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PETITIONER: LALA  RAGHURAJ  SWARUP (DEAD) BY L.RS.

       Vs.

RESPONDENT: HARDWARI LAL AND ORS.

DATE OF JUDGMENT21/08/1991

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) THOMMEN, T.K. (J)

CITATION:  1991 AIR 2072            1991 SCR  (3) 672  1991 SCC  (4) 391        JT 1991 (3)   486  1991 SCALE  (2)387

ACT:     United Provinces Tenancy Act, 1939: Ss. 3(22), 3(23),  3 1, 39, 45, 47, 48, 175, 180/Notification dated 23. 1. 1953.     Non-occupancy tenants--Grant of sub-lease to sub-tenant- Surrender  of holding to land holder before expiry  of  sub- lease--Notice    of    ejectment   by   land    holder    to sub-tenant--Interest  of sub-tenant-Whether extinguishes  on extinction of tenants’ interest--Status of subtenant--Wheth- er  he holds land otherwise than under law--Suit for  eject- ment of sub-tenant after expiry of sub-lease--Maintainabili- ty.

HEADNOTE:     The  defendant-appellant was a sub-tenant in terms of  a sub-lease granted to him by the non-occupancy tenants for  a period of five years from 1.1.1950 expiring on 31.12.1954 in respect  of the land in dispute of which  the  plaintiff-re- spondent  was  the  proprietor. On  14.9.1954  the  original tenants  surrendered their interests in the holding  to  the proprietor who .issued a notice dated 2.11.1954 to the  sub- tenant   demanding   vacant  possession  of  the   land   by 31.12.1954, the agreed date of expiry of the sub-lease, and, since  the  latter  failed to comply with  the  notice,  the propriter  filed a suit fro, ejectment under s. 180  of  the nited Provinces Tenancy Act, 1939.     The  Trial  Court as well as the first  appellate  court decided  all  the  issues in favour of  the  plaintiff,  but dismissed  the  suit as not maintainable  holding  that  the defendant  being a sub-tenant was liable to be ejected  only in terms of s. 175 and not under s. 180 of the Act, and  had the suit been brought under s. 175 it would have been stayed in terms of the Government Notification dated 23.1.1953.     In  the  second appeal by the plaintiff the  High  Court held  that  the suit was rightly brought under s.  I80  and, finding  the  other issues in favour of  the  plaintiff,  it decreed the suit. Aggrieved, the defendant filed the  appeal by special leave to this Court.     It  was contended on behalf of  the  defendant-appellant that  his interest in the land was not extinguished  on  the extinction of the 673

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tenants’  interest but continued even after  termination  of the period of his sub-lease notwithstanding the  plaintiffs’ notice; that although the term of lease had expired, he  was not  in unlawful or unauthorised occupation but was in  pos- session  of the land by reason of his being a  lessee,  and, therefore,  S. 175of the United Provinces Tenancy  Act,  was applicable;  and that he ceased to be a sub-tenant  and  was elevated  to the position of a tenant on the  extinction  of the  interests  of  the tenants on their  surrender  of  the holding. Dismissing the appeal, this Court,     HELD: (By the Court--Dr. T.K. Thommen & R.M. Sahai, JJ.) (1) The interest of a non-occupancy sub-tenant, is liable to be  extinguished consequent on the extinction of the  inter- ests of the nonoccupancy tenant, and he enjoys a legal right for a limited period in terms of the statute.     (2)  A person who continues to remain in  occupation  of the  land even after the expiry of the period of his  lease, and despite the landlords’ notice to quit the permises,  can no  longer be regarded as a tenant as referred to in  clause (a) or clause (b) of s. 175 of the United Provinces  Tenancy Act, 1939.     (3)  The persons who axe not, or are no longer,  tenants at the time of the suit, and liable to ejectment, have to be proceeded  against  under  s. 180 of  the  United  Provinces Tenancy Act, 1939. Per Dr. Thommen, J.     1.1 The extinguishment of the interest of a non-occupan- cy  tenant  would, as envisaged by s. 47(1)  of  the  United Provinces Tenancy Act, 1939, extinguish the interest of  his sub-tenant  except as otherwise proVided in sub-ss. (3)  and (4). [685A-B]     1.2  Notwithstanding the extinction of the  interest  of the  the  by  reason of his surrender or  any  other  reason mentioned under subsection (4) of s. 47, a sub-tenant  whose sub-tenancy had not expired, was protected for the remainder of  the  term  of the sub-lease or for  5  years,  whichever period  be  the shorter, but subject to the  requirement  of sub-section (5) about rent. [681G-H]     2.1  In the instant case, the interests of  the  tenants had  become extinguished in terms of clause (c) of s. 45  of the United Provinces 674 Tenancy Act by reason of surrender of their interests in the holding  on 14.9.54 in favour of  the  proprietor-plaintiff. [679G-H]     Once the interest of the person under whom the defendant held the land was extinguished, the defendant was no  longer a  sub-tenant,  but a person enjoying a legal  right  for  a limited period in terms of the statute. [685B]     Birendra  Pratap Singh & Anr. v. Gulwant Singh  &  Ors., [1968] 2 SCR 870, referred to.     Biswabani (P) Ltd. v. Santosh Kumar Dutta & Ors., [1980] 1 SCR 650, held inapplicable.     The  interest  of the defendant, being that  of  a  nan- occupancy subtenant, was, subject to the provisions of  sub- ss.(4)and (5) of s. 47, liable to be extinguished consequent on  the  extinction of the  interests of  the  non-occupancy tenants. [681 B-C]     2.2 The statutory right vested in the defendant remained in  force only for the statutority limited period,  for  the purpose  of removal of standing crops and other products  of the  earth, and he had an obligation to vacate the  holding, as envisaged by s. 48. [681H; 682A]     2.3  The terms and conditions under which the  defendant

