Sunder (Manila) v. Prahlad — 1981 DIGILAW 1 (MP)

JUDGMENT K.K. Dube, J. 1. Late Bajpai, J. finding a conflict in the various decisions of this Court referred the questions of law hereinafter mentioned 2. The short facts necessary to be stated for appreciating the present controversy are simply these :-- The plaintiff-appellant Mahila Sunder was a widow and was holding certain 'Ryotwari' land as Pucca tenant. She would be a disabled person being one in the class of persons mentioned in sub-section (2) of section 168 of the M. P. Land Revenue Code, 1959 (hereinafter referred to as the Code). She would also be a disabled person as falling under the class of persons mentioned in section 74 of the M. P. Land Revenue, and Tenancy Act, Samvat 2007 (Act No. 65 of 1950). She granted a lease of her land to defendant-respondent Prahlad. This was prior to coming into force of Act No. 66 of 1950. Under the law existing at that time, there were no restrictions on sub-letting land by a Pucca tenant. The defendant took possession of the land and continued to be in possession upto 1959 when, on 2nd October 1959, the Code came into force. Sunder now brought a suit for a declaration of her Bhumiswami rights and for a decree in ejectment. The trial Court decreed the suit holding that since Sunder was a disabled person, defendant-respondent Prahlad did not acquire occupancy Rights under S. 185 of the Code. The Appellate Court reversed the decree taking a contrary view holding that the impact of various laws would be that the respondent would acquire occupancy rights under S. 185 of the Code. The plaintiff then filed second appeal which came before late Bajpai, J. was of the opinion that the decision in Ramkrishna Das v. Shankarpur wali & others :(1970 RN 577) is in conflict with the Supreme Court decision in Amar Singh v. Balbhadra Singh & others (1966 RN 477= 1966 JLJ 73 ). It was also pointed out that the decision in Ramkishna Das' case (supra) is in conflict with the view expressed by a Division Bench of this Court in Gajrqj Singh v. Jagatsingh 1970 RN 133. It was also pointed out that the decision in Ramkishna Das' case (supra) is in conflict with the view expressed by a Division Bench of this Court in Gajrqj Singh v. Jagatsingh 1970 RN 133. The following questions were referred--: (1) 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 Bhumi-swami 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 M. B. Land Revenue and Tenancy Act, Samvat 2007 with effect from 2-10-1961 ? (4) Whether, dispite determination of the lease by virtue of the pro-Visions 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 land in pursuance of the initial lease he cannot be treated for the purposes of subsection (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 ? By now, there are a number of decisions of the Supreme Court as also this Court dealing with the rights of sub-tenants in Madhya Bharat region where the leases were granted prior to coming into force of the Act No. 66 of 1950. The first and the important authoritative pronouncement is in Nihalkaran Rao v. Ramgopal 1966 RN 331= AIR 1966 SC 1485 = 1966 JLJ 695. The first and the important authoritative pronouncement is in Nihalkaran Rao v. Ramgopal 1966 RN 331= AIR 1966 SC 1485 = 1966 JLJ 695. Nihalkaran's case (supra) was not dealing with the lease granted by a disabled person; but, while discussing the scheme, it is clear that their Lordships of the Supreme Court observed that section 75 of Act No. 66 of 1950 did not have the effect of terminating leases granted before the coming into force of the Act No. 66 of 1950, when such leases were effected by disabled persons. The observations would be binding on this Court. If the observations in Nihalkaran's case (supra) were applied to the leases granted by disabled persons prior to coming into force of the Act No. 66 of 1950, we would certainly reach to a different conclusion from the one arrived at in Ramkrishna Das's case (supra). 3. The facts of the present case are similar to those in the case of Ramkrishna Das (supra). Here, as in Ramkrishna Das's case, the lease had been granted by a disabled person prior to the coming into force of the Act No. 65 of 1950, on 15th July 1950 Act No. 66 of 1950 was published. As already stated, before this Act had come into force, a Pucca tenant was permitted to sub-let his holding whether he was a disabled person or not. The Act No 66 of 1950 was passed to consolidate and declare the law relating to revenue administration in the United State of Gwalior, Indore and Malwa (Madhaya Bharat). By section 73 a Pucca tenant was prohibited from sub-letting for any period any land comprised in his holding, unless he belonged to any of the classes mentioned in section 74. By section 74 certain classes of disabled persons were permitted to sub-let the whole or any part of their holding. But such a sub-lease was to cease to be in force after one year of the determination of the disability by death or otherwise. By section 75 it was provided that a sub-lease of the whole or any part of the holding of a Pucca tenant, effected properly and legally prior to the commencement of the Act, was to terminate after the expiry of the period of the sub-lease or expiry of four years after the commencement of the Act, whichever period was less. By section 75 it was provided that a sub-lease of the whole or any part of the holding of a Pucca tenant, effected properly and legally prior to the commencement of the Act, was to terminate after the expiry of the period of the sub-lease or expiry of four years after the commencement of the Act, whichever period was less. By section 76 a sub-leasee failing to hand over possession after the expiry of his right was to be deemed to be a trespasser and liable to ejectment in accordance with the provisions of the Act. 4. Subsequent legistive history would show that two enactments intended to stay proceedings under section 76 for ejectment of sub-tenants were passed. They are, the Madhya Bharat Muafi and Inam Tenants and Sub-Tenants Protection Act (32 of 1954) and M. B. Ryotwari Sub-Lessee Protection Act 1955 (Act No. 29 of 1955). The latter Act had been published in the M. B. Government Gazettee (Extra-orinary) dated 19th October, 1955, under which the suits and other proceedings relating to eviction of sub-tenants were stayed. By section 3 of the Act No. 29 of 1955 notwithstanding anything contained in section 76 of Act No 66 of 1950 during the continuance of the Act, but subject to the provisions contained in section 4 of Act No. 29 of 1955, no 'ryotwari' sub-lessee, other than a sub-lessee under section 74, and a sub-lessee deemed to be a trespasser under section 78, of the Act No. 66 of 1950, could be ejected from land. A ryotwari sub-lessee was defined to mean a person to whom a Pucca tenant of any 'ryotwari' land had sub-let on sub-lease any part of his 'ryotwari' land. By terms of sections 3 and 4 of Act No. 29 of 1955, the legislature did not seek to grant protection only to persons between whom and the claimant there was a subsisting contractual relationship. A person who was inducted into the land as a subtenant and who continued to hold the land at the commencement of the Act No. 66 of 1950 was entitled to protection notwithstanding the fact that under the law in force prior to commencement of the Act (Protection Act) the contractual relationship was determined. The Code came into force on 2nd October 1959. The material parts of S. 185 (1) and (3) of the Code read as under :-- 185. The Code came into force on 2nd October 1959. The material parts of S. 185 (1) and (3) of