" is intelligible, because the substantive law for the time being in force might well be inconsistent with one or more of the provisions of Section 65-A, C.P. Land Revenue Act. Dr. Mitter has also argued that Sub-section (7) of Section 65-A should be construed as giving the landlord a right to eject a protected thikadar for non-payment of rent because the landlord would otherwise have no remedy against the protected thikadar. As I have already pointed out, the interests of a protected thikadar are not saleable in execution of any decree and no decree can be passed for the sale thereof. Dr. Mitter has argued that if the thikadari property is not sale, able and no decree for its sale can be passed, the Legislature must have intended the landlord to have a right to eject the protected thikadar for non-payment of rent. In my view no such inference can be drawn. If the landlord could sell the property in order to obtain his rent, the protected thikadar would at least have the difference between the sale price and the amount of the thika jama and costs due to the landlord. Such however is forbidden by Sub-section 4(a) of the Act, and I do not see why the landlord should be given a far greater right, that is of ejecting the thikadar from the property for non-payment of the thika jama and retaining the property himself, though the value of the property might far exceed the amount of the thika jama in arrear. It appears to me that the Legislature intended to give the protected thikadar protection not only against the sale of his property in execution but also against ejectment except where the law allowed it on certain particular grounds.

A Bench of this Court in Nruplal Singh Gartia v. Mahadeb Naik Appeal from Appellate Decree No. 27 of 1918 decided by Goutts and Adami JJ. on 18th July 1919 seems to have taken the view that Section 65-A(7), C.P. Land Revenue Act, did not give the landlord a right to eject a thikadar merely on the ground of non-payment of rent. In that case the plaintiff had applied for cancellation of the protection certificate, and Adami J. who delivered the judgment of the Court observed:

It is admitted that the plaintiff applied for cancellation of the protection certificate and this was the first step to be taken in the proceedings for the ejectment of the thikadar,

Prom these observations it would appear that Adami J. was of opinion that as long as the protection continued, the protected thikadar could not be ejected for mere nonpayment of rent. A view similar to that which I have expressed was taken by a single Judge of the Judicial Commissioner''s Court, Nagpur, in the case in Komalsingh v. Jagannath Muratsingh AIR (1918) Nag 66. , Mittra A.J.C. observed:

It is urged for the respondents that the decree for ejectment was illegal, as there is no statute applicable to the case which provides for such ejectment. Section 65-A, Sub-section (7), Land Kevenue Act, however though not expressly providing for ejectment on the ground that the thikadar has failed to pay the thika jama, recognizes the validity of an agreement providing for the re-entry of the landlord on default of payment of thika jama.

Whether the plaintiff-appellant in this case can eject the respondents if he obtains a cancellation of the protection, will depend upon whether the lease or agreement gives the plaintiff-appellant a right to eject in the case of non-payment of rent. This matter is not before this Court and it is therefore unnecessary to discuss it any further. It may be that the landlord''s only remedy is to obtain cancellation of the protection and then proceed by way of execution to sell the property which would no longer be protected from such a sale. For the reasons which I have given, I hold that the plaintiff-appellant had no right to eject the respondents and that Rowland J. was right in allowing the appeals and setting aside the decrees for ejectment. I would therefore dismiss these three appeals with costs.

Wort J.

The question in this appeal is whether a protected thicadar can be ejected on the ground of non-payment of rent. It has been held by Rowland J. from whose judgment this appeal is preferred, that he cannot be, without first removing the protection under Sub-section 6 of Section 65-A, C.P. Land Revenue Act (18 of 1881). The question is to be determined on the construction of Section 65-A, Sub-section (7) of the Act. The protection granted to a thicadar is stated in Sub-section (4); the tenure is not transferable by sale, gift, mortgage or dower, nor can it be sold in execution of any decree, nor can a decree be passed for the sale thereof, nor can it be partitioned excepting the circumstances with which in this case we have nothing to do. A further advantage is stated in Sub-section (3) of the same Section, namely that he may be reinstated if he has been ejected by the proprietor or lost possession "otherwise than by transfer or voluntary surrender." It is the contention of Dr. Mitter on behalf of the proprietor that Sub-section (7) of Section 65-A gives to the proprietor substantive rights against the thicadar to eject him in execution of a decree passed on his failure to pay the thica jama, or if "he has diverted the culturable land of the village to non-agricultural purposes, or is chargeable with some act or omission which renders him liable to be ejected." The main clause of the sub-section is as follows:

Nothing in this section shall affect the liability of any protected thicadar, farmer or gaontia to ejectment in execution of a decree for ejectment passed in accordance with any law for the time being in force and not inconsistent with this Act.

then the grounds are stated and are those to which I have already referred. At this stage it is to be noticed that under Sub-section (5) of Section 65-A

in any proceedings before a Court for the ejectment of a thicadar if it appears that the thicadar has filed an application before a Revenue Officer to obtain a declaration, that he is protected, or if he files such an application before the Court, the Court shall stay proceedings until the application has been disposed of in accordance with the provisions of this Act.

The certificate of protection is provided for by the first clause of the Section. Dr. Mitter contends in the first place that the expression ''in execution of a decree for ejectment passed in accordance with any law for the time being in force and not inconsistent with this Act'' is a clause referring to procedure: in other words, if the decree is obtained in conformity with the law of procedure then in force the proprietor is entitled to a decree if such decree was obtained on one or other of the grounds set out in the Sub-section, amongst them being non-payment of rent. This appears to have been the view taken by the late Mullick J. in Rai Lal Rajendra Singh Bariha Bahadur v. Sukha Pujhari Appeal from Appellate Order No. 17 of 1926, an unreported case. The learned Judge expressed himself in these words:

But it does not appear that the learned Subordinate Judge''s statement that there is no law authorizing the ejectment of a protected thicadar is correct. Section 65-A on a proper reading would seem to mean that a protected thicadar is liable to ejectment for non-payment of rent provided that the decree for ejectment is obtained under the provisions of some law prescribing the procedure for such an ejectment.

The words ''in execution of a decree for ejectment passed in accordance with law'' taken by themselves, cannot be restricted in their meaning. The words ''passed in accordance with law'' mean in accordance with the substantive or adjective law. But the words must be taken in conjunction with the other words in the Sub-section: the words are "and not inconsistent with this Act." The Act, as it will be seen, deals with substantive rights and does not deal with matters of procedure. It would seem therefore to be evident that the expression "in execution of a decree for ejectment passed in accordance with any law for the time being in force" refers to law other than that contained in the statute; in other words, Sub-clauses (a) and (b) do not give substantive rights apart from the general law but are conditions to be applied in testing the question whether a decree has been passed in accordance with the law. At common law there is no right to eject for nonpayment of rent although at one stage of the argument it was faintly suggested that in India such a right existed.

Without a covenant or proviso to that effect which admittedly does not exist in this case, no such claim could be made. It seems that the learned Judge from whose judgment this appeal has been preferred might be understood to mean that the removal of the protection under Sub-section (6) would be a first step entitling the proprietor to obtain a decree in ejectment against the this order. But, it is manifestly clear that if there is no common law or customary right to eject apart from a covenant or proviso, no such claim can be made by the proprietor. The removal of the protection would appear to leave the tenure open to the perils stated in Sub-clause (a) of Sub-section 4. I would therefore guard myself against accepting the view to which I have just referred. Although for somewhat different reasons I come to the conclusion that the decision of the learned judge is right, it must be affirmed and the appeal dismissed. This order governs L.P.A. Nos. 22 to 24 of 1937.

Dhavle J.

The question raised in this appeal is whether a landlord in the District of Sambalpur is entitled to a decree for ejectment of protected thikadar for the failure of the latter to pay the thika jama due from him. It is urged on behalf of the landlord appellant that Section 65-A(7), Central Provinces Land-Revenue Act, Act 18 of 1881 (by which the case is governed), gives this right in terms; and reliance is placed on the observations of Mullick J. (with the concurrence of Allanson J.) in Rai Lal Rajendra Singh Bariha Bahadur v. Sukha Pujhari Appeal from Appellate Order No. 17 of 1926, decided on 1st April 1927:

...it does not appear that the learned Subordinate Judge''s statement that there is no law authorizing the ejectment of a protected thikadar is correct. Section 65-A on a proper reading would seem to mean that a protected thikadar is liable to ejectment for non-payment of rent, provided that the decree for ejectment is obtained under the provisions of some law prescribing the procedure for such an ejectment. The decree for ejectment in this case was made under the provisions of the Code of Civil Procedure, and it has not been shown that it was incompetent or that it was inconsistent with the Central Provinces Land-Revenue Act....