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held the sub-lease under the tenants continued to be binding and enforceable between the plaintiff and the defendant  for the  period from 14.9.1954, which was the date of  surrender by the tenants, till 31.12.1954, which was the date on which the  defendant’s sub-lease expired. This was, however,  sub- ject to sub-s. (5) of s. 47 which provided that, if the rent payable  by the sub-tenant was less than the rent  that  was payable  by  the tenant, the sub-tenant had  the  option  of vacating  the  holding or continuing in possession  for  the period  permitted by the statute on payment of rent  at  the higher rate which was applicable to the tenant. [681E-F]     3.1  Section  175 of the United Provinces  Tenancy  Act, dealing with a non-occupancy tenant, is confined to a person who is a tenant either in terms of an unexpired lease or  by reason of his being allowed to continue in possession, after the  expiry of the period of the lease. The section  has  no application  to  past tenants whose  interests  have  become extinguished  for  the reasons stated in s. 45 or s.  47  or whose lease has been duly determined. [682F-G; 683E]  675           675     3.2 There must be an existing or continuing legal  rela- tionship  between the owner and the person in possession  of the  land. In the absence of any such  relationship,  either because  no  lease or any other interest or right  was  ever granted or because it was duly determined or extinguished, a person retaining possession of the land without the  consent and  contrary  to  the will of the landlord  does  not  come within the purview ors. 175. [684A-B]     3.3 Persons who are not, or, who are no longer,  tenants at  the  time of suit, and liable to ejectment, have  to  be proceeded against under s. 180. [682G-H]     3.4 S. 180 has no application to a present tenant. It is meant for ejectment of a person who has no present right  to retain  possession  of land either  because  his  occupation commenced  without any such right or the right by  which  he commenced the occupation has since been duly extinguished or terminated  in  accordance  with the law  in  force.  [683B; 684B-C]     Bhinka  & Ors. v. Charan Singh, [1959] Supp. 2 SCR  798, referred to.     4. The learned Judges of the High Court were correct  in holding that insofar as the defendant continued to remain in occupation  of the land even after the expiry of the  period of his lease, and despite the landlord’s notice to quit  the premises,  he  could no longer be regarded as a  tenant  re- ferred  to  in clause (a) or (b) of s. 175  and,  therefore, that section had no application to him. The right section in terms of which a suit had to be brought against him, as  the plaintiff did in the instant case, was section 180. [686G-H; 687A] Per Sahai. J.:      1.1 Sub-tenant, literally or statutorily either in  the Rent Control legislations or agricultural tenancies, normal- ly  is a person in possession holding from the  tenant.  His right  or  interest depends on provisions  in  the  statute. [687C]      1.2  Under  U.P. Tenancy Act, sub-tenant  according  to clause  (22)  of  s. 3 holds land from a  tenant,  and  even though he is included in the definition of tenant in  clause (23)  and  is non-occupancy tenant under s. 31 of  the  Act, yet,  he is inferior class of tenant as he  is  specifically precluded  by s. 39 from subletting and has no  security  of tenure as he can be evicted under s. 175 of the Act and  his interest in the holding 676

