advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, February 27, 2015

"In our view, the aforesaid argument of the learned counsel does not merit acceptance. Admittedly, the petitioners were granted lease of the suit land in 1955 for a period of 20 years and the term of their lease ended in 1975. Section 9 of the 1953 Act is attracted only when a tenant is sought to be evicted. The said section is not applicable to a case where the tenancy gets terminated by efflux of time and the person occupying the lease premises no longer remains tenant. There is no provision in the 1953 Act similar to those contained in the Urban Rent Control Legislations under which a tenant becomes statutory tenant after expiry of the contractual tenure of the tenancy." Be that as it may, in Sukhdev Singh's case (supra) a Bench of this Court on consideration of the provisions of Punjab Security of Land Tenures Act, 1953 was of the opinion that after the expiry of fixed term tenancy in respect of agricultural land, the tenancy gets terminated by efflux of time and person occupying the lease premises no longer remains tenant. With due respect, we are not in agreement with the view taken by this Court in Sukhdev Singh's case (supra).


                                                        REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 4245 OF 2012

Shyam Lal                                           .....Appellant

                                   versus

Deepa Dass Chela Ram Chela Garib Dass   .....Respondent



                                  JUDGMENT



M. Y. EQBAL, J.



      This appeal by special leave is directed against  the  judgment  dated
28.6.2010 of the High Court of Punjab and Haryana whereby the second  appeal
filed by the appellant-plaintiff was dismissed with costs throughout.



2.    The litigation between the parties commenced  on  the  filing  of  the
suit  by  the  plaintiff-appellant  for  permanent  injunction  against  the
respondent-defendant claiming  to  have  been  in  possession  of  the  suit
property for 27-28 years as Gair Marusi and  alleging  that  the  respondent
was threatening to dispossess him.  The plaintiff claimed himself to  be  in
possession  over  the  agricultural  land  measuring  122  kanals  2  marlas
situated in village Chhainsa, Tehsil Ballabhgarh, District Faridabad  having
tube-well, electricity connection and his house in Killa No.26 in  which  he
is allegedly residing for the last 27-28 years continuously and also  having
another Engine Tubewell Bore in killa no.26(1-2).  It is  the  case  of  the
plaintiff that earlier Ram Dass  Chela  Garib  Das  was  the  owner  of  the
aforesaid land, which is now recorded in the  ownership  of  the  defendant-
respondent vide Rapat No.508 dated 8.8.2003.



3.    The case of the  respondent  on  the  other  hand  is  that  the  suit
property was leased to the appellant-plaintiff by  its  original  owner  Ram
Dass Chela with effect from 12.7.1986 to June,  1994  and  then  again  from
29.5.1996  till  28.5.2005  for  a  consideration  of   Rs.1,60,000/-.   The
respondent had purchased the suit  property  on  8.8.2000.  The  respondent-
defendant pleaded that after expiry of  the  lease  on  28.5.2005  the  suit
property was to revert back to the defendant, but  the  plaintiff  illegally
and unlawfully wanted to grab the suit land and as such the respondent  also
filed a counter-claim in the  said  suit  seeking  a  decree  for  mandatory
injunction directing the plaintiff to handover  vacant  peaceful  possession
of the land to the defendant with damages at the  rate  of  Rs.17,800/-  per
annum for  unauthorized  occupation  of  the  suit  land.   Contesting  this
counter claim, plaintiff replied that after the expiry of  lease,  plaintiff
has become statutory tenant and his tenancy is protected by  the  provisions
of the Punjab Security of Land Tenure Act, 1953 (hereinafter referred to  as
the "1953 Act").  It was also pleaded that the plaintiff is  liable  to  pay
fixed rent of Rs.3000/- per annum and not the amount which has been  claimed
by the defendant as damages.



