Full Judgment Text
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PETITIONER:
HARI SHANKER
Vs.
RESPONDENT:
BOARD OF REVENUE, U.P. & ORS.
DATE OF JUDGMENT24/09/1987
BENCH:
KANIA, M.H.
BENCH:
KANIA, M.H.
REDDY, O. CHINNAPPA (J)
SHETTY, K.J. (J)
CITATION:
1987 AIR 2189 1988 SCR (1) 328
1987 SCC Supl. 236 JT 1987 (3) 651
1987 SCALE (2)671
ACT:
United Provinces Tenancy Act, 1939-S. 171 read with s.
40-The question of termination of sub_tenancy should not be
mixed up with the question of recovery of possesion of land.
HEADNOTE:
Under s. 171 read with s. 40 of the United Provinces
Tenancy Act, 1939, if a tenant sub-lets the land to a ’sub-
tenant’ and the sub-lease continues for more than five
years, the ’land holder’ is entitled to eject both the
tenant and the sub-tanant from the land held by them. How
ever, tenants are entitled to retain possession of land for
certain periods in terms of provisions of s. 295-A of the
Act and certain notifications issued by the State Government
under s. 10 of the Uttar Pradesh Agricultural Tenants
(Acquisition of Privileges) (Amendment) and Miscellaneous
Provisions Act, 1950, notwithstanding anything contained in
any law for the time being in force.
The appellant, Hari Shanker, the ’land holder’ of the
land in question, filed a suit under s. 171 of the United
Provinces Tenants Act, 1939 against his ’exproprietory
tanant’. Habib, on the ground that he had sub-let the land
for more than five years to a ’sub-tenant’, Ida, in
contravention of s. 40 of the said Act. The suit was decreed
in favour of Hari Shanker and Habib was given the option to
apply for ejectment of Ida and resume occupation of the land
in terms of the proviso to s. 171. on an appeal filed by
Ida, the Additional Commissioner set aside the decree and
dismissed the suit. Allowing the second appeal filed by Hari
Shanker, the Board of Revenue restored the decree of the
Trial Court. Ida’s writ petition against that order was
dismissed by a Single Judge of the High Court. Meanwhile,
Hari Shanker had applied for execution of the decree and the
objection filed thereto by Ida was dismissed, though the
application for execution itself was still pending. Habib
also filed an application against Ida as contemplated by the
proviso to s. 171 of the Act. Ida’s appeal against the order
aforesaid of the Single Judge and the writ petitions filed
by Habib and Ida against orders passed in execution
proceedings were heard together by the Division Bench of the
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High Court which allowed them and dismissed the suit of Hari
Shanker.
329
Allowing the appeals,
^
HELD: The Division Bench of the High Court mixed up the
question of termination of the sub-tenancy with the question
of recovery of possession. It is common ground that Habib
was a "sub-tenant" of Hari Shanker in respect of the suit
land. He granted a "sub-tenancy" to Ida which was from year
to year. The "sub-tenancy" was created in 1943 and it
admittedly continued for a period of more than 5 years. It
is not disputed that the said "sub-tenancy" was not
terminated by Habib in spite of the provisions of s. 40 of
the United Provinces Tenancy Act, 1939. It may be true that
even if the sub-tenancy had been terminated Habib might not
have been able to recover possession of the suit land from
Ida but that does not affect the question of the continuance
of the "sub-tenancy". As the said "sub-tenancy" contravened
the provisions of s. 40, Hari Shanker was clearly entitled
to file a suit as contemplated by s. 171 of the said act
against Habib as well as Ida on the ground that the tenant
Habib has sub-let the suit land otherwise than in accordance
with the provisions of the said Act, namely, in excess of 5
years. There is, on the record, no defence to that suit
which was rightly decreed by the Board of Revenue. [333D-H I
The question whether Habib is in a position to evict
Ida and obtain possession of the suit land is a question
which will have to be decided in the application filed by
Habib against Ida for the eviction of Ida from the suit land
and recovery of possession thereof. Similarly, the question
as to whether the appellant, Hari Shanker, has become
entitled to execute the decree in the suit to which he is
entitled will have to be disposed of in the application
filed by Hari Shanker against Habib as well as Ida. All
these applications, we understand, are pending before the
relevant authorities and they will have to be decided
according to law. However, in our opinion, there is no doubt
that in the circumstances set out above. Hari Shanker is
entitled to the decree which the Board of Revenue passed in
his favour and which was upheld by the learned Single Judge.
[333H; 334A-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. Z37 to
239 of 1974.
From the Judgment and order dated 13.3.1973 of the
Allahabad High Court in Special Appeal Nos. 394 and 418 of
1970 and Writ Petition Nos. 613 and 910 of 1971.
R.R. Agarwal, Manoj Saxena and R.D. Upadhyaya for the
Petitioners.
330
A.K. Gupta for the Respondent.
