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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