the Code read as under :-- 185. Occupancy Tenants--(1) Every person who at the commencement into force of this Code holds-- xxx (ii) in the Madhya Bhargat region-- xxx (b) any land Ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari sub-Lessee Protection Act, 1955 (29 of 1955). xxx shall be called an occupancy tenant and shall have all the rights and be subject to all the liabilities conferred or imposed upon an occupancy tenant by or under this Code. xxx (3) Nothing in sub-section (1) shall apply to person who at the coming into force of this Code, holds the land from a Bhumi-swami who belongs to any one or more of the classes mentioned in sub-section (2) of S. 168. xxx 5. According to the view taken in Ramkrishna Das's case (supra), the lease granted by the appellant would stand terminated under section 75 at the coming into force of Act No. 66 of 1950. By force of section 76, the respondent would become a trespasser. Thereafter, the Act No 29 of 1955 would protect the possession of the respondent and any effort to evict him from the holding would be defeated. This position would continue till 1959 when the Code, under S. 185 invested the respondent with occupancy rights in the holding. However, if the other view is taken, i.e., the lease by a disabled person remained unaffected by section 75, the respondent would not be a trespasser under S. 76. He would be holding the land from a disabled person till the Code came into force. By virtue of sub-section (3) of section 185 of the Code the appellant would continue to be a Bhumiswami and the respondent would not get occupancy rights. We have, therefore, to see whether the leases granted by disabled persons prior to coming into force of the Act No. 66 of 1950 were saved from the sweep of section 75 of the same Act. We have, therefore, to see whether the leases granted by disabled persons prior to coming into force of the Act No. 66 of 1950 were saved from the sweep of section 75 of the same Act. The Supreme Court in Nihalkaran's case (supra) while examining the scheme of the relevant provisions of the Act observed as under:-- By section 73 of Act 66 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 sub-leases 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 1950 stood terminated some time 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 sub-lessee under section 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 Ryotwari sub-lessee' was defined as meaning" "a person to whom a Pakka tenant of any Ryotwari land " has sublet on sub-lease any part of his Ryotwari lend. By section 3 a; ban was imposed against ejectment of all Ryotwari sub-lessees other than sub-lessees under section 74 of Act 66 of 1950. 6. The observations '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 1950 stood terminated sometime before the end of 1954," would indicate that the leases granted prior to coming into force of Act 66 of 1950 were not terminated by efflux of four years' period under section 75 of the Act 66 of 1950. We think that this is the correct position of law. Section 74 is declaratory of the rights of disabled persons. We think that this is the correct position of law. Section 74 is declaratory of the rights of disabled persons. There were no restrictions on the rights of a Pakka tenant when Act 66 of 1.950 came into force. Section 74, therefore, merely preserved the rights of the disabled persons from the sweep of section 75. While section 73 placed restrictions on sub-leasees by Pakka tenants and by section 75 such sub-leases stood terminated for years after the coming into force of the Act or earlier, if the lease period expired, the Act, while declaring this new policy, preserved and recognised the sub-leases by disabled persons by enacting section 74. Section 74, therefore, in terms declares that the disabled person of the class mentioned in the section could sub-let the whole or any part of his holding. This also applied to leases effected prior to coming into force of Act 66 of 1950. This appears to be the legislative intent. In ascertaining the legislative purposes where the language used admits of more than one meaning, recourse may be had, among other things, to the circumstances existing at the time of passage of law, the occasion for the new law and the evil intended to be cured, the remedy intended to be applied, the law prior to the enectment of the Act under consideration and the consequences of the interpretation proposed. There was no reason to treat the leases granted prior to coming into force of Act 66 of 1950 differently from the leases granted by disabled persons under section 74 after the commencement of the Act. The evil that was sought to be eradicated was, undoubtedly, elimination of intermediaries. But the Act recognized a class of disabled persons who were to be permitted to sub-lease their holdings. Therefore, there is every reason to infer that the law intended that leases by disabled persons already existing be left alone, as they were beyond the pale of the evil intended to by cured. It was not necessary to put them on the same footing as other subleases which the law expressly wanted to eliminate. Such an interpretation would accord with the sprit and reason and the legislative purpose sought to be achieved by the Act. It was not necessary to put them on the same footing as other subleases which the law expressly wanted to eliminate. Such an interpretation would accord with the sprit and reason and the legislative purpose sought to be achieved by the Act. We are, therefore, of the view that the construction of the scheme warrants an inference that leases granted prior to coming into force of Act 66 of 1950 by disabled persons were unaffected by section 75, with the result that the sub-lessee continued to be a sub-tenant. The Protection Act (29 of 1955) did not affect such leases, nor there was any occasion to treat sub-lessees as trespassers under section 75. When the Code came into force, section 185(3) protected the rights of the disabled Bhumi-swamis from whom persons were holding land under lease. The leases granted by disabled persons were further protected under S 168(5) of the Code. The lease between the plaintiff and the defendant was subsisting when the Code came into force in October 1959 and the Pakka tenant became a Bhumiswami. 7. There is another aspect of the matter. If a sub-lease granted by a disabled person prior to coming into force of Act 66 of 1950 was effected for a short period, say of an year or two the Pakka tenant could avail of section 74 and grant a fresh sub-lease when the short lease came to an end. However, if the lease was for a longer period and if it was terminated, as has been canvassed, under section 75 of the Act, it would be difficult to see how a sub-tenant would be agreeable to a fresh lease when he knew that section 74 would defeat his rights which the protection Act was seeking to confer. The sub-tenant's ejectment would be stayed under Act 32 of 1954 and such a sub-tenant need not bother to take a fresh lease. The result would be, the disabled Pakka tenant in most of these cases would be rendered helpless, & would lose his rights overthe land. The position would be that though a right of sub-lease by a disabled person was preserved under the Act No. 66 of 1950, if such a disabled person happened to lease his land prior to coming into force of the Act, he lost the land. The result would be most anomalous and discriminatory. The position would be that though a right of sub-lease by a disabled person was preserved under the Act No. 66 of 1950, if such a disabled person happened to lease his land prior to coming into force of the Act, he lost the land. The result would be most anomalous and discriminatory. While enacting Act 32 of 1954, the interpretation as prevented an anomalous position, was undoubtedly kept in mind. Otherwise, the Act would be liable to be struck down as discriminatory. This also points out that the scheme could be effectively worked out only if we hold that section 75 did not have the effect of terminating the leases by disabled persons granted prior to coming into force of the Act, if the disability in such persons continued. 