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PETITIONER: RENTALA LATCHAIAH & ORS.

       Vs.

RESPONDENT: CHIMMAPUDI SUBRAHMANYAM

DATE OF JUDGMENT: 19/04/1967

BENCH: MITTER, G.K. BENCH: MITTER, G.K. WANCHOO, K.N. (CJ) BHARGAVA, VISHISHTHA

CITATION:  1967 AIR 1793            1967 SCR  (3) 712  CITATOR INFO :  RF         1989 SC2289  (7)

ACT: Hyderabad Tenancy & Agricultural Lands Act, 1950, ss.  2(13) and  5-Persons  put into possession of land  by  trespasser- Whether  ’asami  shikmi’ under s.  2(13)-Whether  can  claim benefit of s. 5 as lawful cultivators of the land.

HEADNOTE: R  died  in  1941 leaving certain  landed  properties.   His adopted son filed a suit for a declaration in favour of  his adoption  against  R’s  widow  as  defendant.   During   the pendency of the suit the widow was put in possession of  the lands  by  the revenue authorities.’ The plaintiff  added  a prayer  of possession to his plaint.  The court  served  the widow  with an injunction not to deal with the lands in  any way during the pendency  of the suit.  In 1951 the suit  was decreed  in  favour of the adopted son but  nevertheless  in 1952  the  widow  leased the lands to  the  appellants. In execution of the decree of the court possession of the lands was given in 1954 to the adopted son and the appellants were ejected.   The appellants thereupon filed a claim  under  s. 32(1) of the Hyderabad Tenancy. Agricultural Lands Act, 1950 to be put back in possession of the lands the plea that they had been lawfully cultivating the land as tenants. Tehsildar and the Collector held in their favour but the High Court in revision  decided against them.  They came to this Court  by special leave. HELD : The appellants were inducted on the land by R’s widow after  the decree in the suit for declaration of  title  and possession in favour ,of the adopted son.  After the passing of the decree the possession of the widow could only be that of  a trespasser and it was not open to her to  create  any right  in  the land in favour of  anybody.   The  appellants ,could not get the benefit of s. 5 of the Act as they  could not  be  said to be, lawfully cultivating  the  land.   They could  not call in aid the definition ,of ’asami shikmi’  in s.  2(13)  of  the Act.  When the person  who  inducted  the tenants-on the land was found to be a trespasser on the date of ,the induction, the tenants could not continue to have  a right to be on the land against the will of the true  owner.

