Balak Ram v. Board of Revenue U. P. — 1956 DIGILAW 311 (ALL)

JUDGMENT Chaturvedi, J. - This is a petition under Article 226 of the Constitution praying for the issue of a writ of certiorari quashing the judgments of the Board of Revenue dated 18/27-5-1955 and 30-4-1956. 2. The relevant facts of the case are that one Jagannath who was the tenant of the plots in dispute, died sometime in 1947 leaving a widow Smt. Pran Devi, who succeeded to the tenancy rights of her husband. The Petitioner was appointed a subtenant by Jagannath in 1943, and after the death of Jagannath he continued to be the sub-tenant of Smt. Pran Devi. Smt. Pran Devi surrendered her tenancy in favour of the land lord on 8-3-1949, and the landlord then on l-7-49, let out the plots in dispute to Respondents Nos. 3 to 9. These Respondents, it appears, dispossessed the Petitioner from the plots, and on 20-10-1949 the Petitioner brought a suit u/s 183 of the U.P. Tenancy Act against the Respondents claiming restoration to possession of the plots on the ground that he had been ejected therefrom otherwise than in accordance with the provisions of law. His case was that he was either the hereditary tenant or the sub-tenant of the plots in suit and was entitled to remain in possession of them because of the provisions of Section 295A of the U.P. Tenancy Act. This section was added by Section 26 of the U.P. Tenancy (Amendment) Act No. X of 1947, which came into force on 14-6-1947. According to the section any person who was a sub-tenant on the date of the commencement of Act No. X of 1947 was entitled to retain possession of his holding for a period of five years from the above date. The Respondents denied that the Petitioner was a hereditary tenant or a sub-tenant of the plots and set up their own rights as hereditary tenants. 3. The first court held that the Petitioner was a sub-tenant on the date of the commencement of U.P. Act No. X of 1947 and was entitled to continue in possession of the plots for five years from that date as a sub-tenant, and that he was ejected from the plots otherwise than in accordance with the provisions of the U.P. Tenancy Act. It accordingly decreed the suit for delivery of possession and declared that the Petitioner would continue to be a sub-tenant of the plots in suit for a period of five years from 14-6-1947. This decree was passed on 25-5-1950, and the Respondents' appeal against it was dismissed by the Additional Commissioner on 4-12-1950. The Petitioner obtained possession of the plots in February, 1951 in execution of the decree passed in his favour. 4. The Respondents then filed a second appeal before the Board of Revenue, which came up for hearing in May, 1955. The Judicial Member of the Board, who heard the appeal in the first instance, held that, assuming the decisions of courts below to be correct, the Petitioner's rights as a sub-tenant came to an end on 14-6-1952 and that he was no longer entitled to remain in possession of the plots or to obtain a decree for their possession. It was urged on behalf of the Petitioner that he had become a sirdar u/s 19 of the UPZA and LR Act, but the Board overruled this contention on the ground that the Petitioner was not a subtenant on 30-6-1952, the date immediately preceding the date of vesting, nor was he in possession of the plots on that date. By his judgment dated 18-5-1955 the Judicial Member expressed his opinion that the appeal be allowed and the Petitioner's suit dismissed. This matter went for concurrence before another Judicial Member and-he gave his concurrence on 27-5-1955. The Petitioner then filed a review application before the Board which dismissed it on 30-4-1956. It is these orders of the Board of Revenue the legality of which is challenged in this petition. 5. Learned Counsel for the Petitioner has urged that the findings of the Assistant Collector and the Additional Commissioner were assumed to be correct by the Board of Revenue, and this meant that the Petitioner was entitled to possession of the plots on the date that he instituted the suit and also on the date the trial court and the court of first appeal decreed it. Even if his rights as a subtenant came to an end during the pendency of the second appeal before the Board, the Board should not have dismissed his suit or set aside the decrees of the courts below but should have dismissed the appeal with an observation to the effect that the Petitioner's right to possession had come to an end during the pendency of the appeal. We think there is force in this contention. On the findings of the Assistant Collector and the Additional Commissioner the Petitioner was clearly entitled to possession of the plots till 14-6-1952, and on the dates on which those courts passed their decrees the later were perfectly correct. The dismissal of the second appeal would have only meant that the decrees of those courts were correct on the dates on which they were passed and not that the Petitioner was entitled to possession on the date that the Board of Revenue was