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extinguishes,  statutorily,  under s. 47  on  extinction  of interest of his tenant under s. 45 of the Act. [687C-D]     2.1 A combined reading of sub-sections (1) and (4) of s. 47  shows that the interest of a sub-tenant extinguishes  on surrender by his tenant but this is deferred for the  period mentioned in sub-section (4). The extinction is complete but its operation is postponed to a later date. The right creat- ed  by sub-section (4) being limited in operation it  cannot extend beyond the period mentioned in it. [689G-H; 690A-B]     2.2 Section 47 is wider in application and immediate  in operation. It extends to every tenant holding under a tenant other than permanent tenure holder or fixed rate tenant. The interest  of  such tenant  extinguishes,  automatically  and immediately by operation of law on extinction of interest of his chief tenant. No further requirement is contemplated. He becomes  liable to ejectment. If he continues in  possession he  is  a  trespasser unless he holds with  consent  of  the landholder/landlord  expressly or impliedly, and, as  envis- aged by s. 48, he is required to vacate the holding  .except for the standing crops and produce which he is permitted  to remove  as any other tenant ejected in accordance  with  the provisions of the Act. [689A-C]’ Section 47(4) does not arrest extinction. It only  postpones it. [690C-D]     Birendra Pratap v. Gulwant Singh and Others, AIR 1968 SC 1068 referred to.     2.3 The expression, ’Except as provided’ in  sub-section (1)  of s. 47 does not carve out an exception to  extinction of  interest  of Subtenant but to its  immediate  operation. That  is interest in the holding is extinguished but form  a future  date namely expiry of the period of leases  or  five years  whichever  is  shorter. This  benefit  or  concession cannot  be stretched to vest any fresh tenancy right in  him after expiry of the period. [689F-G]     2.4  No new tenancy is created by sub-s. (4) of  s.  47. What  is  made binding and enforceable is the  old  covenant existing between the tenant and sub-tenant for the remainder period  of  the sub-lease. Whatever right a  sub-tenant  ac- quires  it ceases to operate after the expiry of  period  of lease or the period mentioned in the sub-section. No  second extinction is visualised. [690E-F] 3.1  Status  of a person in possession after expiry  of  the remainder 677 period  of lease or five years as provided in s.  47(4)  can neither be of statutory tenant nor a tenant holding over  as understood in common parlance. He is a person in  possession without authority of law. [690G]     3.2  A  sub-tenant whose extinction is  postponed  as  a matter  of  concession because of the  tenant’s  prejudicial acts cannot be placed any higher than other sub-tenants  who are  required to vacate their holding immediately  under  s. 48. Therefore, retention of possession by such person cannot he  except otherwise than in accordance with the  provisions of the Act for the time being in force. [690G-H; 691A]     4. The full Bench of the High Court was right in holding that the effect of extinction of sub-tenant’s interest under s. 47(1) of the Act was not only that ’he could no longer be held  to he in the capacity of subtenant’ but even the  ’new right’  of  continuance for the remainder  period  of  lease which  was  created under s. 47(4) was limited and  did  not vest  any right in such person to continue after  that  date nor  any fresh right of sub-tenancy could be deemed  to  ac- crue;  consequently, possession of such person after  expiry of  the  extended period, was otherwise than  in  accordance

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with the provision of law against whom a suit for  ejectment under s. 180 of the Act was maintainable. [691A-C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  937  of 1977.     From the Judgment dated 24.3.1977 of the Allahabad  High Court in Second Appeal No. 2746 of 1965.     Shanti  Bhushan, J.P. Goyal, Satish Chandra,  V.M.  Tar- kunde.  R.P. Singh, A.K. Shukla, J.M. Khanna,  M.R.  Bidsar, K.K.  Gupta.  Vijay Kumar Verma, Ms.  Shefali  Khanna,  P.K. Chakraborty and R.C. Verma for the appearing parties. The Judgment of the Court was delivered by     THOMMEN,  J. This appeal by,leave arises from the  judg- ment.  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. 678     The suit relates to 10 plots of land of Which the plain- tiff is the proprietor and situated in District  Muzaffarna- gar.   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  interest  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  de- mand, the plaintiff instituted the suit for ejectment  under section 180 of the Act.     Various  conntentions 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. 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  plain- tiff,  the suit has to be, and ought to have been,  decreed. The High Court has so held by the impugned judgment.     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  sub-

