Tufail Mohammad vs Macgilal and another

Rampal Singh, J.—The appellant-defendant in this second appeal u/s 100, Civil Procedure Code, challenges the judgment and decree passed by Shri Ravi Verma, Additional District Judge, Morena, in Civil Appeal No. 1-A of 1971 dated 6th September 1973.

The plaintiffs Hira and Gopi, who died during the pendency of this appeal and whose legal representatives have been brought on record, filed a suit on 30-4-1967 against the appellant-defendant in the Court of Shri V. G" Shrivastava, Civil Judge Class II, Sheopur. In this suit they sought the relief of declaration and possession with regard to survey No. 2012/2 area 8 Bigha and survey No. survey No. 2064 area 5 Bigha & 15 Biswa of village Pandola. The case of the plaintiffs in brief was that they were inducted as sub-tenants of the suit land by the guardian uncle of defendant-appellant. They further contended that as the defendant is trying to evict them, they have filed the suit on the ground that they remained in possession on 2 10-1959, the date on which the Madhya Pradesh Land Revenue Code, 1959, (for short, hereinafter called ''the Code''), came into force. According to the plaint, they have acquired the rights of an occupany tenant u/s 185 of the Code, and u/s 190 of the Code they have acquired the rights of a Bhumiswami. They further claimed the relief of possession because they are said to have been illegally ejected by the defendant-appellant.

The defendant appellant contested the suit maintained in his pleading that the sub-tenancy was created when he was minor and he attained majority before coming into force of the Code, i. e., 2-10-1959, and by a notice dated 3-4-1959, he determined the sub-tenancy of the plaintiffs. According to the defendant, the sub-tenancy was created his uncle-guardian Gafoor, but after attaining majority he terminated the sub-tenancy and, hence, the plaintiffs'' possession is that of a trespasser and no rights are conferred upon them under the law.

The trial Court after framing the issues and recording the evidence of the parties, answered the issues against the plaintiffs and dismissed the suit. Deceased plaintiff-respondents preferred an appeal in the Court of Additional District Judge, Morena, who set aside the judgment and decree passed by the trial Court and by the impugned judgment held that under the law, the plaintiffs have acquired the rights of an occupancy tenant on 2-10-1959, when the Code came into force.

Shri J.P. Shrivastava, Learned Counsel for the appellant, has assailed the judgment and decree of the first appellate Court mainly on the ground that the approach of the first appellate Court was wrong, because the subtenancy was created during the minority of the pakka tenant, defendant-appellant, and this disability continued; there can be no sub-tenant of a disabled person and, hence the plaintiff cannot acquire any right. He further contended that on 3-4-1959, i. e., before the coming into force of the Code, the defendant-appellant had validly terminated the sub-tenancy and on this ground also the plaintiffs are nothing but trespassers. Shri Arun Mishra, Learned Counsel for the respondents, has repelled the contentions of Shri Shrivastava and submitted that according to the first appellate Court the disability of the defendant appellant disappeared before the coming into force of the Code and, hence, the respondent-plaintiffs were rightly held to have acquired the Bhumiswami rights by the first appellate Court.

I have examined alt the relevant laws-pertaining to tenancy as prevalent in the Gwalior area before the coming into force of the Code.

India attained freedom from foreign rule on 15th August 1947. After independence the process of consolidation of States began all over the country and new areas were carved out as States. In 1948 twenty-five Indian States including the State of Gwalior formed themselves into a union. Under the Constitution, Madhya Bharat was formed as a Part B State of the territories of the United Slates of Gwalior, Indore and Malwa. Certain enclaves were also merged therein. Under the States Re-organisation Act, 1956, the new Mate of Madhya Pradesh was formed from 1st November 1956 constituting Part B State of Madhya Bharat, parts of the former State of Madhya Pradesh, the territories of the State of Bhopal, Vindhya Pradesh and Sironj subdivision of Kotah in the former State of Rajasthan. Apparently, diverse land tenures were prevalent in the covenanting States, and the law governing them remained in operation in their respective territories even after the formation of Part B State of Madhya Bharat. Attempts were made to evolve a uniform pattern of land revenue administration in conformity with the Directive Principles of State Policy enshrined in the Constitution of India to being the tiller of the soil into direct relation with the State, eliminating the middle man. Therefore, the legislature of Part B State of Madhya Bharat enacted Act No. 66 of 1950 to consolidate and declare the law relating to land revenue administration of the United States of Gwalior, Indore and Malwa, and land revenue and tenure and other matters connected with land in the Ryotwari tracts or villages of the United States. Section 54 of the Act (No. 66 of 1950) defined "Pakka'' tenant", ''ordinary tenant'' and ''sub tenant''. u/s 73 of the Act, a ''pakka'' tenant was prohibited from sub-letting for any period any land to any one. Under this provision there is a specific mandate that no ''pakka'' tenant shall sub-let for any period whatsoever any land comprised in his holding except in the case provided for in section 74. Sec. 74 of the Act permits sub lease by a ''pakka'' tenant'' who is a widow, a minor, a lunatic, an idiot or a person incapable of personally cultivating....."Section 75 of Act No. 66 of 1950 provides for termination of sub-lease effected prior to the commencement of this Act. According to this section, if the lease was properly and legally created prior to the commencement of this Act, then it shall terminate after the expiry of the period of sub-lease or 4 years after the commencement of this Act, whichever period is less. Section 76 provides sublessee to be treated, after the expiry of the period of sub-lease, as trespasser,

