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PETITIONER: BIRENDRA PRATAP SINGH AND ANOTHER

       Vs.

RESPONDENT: GULWANT SINGH AND OTHERS

DATE OF JUDGMENT: 31/01/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHAH, J.C. RAMASWAMI, V.

CITATION:  1968 AIR 1068            1968 SCR  (2) 870  CITATOR INFO :  R          1991 SC2072  (19,20,28,30)

ACT: U.P.  Zamindari Abolition & Reforms Act, 1950,  s.  19(vii)- person in possession of land becoming a Sirdar by virtue  of being  sub-tenant under s. 47(4) of U.P, Tenancy  Act  1939- requirements  for-Sub-lease  signed prior  to  coining  into force   of  s.  295A  of  1939  Act  but  to   take   effect subsequently-if   s.  295A  applicable--Duration  of   lease mentioning no fixed period-principles for determining.

HEADNOTE: P  held the ex-proprietary tenancy of certain lands and,  on the  5th June, 1947, executed a sub-lease in favour  of  the appellants which laid down that the tenancy was to  commence from  1st  July, 1947 and which was registered on  the  22nd June.   On  15th January, 1951, P  surrendered  his  tenancy rights  to  the landlord who in turn, executed  a  lease  in respect  of  the  land in favour of  the  responden’s.   The appellants  however  continued  in  possession.   The   U.P. Zamindari  Abolition  and Land Reforms Act, 1950  came  into force  on 1st July, 1952 and both the appellants as well  as the  respondents claimed to have become Sirdars of the  land under  the  Act.   The appellants instituted a  suit  for  a declaration  that they had become Sirdars of the land  under s. 19(vii) by virtue of being sub-tenants within the meaning of s. 47(4) of the U.P. Tenancy Act, 1939.  The Trial  Court decreed  the suit in the appellants’ ’favour but a  Division Bench of the High Court set aside the decree. In  appeal  to this Court it was contended, inter  alia,  on behalf of the appellants that although P had surrendered his rights as ex-proprietary tenant on 15th January, 1951, their own sub-tenancy continued by virtue of the provisions of  s. 295A  of the Tenancy Act which was introduced into that  Act by the amendment Act X of 1947 that came into force, on  the 14th  June,  1947:  it  was  claimed  that  s.  295A  became applicable  to the appellants because a sub-lease  in  their favour  was  executed  on  5th  June.  1947.  prior  to  the enforcement  of  Act  X  of 1947 so  that  on  the  date  of commencement of this Act the appellants continued to be  the subtenants  under  s. 295A; it was  further  contended  that