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[714 G-H; 715 A-C; 719 G] Dahya Lal v. Rasul Mohammed Abdul Hakim, [1963] 3 S.C.R.  1, Mohima Chunder Shaha v. Hazari Pramanik, I.L.R. 17  Calcutta 45  and  Binad  Lal Pakrashi v.  Kalu  Pramanik,  I.L.R.  20 Calcutta 708, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 611 of 1964. Appeal  by special leave from the judgment and  order  dated ’September  10,  1962 of the Andhra Pradesh  High  Court  in C.R.P. No. 1128 of 1959. A.   V. Rangam, for the appellants. P.   Ram  Reddy,  Triyambak  Rao  Deshmukh  and  R.  Vasudev Pillai, for the respondent. 7 1 3 The Judgment of the Court was delivered by Miter,  J.  This  is  an appeal by  special  leave,  from  a judgment in a batch of civil revision petitions decided-  by the Andhra Pradesh High Court in September, 1962. The  facts necessary for the disposal of this appeal are  as follows.   One Ramalingayya died in the year 1941  possessed of considerable properties including the lands which  formed the  subject  matter of the above mentioned  civil  revision petitions. Before his    death,    he   had   adopted    the petitioner before           the High Court one    Chimmapudi Subrahmanyam, the respondent before this Court.   He    came into  possession  of the properties of his  adoptive  father after  the  latter’s death.   Ramalingayya’s  widow  however raised  a  dispute  about the factum  and  validity  of  the adoption  and  claimed  the properties as the  heir  of  her husband.   Subrahmanyam  filed a suit in the  court  of  the District  Munsif, Khammam for a declaration that he was  the adopted  son of Ramalingayya.  Pending the disposal  of  the suit,  however,  Ramalingayya’s  widow,  who  was  the   4th respondent  in  C.R.P. No.36 of 1952 before the  High  Court claimed,  to  have  her  name  registered  in  the  register maintained  under the Hyderabad Land Revenue Act of 1317  F. by virtue of the provisions of s. 59 of that Act.  The  land revenue  authorities  registered  the  widow  Kaveramma   as pattedar  and  dispossed the adopted son of  all  the  lands putting  Kaveramma in possession thereof.  The adopted  son amended  his  plaint by including a prayer  for  possession. During  the  pendency of the suit, the widow  Kaveramma  was prohibited  by an order of injunction from dealing with  the lands in any way.  This was sometime in the year 1944.   The suit of the adopted son was decreed, by the trial, court  on March  24, 1951 both with regard to the declaration  of  the right  of adoption and succession as also possession  over’ the   lands  mentioned  in  the  schedule  to  the   plaint. Thereafter, some time in the year 1952 (the exact date  does not appear from the records before us) Kaveramma leased  the lands  which were tile subject matter of the civil  revision petitions  to  the appellants before this  court.   This  is borne  out  by  the judgment  of,  the  District  Collector, Khammam  dated March 19, 1959 and the petition  for  special leave  to  this  Court dated October  18,  1962.   Kaveramma preferred  an appeal from the decree passed against her  and this  was dismissed by the High Court in 1954.  The  adopted son put the decree in execution and got delivery of  posses- sion through the court in August 1954.  It appears that very soon   thereafter,   in  September   1954   the   appellants surrendered  possession of the lands to him and  executed  a deed in respect thereof.  Notwithstanding that, about a year

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afterwards,  they  filed a petition on October 7,  1955  for possession  of  the  lands alleging that they  had  been  in possession for "the last six years in the 71 4 capacity of tenants".  Their allegation further was that the adopted  son and his mother had dispossessed them  from  the suit lands and they therefore prayed for being put back into possession.  This claim was preferred under S. 32(1) of  the Hyderabad  Tenancy  and Agricultural Lands Act,  1950.   The Tahsildar made an order in favour of the appellants in  July 1958  which was upheld in appeal to the Collector in  March, 1959.   This  led to the revision  applications  before  the Andhra Pradesh High Court.  The High Court allowed the Civil Revision Petitions and this has led to the appeal. Under  S.  32(1) of the Hyderabad Tenancy  and  Agricultural Lands  Act, 1950 (hereinafter referred to as the  ’Act’)  "a tenant  or an agricultural labourer or artisan  entitled  to possession  of any land or dwelling house under any  of  the provisions of this Act may apply to the Tahsildar in writing in  the prescribed form for such possession."  "Tenant"  has been  defined  in  S. 2(v) of the Act as  meaning  an  asami shikmi who holds lands on lease and includes a person who is deemed to be a tenant under the provisions of the Act.   The relevant portion of s. 5 of the Act provides as follows               "A   person  lawfully  cultivating  any   land               belonging to another person shall be deemed to               be  a  tenant if such land is  not  cultivated               personally  by the land-holder if such  person               is not-               (a)   a member of the landholder’s family, or               (b)   a  servant on wages payable in  cash  or               kind,               but  not  in crop share or  a  hired  labourer               cultivating   the  land  under  the   personal               supervision of the landholder or any member of               the landholder’s family, or               (c)   a mortgagee in possession : The  appellants before this Court never were the tenants  of Ramalingayya.   They were induced on the land by  his  widow after  the decree of the suit for declaration of  title  and possession in favour of the adopted son.  After the  passing of  the  decree, the possession of the widow could  only  be that  of a trespasser and it was not open to her  to  create any  right in the land in favour of anybody.  It was  argued however  both  before the High Court and before  this  Court that the appellants were entitled to the benefit of s. 5, as they were lawfully cultivating the land and should therefore be deemed to be tenants of such land.  It was contended that the word "lawfully" was to be taken in conjunction with  the words "cultivating" and the legislature intended to  protect the actual tillers of the soil even if the person who, 7 1 5 put  them in possession was found not to have any  title  to the land.  This would indeed be a very strange provision  of the law and would, if upheld, amount to encouraging trespass on  the  land  by persons who had no  shadow  of  title  and creating rights in favour of others although they themselves had  no title to the land.  The meaning of the  word  ’asami shikmi’ in the definition of the tenant in s. 2 (v) does not appear  from any provision of the Act but our attention  was drawn to the Hyderabad Land Revenue Act, s. 2(13), according to  which  "’asami shikmi’ means a lessee,  whether  holding under  an  instrument  or  tinder  an  oral  agreement,  and includes  a  mortgagee  of an  asami  shikmi’s  rights  with possession,  but does not include a lessee holding  directly

