JUDGMENT H. G. Mishsal, J. 1. This is plaintiff's appeal against the judgment and decree dated 14-2-69, passed by Additional District Judge, affirming the Judgment and decree dated 4-11-66. passed by the trial Court dismissing his suit for declaration of status as Bhumisswami and recovery of possession of the suit land. 2. Facts material for decision of this appeal are as under:- Plaintiff-appellant filed the present suit on the allegations that Sandersingh, his predecessor in-interest was a blind man. He sublet in Samvat 2010 (1953 A.D.) the land comprised in Survey No. 16 in area 5 Bigha 2 Biswas, situated in village Hatkheda in Tehsil and District Vidisha to the defendants. Thereafter, on 10-10-1953 Sandersingh died and the name of the plaintiffs was mutated in the place of Sandersingh. Thus, the plaintiffs became aware that the defendants had submitted an application under Sec. 38 of the M. B Zamindari Abolition Act, Samvat 2008 (Act No. 13 of 1951), (for short the 'Zamindari Abolition Act') for conferral of pakka tenancy right which was rejected by the Tehsildar and an appeal preferred against the order of the Tehsildar stood rejected by the Additional Commissioner on 7-10-1961. Thus the possession of the defendants have become that of trespassers w.e.f. 7.10.1961, and they have no right to continue in possession thereof. On these averments the plaintiff sought declaration of title to the effect that the defendants have not become pakka tenants and or Bhumiswami of the suit land and a decree for restoration of possession was also sought along with mesne profits at the rate of Rs. 300/- per year pendents lite till recovery of possession. 3. The defendants resisted the claim of the plaintiff-inter alia on the ground that they were sub-tenants of the suit land in the life time of Sandersingh and even after his death they became sub-tenant vis-a-vis the plaintiffs and by continuance in possession of the suit land on 2.10.59, with the commencement of M. P. Land Revenue Code, 1959 (for short the 'Code'), they became 'occupancy tenants' of the suit land by virtue of operation of law contained in Sec. 185 (1) (ii) (d) there of. 4. The trial Court dismissed the suit. Aggrieved by this judgment and decree the plaintiffs preferred an appeal which met with the same fate. Hence, this second appeal. 5. 4. The trial Court dismissed the suit. Aggrieved by this judgment and decree the plaintiffs preferred an appeal which met with the same fate. Hence, this second appeal. 5. In this appeal Shri V. K. Sapre learned counsel for the plaintiff-appellant contended (i) that after the death of Sandersingh, who was a disabled person, the sub-lease created by him came to an end and thereafter the defendants could not be regarded as 'sub-tenants' of the plaintiff because subletting stood prohibited at the time of death of Sandersingh by virtue of Section 73 of the M. B. Land Revenue and Tenancy Act, Samvat 2007, (Act No. 66 of 1950); (for short the Tenancy Act), and by virtue of the provisions of section 76 thereof the status of the defendants became that of trespassers and simply by virtue of their continuance in possession of the suit land without consent of the plaintiffs, they could not become occupancy tenants under section 185(1)(ii)(d) of the Code, because a person who is deemed to be a trespasser is not within the pale of the aforesaid provisions, and also because it is only a sub-tenant to whom that provision is applicable (ii) that the provisions of the Tenancy Act are subject to the provisions of the Zamindari Abolition Act by virtue of the provisions of section 41 thereof and according to the provisions of section 38(5) of the Zamindari Abolition Act in absence of deposit of the amount as envisaged by sub-section. (3) of section 38, the defendants will be regarded as 'trespassers'. The Code also never provided for statutory conferral of status of 'occupancy tenant' on such a person while be deemed to be a "trespasser." Shri R. S. Bajpai, learned counsel for the defendant-respondents argued in support of the impugned judgment and decree and submitted that none of the aforesaid contentions has any force. 6. Having heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be dismissed. 7. It is not disputed between the parties that Sandersingh at the time of grant of sub-lease in favour of the defendants was blind and as such a disabled person within the contemplation of section 74 of the Tenancy Act. Accordingly, he could grant a sub-lease. 7. It is not disputed between the parties that Sandersingh at the time of grant of sub-lease in favour of the defendants was blind and as such a disabled person within the contemplation of section 74 of the Tenancy Act. Accordingly, he could grant a sub-lease. Thus during the life time of Sandersingh the defendants had no right to become a pakka tenant by depositing the amount under sub-section (3) of section 38 of the Zamindari Abolition Act. Admittedly, Sandersingh died on 10.10.1953. On his death, the sub lease created by him ceased to be in force by virtue of sub-section (1) of section 76 of the Tenancy Act which provides that :- "(1) If the sub-lessees does not handover possession of the land sub-let to him after the sub-lease ceases to be in force under sections 74 and 75 to the lessor or his legal heir in case of his (lessor's) death, he shall be deemed to be a trespasser and shall be liable to ejectment in accordance with the provisions of this