8. We would, therefore, answer the four questions as under :-- (i) Question No. 1. 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 Madhya Bharat area would not feet the status of an occupancy tenant, if the disabled person on the date of coming into force of the Code, i.e., 2-10-1959, remains a disabled person. (ii) Question No. 2. In view of the discussion above, when a lease had been granted by a disabled person before 2-10-1951, the fact of disability continuing on the date of coming into force of the Code was important and determinative about the applicability of sub-section (3) of section 185. It is only if he continued to be a disabled person that sub-section (3) of section 185 of the Code applied. (iii) Question No. 3. As already discussed, section 75 did not have an effect of terminating the lease granted by a disabled person and, therefore, if the Pakka tenant remained disabled, sub-section (5) of section 168 of the Code became applicable. (iv) Question No. 4. (iii) Question No. 3. As already discussed, section 75 did not have an effect of terminating the lease granted by a disabled person and, therefore, if the Pakka tenant remained disabled, sub-section (5) of section 168 of the Code became applicable. (iv) Question No. 4. Coming to question No. 4, we are of the view that even if the interpretation under section 75 of Act No. 66 of 1950 having the effect of terminating the leases of disabled persons, was accepted, the tenant holding under a disabled person could not get the status of an occupancy tenant for the following reasons:-- For giving effect to the scheme under sub-section (1) of section 185 of the Code, a sub-tenant "holding land" was also to be construed as a person whose lease had been terminated by the statutory provisions under section 75 of Act No. 66 of 1950. Such a disabled person would then not have a subsisting lease. Now for the purpose of sub-section (3) of section 185 of the Code, the same construction should be extended to the person holding land from a 'Bhumiswami.' In the same section the interpretation of the expression "person holding land" must remain the same. To put a different construction to the expression "person holding land" as a person holding land under a subsisting lease in sub-section (3) of section 185 of the Code "was to depart from the rule of uniform meaning to be given to the same expression in the same scheme under the same section. It could not be that the same expression, unless it led to an absurdity, would be given diffrent meanings in the same section of the Act, if it occurs in two different places. A sub-lessee holding land under sub-section (1) was construed as a person whose lease had already been terminated and who was continuing to hold the land by virtue of sections 3 and 4 of Act No. 29 of 1955. The meaning given was an extended meaning as including a person whose tenancy had been terminated by section 75 of the Act. The meaning given was an extended meaning as including a person whose tenancy had been terminated by section 75 of the Act. The same interpretation should be given to the expression "person holding land" occurring in sub-section (3) of section 185 of the Code and even if it is held that the disabled person's lease was terminated under section 75, if he remained disabled when the M. P. Land Revenue Code 1959 came into force, the sub-lessee must be held to be a person holding land from a disabled person. In any eventuality, a sub-tenant did not get the status of an occupancy tenant. 9. Let the case be now placed before the appropriate bench for its being decided in accordance with the answers to the question referred Navkar, J. 10. This is a reference arising out of the order passed by late Bajpai. J. I have had the advantage of going through the opinion recorded by brother Dube, J. The points involved are of every day importance which come before us for decision off and on. 1, therefore, would like to record my opinion and reasons therefor separately as under. 11. The facts of the case are that Mahila Sundar instituted a suit-claiming the relief of declaration that she is a Bhumiswami owner of the suit holding and the defendant Prahlad had no right, title or interest in the holding either as a sub-tenant or in any other manner. On the basis of this the plaintiff further claimed the relief of permanent injunction against the defendant restraining him from interfering in her possession. 12. The trial Court decreed the suit of the plaintiff. The matter was taken up before the Appellate Court. On the basis of this the plaintiff further claimed the relief of permanent injunction against the defendant restraining him from interfering in her possession. 12. The trial Court decreed the suit of the plaintiff. The matter was taken up before the Appellate Court. The lower Appellate Court held that since the defendand was a sub-tenant of the holding, the claim of the plaintiff either for declaration or for permanent injunction cannot be decreed: The stand taken by the defendant was that since he was holding the suit land as a sub-tenant from Samvat 2007 i.e. prior to 2.10.1951 and he was continuing in possession in the same capacity upto 2.10.1959 when Madhya Pradesh Land Revenue Code (hereinafter referred to as the Code" came into force and onwards and as such acquired status of occupancy tenant and consequently, had become a Bhumiswami' despite the fact that plaintiff is a widow on the date of grant of lease and continued to be so when the Code came into force. 13. the facts found by the Courts below are that-- (i) the defendant was a sub-tenant even before 2.10.1951. (ii) the defendant was in actual possession as sub-tenant not only on 2.10.1951 but on 2.10.1959. (iii) as the defendant was not in unauthorised possession of holding, there is no question of granting any relief of declaration or of permanent injunction Holding this, the appellate Court allowed the appeal and the suit of the plaintiff was dismissed. 14. The matter was taken up to this Court is Second Appeal by the, plaintiff. It was heard, following decisions were cited:-- (a) Ramkrishna Das v. Shankarpurwali 1960 Rev Nir 577. (b) Rao Nihalkaran v. Ram Gopal, 1956 RN 331 = 1965 JLJ 695 = A.I.R. 1966 SC 1485. (c) Diwan Ram Rao v. Mohan Lal A.I.R. 1930 SC 449. in which the Supreme Court reaffirmed decision given in Rao Nihalkaran's case (supra). 15. It was heard, following decisions were cited:-- (a) Ramkrishna Das v. Shankarpurwali 1960 Rev Nir 577. (b) Rao Nihalkaran v. Ram Gopal, 1956 RN 331 = 1965 JLJ 695 = A.I.R. 1966 SC 1485. (c) Diwan Ram Rao v. Mohan Lal A.I.R. 1930 SC 449. in which the Supreme Court reaffirmed decision given in Rao Nihalkaran's case (supra). 