deciding the second appeal. It is true that subsequent legislation passed during the pendency of a suit at any of its stages, including the stage of a first or a second appeal, has sometimes to be taken into consideration in determining the rights of the parties The latest decision on the point is the decision of a Full Bench of this Court in the case of Jagannath v. The Board of Revenue 1955 AWR (HC) 297 in which it was held that the Defendant in a suit u/s 180 of the U.P. Tenancy Act could plead, even at the stage of an appeal that he had acquired the rights of an Adhivasi u/s 20 of the UPZA and LR Act. But this does not mean that where the Defendant has not set up any such right the Plaintiff, who had obtained a decree in his favour, should be non-suited and the decree already passed in his favour set aside inspite of the fact that it was correctly passed. In the case before us it does not appear from the judgment of the Board of Revenue that the Defendant had set up any such right before it, nor has the suit been dismissed on such ground. We think that there is a patent error in the judgment of the Board of Revenue. 6. In the case before us it does not appear from the judgment of the Board of Revenue that the Defendant had set up any such right before it, nor has the suit been dismissed on such ground. We think that there is a patent error in the judgment of the Board of Revenue. 6. Learned Counsel for the Respondents has argued that the Board of Revenue was wrong in assuming that the Petitioner continued as a sub-tenant till 14-6-1952, as Section 295A of the U.P. Tenancy Act merely entitled the previous sub-tenant to continue in possession of the holding but does not provide that he will continue to do so as a sub-tenant. It was contended that as Smt. Pran Devi had surrendered the plot; before the date of the suit; the Petitioner had ceased to be a sub-tenant and consequently could not bring a suit u/s 183 of the U.P. Tenancy Act which permits only a tenant (a word which includes a sub-tenant) to bring a suit. We have therefore to consider whether the Petitioner continued as a subtenant u/s 295A of the U.P. Tenancy Act after the date of surrender by Smt. Pran Devi. 7. The Petitioner's sub-tenancy commenced in the year 19-4-95 and the surrender by Smt. Pran Devi of the plots was made on 8-3-1949. According to Section 47(1) of the U.P. Tenancy Act, the extinction of the interest of a tenant operates to extinguish the interest of a subtenant as well, if the tenant was not a permanent tenure holder or a fixed rate tenant. Smt. Pran Devi was merely a hereditary tenant, and therefore under this Sub-section the interest of the Petitioner as a sub-tenant would be extinguished on 8-3-1949, unless that interest was kept alive by the provisions of Section 295A of he Act. Smt. Pran Devi was merely a hereditary tenant, and therefore under this Sub-section the interest of the Petitioner as a sub-tenant would be extinguished on 8-3-1949, unless that interest was kept alive by the provisions of Section 295A of he Act. The proviso to this section is not relevant to the point under consideration, and the section is as follows: Notwithstanding any contract to the contrary or anything contained in this Act or any other law for the time bring in force, every person who on the date of the commencement of the United Provinces Tenancy (Amendment) Act, 1947, is a sub-tenant shall, subject to the provisions of the proviso to sub-S (3) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947, be entitled to retain possession of his holding for a period of five years from that date, and for this period nothing in Sub-section (2) of Section 44 or Section 171 shall render the landholder of such sub-tenant liable to ejectment under the provisions of Section 171. 8. The section does not in so many words say that the subtenant shall continue as such for the specified period, but in the concluding words of the section the person entitled to continue in possession is referred to as "such sub-tenant," and this leaves little room for doubt that it was the intention of the Legislature that he was to continue as a sub-tenant. The Legislature could not, we think, have intended to confer on such a person a status which is not known to the U.P. Tenancy Act. It is difficult to imagine that the Legislature ever contemplated that the person should retain possession of the land without paying any rent or being subject to any of the disabilities imposed upon tenants by the Act. It was argued that although the person would not be liable to pay any rent he would be liable to pay damages for use and occupation of the land. If that were so, a suit for recovery of damages simpliciter would lie in a civil court and not in a revenue court, and we do not think that the Legislature could have intended any such eventuality. If that were so, a suit for recovery of damages simpliciter would lie in a civil court and not in a revenue court, and we do not think that the Legislature could have intended any such eventuality. Then