Section 65-A gives power to the Settlement Officer "notwithstanding any contract to the contrary" to declare thikadar to be "protected" for the purposes of the Section. The protection is given whether the thikadar holds under a written lease or a verbal agreement. Sub-section 4 of the Section prescribes the incidents of the tenure of a thekadar who has been declared to be protected. To specify some of these, the tenure becomes heritable but not transferable by a sale, gift, mortgage or dower; it shall not be saleable in execution of any decree nor shall any decree be passed for the sale thereof; and it becomes impartible (Clause (a)); there is a right to a renewal of the lease (whether written or verbal) on its expiry, on the protected thikadar agreeing to farm his village at a fair and equitable theka jama (Clause (c)); not more than one enhancement of the theka jama is to be imposed during the currency of a settlement (Clause (e)); the protected thikadar shall comply with the rules made u/s 124-A for the management of malguzari forests (Clause (g)). The Sub-section thus gives the liabilities no less than the rights of the protected thikadar; and it is to be observed that while liability to sale is expressly negatived, no reference is made to the liability or otherwise of a protected thikadar to ejectment. In the next Sub-section the Court before which any proceedings for the ejectment of a thikadar may be pending is required to stay them until the disposal by the Revenue authorities of an application filed or to be filed by him for a declaration that he is protected. This plainly implies that the liability of an unprotected thikadar to ejectment may be affected in some way favourable to him (which is however not indicated) if he receives protection. Sub-section (6) empowers the Settlement Officer or Deputy Commissioner to declare a thekadar who contravenes "the condition of his tenure as contained in clause. (a) or Clause (g) of Sub-section (4)" or grossly mismanages the tillage held by him in lease to have forfeited the protection previously conferred on him under this Section. One result of the with, drawal of protection under this provision would be to make the tenure saleable in execution or (otherwise) and to permit a decree for sale; but the Section does not up to this point lay down positively anything about liability to ejectment and about the bearing of the withdrawal of protection on it. We next have Sub-section. (7) which runs:

Nothing in this section shall affect the liability of any protected thekadar, farmer or gaontia to ejectment in execution of a decree for ejectment passed in accordance with any law for the time being in force and not inconsistent with this Act, on the ground

(a) that he has failed to pay the theka jama legally payable by him;

(b) that he has diverted the culturable land of the village to non-agricultural purposes, or is chargeable with some act or omission which renders him liable to be ejected.

The form of this provision seems to be against the contention that it confers any right on the landlord or imposes any liability on the protected thekadar. As nothing has been said in the previous Sub-sections about the liability dealt with here, this provision might just as well read "protection under this section shall not affect the liability...and all that it purports to do is to leave unaffected the liability of a protected thekadar, etc., to ejectment in certain circumstances, namely (i) that the ejectment must be in execution of a decree for ejectment, and (ii) that the decree for ejectment must be "passed in accordance with any law for the time being in force and not inconsistent with this Act" on the grounds stated. Liability to ejectment is presupposed and restricted, particularly by the words "not inconsistent with this Act" qualifying the decree for ejectment. On the principle expressio unius est exclusio alterious the provision may be taken to involve that no protected thekadar shall be ejected except in execution of a decree of the kind specified, and may, from this point of view, be compared with Section 89, Ben. Ten. Act, according to which "no tenant shall be ejected from his tenure or holding except in execution of a decree." This part of the statutory protection may also be read with Sub-section (3), Section 65-A, which enables a thekadar, if ejected by the proprietor at a time when he had earned a. claim to be protected, to recover possession. by applying to the Settlement Officer within two years. A thekadar on whom protection has been or is conferred may not therefore be validly ejected by the'' landlord even if it should have been agreed between the parties that the landlord would be at a liberty to re-enter at wilt, without the intervention of the Court. Besides this implied exclusion of ejectment without a decree, the Sub-section is confined to certain decrees only, viz. decrees, for ejectment passed (i) in accordance with any law for the time being in force and (ii) inconsistent with the Act, on the ground stated. No reference is made in these-grounds to any agreement between the-parties, and the concluding words "some act or omission which renders him liable to be ejected" will no doubt cover denial of the landlord''s title, the common law ground for forfeiture to which effect was given in Nruplal Singh Gartia v. Mahadeb Naik Second Appeal No. 27 of 1918, decided by Adami J. (sitting with Coutts J.) on 18thr July 1919.