15. During the course of hearing before this Court a point was raised on behalf of the appellant/plaintiff that even assuming that the finding arrived by the lower appellate Court on the question of existenance of sub-tenancy as correct and binding, the claim of the plaintiff for declaration of her rights that she being a disabled person i.e. a widow, remained the Bhumiswami of the suit land and defendant could not acquire the status of an occupancy tenant and, therefore, of a Bhumiswami deserved to be allowed. This argument put forth on behalf of the plaintiff was based on the premises of certain facts as already found by the lower appellate Court and the undisputed circumstance that the plaintiff belonged to the category of disabled persons and the disability had not come to an end. In the context of the finding arrived by the lower appellate Court regarding possession, the appellant/plaintiff has also moved an application for amendment of the plaint to add in the alternative the additional relief of possession which is being claimed on the basis of the rights already pleaded. 16. While meeting this contention, the learned counsel appearing on behalf of the defendant/respondent contended that the argument put forth by the appellant that she still coninued to be the Bhumiswami of the suit holding even after the coming into force of the Code on 2.10.1959 could not be accepted in view of the legal position as laid down by the decision of Ramkrishnadas v. Shankarpurwali (1970 Rev Nir 577). It was urged by placing reliance on the observations made by the Division Bench in Shankarpurwali's case (Supra) that since the lease in the present case has been found to be in existence even prior to 2.10.1951 the same was governed by the provisions of section 76 of the M. B. Land Revenue and Tenancy Act, 1950 (here in after referred to as the M. B. Tenancy Act) which came into force in the local area in which the suit holding is situate, on 2.10.1951 and despite termination of the sub-tenancy after the expiry of the period of four years from the date of enforcement of the M. B. Tenancy Act and treating the sub-tenant as trespasser the defendant got protection against eviction by virtue of the M. B. Ryotwari Sub-Lessee Protection Act, 1955 and since according to the settled legal position which is prevailing right from the time of decision of the Supreme Court in Nihalkaran's case 1966 RN 331 = 1966 JLJ 695 and the same having been again reaffirmed by the supreme Court recently in the case of Diwan Ram Rao v. Mohanlal ( AIR 1980 SC 449 ) he was holding the suit land lawfully as a sub-lessee and, as such, he became an occupancy tenant in accordance with the provisions of section 185(1) of the Code and bad, accordingly, become a Bhumiswami by virtue of the other relevant provisions of the Code conferring the status of Bhumiswami on an occupancy tenant. The contention put forth by the plaintiff/appellant that since the Bhumiswami in the present case is a disabted person, i.e., a widow, not only on the date of the lease, i.e., prior to 2.10.1951, but also on 2.10.1959 and even today, the provisions of sub-section (3) of section 185 of the Code became applicable to the present case and in view of the provisions of the said sub-section the sub-tenant could not claim right under section 185(1). The argument put forth on behalf of the defendent/respondent was that in view of the observations made by the Division Bench in Shankarpurwali's case (supra) since the lease in the present case was prior to 2.10.1951 and there was no case of further fresh lease having been granted after 2.10.1951 so as to treat the same as one governed by the provisions of section 74 and 75 of the M. B. Tenancy Act, it could not be said that for the purpose of section 185(3) of the Code, the defendant was ho Wing the suit land on lease from a disabled person on the date of coming into force of the Code, i.e. 2.10.1959. On this reasoning it was urged that sub-section (3) had no application to the present case and since for the purposes of section 185(1) the defendant could be treated as holding the suit land lawfully on lease he became an occupancy tenant and, accordingly, acquired the status of a Bhumiswami. 17. On perusal of the observations made by the Division Bench in Shankarpurwali's case (supra) it is apparent that the argument put forth on behalf of the defendant that though for the purposes of sub-section (1) of section 185 he could be held to be a sub-tenant lawfully holding the suit land on lease from the Bhumiswami, he could not be treated as such for the purposes of sub-section (3) of section 185 for the reason that the lease was granted prior to 2.10.1951 and no fresh lease was thereafter, granted despite the land in question having been and occupied in pursuance of the initial lease. 18. The observations made by the Division Bench in Shankarpurwali's case (supra) to show that continuance of disability of the Bhumiswami on 2.10.1951, the date of coming into force of the Code, was not at all relevant and for the purposes of section 185(3) or for construing the provisions of section 168(5), lease which were granted prior to 2.10.1951 could not be treated as leases granted in contravention of the provisions of sub-section (2) of section 168 of the Code or that of the corresponding provisions of section 73 and 74 of the M. B. Tenancy Act unless a fresh lease was granted after 2.10.1951 by a disabled person and was subsisting on 2.10.1959. 19. 19. While meeting the aforesaid contention, the learned counsel appearing on behalf of the appellant cited the decision of the Supreme Court in the case of Amar Singh v. Balbahadur Singh 1966 RN 477=1966 JLJ 973 wherein it has been observed by the Supreme Court in para 4 of the judgment that for exemption from the operation of section 195(1), it had to be established that the respondent-lessor at the commencement of the Code belonged to the disabled class. It was also contended that their lordships while dealing with the aforesaid case further observed that though undoubtedly the Bhumiswami belonged to the disabled class When the lease was granted but was not such on 2.10.1959 when the Code came into force, and the continuance of the disability on the date of coming into force of the Code being the decisive factor for attracting the operation of sub-section (3) Of section 185 of the Code, the view taken by the Division Bench of this Court in Shankarpurwali's case (supra) appears to be in conflict with that of the Supreme Court in Amar Singh's case (supra) The argument was that in the case of Amarsingh (supra) their lordships of the Supreme Court upheld the claim of the tenant for the reason that on the date of coming into force of the Code, the disability of the Bhumiswami had come to an end inasmuch as the Bhumiswami had by that time become major. It was also contended that their lordships of the Supreme Court have clearly held that the decisive aspect governing the operation of the exemption under sub-section (2) was the fact of continuance of the disability of the Bhumiswami on the date of coming into force of the Code It was also pointed out that in para 4 of the judgment in Amar Singh's case (Supra) their lordships have dealt in details about the effect of the provisions of section 168 (2), (3) of the Code and have, thereafter, held that what was determinative was not the existence of the disability on the date of grant of lease before the commencement of the Code but the disability of the Bhumiswami on the date of coming into force of the Code, in Amar Singh's case (supra) also the lease was created prior to 2.10.1951. I have gone through the observations made in para 4 as reproduced below:-- 4 At the commencement of the Code the respondent acquired the tenure of the Bhumiswami under section 158(b) of the Code, but it cannot be said that the respondent" belonges to any one or more of the classes mentioned in sub-section (2) of