Act." Undisputedly, the defendants did not hand over possession of the suit land to the plaintiffs the legal heir of Sandersingh. Accordingly, by virtue of sub-section (1) of section 76 of the Tenancy Act, the possession of the defendants shall be deemed to be that of trespassers liable to be ejected in accordance with the provisions of the Tenancy Act. It is by fiction of the law so enacted by section 76 (3) of the Tenancy Act that the status of the defendants was to be regarded as that of trespassers for limited purpose. namely, with regard to their liability for ejectment in accordance with the provisions of the Tenancy Act, 8. After death of Sandersingh, the status of land lordship, which the possession devolved by inheritance on the plaintiffs. The plaintiff has also stated in plaint para No.2 that by virtue of being legal heir of Sandersingh his name was mutated in place of Sandersingh in respect of the suit land. Thus the plaintiffs became tenant vis-a-vis the defendants. This is also what flows from the provisions of sub-section.(1) of section 76 of the Tenancy Act which enacts a legislative mandate directing sub-tenants of a disabled person to band over possession of land sub-let to them by the disabled person in case of his (lessor's) death. Thus the plaintiffs became tenant vis-a-vis the defendants. This is also what flows from the provisions of sub-section.(1) of section 76 of the Tenancy Act which enacts a legislative mandate directing sub-tenants of a disabled person to band over possession of land sub-let to them by the disabled person in case of his (lessor's) death. Accordingly, it is by operation to the law that status of land lordship vis-a-vis the defendants vested in the plaintiff. To put it differently, the plaintiffs became tenant qua the defendants. 9. Faced with this situation. Shri Sapre contended that by virtue of the provisions of section 73 of the Tenancy Act, which in acts a prohibition against subletting on sub-lease continued in the eye of law vis-a-vis the plaintiff. I am afraid, this contention, though attractive on the face of it has no merit, section 73 omitting its explanation which is not relevant for the present purpose, read thus:- "Sec.73. Sub-leases-No pakka tenant shall sub-let for any period whatsoever any land comprised in his holdings except in the cases provided for in section 74." (Emphasis supplied). The prohibition enacted by section 73 is against the voluntary creation of sub-lease. Accordingly, no pakka tenant could sublet for any period what saver any land comprised in his holding. There is distinction between the 'voluntary creation of sub-lease" and "creation of sub-lease by operation of law." The prohibition enacted by section 73 of the Tenancy Act cannot be extended to cover a case of creation of sub-lease by operation of law, e. g. by operation of the law of inheritance. The plaintiff's case is not that he had sub-let the suit land after the death of Sandersingh. It is factum of death of Sandersing which had clothed him with the status of tenant by inheritance. In this respect ratio of Nathu Prasad v. Ranchhod Prasad & others 1970 RN 75= AIR 1970 SC 483 , has been relied on, which is extracted below:- "A person inducted as a sub-lessee, but who by express provision contained in section 73 read with section 78 of Act of 66 of 1950 is declared a trespasser, does not, acquire the status of an occupancy tenant under section 185 (1) (ii) (b) of the Madhya Pradesh Land Revenue Code. M. B Ryotwari Sub-leases Protection Act (29 of 1955) which was repealed by M.P. Land Revenue Code conferred protection only upon a ryotwari sub lease, and a rvotwari sub-lessee was defined In that Act as meaning a person in whose favour the land was settled. section 3 of Act 29 of 1955 excluded from the protection granted by the Act. amongst others; a sub-lesses deemed to be a trespasser under section 78 of Act 66 of 1950 Hence a person, the lease in whose favour was declared void by virtue of Act 66 of 1950, could not claim the status of a sub lessee. A person inducted as a sub-lessee contrary to the provisions of section 73 of Act 66 of 1950 did not therefore acquire any right under a contract of sub-letting, and his possession v, as not protected under Act 29 of 1955. Such a person is not a ryotwari sub- lessee as only on "Ryotwari sub lessee' as defined in Act 29 of 1955 and it is only on "Ryotwari sub lessee" as defined in that Act that the right of occupancy tenant is conferred by section 185 (1) (ii) (b) of the Madhya Pradesh Lcn1 Revenue Code, second Appeal No. 254 of 1962, D/9-7-65. (M. P.) reversed, 1953 MPLJ 314, overruled." The ratio of Nathu Prasad's case (Supra) has different field to operate. It applied where a person is inducted as sub-tenant after coming into force of the Tenancy Act. The act of induction is an outcome of voluntary act of the parties. Accordingly, ratio of Nathu Prasad’s (supra) has no applicability to the present situation. Thus by operation of law, the plaintiff become tenant and the defendants became his sub tenants. The status of persons like the defendants has to be treated under the law as that of "Sub-lessees" A sub-tenant whose tenancy has been determined by aperation of law cannot be treated to be rank trespasser. In Diwan Ram Rao v. Mohanlal (l980 unreported Judgments Supreme Court) page 46, the law on the point has been laid down thus: "It is well-known that a tenant of a tenant gets determined by several