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under  Government".  In our opinion, this does not help  the appellants for the definition shows that a person who claims to  be  an asami shikmi’ had to be a lessee  either  holding under a document of lease or under an oral agreement. The position might have been different if the appellants had been   inducted  on  the  lands  by  the  widow  after   her recognition  as  a pattedar by the revenue  authorities  and before the disposal of the suit against her; but, we are not concerned   with  that  situation.   The  High   Court   had considered  at some- length the question whether  she  could create  any  tenancy  rights when there  was  an  injunction restraining  her  from alienating any property.  We  do  not think it was necessary to go into that question for normally the order of injunction which was passed as an interlocutory measure  would  not survive the decree of the  trial  court. Learned  counsel  for the appellants cited the  judgment  of this Court in Dahya Lal v. Rasul Mohammed Abdul Hakim(1) and it  was argued that the object of the Hyderabad Act of  1950 was to afford similar protection as was given to the tenants inducted by mortgagees under the Bombay Tenancy and Agricul- tural  Land Act, 1948.  Under s. 2(18) of the Bombay Act  of 1948  as the same stood at the material time, a  tenant  was defined  as "an agriculturist who holds lands on  lease  and includes  a  person  who is deemed to be  tenant  under  the provisions  of  the  Act." S. 14 of the  Act  provided  that "notwithstanding any agreement, usage, decree or order of  a Court of Law, the tenancy of any land held by a tenant shall not  be determined unless the conditions specified  in  that section were fulfilled." In that case, it was common  ground that  the  tenancy of the respondent was not  sought  to  be determined  on  any of the grounds in s. 14 but  it  was  in execution of an award made by the Debt Relief Court that the respondent  was dispossessed.  The relevant portion of s.  4 of that Act provided:               "A   person  lawfully  cultivating  any   land               belonging  to another per son shall be  deemed               to be a tenant if               (1)   [1963] 3 S.C.R. 1.               7 1 6               such land is not cultivated personally by  the               owner and if such person is not               (a)   a member of the owner’s family or               (b)   a  servant on wages payable in  cash  or               kind               but  not  in crop share or  a  hired  labourer               cultivating   the  land  under  the   personal               supervision of the owner’s               family,    or               (c)   a mortgagee in possession." It was found   in   that  case  that  the   respondent   was cultivating the land which belonged to another person,  that he was lawfully cultivating the land because he derived  his right to cultivate it from the mortgagee of the land and did not   fall  within  the  excepted  categories.    In   these circumstances,  it  was  held by this Court that  he  was  a "deemed  tenant"  within the’ meaning of s. 4  of  the  Act. This Court observed in that case:               "A  mortgagee in possession is  excluded  from               the  class  of deemed tenants  on  ground  of,               public  policy: to confer that status  upon  a               mortgagee in possession would be to invest him               with  rights inconsistent with  his  fiduciary               character.   A transferee of the  totality  of               the  rights  of a mortgage in  possession  may               also   be   deemed  to  be  a   mortgagee   in