section 168. "For the exemption from the operation of section 185(1), it had to be established that the respondent at the commencement of the Code belongs" to the disabled class. He undoubtedly did belong to the disabled class when the lease was granted, but not at the commencement of the Code and what is decisive for the operation of the exemption under sub-section (3) is the status of Bhumiswami at the commencement of the Code. By section 168(2) the prohibition against a Bhumiswami against transfer by way of a lease of the land comprised in his holding is inoperative where the Bhumiswami is subject to any one of the disabilities mentioned in clauses (i) to (ix) of sub-section (2). That provision is undoubtedly prospective the Legislature has by sub-section (3) of section 185 prohibited the acquisition of occupancy tenancy rights by a tenant of a Bhumiswami who was when the Code came into force subject to any of the disabilities mentioned in section 168(2). It is clear from the terms of sub-section (2) of section 168, proviso 2, that a lease made by a Bhumiswami who is subject to a disability remains valid only during the disability and one year after the determination of that disability by death or otherwise. Therefore, a lease created by a Bhumiswami even if he was at the date when he created the lease subject to a disability Would become invalid on the termination of the disability and a period of one year thereafter. Therefore, a lease created by a Bhumiswami even if he was at the date when he created the lease subject to a disability Would become invalid on the termination of the disability and a period of one year thereafter. By sub-section (4) of section 168 it is provided that a lease granted in pursaance of sub-section (2) and (3) shall be held in such terms and conditions as may be agreed upon between the leasee and the Bhumiswami and it is further provided by sub-section (5) that on the coming into force, of the Code where any land is held on lease from a Bhumiswami who belongs to any one or mare of the classes mentioned in subsection (2) such lease shall on the coming into force of the Code be deemed to be a lease granted in pursuance of sub-section (SIC) The lease granted by a person who on the commencement of the Code acquires the status of a Bhumiswami is therefore deemed to be lease granted in pursuance of sub-section (2) of section 168, if the Bhumiswami "belongs" to the class mentioned in sub-sec-tion (2). Reading section 185(3) with section 168(2) and section 168(5) it is clear that to attract exclusion from the operation of section 185(1) the Bhumiswami must, at the commencement of the Code, be subject to the disability mentioned in sub-section (2) of section 168. That is determinative is not the existence of a disability at the date of the grant of the lease before the commencement of the Code, but the disability of the Bhumiswami at the commencement of the Code 20. From the perusal of the contents of the above, it is apparent that according to their lordship of the Supreme Court, the lease in Amarsingh's case (supra), though having been granted prior to 2.10.1951, was governed by the provisions of section 168(5) and became a lease by virtue of the deeming provision as one granted in pursuance of sub-section (2) of section 168 if the Bhumiswami belonged to the disabled class as mentioned in subsection (2). Their lordships have further observed that reading section 185(3) and section 168(5) it was clear that to attract exclusion from the operation of section 185(1) the Bhumiswami must at the commencement of the Code, be subject to the disability mentioned in section 168(2). Their lordships have further observed that reading section 185(3) and section 168(5) it was clear that to attract exclusion from the operation of section 185(1) the Bhumiswami must at the commencement of the Code, be subject to the disability mentioned in section 168(2). In Shankarpurwali's case (supra) it his been held by this Court that if the lease was granted prior to 2.10.1951 and there was no case of further fresh lease granted after 2.10.1951 and subsisting on 2.10.1959, such leases could not be treated by virtue of sub-section (5) of section 168 as leases granted in contravention of sub-section (2) of section 168 and for the purposes of section 185(3) it could not be said that the defendant was holding the land on lease from a disabled Bhumiswami though for the purpose of section 185(1) he could be treated as a sub-lessee despite determination of the lease by operation of law as contained in sections 74, 75 and 76 of the M. B. Tenancy Act. From the perusal of the decision in Shankarpurwali's case (supra) is also found that the decision of the Supreme Court in Amar Singh's case (Supra) does not find reference. 21. Learned counsel for the appellant/plaintiff further pointed out that the view taken by the Division Bench in Shankarpurwali's case(supra) decided on 2.9.1970 was also in conflict with the view expressed earlier by a Division Bench of this Court in the case of Gajraj Singh v. Jagalsingh 1970 RN 133 = 1970 MPLJ 703 ) decided on 2.1.1970. It was urged that in the aforesaid case, the Division Bench by placing reliance on the observations on the supreme Court in Nihalkaran's case (supra) had clearly observed in para 42 of the decision that if the disability of the Bhumiswami would have continued at the commencement of the Code, i.e. 2.10.1959, the sub-tenant Gajraj Singh could not have acquired the rights on an occupancy tenant under section as reproduced below:-- 185 (1) xxx (2) xxx (3) Nothing in sub-section (1) shall apply to a person who at the coming into force of this Code, holds the land from a Bhumiswami who belongs to any one or more of the classes mentioned in sub-section (2) of section 168. (4) xxx 22. (4) xxx 22. It was also pointed out that though the scheme of the legislation has been to confer rights and interests cm persons who actually tilled the land, the legislature has been also careful in protecting the rights and interests of such Bhumiswamis who be long to the class of disabled persons and in whose case sub-letting of the agricultural holding was ordinarily inevitable. The argument put forth was that there was no scope for a plying different tests while construing the provisions of sub-section (I) and sub-section (3) of section 185 and further in view of the specific and plain language used in subsection (5) of section 168, therefore there was no scope to hold that the lease granted prior to 2.10.1951 could not be treated as a lease granted in contravention of the provisions of sub-section (2) of section 168. 23. However, without expressing any opinion on the merits of the contentions put forth by each side, this Court is of the opinion that in view of the conflict in the view taken by an earlier Division Bench of this Court in Gajrajsingh's case (supra) and also in view of the observations made by their lordships of the supreme Court in the case Amarsingh (supra) and aforesaid two decisions having not been referred in the decision in Shankar-purwali's case (supra), the questions as framed by late Hon'ble Bajpai, J, involved need reconsideration by a larger Bench for favour of answer to the following questions :-- (1) 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 ? (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 M. B. Land Revenue and Tenancy Act 1950 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 subtenant can be treated as one lawfully holding the land as a sub-leasee for the purpose of section 185(1) of the Code if he happened to continue i.e. occupation of the land in pursuance of the initial lease he cannot be treated for the purpose of subsection (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 ? 