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though the sub-lease in favour of the appellants was not for any  fixed term mentioned in the sublease itself, it  should be  held from the surrounding facts and  circumstances  that the  sub-lease was for a period of five years as, under  the Tenancy  Act,  an  ex-proprietary tenant  could  sublet  his holding for a period not exceeding 5 years HELD  : The appellants’ possession subsequent to 30th  June, 1951  could  not  be  held to be in  pursuance  of  a  right conferred  on a sub-tenant by s. 47(4) of the  U.P.  Tenancy Act,  1939  and consequently, the land was not held  by  the appellants  in the capacity mentioned in s. 19(vii)  of  the U.P. Zamindari Abolition and Land Reforms Act, 1950. (i)  The appellants were not Sub-tenants on 14th June,  1947 which was the date of commencement of the U.P. Act X of 1947 and,  therefore,  s. 295A of the Tenancy  Act  never  became applicable  to their case.  The sub-lease clearly laid  down that  the  sub-tenancy was to commence from 1st  July,  1947 which was a date subsequent to 14th June, 1947.  The 871 mere fact that the sub-lease was executed on 5th June,  1947 by P could not mean that the appellants’ sub-lease was  with effect from that date. Mere delivery of the lease and its Counter-part by one party to the other as envisaged under s. 55(1) of the Tenancy  Act does  not make the lessee under the lease a lessee from  the date  of delivery of the written documents nor is  any  such principle  laid down in s 55(1).  Furthermore it was in  any case not shown, on the facts, such delivery had taken  place prior to 14th June, 1947. [874 G-H] (ii) Nothing in the conduct of the parties had been  brought on record to show that the sub-lease was intended to  remain effective  for a period of 5 years and on the facts  of  the case the sub-lease must be held to be from year to year  and the appellants’ rights determined accordingly. Mohd.  Sher Khan & Anr. v.  Special Manager, Court of Wards, Mahewa Estate and Ors. 1950 A.W.R. 447; distinguished. Surendra  Kumar  Sen Chaudhury & Ors. v. Chandrtara  Nath  & Ors., A.I.R. 1931, Cal. 135 and Janaki Nath Roy and Ors.  v. Dina Nath Kundu Ors., A.I.R. 1931 P.C. 207; referred to. The appellants had obtained the. sub-lease with effect  from 1st  July, 1947, and were entitled to hold the land for  one year which would expire on the 30th June, 1948 but, if  they were  allowed to continue by their landholder on, 1st  July, 1948, they became entitled to hold the land for another year expiring  on 30th June, 1949, and so on from year  to  year. Since  the  appellants  were allowed by  P  to  continue  in possession  after 1st July 1950, they were sub-tenants of  P under  the  sub-lease  and  were  entitled  to  continue  in possession upto 30th June, 1951.  But on 15th January, 1951. P lost his right as chief-tenant and the effect of s.  47(1) of the Tenancy Act was that, with effect from that date, the rights  of  the  appellants  as  sub-tenants  of  P   became extinguished.   Their  possession after that date  could  no longer be held to be in the capacity of sub-tenants of P but was  under  a  legal right which accrued to  them  under  s. 47(4).   This is a limited right to continue  in  possession for  the remainder of the term of the sub-lease or for  five years whichever period may be shorter.  In the present case, the  right  granted by s. 47(4) to the appellants  could  be exercised by them only upto 30th June, 1951. [879 C-F] Utility  Articles Manufacturing Co. v. Raja Bahadur  Motilal Bombay  Ltd., A.I.R. 1943 Bom. 306 and Queen’s Club  Gardens Estate Ltd. v. Bignell, [19241 1 K.B.D. 117; referred to. There  was  no  force  in  the  contention  that  when   the appellants  continued  in possession of  the  disputed  land

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after  30th June, 1951, they did so in exercise of the  same right which they possessed on 30th June, 1951, as that right was  not extinguished by eviction from the land.  The  Tight under  s.  47(4)  is granted by the, statute  itself  for  a limited period, and, once that period expires, it cannot  be held  that  the  right continues thereafter.   There  is  no requirement  in law that, after the expiry of  that  period, there must be eviction ’from the land in order to extinguish the ’right granted by s. 47(4). [880 D-E] Ram  Dular Singh and Another v. Babu Sukhu Ram & Ors; 1  963 Alld.  I-.J. 667; distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 619 of 1965. Appeal  by special leave from the judgment and decree  dated December 17, 1963 of the Allahabad High Court, Lucknow Bench in Special Appeal No. 76 of 1961. 8 7 2 Gopalji Mehrotra, S. S. Misra and C. P. Lal, for the appeal- lants. Jagdish  Swarup and J. P. Goyal, for respondents Nos.  I  to 4. The Judgment of the Court was delivered by Bhargava,  J.  The  disputed  land  was  the  ex-proprietary tenancy of one Parmeshwar Singh who, on the 5th June,  1947, executed  a  sub-lease  in favour of the  appellants  on  an annual rent of Rs. 74.  The sub-lease was registered on 22nd June,  1947.  It laid down that the tenancy was to  commence from the beginning of the year 1355 Fasli, i.e., with effect from  1st July, 1947.  In pursuance of this  sub-lease,  the appellants entered into possession.  On 15th January,  1951, Parmeshwar  Singh, the ex-proprietary _ tenant,  surrendered his tenancy rights to the landlord and on the same date  the landlord executed a lease in respect of this land in  favour of  the respondents.  The appellants, however, continued  to remain  in possession.  Thereafter, on 1st July,  1952,  the U.P. Zamindari Abolition and Land Reforms Act, 1950 (No.   I of  1951) (hereinafter referred to as "the Act")  came  into force.   Disputes  arose  between  the  appellants  and  the respondents who both claimed to have become Sirdars of  this land and, consequently, on 1st August, 1952, the  appellants instituted  a  suit  for a declaration that  they  were  the Sirdars  of the disputed land.  They also prayed for  an  in junction  restraining the respondents from interfering  with the  possession  of the appellants.  In the  alternative,  a prayer was also made for a decree for possession, in case it was  found that the appellants had been  dispossessed.   The Munsif, who tried the suit, held that the appellants had be- come   Sirdars  under  section  19(vii)  of  the  Act   and, consequently, decreed the suit.  The decree was affirmed  by the  first appellate Court as well as by a single  Judge  of the Allahabad High Court in second appeal.  A special appeal to a Division Bench was taken up by the respondents with the leave of the single Judge.  In this special appeal, the High Court  held  that the appellants did not become  Sirdars  of this  land when the Act came into force  and,  consequently, allowed the appeal and dismissed the suit of the appellants. The  appellants have now come up to this Court against  this decree of the High Court under special leave granted by this Court. The  appellants claimed to have become Sirdars of this  land under s. 19(vii) of the Act which is as follows :--