The Judgment of the Court was delivered by
KANIA, J. These appeals are directed against the
judgment of a Special Bench comprising two learned Judges of
the High Court of Judicature at Allahabad in Special Appeal
No. 394 of 1970 along with Special Appeal No. 418 of 1970,
Writ Petition No. 613 of 1971 and Writ Petition No. 9 l0 of
1971.
The facts giving rise to these appeals are as follows:
Hari Shanker, the appellant before us, is a "land
holder" within the meaning of said expression in the United
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Provinces Tenancy Act, 1939 (referred to hereinafter as "the
said Act"). On 1st February, 1961, Hari Shanker filed a suit
as contemplated under Section 171 of the said Act against
one Habib Ahmad, who was his tenant in respect of the land
in suit on the ground that in 1943 Habib had sub-let the
suit land to his "sub-tenant", Ida, and the said sub-lease
was for more than five years and hence illegal and in
contravention of Section 40 of the said Act. The said suit
was contested by Habib but a decree was passed in favour of
Hari Shanker in that suit on 18th November, 1961. Under the
decree Habib was given an option to apply for the ejectment
of Ida within one month and resume occupation of land in
dispute in terms of the proviso to Section 171. On an appeal
filed by Ida, the "subtenant", the aforesaid decree was set
aside by the Additional Commissioner on 18th April, 1962 and
the suit of Hari Shanker was dismissed. Hari Shanker filed a
second appeal which was allowed by the Board of Revenue by
its judgment dated 13th March, 1963/17th April, 1964 and the
decree of the Additional Commissioner was set aside and that
of the Trial Court was restored. Ida challenged the
aforesaid decision of the Board of Revenue by way of Civil
Miscellaneous Writ No. 2386 of 1964. That writ petition was
dismissed on 26th March, 1970 by a learned Single Judge of
the Allahabad High Court and Special Appeals Nos. 394 and
418 of 1970 were filed in the said High Court against the
said judgment of the learned Single Judge. After his suit
was decreed by the Board of Revenue, Hari Shanker filed an
application for execution of the decree in which an
objection was filed by the "sub-tenant", Ida, which was
dismissed by the Revenue authorities but, we are informed,
the said application itself has not been finally disposed
of. Habib also filed an application dated 16th August, 1964
against Ida as contemplated under Section 171 to the proviso
of the said Act. According to Habib, the said application
has not so far been
331
decided on merits. Writ Petitions Nos. 613 of 1970 and 910
of 1971 A were filed by Habib and Ida respectively against
the orders passed by the Revenue authorities in execution.
The said Special Appeals and Writ Petitions were heard
together and decided by a Division Bench of the Allahabad
High Court in the impugned judgment.
It may be mentioned here that it is common ground that
Habib is an "ex-proprietary tenant" for the purposes of Sec.
40 of the said Act and Ida is his "sub-tenant" in respect of
the said land within the meaning of the said term in the
said Act. The Division Bench of the Allahabad High Court set
aside the judgment of the learned Single Judge and allowed
the Special Appeals as well as the Writ Petitions. They set
aside the order of the Board of Revenue decreeing the suit
of Hari Shanker for ejectment of Habib & Ida under Section
171 of the said Act and dismissed the said suit. It is
against this judgment that the present appeals are directed.
As the facts are common and the appeals are against a common
judgment, we propose to dispose them of by a common
judgment.
We may, at this stage, take note of the relevant
provisions of the said Act and certain notifications issued
by the Government of Uttar Pradesh which are material for
our purposes. The relevant portions of the said Act run as
follows:
"Section 40: ( 1) No occupancy tenant in Agra, or
exproprietary tenant or hereditary tenant shall
sub-let the whole or any portion of his holding
for a term exceeding five years, or within three
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years or any portion of such holding being held by
a sub-tenant."
"Section 47: Except as otherwise provided in sub-
section 1 (3) and sub-section (4) the extinction
of the interest of a tenant, other than a
permanent tenure-holder or a fixed rate tenant,
shall operate to extinguish the interest of any
tenant holding under him."
"Section 171: (1) If a tenant transfers, or sub-
lets, the whole or any portion of his holding
otherwise than in accordance with the provisions
of this Act, and the transferee or sub-lessee has
entered into possession in pursuance of such
transfer of sub-lease both the tenant and any
person who may have thus obtained possession of
the whole or any part of the holding shall on the
suit of land-
332
holder be liable to ejectment from the area so
transferred or sublet at the date of the
institution of the suit.
Provided that, in the case of a voidable sub-
lease, if the suit succeeds, the court shall pass a
decree permitting the tenant to apply in the same
proceedings within a time not exceeding one month from
the date of the decree, for the ejectment of the person
in whose favour the voidable sub-lease has been made,
and directing that if the tenant so applies and if he
ejects such person and resumes occupation of the land
within such further time as the court, either in the
decree itself or by means of a subsequent order, may
fix having regard to the provisions of section 181, the
decree shall not be executed against the tenant except
in respect of costs. In such a case, the decree shall
direct that if the tenant either fails to apply for the
ejectment of such person within the time fixed in this
behalf or fails to resume occupation within the further
time allowed by the court for that purpose, the tenant
as also the sub-lessee shall be ejected from the area
sub-let at the date of the institution of the suit."