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tenant (vis-a-vix a tenant) whose rights are extinguished by operation of law.     The expression ’tenant’ in sub-section (23) of section 3 of the Act includes a ’sub-tenant’ as defined in sub-section (22) of that section. These sub-sections read: 679 "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; 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-pro- prietor, a permanent lessee or a thekadar;"     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 defendant and Raimal and Bhartu were non-occupancy  tenants  as defined under  section  31  which reads:                "31. All tenants other than permanent tenure-               holders,  fixed-rate tenants, tenants  holding               on  special  terms  in  Oudh,   ex-proprietary               tenants,  occupancy  tenants  and   hereditary               tenants are non-occupancy tenants."                   Sections  45 to 48 speak of extinction  of               tenancies. Section 45, so far as it is materi-               al to the facts of this case, provides:               "45. The interest of a tenant shall be  extin-               guished-                     (c)  .............  by surrender, or  by               abandonment; It  is  not disputed that, in respect of  the  two  tenants, their  interests had become extinguished in terms of  clause (c) by reason of surrender of their interests in the holding on 14.9.1954 in favour of the proprietor- 680 plaintiff.  The effect of such surrender on the interest  of the  sub-tenant  is  dealt with in section 47.  It  is  with reference to this section that the applicability of  section 180 has to be considered.     It  iS important to remember that the material  portions of section 47, namely, sub-sections (1), (4) and (5) dealing with  the interests of sub-tenants on the extinction of  the tenants’  interests, are concerned only with  tenants  other than  permanent  tenure holders or fixed  rate  tenants.  In other  words,  these sub-Sections  (unlike  sub-section  (2) concerning a transferee from a permanent tenure holder or  a fixed-rate tenant or sub-section (3) dealing with  mortgages executed  prior  to January, 1902) deal  with  non-occupancy tenants,  as  in the present case, and not  with  any  other class  of  tenants. Section 47, so far as  it  is  material, reads:                         "47. (1) Except as otherwise provid-               ed 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

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             him  .......                        (2)  Subject  to  the  provisions  of               section 16 of the Land Acquisition Act,  1894,               the extinction of the interest of a  permanent               tenure-holder or a fixed rate tenant shall not               of itself affect the rights of any  transferee               from  such tenant under a valid transfer,  but               after  the transfer all covenants binding  and               enforceable as between the landholder and  the               tenant  shall  be binding and  enforceable  as               between the landholder. and the transferee.                        (4) Where, at the time Of the extinc-               tion by surrender or abandonment, or by  death               without  any  heir entitled  to  inherit  such               interest,  of the interest in a holding  of  a               tenant other than a permanent tenUre-holder or               fixed-rate  tenant,  there is in  existence  a               valid  sub-lease of the 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               sub-tenant shall, subject to the provisions of               sub-section (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 the shorter..                      681                        (5).  In  the cases  referred  to  in               sub-section  (3) and sub-section (4),  if  the               rent  payable by the sub-tenant is  less  than               that hitherto payable by the tenant, the  sub-               tenant  shall have the option of vacating  the               holding, but shall, if he continues in posses-               sion, be liable to pay rent at the rate  hith-               erto payable by the tenant  ....  "     Section 47(1) shows that in the case of all non-occupan- cy tenants, (as distinguished from permanent tenure  holders or  fixed-rate tenants with whom we are not  concerned)  the extinction of their interests as such tenants will,  subject to  the protection of sub-sections (3) and (4),  operate  to extinguish the interests of tenants holding under them.  The interest  of  the defendant, being that of  a,  nonoccupancy sub-tenant, is thus liable to be extinguished consequent  on the extinction of the interests of the non-occupancy tenants Raimal and Bhartu. This extinction of the defendant’s inter- est is, however, subject to the provisions contained is  the relevant sub-sections, which on the facts of this case,  are sub-seCtions (4) and (5). Sub-section (4) shows that, in the event  of the. extinction of the interest of a  nonoccupancy tenant  by  reason of his surrender or abandonment  of  such interest,  or  his death without any heir  to  inherit  such interest,  all covenants binding and enforceable as  between the  tenant and the subtenant, subject to the provisions  of sub-section (5), will be binding and enforceable as between’ the tenants’ landholder (proprietor) and the sub-tenant  for the remainder Of the term of the sub-lease or for five years whichever  period  may be the shorter. This means  that  the terms  and  .conditions under which the defendant  held  the sub-lease  under Raimal and Bhartu continued to  be  binding and enforceable between the plaintiff and the defendant  for the period from 14.9. 1954, which was the date of  surrender by the tenants, till 31.12.1954, which was the date on which the defendants’ sub-lease expired. This is, however, subject to sub-section (5) which provides that, if the rent  payable