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             "19.   All  land held or deemed to  have  been               held  on  the date immediately  preceding  the               date of vesting by any person as-               87 3               (vii) a sub-tenant referred to in  sub-section               (4)  of  section 47 of  the  United  Provinces               Tenancy Act, 1939,               shall,  save in cases provided for  in  clause               (d)  of  sub  section (1) of  section  18,  be               deemed to be settled by the State  Government               with  such  person, who shall subject  to               the provisions of this Act be entitled, except               as provided in sub-section (2) of section  18,               to  take  or  retain possession  as  a  sirdar               thereof." In order to substantiate this claim the appellants thus  had to  prove that this land was held or must be deemed to  have been  held  by them on the 30th June,  1952  as  sub-tenants referred  to  in  sub-section (4) of s.  47  of  the  United Provinces Tenancy Act, 1939 (hereinafter referred to as "the Tenancy  Act").  The question arose, because the  appellants were  holding  as  sub-tenants  from  Parmeshwar  Singh  who surrendered his rights as chief tenant on the 15th  January, 1951,  before the relevant date mentioned in s.  19(vii)  of the Act.  Section 47 (I) of the Tenancy Act lays down  that, except  as  otherwise provided in sub-section (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.  This sub-section when applied  to  the case of the appellants, ignoring the exceptions laid down in it,   necessarily  leads  to  the  conclusion   that,   when Parmeshwar  Singh  on  15th January,  1951  surrendered  his rights  as  ex-proprietary  tenant,  the  interest  of   the appellants, who were holding as sub-tenants under him,  came to  be extinguished.  On behalf of the appellants,  however, it  was  urged that there are two grounds for  holding  that their  interest  was  not extinguished  and  we  proceed  to examine these contentions. The  first ground, on which the continuance  of  subtenancy, even after the surrender by Parmeshwar Singh, is claimed  by the  appellants, is based on the provisions of section  295A of  the  Tenancy  Act which was introduced in  that  Act  by section 26 of the United Provinces Tenancy (Amendment) Act X of 1947 and which reads as follows :-               "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               8 7 4               section  27  of the United  Provinces  Tenancy               (Amendment)  Act, 1947, be entitled to  retain               possession of his holding for a period of five               years  from  that date, and  for  this  period               nothing  in sub-section (2) of section  44  or               section  171  shall render the  landholder  of               such  subtenant liable to ejectment under  the               provisions of section 171               Provided........................ The United Provinces Tenancy (Amendment) Act X of 1947  came into  force on the 14th June, 1947, and it is urged that  s.