"Section 295-A: Notwithstanding any contract to
the contrary or anything contained in this Act or
any other law for the time being in force every
person who on the date of the commencement of the
United Provinces Tenancy (Amendment) Act, 1947, is
a sub-tenant shall, subject to the provisions of
the proviso to sub-section (3) of Section (7) of
the United Provinces Tenancy (Amendment) Act,
1947, been titled to retain possession of his
holding for a period of five years from that date,
and for this period nothing in sub section 92) of
Section 44 or Section 171 shall render the
landholder of such-tenant liable to ejectment
under the pro visions of section 171."
Section 10 of the Uttar Pradesh Agricultural Tenants
(Acquisition of Privileges) (Amendment) and Miscellaneous
Provisions Act, 1950 inter alia provides that
notwithstanding anything contained in any law for the time
being in force, all suits, applications or proceedings of
the categories specified in the Schedule to the said
Amendment Act of 1950 under Section 10, pending on the date
of the commencement of that Act or which might thereafter be
instituted, presented or commenced shall be and remain
stayed for so long as the said Amendment
333
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Act of 1950 remains in force. The said Amendment Act came
into force in 1950. There is a proviso to the said Section
which empowers the State Government by notifications to
declare that such categories of suits, applications
proceedings and in such local area as the State Government
might specify which are stayed under Section 10 shall cease
to remain stayed. The State Government was also empowered to
reimpose the stay under a second proviso to the said
Section. A perusal of Category III of the said Schedule
shows that the suits, applications and proceedings under
Sections 63, 114, 117, 175 and under Sections 180 and 181 of
the U.P. Tenancy Act, 1939 to the extent set out in the
Schedule were stayed under Section 10. The rest of the
provisions in the said Schedule are not material for our
purposes. The stay in respect of suits, applications and
proceedings in respect of categories I, II & III in the said
Schedule to the said Amending Act VII of 1950 was lifted by
a notification dated June 30, 1953. The stay was, however,
reimposed by a notification dated January 23, 1953 in
respect of suits, applications and proceedings under Section
175 and 181 to the extent provided therein.
In our view, these appeals can be very shortly disposed
of. It is common ground that Habib was a "sub-tenant" of
Hari Shanker in respect of the suit land. He granted a "sub-
tenancy" to Ida which was from year to year. The "sub-
tenancy" was created in 1943 and it admittedly continued for
a period of more than 5 years. It is not disputed that the
said "sub-tenancy" was not terminated by Habib inspite of
the provisions of Section 40 of the said Act, namely, the
United Provinces Tenancy Act, 1939. It may be true that even
if the sub-tenancy had been terminated Habib might not have
been able to recover possession of the suit land from Ida
but that does not affect the question of the continuance of
the "sub-tenancy". As we have pointed out that "sub-tenancy"
was from year to year and on the expiry of the period of
sub-lease, Ida continued to hold over as "sub-tenant" on the
same terms & conditions from year to year. The "sub-tenancy"
was, therefore, continued in excess of five years and thus
was in violation of the provisions of Section 40 of the said
Act. As the said "sub-tenancy" contravened the provisions of
Section 40, Hari Shanker was clearly entitled to file a suit
as contemplated by Section 171 of the said Act against Habib
as well as Ida on the ground that the tenant Habib has sub-
let the suit land otherwise than in accordance with the
provisions of the said Act, namely, in excess of 5 years.
There is, on the record, no defence to that suit which was
rightly decreed by the Board of Revenue. The question
whether Habib was in a position to evict Ida and obtain
possession of the suit land is a question which will have to
334
be decided in the application filed by Habib against Ida for
the eviction of Ida from the suit land and recovery of
possession thereof. Similarly, the question as to whether
the appellant, Hari Shanker, has become entitled to execute
the decree in the suit to which he is entitled will have to
be disposed of in the application filed by Hari Shanker
against Habib as well as Ida. All those applications, we
understand, are pending before the relevant authorities and
they will have to be decided according to law. However, in
our opinion, there is no doubt that in the circumstances set
out above, Hari Shanker is entitled to the decree which the
Board of Revenue passed in his favour and which was upheld
by the learned Single Judge. In our opinion, the learned
Judges of the Allahabad High Court who decided the aforesaid
Special Appeals and Writ Petitions have mixed up the
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question of termination of the sub-tenancy with the question
of recovery of possession.
In the result, the aforesaid Civil Appeals are allowed
and the order of the learned Single Judge of the Allahabad
High Court dated 26th March, 1970 is restored. We may
clarify that the decree passed by the Board of Revenue in
favour of Hari Shanker is restored. Looking, however, to the
facts and circumstances of the case, there will be no order
as to costs.
H.L.C. Appeals allowed.
335