S. Moazzam Hasnain v. Ganesh — 1957 DIGILAW 77 (ALL)

JUDGMENT R.N. Gurtu, J. - These are five execution second appeals in which the same question arises for decision. 2. Five separate suits were filed by the Appellant u/s 180 of the UP Tenancy Act (Act XVII) of 1939 (hereinafter to be referred to as the "1939 Act"). The reliefs sought in each of these suits were (a) ejectment of Defendants, (b) damages and (c) costs of the suits. 3. Decrees were passed in favour of the Plaintiff Appellant in each suit. Then those decrees were put into execution and possession was taken by the Appellant under each of the decrees. Thereafter the Appellant put the decrees into execution in respect of the damages and costs awarded. The Respondents, the judgment debtors, then raised objections to the execution of the decrees. They contended that the decrees were no longer capable of execution because of S. 31 of the UP Tenancy (Amendment) Act No. X of 1957 (hereinafter to be called as the 1947 Act'. The execution court rejected the contention of the judgment debtors. Appeals were preferred and the court below upheld the contention and ordered that the decrees were not executable. It is contended before me that the objections should have been upheld. 4. In order to understand the nature of the objections, it is necessary to look at the provisions which have been introduced into the 1939 Act by the 1947 Act. S. 27 of the 1947 Act lays down that if, on or after the first day of January, 1940, any person was ejected from his holding or any part thereof u/s s. 165, 171 or 180 of the 1939 Act, then provided certain conditions were fulfilled, he could apply within six months from the date of the commencement of the 1947 Act to the court which passed the decree for his ejectment for his reinstatement in such holding or part thereof, as the case may be. S. 27, sub S. (5) of the 1947 Act lays down that: On reinstatement the right and liabilities of the applicant existing on the date of his ejectment or dispossession in respect of the holding or any part thereof from which he was ejected or dispossessed, shall revive subject to the proviso to Sub-section (3)". S. 27, sub S. (5) of the 1947 Act lays down that: On reinstatement the right and liabilities of the applicant existing on the date of his ejectment or dispossession in respect of the holding or any part thereof from which he was ejected or dispossessed, shall revive subject to the proviso to Sub-section (3)". The aforesaid proviso has the effect of allowing any tenant, who has been let into possession by the landlord after the decree for ejectment was executed, to continue in possession for a period of three years. Such person is given the status of a sub-tenant of the person who was ejected and becomes liable to pay rent at a certain rate. This is so far as restitution of possession is concerned. 5. Then comes S. 31 of the 1947 Act which in the 4th proviso thereto lays down that: All suits, appeals and revisions pending u/s 180 of the said Act, on the date of the commencement of this Act for the ejectment of any person who was recorded as an occupant on or after the first day of January 1938, in a record revised u/Ch. IV of the United Provinces Land Revenue Act, 1901, or corrected by an officer specially appointed for the correction of annual registers in any tract shall be dismissed, and all decrees and orders for the ejectment of such persons which have not been satisfied in full on the date of the commencement of this Act, shall be quashed. 6. The difference of opinion in the courts below has been with reference to the interpretation to be given to this proviso. 7. The executing court was of the view that the decrees and orders referred to were under this proviso liable to be quashed only in so far as they were decrees or orders for the ejectment of the persons concerned. The executing court was of the view that the decree u/s 180, to the extent that it granted damages and allowed costs, was still executable. The court below, however, was of the view that the decree had to be quashed in toto. 8. I have, in this appeal, to decide now as to which of the two views is correct. The executing court was of the view that the decree u/s 180, to the extent that it granted damages and allowed costs, was still executable. The court below, however, was of the view that the decree had to be quashed in toto. 8. I have, in this appeal, to decide now as to which of the two views is correct. In this connection, it is necessary to refer to the language of S. 180 of the 1939 Act which runs as follows: 180(1) A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants. 9. It is clear from a reading of S. 180 quoted above that this is a section which is to be used against trespassers and a Zamindar could bring a suit under that section for the ejectment of a person who had taken or retained possession of land without his consent. He could ask for the ejectment of such a person and he could also ask for damages which could extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tepants. Since the landlord obtained a decree u/s 180 of the 1939 Act, he acquired the right to eject the tenants and he also acquired a right to execute his decree, in so far as that decree had awarded damages and costs. Because of S. 27 of the 1947 Act, even if the trespasser has been ejected under the decree and possession has been obtained by the Zamindar, he could be reinstated and, on reinstatement, his rights are restored to him as indicated in S. 27, Sub-section (5) of the 1947 Act. The rights are to be such rights as existed on the date of his ejectment or dispossession. The language of S. 27, sub. Ss. (1) and (5) creates some difficulty. The rights are to be such rights as existed on the date of his ejectment or dispossession. The language of S. 27, sub. Ss. (1) and (5) creates some difficulty. It is difficult to see how a person, who is a trespasser and against whom a decree u/s 180 of the 1939 Act has been passed, can be reinstated to his 'holding'. A trespasser can never hold 'land' within the meaning of the word 'holding' contained in S. 1, Sub-section (7) of the 1939 Act which says that: "Holding" means a parcel or parcels of land held under one lease, engagement or grant..... 