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295A   of  the  Tenancy  Act  becomes  applicable   to   the appellants,  because  the  sub-lease  in  their  favour  was executed on 5th June, 1947, prior to the enforcement of that Amendment  Act.   It  is  urged that, on  the  date  of  the commencement of the Amendment Act, the appellants were  sub- tenants  of  this  land.  This plea fails,  because  we  are unable  to  accept the submission that the  appellants  were sub-tenants of this land on 14th June, 1947.  The  sub-lease in plain terms lays down that the sub-tenancy is to commence from the beginning of 1355 Fasli, i.e., with effect from 1st July.  1947, which is a date subsequent to 14th June,  1947. The  mere fact that the sub-lease was executed on 5th  June, 1947  by  Parmeshwar Singh cannot make the  appellants  sub- lessees with effect from that date when the sub-lease itself laid down that it was to commence from the beginning of 1355 Fasli.    Learned  counsel  appearing  on  behalf   of   the appellants, however, relied on subsection (1)     of  s.  55 of the Tenancy Act which is as follows -.-               "On  admission  to  a holding  the  tenant  is               entitled  to  receive from  his  landholder  a               written  lease consistent with the  provisions               of   this   Act  and  -the   landholder   upon               delivering  or  tendering to a tenant  such  a               lease  is  entitled  to  receive  from  him  a                             counterpart thereof." In  this  case,  there  is no doubt  that  a  written  lease consistent  with  the  provisions of  the  Tenancy  Act  was executed  together  with a counterpart thereof  on  the  5th June,  1947;  and learned counsel’s argument was  that  this lease   and  the  counterpart  having  been   delivered   in accordance with this provision on 5th June, 1947, it  should be  deemed  that the appellants became tenants  with  effect from  that very date.  The argument fails for  two  reasons. One  is  that  the  mere  delivery  of  the  lease  and  the counterpart  by  one party to the other does  not  make  the lessee  under the lease a lessee from ’the date of  delivery of  the written documents, nor is any such principle  I  aid down is sec. 5 5 ( I ). The rights under the lease can  only arise  ’In  accordance with the terms of the lease.  in  the present  case,  the terms of the sub-lease  themselves  laid down  that  the appellants were to be sub-lessees  from  1st July,  1947,  and, consequently, the mere  delivery  of  the documents could not bring 87 5 into existence the relationship of lessor and lessee from an earlier  date.   The second reason is that, even  on  facts, there  is  nothing to show that the written  lease  and  its counterpart  were  actually delivered by one  party  to  the other  on the 5th June, 1947.  On the other hand,  there  is material on the record which makes it clear that there could not  possibly  have  been  such  delivery  of  the   written documents  prior to 14th June, 1947.  The  sub-lease  itself shows  that it was registered on 22nd June, 1947.  The  sub- lease  was not valid and effective until it was  registered. This  registration was required under s. 56 of  the  Tenancy Act which lays down that a lease for a period exceeding  one year  or  from year to year shall be made  by  a  registered instrument  only.   The appellants themselves  came  forward with  the  case that this was not a lease for a  period  not exceeding one year, so that the lease to be valid had to  be registered in accordance with s. 56 of the Tenancy Act.  The registration took place on 22nd June, 1947 and it is, there- fore,  clear  that the written lease properly  executed  and effective could not have been delivered by Parmeshwar  Singh to  the  appellants before 22nd June,  1947.   Consequently,

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even if for the sake of argument it may ’be accepted, though we  consider that it is entirely wrong, that on delivery  of the  written  lease  under  s. 55 the  rights  as  a  lessee commence,  such  rights  as sub-lessees  in  favour  of  the appellants could not arise before 22nd June, 1947, as  there could  not possibly be delivery of the written lease to  the appellants by Parmeshwar Singh prior to that date.  In these circumstances,  the  conclusion  is  irresistible  that  the appellants were not subtenants on 14th June, 1947, which was the  date  of commencement of the United  Provinces  Tenancy (Amendment)  Act, 1947 and, therefore, section 295-A of  the Tenancy  Act  never becoming applicable to the case  of  the appellants. The  applicability of s. 19(vii) of the Act was claimed,  in the  alternative,  on the ground that  the  appellants  were holding this land as sub-tenants referred to in s. 47(4)  of the  Tenancy  Act.  The case put forward on  behalf  of  the appellants  was  that  the  sub-lease  in  their  favour  by Parmeshwar Singh was not for any fixed term mentioned in the sub-lease  itself,  but  from  the  surrounding  facts   and circumstances it should be held that it was a sublease for a period  of  five  years.  The appellate Bench  of  the  High Court, in deciding the case against the appellants, has held that the sub-lease was a lease from year to year and not for a  period  of  five  years as contended  on  behalf  of  the appellants.   The term of five years as the period  of  sub- lease was claimed on the basis that, under the Tenancy  Act, an  ex-proprietary  tenant could sublet his  holding  for  a period not exceeding .five years and any sub-lease    for  a period exceeding five years would be invalid.  The  argument was  that  when Parmeshwar Singh sublet  his  ex-proprietary holding to the appellants without mentioning any period,  it must be inferred that he intended it to be a sub-clause  for the full period of 8 7 6 five years for which he was entitled to sublet his  holding. We  do  not think that this argument can  be  accepted.   If Pameshwar Singh had intended to sublet the land for a period of  five years only, or for a period less than  five  years, there  was  no difficulty in his making a  mention  of  that period in ’the sub-lease itself.  Parmeshwar Singh chose not to  mention any period at all and, consequently,  this  sub- lease cannot be held to be a lease for any fixed period. The sub-lease reserves an annual rent, and the period  of  the lease has to be determined on the  basis  of this reservation of rent. We are unable to find any  reasons in  support  of  the  plea put forward  on  behalf  of  the, appellants that the term of the sub-lease should be held  to be five years simply because no period at all was  mentioned in the sub-lease itself.  No principle of law could be cited on behalf of the appellants in support of this plea. Reliance was placed on a decision of a learned single  Judge of the Allahabad High Court in Mohd.  Sher Khan and  Another v.  Special  Manager,  Court  of  Wards  Mahewa  Estate  and Others(1).  In that case, dealing with an agricultural lease in  which  no  period was specified and  there  was  only  a mention  of the date from which the lease was to  begin,  it was  held that the lease required registration as  it  could not  be  treated as a lease for a period of one  year  only. This proposition may be correct; but it does not assist  the appellants in urging that the period must be held to be five years.  It is true that, where -the terms of a lease are not free  from  ambiguity,  it  is  permissible  to  take   into consideration the conduct of the parties for ’the purpose of determining  its true nature, as held by the  Calcutta  High