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by the sub-tenant is less than the rent that was payable  by the  tenant, the sub-tenant has the Option of  vacating  the holding or continuing in possession for the period permitted by  the statute on payment of rent at the higher rate  which was applicable to the tenant.     These provisions show that, notwithstanding the  extinc- tion of the interest of the tenant by reason of his  surren- der  or any other reason mentioned under sub-section (4),  a sub-tenant  whose subtenancy has not expired,  is  protected for  the  remainder of the term of the sub-lease  or  for  5 years,  whichever period be the shorter, but subject to  the requirement of sub-section (5) about rent. The statutory 682 right  vested in the defendant thus remained in  force  only for the statutorily limited period, and not any further. The limited  right of the sub-tenant thereafter for the  purpose of  removal  of  standing crops and other  products  of  the earth,  and his obligation to vacate the holding are  stated in section 48:               "48.  When  the interest of  a  sub-tenant  is               extinguished  he shall vacate his holding  but               shall have in respect of the removal of stand-               ing crops and other products of the earth  the               same  rights  as the tenant  would  have  upon               ejectment in accordance with the provisions of               this Act". This  section  further  emphasises the need  to  vacate  the holding  upon  extinguishment of the interest,  but  without prejudice to the right of removal of the standing Crops etc.     We  shall now consider the two provisions under which  a suit can be brought. Section 175 (the operation of which now remains stayed) deals with the ejectment of a  non-occupancy tenant,  while section 180 deals with ejectment of a  person in  occupation of land without consent. We shall first  read section   175,  and  then  section  180,  so  far  as   they are .material:               "175  .....  a non-occupancy tenant shall also               be  liable to ejectment on the application  of               the   landholder  on  any  of  the   following               grounds, namely:               (a)  that he is a tenant holding from year  to               year;                         (b)  that  he is  a  tenant  holding               under ,a lease for a period which has  expired               or  will expire before the end of the  current               agricultural year."     Significantly, this section, dealing with a non-occupan- cy  tenant, refers to a tenant falling under clause  (a)  or clause  (b),  i.e., a tenant having a  present  interest  in terms of an unexpired lease or an expired lease under  which he  holds over. The section has no application to past  ten- ants  whose interests have become extinguished for the  rea- sons  stated in section 45 or section 47 or whose lease  has been  duly  determined. On the other hand, persons  who  are not,  or,’  who are no longer, tenants at the  time  of  the suit, and liable to ejectment, have to be proceeded  against under section 180: 683               "180. (1) A person taking or retaining posses-               sion of a plot of land without the consent  of               the  person  entitled to admit him  to  occupy               such  plot  and otherwise than  in  accordance               with  the provisions of the law for  the  time               being  in force, shall be liable to  ejectment               under  this section on the suit of the  person

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             so entitled, and also to pay damages which may               extend  to four times the annual rental  value               calculated  in accordance with the  sanctioned               rates applicable to hereditary tenants.     Section 180 has no application to a present tenant. This section provides for ejectment of a person in occupation  of land without a valid consent.. He is a person who has  taken or  retained possession of land without the consent  of  the landlord  and contrary to law. He may have taken  possession by  trespass, or after being in lawful occupation,  retained possession  contrary to the will of the person  entitled  to admit him to occupy the land and without the support of law; in  either event he is a person liable to be  ejected  under section 180. It makes no difference. for the purpose of this section that a person was in unauthorised occupation at  all material  times,  or, the occupation was authorised  at  its commencement,  but  became  unauthorised by  reason  of  the authority to occupy having been extinguished by operation of law, or duly determined by the person entitled to give  such authority.     Unlike section 175, which is, as seen above, confined to a  person  who is a tenant either in terms of  an  unexpired lease  or  by reason of .his being allowed  to  continue  in possession  after  the expiry of the period  of  the  lease, section  180 concerns a person who was never, or who  is  no longer,  a  tenant. Apart from a mere trespasser,  a  person remaining  in  possession of the land,  notwithstanding  the extinguishment of his interestor determination of his lease, and  without the consent of andcontrary to the will  of  the landlord,  and otherwise than as permitted by  law,  equally falls within the ambit of section 180. Any such person  does not  hold  under a lease and is not a  ’tenant"  within  the meaning of section 175. He has no present right of ’holding’ or ’retaining possession’ of the land. The expression  ’hol- ding’ is defined under section 3(7) as :.               "a  parcel or parcels of land held  under  one               lease, engagement or grant, or in the  absence               of  such lease, engagement or grant under  one               tenure and in the case of a thekadar  includes               the theka area".               684 This  shows  that there must be an  existing  or  continuing legal  relationship  between the owner and’  the  person  in possession of the land. In the absence of any such relation- ship, either ’because no lease or anyother interest or right was ever granted or because it was duly determined or extin- guished,  a person retaining possession of the land  without the  consent and contrary to the will of the  landlord  does not come within. the purview of section 175.     While  the legislature provides for the ejectment  of  a nonoccupancy  tenant on the grounds specified under  section 175, section 180 is meant for ejectment of a person who  has no present right to retain possession of land either because his occupation commenced without any such right or the right by  which  he commenced the occupation has since  been  duly extinguished  or terminated in accordance - with the law  in force.     Speaking  of section 180, K. Subba Rao, J. (as  he  then was) in Bhinka & Ors v. Charan Singh, [1959] Supp. 2 SCR 798 at 808, observes:               "   .....   The  word "taking"  applies  to  a               person taking possession of a land.  otherwise               than in accordance with the provisions of  the               law;  while the word "retaining" to  a  person