24. I may refer here to different enactments which I will have to consider and the intention in passing those enactments. Formerly the leases regarding agricultural lands in Gwalior state were governed by Quanoon Mal Samvat 1893 In section 245 of Quanoon Mal there were different kinds of tenancies recognized by Quanoonmal. They are; (1) Sakitul milkiyat (2) Maurusi or Dakhilkar, (3) Gair Maurusi or Galr Dakhilkar, (4) Shikmi, This Act and Quanoon Ryotwari Gwalior Samvat 1974 were repealed by Madhya Bharat Zamidari Abolition Act, Samwat 2008. They are; (1) Sakitul milkiyat (2) Maurusi or Dakhilkar, (3) Gair Maurusi or Galr Dakhilkar, (4) Shikmi, This Act and Quanoon Ryotwari Gwalior Samvat 1974 were repealed by Madhya Bharat Zamidari Abolition Act, Samwat 2008. This Act was promulgated with an intention mentioned in it as under Act 13 of 1951) :-- The aim of the Act was to provide for the public purposes of the improvement of agriculture's and financial condition of agriculturists by abolition and acquisition of the rights of proprietors in villages, muhals, chaks or blooks settled on Zamidari System which is only a system of keeping an intermediary between the State and the tenants injurious to the betterment of agriculture as well as the agriculturists in Madhya Bharat and for other matters connected there with. When this act came into force, proprietary rights vested in the State and by section 37 of the Act the proprietor becomes a Pacca tenant of the Kuddkast land which was in his possession and for that he had to pay the land revenue to the State. 25. Section 38 of the Madhya Bharat Zamidari Abolition Act conifers Pucca tenancy right on tenants and sub-tenants and to acquire the Pucca tenancy rights the tenants and the sub-tenants are required to deposit a particular amount as compensation to be paid to the landlords. It also mentions the preferential rights of a sub-tenant of a tenant to acquire Pucca tenancy rights by depositing the amount. If the amount is not deposited within the time allowed by the Act, the status of a tenant or a sub-tenant is considered under section 38(5) of the Act. The original period to deposit the amount was two years, but the period was extended by the successive enctments and the enlargement was upto date of coming into force of the Code. 26. I will consider the effect of coming into force of Madhya Bharat Land Revenue and Tenancy Act. There are certain provisions of definitions in the Act which are very important to decide the points referred to us. 26. I will consider the effect of coming into force of Madhya Bharat Land Revenue and Tenancy Act. There are certain provisions of definitions in the Act which are very important to decide the points referred to us. The Madhya Bharat Land Revenue and Tenancy Act Samvat 2007 (Act No. 60 of 1950) was promulgated wite an aim which is mentioned as under :-- An Act to consolidate and declare the law relating to revenue administration in the United State of Gwalior, Indore and Malwa (Madhya Bharat) and Land Revenue, Land tenure and other matters connected with land in the Ryotwari tracts of villages of the said United State. The definitions, which are relevant for the decision of the case, are given as under :-- (1) Pakka tenant--means a tenant who has been or whose predecessor in interest had been lawfully recorded in respect of his holding as a Ryot "Pattedar, Mamuli Maurusi" Gair Maurusi", ank "Pukhta Maurusi" when this Act comes into force or who may in future be duly recognized as such by a comp tenant authority. (2) Ordinary tenant--means a tenant other than a Pakka tenant and shall not include a sub-tenant. (3) Tenant--means a person who holds land for agricultural purposes from the government or from an assignee of the proprietary rights and who is or but for a contract would be liable to pay rent for his holding, but does not include :-- (i) a concessional holder as defined in sub clause (x); (ii) a holder of a service holding as defined in section 99. (iii) a person to whom only the right to cut grass or graze cattle or propagate or collect lac has been granted. (4) Sub-tenant--means a person who holds land from a Pakka or an ordinary tenant or from a holder of a service holding or from a concessional holder as defined in sub-clause (x). 27. Now I will consider section 73 of the Act. It says '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. 27. Now I will consider section 73 of the Act. It says '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. Section 74 of the Act defines as under:-- A Pakka tenant who is a widow, a minor, a lunatic and idiot or a person incapable of personally cultivating by reason of blindness or other physical infirmity or because he is in the military, naval, or Air services of the Indian dominion or the United State or is under detention or imprisonment may sub-let the whole or any part of his holding. The next important section is 75 of the Act. It says that :-- A sub-lease of the whole or any part of the holding of a Pakka tenant effected properly and legal prior to the commencement of this Act shall be terminated after the expiry of the period of sub lease or 4 years after the commencement of this Act whichever period is less. What will be the status of a sub-lessee when the lease is terminated is given in section 76 of the Act. It says that he shall be deemed to be trespasser: and shall be liable to be evicted in accordance with the provisions of this Act. 28. The period of four years came to an end somewhere in 1954. Alongwith these provisions it will be better if I consider section 38 of Madhya Bharat Zamidari Abolition Act. Section 38 of the Madhya Bharat Zamidari Abolition Act had a similar effect on the contractual relationship of tenancy. It declared that the tenants or the sub-tenants who failed to deposit the amount as required by the said section will be deemed to be trespassers and they can be evicted according to the provisions of the Act. When the Code was enacted by section 157, it was declared that there will be only one class of tenure holders from the State and those will be known as Bhumiswami, and Bhumiswami right will be available to every person in respect of land held by him in the Madhya Bharat region as a Pakka tenant or maufidar inamdar or concessional holder as defined in Madhya Bharat Land Revenue and Tenancy Act Samvat 2007 29. In the Code Itself there is definition of tenant given in section of definition under 2 and on the basis of this definition it was submitted before the Court that if the definition is taken into consideration, Then to acquire the status of occupancy tenant it should be shown by the tenant that his tenancy was subsisting when the Code came into force. 