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Court  in  Surendra  Kumar  Sen  Chaudhury  and  Others   v. Chandratara Nath and Others ( 2) . But, in the present case, nothing  in the conduct of the parties has been  brought  on record  to  show that the sub-lease was intended  to  remain effective  for a period of five years only.  The  sub-lease, as we have mentioned earlier, did not specify any term,  but reserved  an annual rent.  Such a lease can only be held  to be  either a permanent lease or a lease from year  to  year. This proposition was clearly laid down by the Privy  Council in Janaki Nath Roy and Others v. Dina Nath Kundu and  Others (  3) . In that case, their Lordships were concerned with  a lease  which was described as "beymeyadi".  Upon  a  careful consideration of the document of lease, their Lordships held :-               "Either  the  lease  is  a  permanent   lease,               determinable only in the special cases therein               provided, or it is a lease from year ’to year,               which the landlord could at his will determine               by  a  six months’  notice.   No  intermediate               position is open."               (1) 1950 A.W.R. 447.  (3) A.I.R.    1931  P.C.               207.  (2) A.I.R. 1931 Cal. 135.               87 7 The  principle  laid down, thus, categorically  excludes  an interpretation being put on such a lease by which the  lease may   be  held  to  be  for  a  fixed  period.    The   only interpretation  possible  is that either it is  a  permanent lease,  or  a lease from year to year.   The  contention  on behalf  of  the appellants that this Court should  hold  the present  sub-lease in favour of the appellants to be  for  a fixed  term  of  five years must,  therefore,  be  rejected. Since  the  appellants themselves do not contend  that  this sub-lease  should be held to be a permanent one because,  in that   case,  it  would  become  invalid,   the   conclusion necessarily  follows that the sub-lease must be held  to  be from  year to year, and it is on this basis that the  rights of the appellants should be determined. Counsel appearing on behalf of the appellants argued’  that, even  if  it be held that the sub-lease is not for  a  fixed term  of  five  years  but is one from  year  to  year,  the appellants  can  still  justifiably  claim  that  they  were holding the land on 30th June, 1952 as sub-tenants  referred to  in s. 47(4) of the Tenancy Act.  In order to  test  this argument,  we  have  first to consider  the  status  of  the appellants on 15th January, 1951, the date when their  chief tenant  Parmeshwar  Singh surrendered his  rights,  and  the effect  of that surrender on the rights of  the  appellants. It  is  true, as urged by learned counsel, that there  is  a distinction  between a lease from year to year and  a  lease for  a  fixed  period of one year only.   The  sub-lease  in favour  of the appellants was not for a fixed period of  one year.  Being a sub-lease from year to year, the right of the appellants  acquired under it was to hold the land  as  sub- lessees year after year as those years commenced.  The  true nature  of  such a lease was explained by  the  Bombay  High Court in Utility Articles Manufacturing Co. v. Raja  Bahadur Motilal  Bombay  Mills Ltd.(1), though with reference  to  a monthly lease.  In order to explain the incidence of such  a lease,  that Court relied on the judgment of Salter,  J.  in Queen’s  Club  Gardens Estate, Ltd. v. Bignell ( 2  who  was dealing- with a case where the parties, by agreement between them, had expressed the intention that the tenancy shall  be a  periodic tenancy, viz., a tenancy from week to  week  and beyond this, no further or other intention could be gathered either  from  the  words  or the  conduct  of  the  parties.