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             possession.  But a tenant of the mortgagee  in               possession  is  inducted on  the-land  in  the               ordinary course of management under  authority               derived from the mortgagor and so long as  the               mortgage subsists, even under the ordinary law               he  is  not  liable  to  be  evicted  by   the               mortgagor."               According to this Court               "....the   Legislature  by   restricting   the               exclusion to mortgagees in possession from the               class  of  deemed tenants  intended  that  the               tenant  lawfully  inducted  by  the  mortgagee               shall on redemption of the mortgage be  deemed               to be tenant of the mortgagor." In  Dahya  Lal’s case(1) the ratio decidendi  was  that  the mortgagee  in possession had the right to induct tenants  on the land: normally, the right of such tenants would come  to an  end with the extinction of the rights of  the  mortgagee but the object of the Act was to give protection to  tenants who  had been lawfully inducted thereon, inter alia  by  the mortgages  and  this class of tenants could be  said  to  be lawfully cultivating the land.  Such is not the position  in the case before us.  Kaveramma did not induct the tenants on the land in the normal course of manage- (1)  [1963]3 S.C.R. 1.                             717 ment  of the property.  She put them in possession when  she had lost her right to be there and consequently the decision of this Court in Dahya Lal’s case can be of no assistance to the appellants before us. The  appellants however sought to rely on two  decisions  of the  Calcutta High Court which turned on the  interpretation of  some  provisions of the Bengal Tenancy Act.   In  Mohima Chunder Saha v. Hazari Parmanik(1) the plaintiff,  appellant before  the  High  Court sued to eject  the  defendants  and recover  possession of the land pertaining to the estate  of Char  Bantai,  of  which they stated  that  they  and  their predecessors  had  been  for many  years  in  possession  as proprietors.  It was alleged by them that the land sued  for was diluviated by the river in 1284 F. and subsequently  re- formed  on the old site when they re-took possession of  it; that Government and other zamindars of a neighbouring  mouza had dispossessed them in 1284 F. and the plaintiffs had,  in a  suit brought against those zamindars, obtained  a  decree declaring,  their  rights and got possession  of  the  land. They  had repeatedly asked the defendants to quit  the  land but the latter failed to do so.  The Munsif found that  the defendants  had not acquired a right of occupancy, and  were liable  to be ejected.  In appeal to the District  Judge  it was  held that although the defendants had not proved  their acquisition of a right of occupancy, they were non-occupancy ryots  and  not mere trespassers and as such they  were  not liable  to  be  ejected except under s.  44  of  the  Bengal Tenancy  Act  on grounds which did not exist  in  the  cast. Before the High, Court it was contended that the  defendants were not non-occupancy ryots and as such could be ejected as trespassers.   The High Court held that the defendants  were cultivating  ryots  who were placed on the property  by  the Collector  and that they had held possession for many  years but  not for a period sufficient to create a right of  occu- pancy.  Accordingly they were within the class termed in the Bengal  Tenancy Act as non-occupancy ryots.  Under s. 5  (2) of the Bengal Tenancy Act, a ryot means primarily "a  person who  has  acquired a right to hold land for the  purpose  of cultivating  it by himself, or by members of his family,  or

