Pyari Singh and Another vs Giridhan Singh

Ram Labhaya, J.—This is an appeal from the judgment and decree of the learned Sub Judge, Cachar, by which the order of the learned Munsiff dismissing plaintiff''s suit was affirmed. Plaintiffs have, appealed to this Court.

The only question in the case is whether the requirements of the proviso to Section 33, Assam (Temporarily Settled Districts) Tenancy Act had been satisfied.

Plaintiff''s case was that they required the land in suit for cultivation by themselves. They stated further that this had become necessary as the land they had in their possession was not sufficient for the maintenance of their family. The correctness of this allegation was repudiated by the defendant. The trial Court came to the conclusion that plaintiffs had land exceeding about 4 hals In view of this, the learned Munsiff was of the opinion that they are not in need of the suit land for their cultivation. He also observed that plaintiff 2 had money-lending business. The learned Sub-Judge did not agree with the reasoning of the learned Munsiff. He pointed, out that the mere fact that plaintiffs had enough land for their maintenance was not sufficient for non-suiting them. He was not prepared to place an interpretation on the proviso which would require the plaintiffs to prove that land was needed by them for their maintenance. He also recognised the fact that even if the landlord had sufficient land for his maintenance, he could still demand ejectment of the tenant if he could satisfy the Court that he wanted to bring the land under his own cultivation. He then proceeded to observe that he found it difficult to accept the contention of the pleader for the appellant that mere intention of the landlord to bring the land under his own cultivation was sufficient for the purpose and then without referring to any evidence on the record he held that the Court ought to be satisfied about the ''bona fide'' requirement, which might be the landlord''s maintenance of his family or due to other reasons. He then affirmed the order of the Court below.

The proviso lays down that if a raiyat

has at the commencement of this Act, held the land continuously for not less then ten years, he shall not be liable to ejectment on the ground specified in Clause (e) unless the landlord has satisfied the Court that he requires the land for his homestead or for cultivation by himself or by members of his family or by hired servants or laborers.

The plaintiffs in this case clearly alleged that they required the land for cultivation by themselves which obviously included the members of their family. The legal requirement is that plaintiff should satisfy the Court that he is requiring the land for cultivation by him-self or by members of his family. The learned Sub-Judge was perfectly right to this extent. In fact, so far as the proviso is concerned, it has been laid down by this Court that it is open, to a landlord to claim as much land from his tenant as ho really wants to cultivate by himself. The intention of the Legislature was not to impose any restriction on the right of the landlord, to cultivate his own land. All that the Court could insist on was that he should satisfy it that he wanted to cultivate the land himself. The view of the learned Senior Sub-Judge that mere intention of the landlord to bring the land under his own cultivation was not sufficient would not seem to be correct on this interpretation of the proviso. If a landlord genuinely wanted the land for his own cultivation and if no other circumstances are brought out which would show that the real intention was not to cultivate the land but that there was some ulterior motive in ejecting the tenant, e.g., the motive to bring in a new tenant or to enhance the rent, the Court cannot refuse to eject the tenant.

In this case the only basis that one can conceive of for the decision of the learned Sub-Judge is that the plaintiffs had failed to satisfy the Court that the land was needed for the purpose of maintenance of their family. There are no other circumstances brought out from the side of the defendant. The learned Counsel has not been able to suggest any such ground. The finding of the lower appellate Court, therefore, is influenced by a somewhat incorrect interpretation of the proviso. The learned Judge was of the view that the mere fact that the landlord or the plaintiff really intended to use the land for his own cultivation was not enough to satisfy the requirements of the proviso. If this incorrect view would not have been taken, the result would have been different. The practical result is that there is no real difference between, the judgment of the trial Judge and that of the learned Sub-Judge. In fact, the learned Sub-Judge while realising that plaintiff''s alleged need for the land for their maintenance was not strictly relevant allowed himself to be influenced by that consideration. His finding is not that he is not satisfied of the Intention of the plaintiff If that finding had been arrived at it would have been open for the respondent to urge that plaintiff had failed to satisfy the requirements of the proviso or that a finding of fact which could not be assailed in second appeal came in the way of the appellant. That, however, is not the case. For these reasons the order of the learned Sub-Judge is not sustainable.

The learned Counsel for the respondent has referred me to a case reported in Basant Lal Saha Vs. P.C. Chakarvarty, This was a case under the West Bengal Premises Rent Control Act (XXXVIII (38) of 1948, B.C.) Section 11(1) of the Act was interpreted by the learned Judge in that case. According to that section the landlord could eject a tenant if he required the premises for his own occupation provided that his requirement was ''bona fide''. The learned Counsel concedes that the Act under which that case was decided related to urban areas. It did not apply to agricultural land. The provisions of Section 11(1) of the Act are not in any sense analogous to the proviso to Section 33, Assam Tenancy Act and I do not think that the ''Calcutta case'' can be regarded as any authority for the purposes of the Interpretation of the proviso. The only common feature is that the word ''require'' occurs in both the provisions. We have consistently interpreted that word in a certain sense in its application to agricultural land. Besides, so far as the proviso to Section 33 is concerned, the requirement is qualified by the words "for cultivation by himself or by members of his family" so that if a plaintiff can show that he wants to cultivate the land himself that would be his requirement within the meaning of this proviso. All that he has to do is to satisfy the Court that he wants to cultivate the land himself or through the members of his family, etc. If there are circumstances justifying a finding that he has got some purposes in view other then that expressed In the proviso, he would not succeed.

In this view of the matter, the appeal must succeed and is, therefore, allowed. The orders of the Courts below are set aside and the claim of the plaintiffs for the ejectment of the defendant is decreed. Parties to bear their own costs throughout.