The illustration already referred to as protected thekadar holding under a lease reserving liberty to the landlord to re-enter at will is again relevant; if it were to be supposed that such a landlord obtained a decree for ejectment on the basis of the express stipulation, the Sub-section would" operate to prevent him from obtaining; ejeotment in execution as the ground on which the decree is based would not be-within this Sub-section. The specific question before us is whether ground (a) failure-to pay the theka-jama legally payable is only mentioned in the Sub-section as one-ground which may sometimes (e.g. when; there is an agreed provision for re-entry incase of such failure) warrant a decree for ejectment, or whether the Sub-section ought to be read as providing that ejectment may be decreed on this ground in all oases. Now, re-entry for such failure is not (unlike forfeiture for denial of the landlord''s title) implicit in contracts of tenancy. Apart from express agreement, it must rest on-custom or statute. Dr. Mitter contended-that it was at one time very common for-the landlords of Sambalpur to eject their thekadars. That may be, but he could note seriously maintain that it amounted to a. custom of ejectment for non-payment of rent. It was not urged that any such custom ever came before the Courts or that any evidence of it was given in the present cases. Nor did the learned Advocate claim that there is anything in the Tenancy Act or any other law in force in Sambalpur entitling the landlord to eject a thekadar for default in the payment of the theka jama. The contention for the appellant thus had to be that Sub-section (7) itself creates the liability ; and ,it does seem to receive some support from the observations of Mullick J. in Bajendra Singh Bariha''s case, which have been already quoted. The learned Judge however indicated no reasons for such a view except that the words qualifying the decree "passed in accordance with any law for the time being in force and not inconsistent with this Act" were taken to mean a decree obtained under the provisions of some law prescribing the procedure for such ejectment and not inconsistent with the Act. In the case before him the decree for ejectment had been passed on a compromise, which under Order 23, Rule 3, Civil P.C. was sufficient and indeed decisive. For, according to the compromise, the landlord was to get possession of the thekadar''s property if the thekadar defendant failed to pay his dues by a certain date, and as there was nothing in this opposed either to the Act under consideration or to any law in force in Sambalpur, the Court was bound to record the compromise and pass a decree in accordance therewith.

The question whether Section 65-A(7) authorizes a decree for ejectment for failure to pay the theka jama even if there should be no agreement to that effect did not arise in that case; and the liability to ejectment under the decree, supported as it was by the compromise, was not affected by the Sub-section in any view of this provision. The Sub-section is designed to deal with protection in relation to liability to ejectment, and does so by leaving such liability unaffected only in cases where it arises under decrees of the kind specified and by implying that the protected thekadar will not be liable to ejectment in any other case. Protection by limiting liability to ejectment to specified cases is easily intelligible, but not protection by extending it to cases where apart from the Sub-section in question it does not exist. The inter-pretation of the expression ''any law for the time being in force'' as some law relating to the procedure of ejectment may possibly be suggested by the words "passed in accordance with" which precede it, but would mean ignoring the fact that a decree cannot be passed on mere procedure. What the words of the Sub-section seem to require is a decree which is good under the general law and not inconsistent with this Act. It is not the appellant''s case that any section of the Act other than Section 65-A has any bearing on the matter under consideration; and the Section plainly does not contain the whole of the substantive law regarding the ejectment of thekadars or protected thekadars, if only in view of the concluding words "chargeable with some act or omission which renders him liable to be ejected." Sub-section (7) contrasts "any law" with "this Act". It follows from these two-considerations that the expression "any law" must include the general substantive law. I cannot also see any possible reason for the Legislature to limit "any law" to the law of procedure and to distinguish it from "this Act" which deals with the liability to ejectment in this Sub-section only and does so by restricting it to certain cases. The words of the Sub-section moreover point to a liability under the general law, not inconsistent with "this Act"; the latter is thus not thought of as imposing any liability to ejectment.