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             taking  possession  in  accordance  with   the               provisions of the law but subsequently retain-               ing the same illegally So construed, it is section 180, and not section 175,  which should apply ’to a person who is in unlawful or unauthorised occupation of land.        Mr.  V.M.  Tarkunde, counsel for the  the  appellant- defendant,however,  submits  that the defendant  is  not  in unlawful or unauthorised or illegal occupation of the  land, but  he  is inoccupation by reason of his  being  a  lessee, although  the  term of the lease has since expired.  In  the Case  Of such a person, it is section 175 that applies.  Mr. Tarkunde says that the interest of the defendant in the land continues eveni.after termination of the period of his  sub- lease  and  notwithstanding the  plaintiffs  notice  calling upon’  him to quit. His interest in the land, counsel  says, is  not  extinguished  by reason of the  extinction  of  the interests of the tenants. The defendant ceased to be a  sub- tenant  and was elevated’ to the position of a  tenant  upon the extinction of the interests of the tenants by reason  of their surrender of the holding,   This argument is urged  by counsel on the basis of his construction of 685 section 47 which, in our view, is not correct.     Section  47(1), as seen above, specifically  says  that, except  as  otherwise provided in sub-section (3)  and  sub- section  (4), the extinguishment of the interest of  a  non- ocCupancy  tenant will, extinguish the interest of his  sub- tenant.  Once  the  interest Of the person  under  whom  the defendant held the land was extinguished, the defendant  was no longer a sub-tenant, but a person enjoying a legal  right for  a limited period in terms of the statute. As stated  by this Court in Birendra Pratap Singh & Anr. v. Gulwant  Singh & Ors., [1968] 2 SCR 870, 878-879:               "   .....   .The  subsequent  possession  was,               however,  under a legal right and  that  right               accrued  to the appellants  under  sub-section               (4)  of  section 47  .....   This  sub-section               does not lay down that the original  sub-lease               executed by the chief, tenant, who  surrenders               his1  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  re-               mainder  of the term of the sub-lease  or  for               five    years   whichever   period   may    be               shorter  .....  ". This  shows that the sub-tenant was no longer a holder’  of. any  parcel of land once his right to hold was  extinguished and  his  statutory right for the limited. period  had  also expired  in  terms of section 47.-When that  event  has  oc- curred,  he  has  no further interest in the  land  and  his continued  occupation  is, as pointed out by this  Court  in Bhinka  (supra), only an unauthorised or illegal occupation.     Referring to sub-section (4) of section. 47, this Court, in Birendra Pratap Singh (supra) stated:               "   ....   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

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             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               686               and,  consequently, the land was not  held  by               the  appellants  thereafter  in  the  capacity               mentioned in s. 19(vii) of the Act.......",, This observation regarding section 47(4) of the Act was made by this Court with reference to section 19(vii) of the  U.P. Zamindari Abolition and Land Reforms Act, 1950 (No. 1 of 195 1). The’ construction placed on section 47(4) of the Act  in that  decision  supports the view we have indicated  on  the point in issue, and that .decision was rightly relied on  by the High Court in coming to the conclusion which it did.     Mr.  J.P.  Goyal,  supplementing the  arguments  of  Mr. Tarkunde,  places reliance on certain observations  of  this Court in Biswabani (P) Ltd. v. Santosh Kumar Dutta & Ors., [ 1980] 1 SCR 650. That decision refers to the protection of a statutory tenant in terms of the West Bengal Premises Tenacy Act, 1956. This Court stated that, even after the expiry  of the  contractual  tenancy, the tenant would  continue  as  a statutory tenant, except where he has surrendered possession or  has  been evicted under the enabling provisions  of  the relevant  Rent Restriction Act. That decision has  no  rele- vance  to the facts of this case where the question  relates to  the construction of the relevant provisions of  the  Act under  Which separate and special provisions have been  made to regulate the rights and liabilities of different  catego- ries  of tenants, including non-occupancy tenants with  whom alone  we are concerned. Their liability to ejectment,  ’fo- llowing the extinction of their interests and rights in  the land, is regulated by statute.     The views expressed by the Full Bench of the High  Court are  correct.  The  learned Judges have  rightly  held  that insofar as the defendant has continued to remain in  occupa- tion of the land even after the expiry of the .period of his lease,  and despite the landlord’s notice to quit the  prem- ises,  he can no longer be regarded as a tenant referred  to in  clause  (a) or (b) of section 175 and,  therefore,  that section  has  no application to him. The  right  section  in terms of which a suit has to be brought against him, as  the plaintiff has done in the present case, is section 180. Accordingly there is no merit in this appeal.     R.M. SAHAI, J. While joining’ in the opinion of  brother Thommen, J., few words are being added, on nature of  inter- est created 687 under sub-section (4) of Section 47 of the U.P. Tenancy  Act of 1939 (referred hereinafter as the Act).     Sub-tenant, literally or statutorily either in the  Rent Control legislations or agricultural tenancies, normally, is a  ,person in possession holding from the tenant. His  right or  interest  depends on provi-sions in the  Statute.  Under U.P.  Tenancy  Act, sub;tenant according  toclause  (22)  of section 3 holds land from a tenant. Even though he isinclud- ed  in the definition of tenant in clause (23) and  is  non- occupationally  under  Section  31 of the Act,  yet,  he  is inferior class of tenant a she is specifically precluded  by Section  39 from subletting and has nosecurity of tenure  as he can be evicted under Section 175 of the Actand his inter- est   in  the  holding  extinguishes,   statutorily,   under Section47  on  extinction of interest of  his  tenant  under Section  45 of the Act.Similar provision for extinction  .of