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Salter, J. held that "in the case of all periodic tenancies, whether  from year to year, or from quarter to  quarter,  or from month to month, or for any other period, the law, as  I find  it stated in the authorities, appears to be  that  the tenancy  is from period to period., from one, fixed date  to another.  It is a tenancy for so many years, or quarters, or months,  or weeks, as the parties may think fit.  If  a  new period be allowed to begin, the tenancy must, in the absence of  course  of any other arrangement  between  the  parties, continue  until  the  period ends, and  neither  party  can, against the will of (1) A.I.R. 1943 Bom. 306. L3Sup.Cf/68-12 (2) [1924] [ K. B.D. 117. 878 the other, put an end to the tenancy during the currency  of the  period."  In  that  case,  the  principle  was  further explained by approving the following dictum :-               "It seems clear that the true nature of such a               tenancy  is that it is a lease for  two  years               certain,  and  that every year after it  is  a               springing  interest  arising  upon  the  first               contract  and  parcel of it, so  that  if  the               lessee  occupies for a number of years,               these years by computation from the time past,               make  an entire lease for so many  years,  and               that  after the commencement of each new  year               it  becomes  an entire lease certain  for  the               years  past and also for the year  so  entered               on,  and  that it is not a  reletting  at  the               commencement  of  the  third  and   subsequent               years." In our opinion, this is the correct principle to be  applied in  giving  effect  to a lease from year to  year.   In  the present  case,  the appellants had obtained  this  sub-lease with  effect  from  1st  July, 1947 and,  as  we  have  held earlier, it was a sub-lease from year to year.  On 1st July, 1947,  therefore, the appellants were entitled to  hold  the land for one year which would expire on the 30th June, 1948; but, if they were allowed to continue by their landholder on 1st  July, 1948, they became entitled to hold the  land  for another year expiring on 30th June, 1949.  During that year, therefore, the sub-lease would be held to be a sub-lease for two years.  Similarly, since the appellants were allowed  to continue  by  Parmeshwar  Singh  in  possession  until  15th January,  1951  it must be held that under  that  same  sub- lease,  the appellants were sub-lessees for  the  subsequent years  1949-50  and 1950-51 also.  On  15th  January,  1951, consequently,  the appellants were subtenants of  Parmeshwar Singh under this sub-lease and their term was to continue up to 30th June, 1951.  On 15th January, 1951, Parmeshwar Singh lost his right as chief-tenant and the effect of s. 47 ( 1 ) of the Tenancy Act was that, with effect from that date, the rights of the appellants as sub-tenants of Parmeshwar  Singh became  extinguished.   The  sub-lease  in  favour  of   the appellants   terminated  on  that  date.    The   appellants continued  to remain in possession even after 15th  January, 1951,  but that possession could no longer be held to be  in the  capacity  of  sub-tenants  of  Parmeshwar  Singh.   The subsequent possession was, however, under a legal right  and that  right  accrued to the appellants under sub-s.  (4)  of section 47 which is as follows :-               "Where,  at  the  time of  the  extinction  by               surrender or abandonment, or by death  without               any heir entitled to inherit such interest, of