A possible example of a decree in accordance with the general law but inconsistent with this Act was given by my Lord the Chief Justice during the discussions�a decree for ejectment for non-payment of the theka jama on the basis of a contract of enhancement with a proviso for re-entry, if the enhancement be contrary to Clause (e) of Section 65-A(4). With all respect to Mullick J., it seems to me impossible to read this Sub-section as creating a liability to ejectment in certain cases (if this is what he meant) or as restricting "any law" to the law of procedure: such a reading of the provision is opposed to the idea of protection. An even stronger reason against the construction contended for by the learned advocate is furnished by Sub-section (5). This Sub-section deals with the ejectment of a thekadar who has filed or files an application for protection, while Sub-section 7 deals with a thekadar who has already been protected. If the Legislature be taken by Sub-section 7 to make the protected thekadar liable to ejectment for failure to pay the theka-jama in all cases, Sub-section 5 will become absurd, for the thekadar there dealt with, though he may not have been originally liable to ejectment for non-payment, will become so on the success of his application. And yet it is plain that Sub-section (5) was intended for his benefit, while it is beyond question that the ejectment he will incur under this construction of Sub-section (7) will generally mean a more severe penalty than the sale of the tenure from which the protection, if granted, will save him, as the sale will at least leave him the surplus proceeds. This also meets Dr. Mitter''s argument that as the Legislature has denied to the landlord the sale of the tenure of a defaulting protected thekadar and could not have intended to leave the landlord without ''some adequate relief, it must have intended to give him ejectment. As a matter of fact, decrees are obtained against the holders of certain well, known tenures which do not admit either of sale or of ejectment, and their execution in other ways is by no means uncommon in this province. The protected thekadar is further liable to have his protection withdrawn; and when this is done, the tenure will become saleable in execution. But I do not think that the withdrawal ,of protection is an essential preliminary to ejectment in execution of a decree for ejectment for non-payment of the theka jama.

In the case of Nruplal Singh Gartia, to which I have already referred, Adami J. spoke of cancellation of a protection certificate as the first step to be taken in proceedings for the ejectment of the thekadar. This observation has been quoted and applied by Rowland J. in the judgment under appeal, but has no bearing on the point before us. It was made in a case of ejectment for forfeiture by denial of the landlord''s title. The Subordinate Judge had held that forfeiture had not been incurred because the denial was not followed by any act of the plaintiff. Adami J. pointed out that this was not correct because the landlord had applied for cancellation of the protection certificate, and it was in this connexion that the learned Judge observed that the application for cancellation was the first step to be taken in the proceedings for the ejectment. I take it from the context that the learned Judge only meant that the application for cancellation was an "act showing his intention to deter, mine the lease" (to adopt the words of Section 3(g), T.P. Act, as they stood before the amendments of 1929) which is required to complete the forfeiture. That observation has no application to ejectment for failure to pay the theka jama, but I agree with Rowland J. that

one must first look for soma powers to pass a decree in ejectment and then it will follow that Section 65-A, Sub-section (7) will permit that power to be exercised. The Section does not itself create such a power.

So far as Mullick J. may have taken the view that Sub-section (7) itself created a liability to ejectment, apart from the agreement of the parties, I am of opinion that the Sub-section was misconstrued, and that, as held in Komalsingh v. Jagannath Muratsing A.I.R (1918) Nag. 66 the Sub-section merely recognizes the validity of an agreement providing for the re-entry of the landlord on default of payment of theka jama. It follows that the landlord appellant, having no proviso for re-entry in his favour, is not entitled to any decrees for ejectment. The appeals thus fail.