4.    The trial court, after considering  the  pleadings  and  evidence  led
before it, dismissed the suit of the  appellant  but  allowed  the  counter-
claim holding that the plaintiff was not a Gair marusi  but  a  tenant  over
the suit  property  whose  tenancy  had  expired  on  28.5.2005  and  was  a
trespasser thereafter.  Aggrieved by the judgment of the  trial  court,  the
plaintiff-appellant preferred an appeal which was dismissed by the  District
Court upholding the findings of the trial  court.   The  plaintiff-appellant
then moved the High Court by way of second appeal contending that he  was  a
tenant under section 4(5) of the Punjab Tenancy Act, 1887 and  Section  2(6)
of the Punjab Security of Land Tenures Act, 1953, and  therefore,  could  be
evicted only on the grounds mentioned in Section 17 of the 1953  Act.    The
appellant also contended that the lease deed produced by the respondent  was
not admissible in evidence as it was not registered.



5.    Dismissing the appeal of the  plaintiff  with  costs,  learned  Single
Judge of the High Court held that the appellant would not be a tenant  after
the expiry of the lease and would also not be entitled to  protection  under
Section 9 of the 1953 Act as the respondent landlord had made his  intention
of not extending the lease by filing a counter-claim against the  petitioner
seeking possession. Section 9 of the 1953 Act  protects  subsistent  tenancy
and not a trespasser in possession after the expiry of the lease.    Learned
Single Judge further held that though an unregistered  lease  deed  was  not
admissible in evidence, however as the  lease  deed  herein  was  meant  for
agricultural purposes, it was exempt from registration under Section 117  of
the Transfer of Property Act.  Hence, the present appeal  by  special  leave
by the plaintiff under Article 136 of the Constitution.



6.    We have heard Mr. Parveen H. Parekh, learned senior counsel  appearing
for appellant and Mr. Manoj Swarup,  learned  counsel  for  the  respondent.
We have also perused the impugned judgment and all the papers placed  before
us.  The question that  arises  for  consideration  is  as  to  whether  the
plaintiff-appellant became a trespasser after expiry of the lease period  or
continued to be a tenant having protection for eviction  under  the  tenancy
laws.

7.    Mr. P.H. Parekh, learned senior counsel appearing for  the  appellant,
referred relevant provisions of the Punjab Security  of  Land  Tenures  Act,
1953 and submitted that a tenant in possession of agricultural  land  cannot
be held to be a trespasser only because of expiry of the  period  for  which
he was put in possession as a  tenant.   According  to  the  learned  senior
counsel, even after the expiry of the lease or contract,  he  will  continue
as the statutory tenant and not as the trespasser.  Learned  senior  counsel
put reliance on the decision of the Supreme Court in the case of Bhajan  Lal
vs. State of Punjab & ors., (1971) 1  SCC  34,   V.  Dhanapal  Chettiar  vs.
Yesodai Ammal, (1979) 4 SCC 214, and on the Punjab and Haryana High  Court's
decision in Ram Lal vs. Darshan Lal & ors., (2008) 3 RCR (Civil) 427.


8.    Mr. Manoj Swarup, learned counsel for the respondent,  in  support  of
his contention said that after the expiry  of  lease  the  lessee  became  a
trespasser, relied upon decisions of this Court in R.V.  Bhupal  Prasad  vs.
State of A.P. & Ors., (1995) 5 SCC 698, and the decisions of the Punjab  and
Haryana High Court in the cases of Mandir Jhoke Hari Har  &  ors.  vs.  Ajit
Kaur & ors., 1977 PLJ 315 and Rameshwar vs. Sheo  Chand  &  ors.,  1981  PLJ
362.


9.     To decide rival claims of the parties, we  think  it  appropriate  to
reproduce here relevant provisions of the law.



10.   In order to provide for the security of  land  tenure  and  incidental
matters, the  Punjab  Security  of  Land  Tenures  Act,  1953  was  enacted.
However, such provisions of land security Act which  are  inconsistent  with
the newly enacted provisions of the Haryana Ceiling  of  Land  Holding  Act,
1972 has been repealed.  The provisions of 1953 Act still  holds  the  field
in many matters with regard to eviction and protection  of  tenants  in  the
manner not provided in the Act.   Section 2(6) of the Act defines  the  word
'Tenant' as under:-

"Tenant" has the meaning assigned to it in  the  Punjab  Tenancy  Act,  1887
(Act XVI of 1998), and includes a sub-tenant, and  self-cultivating  lessee,
but shall not include a present holder, as  defined  in  section  2  of  the
resettlement Act."