the words used are "retain possession of his holding." The word "holding" has been defined as a "Parcel or parcels of land held under one lease, engagement or grant or under one tenure." The words "lease, engagement, giant and tenure" all contemplate some sort of contractual relationship between the landholder and the person holding under him. They cannot refer to a person who is holding the land without any liability of any kind to the holders of superior rights. Section 172 of the Act permits the ejectment of a tenant (including a sub-tenant) on the ground of any act or omission detrimental to land in that holding or inconsistent with the purpose for which the land was let. This liability again would not be there if the person entitled to remain in possession u/s 295A is neither a tenant nor a subtenant, and he would be entitled to do whatever he likes with the land without being liable to ejectment on the ground of doing any act detrimental to it. 9. It is also significant that the Legislature has considered it necessary to provide that the landholder of such sub-tenant shall not be liable to ejectment u/s 171 of the U.P. Tenancy Act, which section makes it possible for the landlord to eject a tenant if he has made an illegal sub-letting. Section 44(2) makes every sub-lease by a tenant in contravention of the provisions of the Act voidable at the option of the landholder. If the person entitled to possession u/s 295A were not a sub-tenant, it would not have been necessary to say that the tenant would not be liable to ejectment u/s 171, or that the provisions of Section 44(2) would not apply to the case of a person in possession u/s 295A of the Act. 10. For the above reasons we think that the contention of the learned Counsel for the Respondents is not correct and that the Petitioner continued in possession as a sub-tenant u/s 295A upto 14-6-1952. He was thus entitled to bring the suit in 1950 u/s 183 of the U.P. Tenancy Act. 11. 10. For the above reasons we think that the contention of the learned Counsel for the Respondents is not correct and that the Petitioner continued in possession as a sub-tenant u/s 295A upto 14-6-1952. He was thus entitled to bring the suit in 1950 u/s 183 of the U.P. Tenancy Act. 11. The learned Counsel for the Respondents then argued that his clients had acquired certain rights under the UPZA and LR Act and they could not be ordered to be ejected at the instance of the Petitioner, No such argument appears to have been advanced before the Board of Revenue but the learned Counsel's submission is that he wanted to press the point, but as the case was decided in his favour on another ground it was unnecessary for him to do so. In the circumstances, we think that the proper course is to leave the matter to the Board of Revenue. If the Board of Revenue decides to determine the Defendants rights it may then become necessary to determine also the rights which the Petitioner may have acquired under the UPZA and LR Act and then to declare which party has a superior right to the possession of the land. 12. Learned Counsel for the Petitioner has stated before us that if the Respondents do not urge before the Board of Revenue that the suit should fail because of the acquisition of certain rights by them under the ZA and LR Act, the Petitioner would be content to have the appeal dismissed without consideration of the question of the acquisition of rights by him under that Act. If the Board of Revenue does not permit the Respondents (Defendants) to raise the question of acquisition of any rights by them under the ZA Act on the ground that they were not raised at the time of the hearing of the appeal, the Board will no doubt dismiss the appeal before it with an observation that the Petitioner was entitled to possession as a subtenant till 14-6-1952. 13. In the course of its judgment the Board of Revenue observed that the Petitioner was not in possession of the plots on 30-6-1952. 13. In the course of its judgment the Board of Revenue observed that the Petitioner was not in possession of the plots on 30-6-1952. This observation appears to have been made under some misapprehension because the Petitioner had obtained possession of the land in execution of his decree in February, 1951 and it is nobody's case that subsequently he gave up his possession or was dispossessed by the Respondents before 30-6-1952. 14. In all the circumstances of the case, we have come to the conclusion that the decision of the Board of Revenue given in second appeal as well as on the review application should be quashed, and the case remanded to the Board for decision according to law keeping in view the observations that we have made above. 15. The petition is allowed and a writ of certiorari shall issue quashing the judgment of the Board of Revenue dated 18/27-5-1955 passed in S.A. No. 97 of 1950-51 and that dated 30-4-1956 passed on Review Application No. 155 of 1954-55. 16. The Petitioner will be entitled to his costs of this petition from Respondents Nos. 3 to 9.