JUDGMENT

THOMMEN, J.:—This appeal by leave arises from the judgment of the Full Bench of the Allahabad High Court in Second Appeal No. 2746 of 1965*, whereby the High Court, reversing the finding of the courts below, held that the suit instituted by the present respondent was maintainable under section 180 of the United Provinces Tenancy Act, 1939 (the Act). That is the only question which arises .for consideration in this appeal brought by the defendant in the suit.

#Reported in AIR 1977 All 370.

2. The suit relates to 10 plots of land of which the plaintiff is the proprietor and situated in District Muzaffarnagar. The suit was instituted for ejectment of the defendant appellant Lala Raghuraj Swarup (now represented by his legal representatives and hereinafter referred to also as the sub-tenant), who was granted a sub-lease in the suit properties by the original tenants, Raimal and Bhartu (the tenants) for a period of five years commencing from 1-1-1950 and expiring on 31-12-1954. However, on 14-9-1954 the tenants surrendered their interests in the holding to the plaintiff. The plaintiff thereupon issued notice dated 2-11-1954 to the defendant calling upon him to deliver vacant possession of the land to the plaintiff on 31-12-1954 which was the agreed date of expiry of the sub-lease. Since the defendant failed to comply with that demand, the plaintiff instituted the suit for ejectment under section 180 of the Act.

3. Various contentions were raised by the defendant in answer to the plaint allegations and all of them, except the question whether the suit was maintainable under section 180 of the Act were rejected by the trial court as well as by the first appellate court. Holding that the suit was not maintainable, they stated that, in view of the fact that the defendant was holding the land as a sub-tenant, he was liable to be ejected only in terms of section 175, and not section 180, and had the suit been brought under section 175, it would have been stayed in terms of the Government Notification dated January 23, 1953 stating that all suits, applications or proceedings under section 175 were stayed.

4. It is not disputed that had the suit been brought under section 175, it was liable to be stayed for the notification is still in force and has remained in force at all material times. On the other hand, if the suit was rightly brought under section 180, there was no stay and in that event, all the other issues having been found in favour of the plaintiff, the suit has to be, and ought to have been, decreed. The High Court has so held by the impugned judgment.

5. To examine this question, we shall presently refer to sections 175 and 180, but before we do so, it is necessary to refer to the provisions concerning the status of a subtenant (vis-a-vis a tenant) whose rights are extinguished by operation of law.

6. The expression tenant in sub-section (23) of section 3 of the Act includes a subtenant as defined in sub-section (22) of that section. These sub-sections read:

"3(22). Sub-tenant means a person who holds land from the tenant thereof other than a permanent tenure-holder, or from a groveholder or from a rent-free grantee or from a grantee at a favourable rate of rent and by whom rent is, or but for a contract express or implied, would be payable;

3(23). Tenant means the person by whom rent is, or but for a contract express or implied would be, payable and, except when the contrary intention appears, includes a subtenant, but does not include a mortgagee of proprietary or under-proprietary rights, a grove-holder, a rent-free grantee, a grantee at a favourable rate of rent or, except as otherwise expressly provided by this Act, an under-proprietor, a permanent lessee or a thekadar;"

7. It is not disputed that the defendant at the material time was a sub-tenant as defined under section 3(22) in terms of the sub-lease granted to him by Raimal and Bhartu, who were tenants within the meaning of section 3(23). Nor is it disputed that the