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tenancy  existed  in Agra TenancyAct  of  1926.  Sub-section 3 .and 4 are, in fact, identical with sub-section.2 and 3 of the 1926 Act. Even Section 28 of N.W.P. Tenancy Act 1901(Act II  of.  1901) provided for extinction of interest  of  sub- tenant  onejectment of his tenant under Section 57  of  that Act.  And  on extinc-tion, for other reasons,  the  covenant binding  and  enforceable as bet-ween tenant  and  the  sub- tenant  became binding between tenants land-holder  and  the sub-tenant .and he was permitted, at his option, tocontinue, in possession for the remainder period of lease, on  paymen- tof the rent which was being paid by the tenant,  Therefore, continuanceof  sub-tenant under the covenant between  tenant and  sub-tenant exis-ted in Tenancy legislations right  from 1901.  But there existed a vitaldifference between 1901  Act on one hand and 1926 and 1939 Act on the other. In 1901  Act the  sub-lessee could continue .’for the remainderperiod  of the  term  of  the sub-lease’ whereas under  1926  and  1939 Actsthe period was fixed depending on if the sub-tenancy was createdbefore or after 1st January 1902. In the former  case the sub-lesseecould continue for, ’the remainder term of the sub-lease  or  for  the lifetime of the tenant  or  for  ten years’, whichever period was the shortest and in latter ’for the  remainder period of the lease or five years’  whichever Was shorter. Reason for fixation of period by latter  enact- ments, namely 1926 and 1939 was to remove uncertainty  about landholders  interest as the tenants,  particularly  widows, who  had.lmited .interest, only, at times created  permanent sub-tenancy  or subtenancies for long durations  under  1901 Act. This resulted in mass of litigation and at times  there was  sharp divergence of. opinion between Board of  Revenue, the  highest. authority in the hierarchy of  revenue  courts dealing  with agricultural holdings and the High  Court.  It was  to.  put this controversy at end and  reationalise  the law, ineeping with the. 688 spirit  of those times when tiller of the soil  concept  was still far, that the Legislature altered the law and provided for durational or limited interest. To appreciate its nature during  subsistance  of the covenant and  thereafter  it  is necessary to extract relevant sub-sections of Section 47:               "47.  (1)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  ten-               ant, shall operate to extinguish the  interest               of any tenant holding under him.               (2) ..................               (3) ..........................               (4)  Where, at the time of the  extinction  by               surrender or abandonment, or by death  without               any heir entitled to inherit such interest, of               the  interest in a holding of a  tenant  other               than  a permanent tenure-holder or  fixed-rate               tenant,  there  is in existence a  valid  sub-               lease  of  the 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               sub-tenant shall, subject to the provisions of               sub-section (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 the shorter.               (5)  In the cases referred to  in  sub-section