For protection of possession of sub-tenants of this area an Act was enacted by Madhya Bharat State which was called as Madhya Bharat Ryotwari Sub-lessee Protection Act (No. 29 of 1955) (hereinafter, for short, called ''the Protection Act''). This Act came into force on 8-101955. Section 3 of this Act provided that "notwithstanding anything contained in section 76 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, during continuance of this Act but subject to the provisions contained in section 4 below, no ''ryotwari'' sub-lessee other than u/s 74 of the M. B. Land Revenue and Tenancy Act and a sub-lessee deemed to be a trespasser u/s 78 of the said Land Revenue and Tenancy Act shall be ejected from his land." Section 4 of the Protection Act provides that "all suits, proceedings in execution of decrees of orders and other proceedings for ejectment of Ryotwari'' sub-lessee from ''Ryotwari'' lands or in which claim for such ejectment is involved whether in addition to a claim for rent or not which are pending at the commencement of this Act, or which may be instituted after such commencement, shall stand stayed subject to the provisions contained in the following sub-sections".,.. From these provisions it is clear that notwithstanding anything contained in section 76 of the M. B. Land Revenue and Tenancy Act (for short, hereinafter called ''the Tenancy Act)'', no sublessee or sub-tenant shall be ejected whether he is a trespasser or not. For the purpose of interpreting the provision of any Act, its preamble is a guide. The intention of the legislature can be gathered from the preamble of The preamble of Protection Act reads :

"An Act to provide for the stay of proceedings u/s 76 (1) for the ejectment of sub-lessees of ryotwari land after termination of sub-lease according to section 75 of the MB. Land Revenue and Tenancy Act, Samvat 2007".

Thus, the intention of the legislature in enacting the Protection Act was to stop ejectment proceedings or to stay the ejectment of a sub-tenant from the land given in sub-lease by the ''Pakka'' tenant under sec 76 of the Tenancy Act. At the time of coming into force of the Protection Act, i. e., 8-10-1955, if the sub-tenant was in possession of the suit land, his possession shall be protected by the Protection Act, and these provisions of the Protection Act remained m force till the coming into force of the Code. If the sub-tenant was in possession, notwithstanding the fact that his sub-tenancy has been determined by the ''Pakka'' tenant, the possession of the sub-tenant shall be protected by the provisions of the Protection Act. And if he was in possession on the date of corning into force of the Code, i. e., 2-10-1959, then he has acquired the rights of an occupancy tenant as described in section 185 of the Code and then the rights of a Bhumiswami also, as described in S. 190 of the Code.

A bare mechanical interpretation of the words and application of the legislative intent, devoid of concept of purpose, will reduce most of the remedial and beneficial legislations to futility. A literal and mechanical construction of the Protection Act may have to be disregarded, if it conflicts with the essential requirements of fair play and natural justice, which the legislature never intended to throw overboard. Any other interpretation of the Protection Act is likely to defeat the aim of this progressive legislation.