30. To overcome all these difficulties two important pieces of legislation were enacted. The first is Act No. 7 of 1959 called as the Madhya Bharat Maufi and Inam Tenants and Subtenants Protection Act, 1954. The aim of this Act was :-- To provide for the temporary protection of the tenants or ordinary tenants sub-tenants Muafidars of Inamdars and istmurardars in Madhya Bharat against their eviction by such Muafidars or inamdars or their tenants, as the case may be and for the stay of this and other proceedings relating to such eviction. The other enactment was Act No. 3.2 of 1955. It was called as the Madhya Bharat Ryotwari Sub-lessee Protection Act, 1955'. The aim of this Act was:-- to provide for the stay or proceedings under section 76 (1) for the ejectment of sub-lessees of Ryotwari land after the termination of sub-lease according to section 75 of the Madhya Bharat land reveeue and tenancy Act, Samvat 2007 In this Act (Act No. 29 of 1955) "Ryotwari land" and "Ryotwari sub-lessee" have been defined which are as under-- (a) Ryotwari land" means land which is part of any Ryotwari village but does not include land vested in the Government under the M. B. Zamindari Abolition Act, Samvat 2008 or the M.B. Jagir Abolition Act, Samvat 2008." (b) "Ryotwari sub-lessee" means a person to whom as Pakka tenant of any Ryotwari land has sub-let on sub-lease any part of his Ryotwari land. Similarly, in Act No. 32 of 1954 (the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act 1954) there are definitions of 'Inam land' and 'tenant', sub-tenant 'ordinary tenant' and 'rent'. Similarly, in Act No. 32 of 1954 (the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act 1954) there are definitions of 'Inam land' and 'tenant', sub-tenant 'ordinary tenant' and 'rent'. For convenience I may reproduce them as under:-- (i) "Inam land" means land held in Inam or Muafi by an Inamdar, Muafidar or istumurardar, as defined in explanations 2, 3, and 4 of section 95 of the Madhya Bharat Land Revenue and tenancy Act Samvat 2007 (and includes a service holding as defined in S. 99 of the said Act but does not include Jagir land as defined in section 2 of the Madhya Bharat Abolition of Jagirs Act Samvat 2008. (ii) The terms "tenant", ' sub-tenant" ordinary tenant" and "rent" have the same meaning as is assigned to them in sub-section (1), (7),(8) and (9) of section 54 of the Madhya Bharat Land Revenue and Tenancy Act Samvat 2007. 31. To fulfil the object under the Act sections 3 and 4 were enacted. Section 3 and 4 refer to stay of suits and proceedings for eviction of Inam Land tenants and sub-tenants. Similarly, in Act No. 29 of 1955 the effect of sections 3 and 4 was to bar the ejectment of Ryotwari sub-lessees and to stay the suit and proceedings for ejectment of Ryotwari sub-lessees. The protection was needed for sub-lessees because under the provisions of laws, I have mentioned previously, they were termed as trespassers The effect of these enactments and the status which was given by these enactments was considered in the case of Gajraj Singh v. Jagat Singh & others [1970 Rev Nir 133), Full Bench judgment of this Court. The above ruling was further considered and affirmed in Diwan Ram Rao v. Mohanlal ( AIR 1980 SC 449 ). The duration of these protections was for four years, that is to say that if continued after the date of coming into force of the Code the effect of these enactments and the status of sub-lessees was considered in para 24 and 39 of Gajraj Singh's case (supra) which is as under-- 24. The duration of these protections was for four years, that is to say that if continued after the date of coming into force of the Code the effect of these enactments and the status of sub-lessees was considered in para 24 and 39 of Gajraj Singh's case (supra) which is as under-- 24. Thus although S. 76 of the Madhya Bharat Land Revenue and Tenancy Act, 1950, might have made a deeming provision about treating such a person as a trespasser, yet sub-section (2) of section 38 of the Madhya Bharat Zamindari Abolition Act, 1951 clearly put 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 irrespect of the Muafi Inam and Ryot-wari lands by passing the two different protection Acts of the year 1954 and 1955 Thus, it is clear that the deeming provision as provided by section 76 of the Madhya Bharat Land Revenue Tenancy Act 1950 cannot be operative as long as the period of 8 years provided by section 38 (2) of the Madhaya 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. In this view of the matter, there can be no doubt that on the commencement of the Madhya Pradesh Land Revenue Code 1959, the appellant whose status as a sub-tenant continued till the commencement of the said Code, became an occupancy tenant with effect from 2-10-1959 and as such, the former Pakka tenant, namely the heirs of Raghunathsingh who would become the Bhumiswamis under the Madhya Pradesh Land Revenue Code, 1959 cannot claim to evict the appellant. Thus there can be no doubt that the appellant after the commencement of the Madhya Pradesh Land Revenue Code, 1959, is an occupancy tenant of the Bhumiswami holder namely the heirs of Raghunathsingh, which will include the present appellant and the respondents as well. 39. Thus there can be no doubt that the appellant after the commencement of the Madhya Pradesh Land Revenue Code, 1959, is an occupancy tenant of the Bhumiswami holder namely the heirs of Raghunathsingh, which will include the present appellant and the respondents as well. 39. All that has to be seen for the application of section 185(1)(i) (b) or (d) is at two termini, (i) on the date of commencement of the Code, does he "hold" the land ? (ii) going back to the date of commencement of his occupation was he a sub-tenant in whole, favour a sub-lease was effected properly and legally ? If the sub-tenant had been dispossessed before October 2, 1959 the first requirement would be lacking, because then he did not hold the land which expression refers to the factual possession Likewise if the sub-tenant occupied the land by force or fraud and was not legally inducted as a sub-tenant, the second requirement would be lacking. 32. Therefore, these protections against deemed trespassers who were either tenants or sub-tenants, was taken into consideration. If their initial entry were legal and if they continued holding the land, what will be the effect, I will consider afterwards. But when there is a deeming clause, how it is to be considered, was considered by this Court in the case of Ladhuram Rameshwardayal (firm) v. Krishi Upaj Mandi Samiti Shivpuri and other (1977 JLJ 613) in Paras 105 and 108 which are as under :-- 105, In State of Bombay v. Pandurang Vinayak and others the Supreme Court observed as follows:-- When a statute enacts that something shall be deemed to have been done which in fact and truth was not done the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be restored to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion, (vide Lord justice James in ex-parte valton In re Levy, (1881) 17 Ch. D 746 at P. 756.".... In East End Duelings Co. Ltd. v. Fineubury Burough Counsel. D 746 at P. 756.".... In East End Duelings Co. Ltd. v. Fineubury Burough Counsel. (1952) AC 109 (b) Lord Asquith while dealing with the provisions of the Town and Country Planning Act, 1947, made reference to the same principles and observed as under:-- If you are bidden to treat an imaginary State of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, State of affairs had in fact existed, must inevitably have flowed from or accompanied it.........The statute says that you must imagine a certain State of affair; it does not says that having done so, you must cause or permit your imagination to boggle when it comes, to the inevitable corrollaries of that State of affairs. 