10. A 'holding' is, therefore, a tenure. Further when it is said that the applicant for reinstatement would be clothed again with the rights arid liabilities which existed on the date of his ejectment or dispossession, it is difficult to see what rights and liabilities a trespasser can be said to have had on the date of the decree against him or on the date of his dispossession. 11. Until 1-7-1952 mere occupation of land or the recording of a person as an 'occupant' did not under the law give any rights. It is only after that date that, in certain circumstances, adhivasi rights accrue. It is true that until the adhivasi rights were created, the persons, against whom decrees had been passed u/s 180 of the 1939 Act, were given the right to remain in possession, but such right did not mean the conferment of the status of a tenant and did not create a tenure by operation of law. However, possibly, the difficulty can be got over by giving to the word 'holding' the ordinary meaning of 'land' in contradistinction to a meaning which carries with it the implication of a tenure. But even so, it is difficult to determine exactly what the rights of a dispossessed trespasser can be and to determine what rights have been restored to him u/s 27, Sub-section (5) of the 1947 Act. These are some of the difficulties which relate to S. 27 of the 1947 Act, but I am primarily concerned with what is to happen to a decree u/s 180 of the 1939 Act which remains unexecuted, so far as the damage and cost part of it is concerned. These are some of the difficulties which relate to S. 27 of the 1947 Act, but I am primarily concerned with what is to happen to a decree u/s 180 of the 1939 Act which remains unexecuted, so far as the damage and cost part of it is concerned. It is to be noted that Section 31, proviso 4, of the 1947 Act uses the words "......all decrees and orders for the ejectment of such persons which have not been satisfied in full on the date of the commencement of this Act, shall be quashed. It does not merely say "all decrees and orders shall be quashed." The introduction of the qualifying words "for the ejectment" seems to indicate that there was not to be a general quashing of decrees and orders passed u/s 180 of the 1939 Act but only a quashing of the decrees and orders, so far as they related to ejectment. 12. It was argued before me that when the word "quashed" is used, it means the quashing of the entire decree and it is said that if the intention was to leave the costs and damages part of the decree intact, the word 'quashed' would "not have been used, but the word 'amendment' would have been used. It is true that effect has to be given to the word "quashed", but it is equally necessary to give effect to the limiting or qualifying words "for the ejectment of such persons". I cannot assume that these limiting or qualifying words were introduced by the Legislature merely to be ignored. Those who drafted the 4th proviso to S. 31 of the 1947 Act cannot be assumed to have been unaware of the fact that a decree u/s 180 of the 1939 Act is a decree which can order not only ejectment but also grants damages and costs. Learned Counsel for the Respondents has urged before me that the words "for the ejectment" are merely descriptive words describing the decree. Learned Counsel for the Respondents has urged before me that the words "for the ejectment" are merely descriptive words describing the decree. Inasmuch as what the 1947 Act was aiming at was that the persons who had lost their land should get it back and not be disturbed and not also that they should be exonerated from all pecuniary liability arising out of the unauthorised user of land and also from the liability of costs arising out of suits which were competent when filed, it seems to me that it is more probable that the words "for the ejectment of such persons" were introduced as qualifying or limiting words rather than as descriptive words. So far as I can see, no fresh right has been given for recovering any amount as rent for the land over which reinstatement has been effected for the period of its otherwise unlawful occupation or for recovery of costs incurred in the suit u/s 180 of the 1939 Act by any independent proceedings. 13. The court below was wrong, in my view, in holding that the decree so far as it related to damages and costs could not be executed. 14. Upon this view of the matter, I set aside the decree of the court below, allow these appeals with costs and direct the execution court to proceed with the execution so far as it relates to damages and costs. 15. Learned Counsel asks for leave to file a special appeal and I grant the same.