modes such as by afflux of time, by notice by forfeiture brought about by the misuses of the land and the like. In Diwan Ram Rao v. Mohanlal (l980 unreported Judgments Supreme Court) page 46, the law on the point has been laid down thus: "It is well-known that a tenant of a tenant gets determined by several modes such as by afflux of time, by notice by forfeiture brought about by the misuses of the land and the like. It is difficult to distinguish between one kind of determination of the tenant and the other for the application of the ratio decidendi of Nihalkaran's case. It could not be and was not disputed that a tenant, continuing in possession of the land even after its determination by one method 'or the other does not abruptly become a trespasser. If a beneficial legislation gives him protection against eviction he can claim protection inspite of the determination of the tenancy. That is in substance what was held in Nihaikaran's case. If that be so, we see no reason to refuse protection to the respondent in this appeal." It is not disputed that Madhya Bharat Muafi and Inam tenants and Sub-tenants Protection Act, 1954, (Act No. 32 of 1954) and Madhya Bharat Ryotwari Sub-lessees Protection Act, 1955, ( Act No. 29 of 1955) do not apply to the present case became of the suit land being situated in a village of Zamindari system. But, it makes no difference so far as applicability of the aforesaid dictum to the present case is concerned. It is by virtue of the defendants being in continuous in possession of the suit land, even after determination of their tenancy by virtue of section 76 (1) of the Tenancy Act; till 2-10-1959 when the Code came into force that they were clothed with the status, of 'occupancy tenants.' A sub-tenant whose tenancy has been determined is included within the term 'sub-lessee' as envisaged by section 185 (1) (ii) (d) of the Code. 10. 10. By virtue of legal fiction enacted by sub-section (1) of section 76 of the Tenancy Act, and by virtue of sub-section (5) of section 38 of the Zamindari Abolition Act the defendants had to be deemed to be 'trespassers’ liable to be ejected in accordance with the provisions of the Tenancy Act but if no proceedings were taken against them and they continued to hold the land, they will be regarded to hold the land on 2-10-59, as 'occupancy tenants.' The aforesaid legal fiction was created for limited purposes, namely, that of imposing a liability to be ejected in accordance with the provisions of Madhya Bharat land Revenue and Tenancy Act. This legal fiction cannot be extended beyond the purpose for which it was introduced in that section. With the repeal of the aforesaid Acts, viz, the Tenancy Act and the Zamindari Act, the liability of the defendants to be ejected in accordance with the provisions of the Tenancy Act disappeared. With the commencement of the Code, on 2-10-1959, the possession being with them, there was statutory conferment of status of 'Occupancy tenants' on the defendants by virtue of sub-section (1) (ii) (d) of section 185 of the Code. I am fortified in the view by the ratio of Gajrajsingh. v. Jagatsingh and others 1970 RN 133= 1970 JLJ 209 , quoted below:- Although section 76 of the Madhya Bharat Land Revenue and Tenancy Act. 1950, might have made a deeming provision about treating a sub-tenant as a trespasser, yet sub section (2) of section 38 of the Madhya Bharat Zamindari Abolition Act, 1951 clearly puts a stop to that and restored his status as a sub-tenant till the expiry of 8 years. As such, the same object was achieved in the Zamindari area by enacting section 38 (2) as was achieved in respect of the Muafi, Inam and Ryotwari land by passing the two different Protection Acts of the years 1954 and 1955. Thus, it is clear that the deeming provisions as provided by section 76 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 cannot be operative as long as the period of 8 years provided by section 38 (2) of the Madhya Bharat Zamindari Abolition Act., 1951 does not expire. Thus, it is clear that the deeming provisions as provided by section 76 of the Madhya Bharat Land Revenue and Tenancy Act, 1950 cannot be operative as long as the period of 8 years provided by section 38 (2) of the Madhya Bharat Zamindari Abolition Act., 1951 does not expire. It was exactly at the end of that period that the Madhya Pradesh Land Revenue Code, 1959 intervened and conferred on such tenants the status of an occupancy tenant by enacting sub-clause (d) of sub-section (1) of section 185 of the Madhya Pradesh Land Revenue Code, 1959, 1966 J.L.J. 695==1966 R. N. 331 relied on." 11. Thus in view of the aforesaid discussion, it is clear that the defendants became 'occupancy tenants' on 2-10-1959 of the suit lands. The only right which the Code conferred on the plaintiffs by its section 189 was to resume the land is case area of the land under his personal cultivations was below 25 acres of unirrigated within one year of coming into force of the 'Code by making an application to the S. D. O. for the purposes of his personal cultivation. No such step was admittedly taken by the plaintiffs within the aforesaid period As such, he has lost the right to resume the land as also 'recover its possession. 12. As such, all the challenges to the impugned judgment fail and with them the appeal also fails and is hereby dismissed. In view of the nature of controversy, I direct the parties to bear their own costs as incurred through out.