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             (3) and subsection (4), if the rent payable by               the  sub-tenant  is less  than  that  hitherto               payable  by the tenant, the  sub-tenant  shall               have  the option of vacating the holding,  but               shall,  if  he  Continues  in  possession,  be               liable  to  pay  rent a.t  the  rate  hitherto               payable by the tenant.     What is apparent, from a bare perusal of sub-section (1) of Section 47 is that it is Wider in application and immedi- ate in operation. 689 It extends to every tenant holding under a tenant other than permanent  tenure holder or fixed rate tenant. The  interest of  such tenant extinguishes, automatically and  immediately by  operation of law on extinction of interest of his  chief tenant.  No further requirement is contemplated. He  becomes liable to ejectment. If he .continues in possession he is  a trespasser   unless   he   holds   With   consent   of   the landholder/landlord expressly or impliedly. For  sub-tenants it  has been made more explicit by Section 48 of the Act  as he is required to vacate the holding except for the standing crops  and  produce which he is permitted to remove  as  any other  tenant ejected in accordance with the  provisions  of the Act. Thus a tenants more so a Sub-tenant, continuing  in possession after extinction, of his interest as provided  by Section 47, cannot be considered to be in possession in  any other capacity but as retaining possession otherwise than in accordance with the law for the time being in force.     Is  the  result! any different for a sub-tenant  who  is permitted to continue for the remainder period of  sub-lease by sub-section (4) of Section 47? Tenancy extinguishes under section  45 for various reasons. Consequence of it on  right of  a tenant holding under him is mentioned in  Section  47. Since  sub-tenant, is tenant and holds from the  tenant  his interest,  too,  extinguishes by operation of law.  But  the Legislature made an exception in favour of those sub-tenants whose  interest  came to an end either  because  the  tenant surrendered   or. abandoned his holding or died without  any heir to inherit his interest, obviously, to avoid any preju- dice  to  a  weaker class of tenant due to  conduct  of  his tenant  or  for reasons beyond control of  anyone.  But  the expression, ’Except as provided’ in sub-section (1) does not carve  out  an exception to extinction of interest  of  sub- tenant  but to its immediate operation. That is interest  in the  holding is extinguished but from a future  date  namely expiry  of the period of leases or five years  whichever  is shorter. This benefit or .concession cannot be stretched  to vest  any  fresh tenancy right.in’ him after expiry  of  the period. On a combined reading of sub-section (1) of  Section 47  with sub-section (4) the plain and simple  meaning  that emerges  is that the interest of .a sub-tenant  extinguishes on  surrender  by his tenant but this, is deferred  for  the period  mentioned in this sub-section. The right created  by sub-section (4) being limited in operation it cannot  extend beyond  the  ,period  mentioned in it,.  Otherwise  the  sub section (4) and sub-section (1) of the Act would be on cross purpose with each other. Interpreting the Sub-section in any other manner would be against principle of construction,  as sub-section  (4). cannot be read in isolation. That  is  the consequence  provided for-in sub-section (1) do  take  place but in the 690 manner  provided by sub-section (4). To put it, simply,  the extinction  is complete but its operation is postponed to  a later date..

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   Effort  was  made  to distort the  otherwise  plain  and simple  construction  by urging that since  sub-section  (5) enjoins  paying of same rent, as the tenant who had  surren- dered,  the  right  and interest of  the  sub-tenant  stands enhanced,  by  operation of law and  he  stands  substituted in.place  of  his tenant with higher rights  than  he  held. Natural follow up of it, added the .learned counsel, is that new  right  or interest created under Section  47(4)  cannot extinguish  after  expiry of the period except  as  provided under  section  45  of the Act. The  argument  suffers  from inherent fallacy, Section 47(4) does not arrest  extinction. It  only postpones it. In Birendra Pratap  v..Gulwant  Singh and  Others,  AIR 1968 SC 1068 this Court  while  construing sub-section (4)of Section 47 observed as under:               "So far as the right granted by Section  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." No new tenancy is created. What is made binding and enforce- able  is  the old covenant existing between the  tenant  and sub-tenant  for the remainder period of the sub-lease.  Thus whatever  right a sub-tenant acquires under sub-section  (4) it ceases to operate after the expiry of period of lease  or the  period mentioned in the sub-section. No second  extinc- tion  is visualised. That would be not. only doing  violence to the language of the sub-sections but would also result in nullifying the . effect of sub-section ’(1) completely.     Status  of  a person in possession after expiry  of  the remainder  period  of  lease or five years  as  provided  in Section  47(4)  can neither be .of statutory  tenant  nor  a tenant holding over as understood is common parlance. He  is a  person  in possession without authority of  law.  A  sub- tenant whose extinction is postponed as a matter of  conces- sion  because  of the tenant’s prejudicial  acts  cannot  be placed  any higher than other sub-tenants who  are  required ’to  vacate  their holding immediately  under  -Section  48. Therefore  retention of possession by such person cannot  be except ,otherwise than in accordance with the provisions  of the Act for the time being in force. 691     The Full Bench therefore did not commit any error of law in  applying the ratio laid down by this Court  in  Birendra Pratap  Singh v. Gulwant Singh and Others, (supra) that  the effect of extinction of sub-tenant’s interest under  Section 47(1)  of  the Act was not only that, ’he  could  no  longer be  .held to be in the capacity of sub-tenant’ but even  the ’new right’ of continuance for the remainder period of lease which  was created under Section 47(4) was limited  and  did not  vest  any right in such person to continue  after  that date  nor any-fresh right of sub-tenancy could be deemed  to accrue  consequently possession of Such person after  expiry of  the  extended period, was Otherwise that  in  accordance with the provision of taw against whom a suit for  ejectment under Section 180 of the Act was maintanable.       The  appeal  thus as held by brother Thommen,  J.,  is devoid of any merit. ORDER        For  the  reasons stated by us in  our  separate  but concurring judgments dated August 21, 1991, we see no  merit in  fids appeal and it is accordingly dismissed  with  costs throughout. R.P.                                     Appeal dismissed. 692

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