The Constitution Bench of the Supreme Court in Nihalkaran v. Ramgopal 1966 JLJ 695 : 1966 RN 331 (SC) has stated the true position in the following words :

"A person who was inducted into the land as a tenant, sub-tenant or ordinary tenant and who continued to hold the land at the commencement of the Act, was entitled to protection, notwithstanding that under the law in force prior to the commencement of the Act, the contractual relation was determined"-

The judgment proceeds further-

"A ban was, therefore, imposed against eviction of ryotwari sublessees and proceedings for eviction against them were stayed by Act 29 of 1955 (Protection Act). Therefore, ryotwari sub-lessees, who had ceased by determination of sub-lessees to have rights in the lands, were still protected from eviction during the pendency of Act 29 of 1955 and by Sec. 185 (!) (ii) (b) of the Code upon the ryotwari sublessees the right of occupancy tenants were conferred........".

The same view was once again confirmed in the case of Diwan Ram Rao Vs. Mohan Lal, , These two judgments of the Supreme Court conclude that, inspite of the determination of the tenancy of a ryotwari tenant, the possession of the sub-lessees continued till 2-10-1959 when the Code came into force. The Code contains in section 185 a specific provision that such ryotwari sub-lessees shall get the status of an occupancy tenant. This view was also taken by this Court in the case of Nirbhai Singh v. Raghunath Singh and others AIR 1982 RN 86, A Division Bench of this Court in the case of Sunderlal v. Hema 1965 JLJ 878 also subscribed to this view. G. L. Oza, J. (as he then was) in the case of Nandkishore v. Choksingh 1979 RN 568 also subscribed to the same view.

But in this case the''Pakka1 tenant was under a disability, and the sub-tenancy was created by the guardian of the disabled person, as given in section 74 of the Tenancy Act. Thus, the respondent-plaintiffs were sub-lessees of a disabled person. The plaintiff Gopi (P. W. 1) in cross-examination has admitted the fact that the sub-tenancy was created in his favour by the guardian of the minor ''Pakka'' tenant, who was then aged about 10 or 12 years Now, the crucial question arises whether the sub-tenancy created on behalf of the disabled person conferred the rights of an occupancy tenant upon the plaintiffs, when before the coming into force of the Cede, i e., 2-10-1959, the disability of the ''Pakka'' tenant had disappeared According to the findings of fact handed over by the learned first appellate Court ID para 6 of the impugned learned judgment, the defendant appellant became major, i. e., his disability disappeared, in the year 1956 and the sub-tenancy was determined on 3-4-1959. It is, therefore, necessary to examine the legal impact of this situation. Another question posed is : Whether, when the disability of the ''Pakka'' tenant disappears before the coining into force of the Code and, in such a situation, the sub-tenancy is determined, the sub-tenant can acquire the rights of an occupancy tenant on the coming into force of the Code on 2-10-1959, or not. On this question there is a Full Bench judgment of this Court in Use case of Mahila Sunder v. Prahlad 1981 JLJ 239 : 1981 RN 98, The following questions were referred by the learned Single Bench to the Full Bench for setting the law, as there was a conflict by different judgments :

(i) Whether a sub-tenant continuing to occupy an agricultural holding of a disabled person in pursuance of a lease granted prior to 2-10 1951 in the Madhya Bharat area could claim the status of an occupancy tenant and, consequently, of a Bhumiswami even in such cases where the Bhumiswami continued to be a disabled person even on the date of coming into force of the Code, i. e., 2-10-1959 ?

(2) Whether even in a case where the lease had been granted before 2-10-1951, the fact of disability continuing on the date of coming into force of the Code, i. e., 2nd October 1959, was determinative about the applicability of sub-section (3) of section 185 ?

(3) Whether the provisions of sub-section (5) of section 168 of the Code were not applicable to leases granted prior to 2-10-1951 in the Madhya Bharat area which became governed by the provisions of section 75 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, with effect from 2-10-1951 ?

(4) Whether, despite determination of the lease by virtue of the provisions of section 75 of the M B. Land Revenue and Tenancy Act, 1950, and no fresh lease having been granted when the sub tenant can be treated as one lawfully holding the land as a sub-lessee for the purposes of section 185(1) of the Code if he happened to continue in occupation of the lard in pursuance of the initial lease he cannot be treated for the purposes of sub-section (3) of section 185 as one holding the land on lease from a disabled person on the date of coming into force of the M.P. Land Revenue Code, 1959, despite continuance of the disability of the Bhumiswami upto that date and onwards ?

