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Allahbad High Court
R.B.MISRA,J.M.L.SINHA,M.P.MEHROTRA
L. Deep Chandra - Appellant
Versus
Lala Raghuraj Swarup - Respondent
Decided On : 03/24/1977
TENANCY - EXTINCTION - SUB-TENANCY - SURRENDER OF TENANCY RIGHTS - EFFECT - U.P. TENANCY ACT, 1939 - SECTIONS 31, 40, 45, 47, 48, 175, 180.
Fact of the Case:
The dispute centered around ten plots of land in village Yusufpur Mahal Rustam Ali Khan, pargana tahsil and district Muzaffarnagar. Rai Mal and Bhartu were the tenants-in-chief of the said plots, owned by the appellant. They executed a sub-lease in favor of the respondent for a period of five years, commencing from 1st January, 1950, to 31st December, 1954. The tenants-in-chief, however, surrendered the disputed land in favor of the appellant on 14th September, 1954. The appellant gave a notice to the respondent on 2nd Nov. 1954, asking him not to cultivate the disputed land after the expiry of the sub-lease in his favor. He, however, did not give possession and the appellant was, therefore, obliged to file a suit for his ejectment under S. 180 of the U.P. Tenancy Act. He also claimed Rs. 212/- by way of damages from the defendant.
Finding of the Court:
The court held that with the surrender of the tenancy rights, the sub-tenancy was extinguished. Of course by S.47 (4), it was postponed till the expiry of the remainder period of the sub-lease but after the expiry of that period, it cannot be argued with any force that the status of the defendant respondent continued thereafter as a sub-tenant. The wordings of S. 27 of the U.P. Tenancy (Amendment) Act, referred to in the Full Bench decision in the case of Prem Singh v. Hukum Singh (supra) are quite different from the wordings of S. 47 (4) of the Act.
Issues: 1. Whether a suit under S. 180 of the U. P. Tenancy Act, in the present case, was maintainable or the proper remedy for the plaintiff was to file an application under S. 175 of the U. P. Tenancy Act. 2. Whether the status of the defendant was that of a non-occupancy tenancy and he should not be treated as a trespasser and, therefore, the suit under S. 180 of the U. P. Tenancy Act was not maintainable.
Ratio Decidendi: 1. The court held that the suit under S. 180 of the U. P. Tenancy Act was maintainable and the courts below have committed an error of law in holding to the contrary. 2. The court held that the status of the defendant respondent on the date of the suit was that of a trespasser and, therefore, the suit under S. 180 of the U. P. Tenancy Act was maintainable.
Final Decision: The appeal was allowed to the extent that the judgment and decree passed by the court below were set aside and the plaintiffs suit for possession over the property in dispute was decreed. The claim for damages was, however, disallowed.
R. B. MISRA, J. :- The present second appeal is directed against the judgment and decree of the 2nd Additional Civil Judge, Muzaffarnagar, dated 5th Aug., 1965. It came up for hearing before a learned Single Judge, but as a question of law of general importance was involved in this case, the learned Single Judge referred it to a larger Bench. This is how the present appeal has come before us.
2. The material facts to bring out the point involved in the case are as follows:-
The dispute between the parties centres round ten plots, situate in village Yusufpur Mahal Rustam Ali Khan, pargana tahsil and district Muzaffarnagar. Admittedly, Rai Mal and Bhartu were the tenants-in-chief of the said plots, owned by the present appellant. They executed a sub-lease on 10th March. 1950, in favour of Raghuraj Swarup, the respondent, for a period of five years, commencing from 1st January, 1950, to 31st December, 1954. The tenants-in-chief, however, surrendered the disputed land in favour of the appellant on 14th September, 1954. The appellant gave a notice to the respondent on 2nd Nov. 1954, asking him not to cultivate the disputed land after the expiry of the sub-lease in his favour. He, however, did not give possession and the appellant was, therefore, obliged to file a suit for his ejectment under S. 180 of the U.P. Tenancy Act. He also claimed Rs. 212/- by way of damages from the defendant.
3. The claim was resisted by the respondent on various grounds, but it is not necessary to refer to those various pleas, as we are concerned in the present appeal, only with one point, namely, whether a suit under S. 180 of the U. P. Tenancy Act, in the present case, was maintainable or the proper remedy for the plaintiff was to file an application under S. 175 of the U. P. Tenancy Act.
4. On the pleadings of the parties, as many as eight issues were framed and the trial court decided all the issues, except issue No. 3, in favour of the appellant. On issue No. 3, however, the trial court held that the respondent was not a trespasser and his status was only that of a sub-tenant and, therefore the suit under S. 180 of the U. P. Tenancy Act was not maintainable. In the result, the trial court dismissed the suit on the sole ground that the suit under S. 180 of the U. P. Tenancy Act was not maintainable.
5. Feeling aggrieved by the judgment and decree of the Assistant Collector Ist Class, Muzaffarnagar, dated 24th April, 1964, the plaintiff went up in appeal and the 2nd Additional Civil Judge confirmed the finding of the trial court, that the status of the defendant was that of a non-occupancy tenancy and he should not be treated as a trespasser and, therefore, the suit under S. 180 of the U. P. Tenancy Act was not maintainable. The plaintiff has now come up in second appeal to this court and the only contention raised in this appeal is that the suit under S. 180 of the U. P. Tenancy Act (hereinafter referred to as the Act) was maintainable and the courts below have committed an error of law in holding to the contrary.
6. Before dealing with the point involved in this case, it would be appropriate to refer to the material provisions of the Act. The term "sub-tenant" has been defined in S. 8 (22) of the Act. It reads:
"3 (22). "sub-tenant" means a person who holds land from the tenant thereof other than a permanent tenure-holder, or from a grove-holder 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;"
7. The term "tenant has been defined in S. 8 (23) of the Act as under:
"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 sub-tenant, 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 or rent or except as otherwise expressly provided by this Act
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