108. It is true that as held by their Lordships in Commissioner of Income Tax Bombay City I. Bombay v. Amarchand N. Shroff by his heirs and legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate field. But it has to be determined with reference to each statute as to what is the scope of the legal fiction. The effect will be that if the initial holding by these sub-lessees is legal and if they are holding the land when the Code came into force, then under section 185 of the Code the sub-lessees will become occupancy tenants. This legal position was considered in Rao Nihalkaran v. Ramgopal (supra) and it was held that-- Protection against eviction during the continuance of the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act (32 of 1954), by enforcement of a decree passed in a suit or a proceeding either before or after the date on which the Act was brought into force was conferred upon tenants, sub-tenants and ordinary tenants It is clear from the term, of sections 3 and 4 of the Act that the legislature did not seek to grant protection only to persons between whom and the claimants for protection there was a subsisting contractual relation. 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 expression "Ryotwari sub-lessee" in section 185(1)(ii)(b) of the Madhya Pradesh Land Revenue Code (20 of 1959) includes person whose contractual relation has been determined either under the terms of contract of sub-lease of statutorily under the M. B. Revenue Administration and Ryotwari Land Revenue and Tenancy Act (66 of 1950). If that be the true meaning of the expression "Ryotwari sub-lessee" there would be no reason to think that the legislature sought to make a distinction between tenants sub-tenants and ordinary tenants of Inam Land in S. 185(1)(ii)(a) of the Madhya Pradesh Land Revenue Code (20 of 1959) and Ryotwari sub-lessees of other lands in section 185(1)(ii)(b). A member belonging to those classes would therefore be included in the protection provided at some time prior to the date on which the Code was brought into force if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of commencement of the Code The same position was again affirmed by the Supreme Court in Diwan Ram Rao v. Mohanlal ( AIR 1980 SC 449 ) in which it is held that-- M P. Land Revenue Code (20 of 1959) S. 185 (2) and (1) (ii) (a) suit for possession against tenant of agricultural and on determination of tenancy suit stayed under Ss. 3 and 4 of M.B. Act 32 of 54 and resumed after coming into force of Land Revenue Code held suit was rightly dismissed as defendant who continued to hold land when Code came into force had become occupancy tenant-expression tenant in S. 185(1)(ii)(a) had to be ascribed meaning that expression had in M. B. Act 32 of 1964. AIR 1966 SC 1486 followed. Therefore my answer to question No. 1 is that if initial holding of the holder is legal and if he continues to held the land till coming into force of the Code, then he will acquire the status of an occupancy tenant. 33. AIR 1966 SC 1486 followed. Therefore my answer to question No. 1 is that if initial holding of the holder is legal and if he continues to held the land till coming into force of the Code, then he will acquire the status of an occupancy tenant. 33. The next important aspect which I will have to consider is the position of sub-lessee who were granted leases by disabled persons If I go back to Madhaya Bharat Land Revenue and Tenancy A ct prohibits creation of sub-lease, but for certain persons the Act allows that they can sub-lease the holding or part thereof. These persons are widow, a minor etc. But the very Act says that these sub-leases will come to an end after four years of passing of the Act or the period of the lease whichever is less. Therefore the last year will be 1954 and after 1954 all such sub-leases will come to an end and the persons holding the land from disabled persons will be trespassers and they could be evicted as trespassers under the said Act. Section 38 of the Madhya Bharat Zamidari Abolition Act did not improve the status because to such persons provisions of section 38 will be applicable which runs as under: that a sub-tenant or tenant of a sub-tenant shall remain a subtenant or tenant of a sub-tenant as before in case of disability mentioned in section 74 of Madhaya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007. He shall have no right to become a Pacca tenant by depositing the amount under this sub-section. Therefore, the cumulative effect of all these Acts will be that the sub-lessees having a lease from disabled persons remained trespassers. 34. Now, I will come to the relevant section of the Code which is 168 and it defines what is a lease. In section 168 (2) Bhumiswami's, who are disabled persons, can lease out their holding or part thereof, but such a lease will come to an end after a period of one year when the disability ceases. Section 185(3) of the Code says:-- (3) Nothing in sub-section (1) shall apply to a person who at the coming into force of this Code holds the land from a Bhumiswami who belongs to any one or more of the classes mentioned in sub-section (2) of section 168. Section 185(3) of the Code says:-- (3) Nothing in sub-section (1) shall apply to a person who at the coming into force of this Code holds the land from a Bhumiswami who belongs to any one or more of the classes mentioned in sub-section (2) of section 168. The classes mentioned in sub-section (2) of S. 168 of the Code are those who are termed as disabled persons. If I will take into consideration the effect of all these provisions, the only class of actual tillers of soil who were denied the right of occupancy tenants are those coming within the purview of sub-section (3) of section 168 of the Code, The Crucial date to determine whether a person holds lands land from a disabled person is the date of enforcement of the Code. If the land is held from a disabled person and the disability continues upto 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 under section 168(2) of the Code and the rights of the parties will be governed accordingly, section 168(2) of the Code has a deeming clause in it and what is the effect of a deeming clause I have already mentioned above. 35. 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 ca no acquire the status of an occupancy tenant. 36. The next important aspect, I have to consider is regarding the position of sub-lessees created by disabled persons prior to 2-10-1951, In Madhya Bharat region. This point, I have already discussed above in my opinion and the result is that such tenants will not get the rights of an occupancy tenant if the disability continues till coming into force of the Code i.e. upto 2-10-1959, the person who granted the sub-lease remains a disabled person. 37. The next point is that what will be the effect of a lease granted by a disabled person before 2-10-1951 and the fact of disability continues on the date of coming into force of the Code. The important determinative factor will be the continuance of the disability and for such leases, sub-section (3) of section 185 of the Code will be applicable. 38. The important determinative factor will be the continuance of the disability and for such leases, sub-section (3) of section 185 of the Code will be applicable. 38. Question No. 3 is that what Will be the effect of the Code on a lease granted by a disabled person when he was a Pacca tenant and he remained disabled upto the date of coming into force of the Code. In my opinion to such leases sub-section (5) of section 168 of the Code will be applicable. 39. Coming to the last question, I am of the view that if the leases of disabled persons were terminated under section 75 of the Act No. 66 of 1950 the tenant holding under a disabled person will not get a status of an occupancy tenant. 40. After going through the opinion given by learned brother the K. K. Dubey, J. I am in agreement with the answers which he has given to the points referred in the order. 41. Let the case be now placed before the appropriate Bench for its being decided in accordance with the answers to the questions referred.