Ail these questions were answered by the Full Bench. Therefore, this Court has no difficulty in deciding the instant case. I rely on this Full Bench judgment an J I also rely upon the judgment of the Supreme Court handed over in Vihalkaran''s cass (supra). In Nihalkararn''s case the Supreme Court laid down the following principles :

"By section 73 of Act 65 of 1950 a ''Pakka'' tenant could not sublet for any period any land comprised in his holding except in the cases provided for in section 74 and by section 75 it was provided that all subleases in force at the commencement of the Act were to terminate either on the expiry of the period of sub-lease or expiry of four years whichever was earlier. All sub-leases except those which were covered by section 74, i. e., sub-leases granted by disabled persons before the commencement of Act 66 of 1960 stood terminated Sometime before the end of 1954 and by the express terms of section 76 the sub-lessees were to be deemed trespassers and liable to ejectment in accordance with the provisions of the Act. Notwithstanding these provisions, by another Act 29 of 1955. scheme of which was substantially the same as the scheme of Act 32 of 1954. ejectment of Ryotwari sub-lessees other than a sublessee u/s 74 of Act 66 of 1950 was suspended for the duration of the Act, and all suits and proceedings in execution for ejectment were to be stayed. By section 2 (b) of Act 29 of 1955 "Rvotwari sub-lessee" was defined as meaning "a person to whom a ''Pakka'' tenant of any Ryotwari land" has sub-let or sub-lease any part of his Ryotwari land. By section 3 a ban was imposed against ejectment of all Ryotwari sub-lessees other than sub-lessees u/s 74 of Act 66 of 1950".

In Mahila Sender''s case (supra) answers to those questions are that the crucial date to determine whether a person holds land from a disabled person is the date of enforcement of the Code. If the lard is held from a disabled person and the disability continues upto the date of coming into force of the Code, the holder of the land cannot acquire the status of an occupancy tenant and such leases are deemed to be leases u/s 168(2) of the Code and the rights of the parties will be governed accordingly. Section 168(2) has a deeming clause in it, and what is the effect of a deeming clause is very clear. The answer to the relevant question, i.e., question No. 2, was given in Mahila Sunders case (supra) and it is being reproduced below :

"Therefore, my answer to question No. 2 is that if the sub-lease is given by a disabled person and the disability continues upto the date then the sub-tenant cannot acquire the status of an occupancy tenant.

As observed above and also held by the first appellate Court as a finding of fact, the disability of the defendant-appellant disappeared in 1956 and he determined the sub-tenancy of the plaintiffs on 3-4-1959. According to the decisions hereinabove quoted, when the disability continues till the coming into force of the Code, the sub-tenant will not acquire the rights of an occupancy tenant. But, if the disability disappears before the coming into force of the Code, then the provisions of the Protection Act, quoted hereinabove, shall protect the possession of the sub-tenant and his sub-tenancy shall not be deemed to have been determined by notice dated 3-4-1959. Consequently, despite determination of their sub-tenancy by notice dated 3-4-1959, the plaintiff''s possession as sub-tenants was protected by the Protection Act and they continued to be sub-tenants till 2-10-1959, when the Cede came into force. On the coming into force of the Code, they acquired the rights of an occupancy tenant u/s 185 of the Code and then also the rights of a Bhumiswami u/s 190 of the Code. The first appellate Court has rightly appreciated the law and has rightly set aside the judgment and decree of the trial Court.

In consequence, this appeal is dismissed with costs throughout. The judgment and decree of the first appellate Court are maintained. Counsel''s fee Rs. 200/- if certified.

Before parting, 1 would like to observe a strange fact which has come to my notice during the examination of the record. Evidence of the parties was recorded by the Civil Judge on 8-8 1969. Arguments were heard on 13 8-1969, when the case was posted for delivery of judgment. The plaintiffs and the defendant amended their pleadings on 19-8-1969, and then, very strangely, the judgment was pronounced on 21-10-1970, i.e., nearly after fourteen months. The trial Court was presided over by one Shri V. G. Shrivastava. Delivering a judgment after a lapse of fourteen months is certainly shocking, when there is a cry for quick justice. Such delay, which has come to my notice during the examination of the record, does not give a good name to the judicial functionaries. The endeavour of a Judge howsoever low or high he may be, should be to deliver the judgments as early as possible after hearing the arguments of the parties I, therefore, direct the Additional Registrar to send a copy of this judgment to the said Civil Judge wherever he is posted. A copy of the judgment be also sent to the Registrar, High Court of M.P., Jabalpur.