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by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right." S. 4 of the Act specified non-occupancy ryots as  one of the classes of tenants under that Act.  Under  s. 3(3)  of the Act, a tenant means "a person ’Who  holds  land under  another person and is, or but for a special  contract would be, liable to pay rent for that land to that  person." The High Court held that the defendants were clearly  liable to  pay for use and occupation of the land and in the  light of the definition of "rent" in s. 3(5) it (1)  I.L.R. 17 Calcutta 45. 718 had to be held that the defendants were ryots and  therefore non-occupancy  ryots within the terms of the Bengal  Tenancy Act.  The High Court finally observed: ,               "It  may seem anomalous that  the  defendants,               who   have  no  title  from   the   plaintiffs               directly,  or  through their  predecessors  in               estate,  should  thus  be  protected  as  non-               occupancy ryots from ejectment as  trespassers               at the plaintiff’s free will; but it seems  to               us that this is in accordance with the general               spirit  of  the  Bengal  Tenancy  Act,   which               regards  a landlord as a rent-receiver and               as able to eject a tenant or cultivator of the               soil,  not an under-tenant, only  for  certain               specified  reasons  and  conditions,  none  of               which  here  exist.   If  the  defendants  had               acquired  a right of occupancy  by  occupation               for  twelve years, they would have  been  pro-               tected from ejectment, ’ and as  non-occupancy               ryots  they  are  also  protected  except   as               specially provided." It  will therefore be noticed that the scheme of the  Bengal Tenancy  Act was entirely different from the  provisions  of the  Act  we have to construe.  There occupancy  ryots  were protected altogether  from ejectment but so long  as  they were  non-occupancy  ryots they were also  protected  except under conditions mentioned in s. 44.  Here too the Act would have  protected them if their original induction was  lawful so  that they could be said to be lawfully  cultivating  the lands. The  other  decision of the Calcutta High Court is  that  in Binad  Lal Pakrashi v. Kalu Pramanik(1).  In this  case  the plaintiffs   who  were  proprietors  sought  to   oust   the defendants from certain lands which they were cultivating in Barakahali village.  Previously thereto, there was a dispute regarding  these  lands  between  the  plaintiffs  and   the trustees  of the late D. N. Tagore who claimed them  as  the re-formed  lands of village, Modhupur.  The plaintiffs  were dispossessed  of the lands in consequence of the order of  a Magistrate who in a proceeding under s. 145 Cr.P.C. declared possession to be with the trustees.  The lower ,courts found that the defendants were settled on the land by the trustees but  they had not acquired a right of occupancy at the  time the  suits  were brought against them by the  plaintiffs  in January 1889.  Meanwhile in 1878 the plaintiffs had sued the trustees and obtained decrees which were confirmed in appeal by  the  High Court.  In January 1886  the  plaintiffs  took possession  of  the lands as against the trustees  and  then they  brought Suits to eject the defendants as  trespassers. They had not received rent from the defendants or in any way admitted  their tenancy.  The trial court decreed the  suits in favour of the (1)  (I.L.R. 2) Calcutta 708.

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719 plaintiffs  but these were upset in appeal by  the  District Court  on  the authority of Mohima Chunder  Saha’s(1)  case. According to the Full Bench:               "The  possession of the land in  question  for               the  purpose of cultivating it was acquired  a               good many years ago by the defendants from the               persons  who  at  that  time  were  in  actual               possession  of the zemindari within  which  it               was  situated  and  who  were  then  the  only               persons who could give possession of the lands               of the zemindari to cultivators." The Full Bench held that although they had established their right  to the zamindari the plaintiffs could not  treat  the cultivators as trespassers and obtain khas possession of the lands from them.    Referring  to  s. 5 (2)  of  the  Bengal Tenancy Act, the learned Chief Justice said:               "The possession and interest in the land which               the  defendants acquired from the  persons  in               possession  of  the zemindari was a  right  to               hold  it for the purpose of cultivating it  as               against  all the world except the true  owners               of the zemindari, and against them unless they               proved  a title to the zemindari paramount  to               that of the plaintiff’s landlords.               This  was, I think, a right to hold  the  land               for  the purpose of cultivating it within  the               meaning  of  section  5, cl. 2 .  .  .  .  the               defendants  are ryots, and the only  right  of               the person who has Obtained possession of  the               zemindari is to the rent payable for the land,               and  not  to the khas possession of  the  land               itself,  unless  they  can  do  so  under  the               provisions of the Tenancy Act." The facts in the Calcutta cases were different from the case before  us  and the Bengal Tenancy Act  gave  protection  to persons  cultivating the land in circumstances which do  not obtain  here.  It would therefore not be right to  hold,  on the basis of the decisions in the Calcutta High Court,  that although the person who inducted the tenants on the land was found to be a trespasser on the date of such induction,  the tenants continued to have a right to be on the land  against the will of the true owner. The  appeal  therefore fails and is dismissed, but,  on  the facts of this  case, we do not make any order as to costs. G.C.                       Appeal dismissed. (1) I.L.R. 17 Calcutta 45. 720