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             the  interest in a holding of a  tenant  other               than  a permanent tenure-holder  or  fixedrate               tenant,  there  is in existence a  valid  sub-               lease of the               8 7 9               whole or of a portion of the holding, executed               on  or after the first day of  January,  1902,               all  covenants,  binding  and  enforceable  as               between  the tenant and the  subtenant  shall,               subject  to the provisions of sub-s.  (5),  be               binding   and  enforceable  as   between   the               tenant’s landholder and the sub-tenant for the               remainder of the term of the sub-lease or  for               five years, whichever period may be shorter." This  sub-section does not lay down that the  original  sub- lease  executed  by  the chief tenant,  who  surrenders  his rights,  is to continue in force.  What this provision  does is  to create a new right in the sub-tenant and that is  the limited right to continue in possession for the remainder of the term of the sub-lease or for five years whichever period may  be shorter.  During this period when the sub-tenant  of the  chief  tenant,  who  has  surrendered  his  rights,  is entitled to remain in possession, he is allowed the  benefit of  all  covenants between him and the chief tenant  and  to treat  them as binding and enforceable between him  and  his chief   tenant’s   landholder,   subject   to   the   slight modification in special cases governed by sub-section (5) of s. 47 when he is required to pay to the land-holder the rent which was payable by the chief tenant in case it happens  to be more than the rent which was payable by him as sub-tenant to his chief tenant.  This special right granted by s. 47(4) is  exercisable  for  the limited  term  mentioned  therein. Where  the remaining term of a sub-lease is more  than  five years, this right would be exercisable for five years;  but, where the remaining period of a sub-lease is less than  five years, the right would be exercisable only for the remainder of the term of the sub-lease.  In the present case, we  have already  held  above  that,  on  15th  January,  1951,   the appellants  were  holding the land under  a  sublease  under which  they were entitled to continue as sub-tenants  up  to 30th  June,  1951.  Consequently, the right  granted  by  s. 47(4)  to the appellants could be exercised by them only  up to  30th June, 1951.  No such right could remain  vested  in them subsequent to that date. We are unable to accept the submission made on behalf of the appellants that it should be held that this right granted by s.  47(4) would again accrue to the appellants on 1st  July, 1951 in accordance with the terms of the sub-lease,  because the  sub-lease  in their favour was from year to  year.   We have  already mentioned earlier that the effect of s.  47(1) of the Tenancy Act was that that sub-lease was  extinguished and no accrual of a fresh right with reference to that  sub- lease  could be, claimed thereafter, The right that  accrued under s, 47 (4) was no longer in the same terms as the right under  the  sub-lease  and was only limited  to  the  period during  which that sub-lease was to remain effective on  the date when s. 47(1) and s. 47(4) became applicable.  On  that 13Sup.Cl/68-13 880 date,  the  remaining term of the sub-lease was up  to  30th June,  1951, so that the right that accrued under  s.  47(4) was  limited  up to 30th June, 1951 only and  it  could  not arise  afresh  on 1st July, 1951 as it was not  a  recurring right  like that of a sub-tenant holding under  a  sub-lease from year to year.

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Learned counsel for the appellants, relying on a decision of the  Full  Bench of the Allahabad High Court  in  Ram  Dular Singh  and Another v. Babu Sukhu Ram & Others(1) urged  that in  any  case,  we should hold  that,  when  the  appellants continued  in  possession of the disputed  land  after  30th June, 1951, they did so in exercise of the same right  which they  possessed  on 30th June, 1951, as that right  was  not extinguished by their eviction from the land.  The principle laid down by the Allahabad High Court in that case does  not apply,  because  the decision in that case depended  on  the circumstance  that, under the Tenancy Act, the rights  of  a tenant  continuing  in possession after the  expiry  of  the period of lease did not extinguished under sections 45 or 47 of  the Tenancy Act which were the only sections which  deal with the extinction of the rights of tenants.  So far as the right  granted by s. 47 (4) is concerned, it is  granted  by the  statute  itself  for a limited period  and,  once  that period  expires, it cannot be held that the right  continues thereafter.  There is no requirement in law that, after  the expiry of that period, there must be eviction from the  land in order to extinguish the right granted by s. 47 (4).   The possession subsequent to 30th June, 1951 cannot,  therefore, be  held to be in pursuance of a right conferred on  a  sub- tenant  referred  to  in s. 47(4) of the  Tenancy  Act  and, consequently,  the  land  was not  held  by  the  appellants thereafter  in the capacity mentioned in s. 19(vii)  of  the Act.   The High Court, in these circumstances, was right  in rejecting the claim of the appellants. The appeal fails.  As agreed by counsel for parties, parties will bear their own costs of this appeal. R.K.P.S.                      Appeal dismissed. (1) 1963 Alld.  L.J. 667. 881