11.   Section 4(5) of the Punjab Tenancy Act, 1887 (in  short,  "1887  Act")
defines the word 'tenant' as under:-

"4. Definitions- In this Act, unless there in  something  repugnant  in  the
subject or context,-

                       xxxx

(5) "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 other person; but does not include -

(a) an inferior landowner, or

(b) a mortgagee of the rights of a landowner, or

 (c), a person. to Whom a holding has been  transferred,  or  an  estate  or
holding has been let in

farm under the Punjab  Land  Revenue  Act  1887  (XVII  of  1887),  for  the
recovery of an arrear of land

revenue or of a sum _recoverable as such an arrear or

 (d) a person who takes from the Government a lease of unoccupied  land  for
the purpose of subletting it."







12.   Section 2(8) of the 1887 Act defines the word "tenancy"  as  a  parcel
of land held by a tenant of a  landlord  under  one  lease  or  one  set  of
conditions.  Section 40 of the said Act provides  the  grounds  under  which
the tenant, who is in occupation for a fixed term, can be ejected.   Section
40 reads as under:

"40. Grounds of ejectment of tenant for a fixed term-

A tenant not having a right of occupancy but holding for a fixed term  under
a contract or a decree or order of competent authority, shall be  liable  to
be ejected from his tenancy at the expiration of that term, and, on  any  of
the following grounds, before the expiration thereof namely :--

(a)  that he has used the land comprised in the tenancy in  a  manner  which
renders it unfit for the purposes for which, he held it ;

(b)  where rent is payable in kind, that he  has  without  sufficient  cause
failed to cultivate that land in the manner, or to the extent  customary  in
the locality in which the land is situate ;

(c) on any ground which would justify ejectment under  the  contract  decree
or order."



13.   Reading the definition of tenant in both the Acts together would  show
that a tenant includes a self cultivating tenant and is liable to pay  rent.
 Section 42 of the 1887 Act prescribes the procedure  for  ejectment,  which
is quoted hereinbelow:

"42. Restriction of Ejectment-A tenant shall not be ejected  otherwise  that
in execution of a decree for  ejectment,  except  in  the  following  cases,
namely:-

(a) when a decree for an arrear of rent in respect of  his  tenancy  hasbeen
passed against him and remains unsatisfied;

(b) when the tenant has not a right of occupancy and does  not  hold  for  a
fixed term under a contract or a decree or order of competent authority."





14.   Coming back to 1953 Act, which provides the  circumstances  where  the
tenancy shall continue.  Section 8 reads as under:-

"8.  Continuity of tenancies -

The continuity of tenancy shall not be affected by-

      (a)   the death of the landlord, or

      (b)   the death of tenant , except when  the  tenant  leaves  no  male
lineal descendants or mother or widow, and

      (c)   any change therein  under  the  same  land-owner,  and  for  the
purposes of sections 17 and 18 of this Act, such tenancy shall be  the  last
area so held."





15.   Section 9 of the 1953 Act provides the liability of the tenant  to  be
ejected from the land held by him. Section 9 reads as under:-

"9.   Liability of the tenant to be ejected.-

(1) Notwithstanding anything contained in any other law for the  time  being
in force, no land-owner shall be competent to eject the tenant  except  when
such tenant -

(i) is a tenant on the area reserved under this Act or  is  a  tenant  of  a
small land-owner, {or}



(ii)  fails to pay rent regularly without sufficient cause, or

(iii) is in arrears of rent at the commencement of this Act, or

(iv)  has failed, or fails, without sufficient cause, to cultivate the  land
comprised in his tenancy in the manner or to the  extent  customary  in  the
locality in which the land is situate, or

(v)   has used, or uses, the land comprised  in  his  tenancy  in  a  manner
which has rendered, or renders it unfit for the purpose for which  he  holds
it, or

(vi)  has sublet the tenancy or a part thereof, provided that where  only  a
part of the tenancy has been sublet,  the  tenant  shall  be  liable  to  be
ejected only from such part, or

(vii) refuses to execute a Qabuliyat or a Patta, in the form prescribed,  in
respect of his tenancy on being  called  upon  to  do  so  by  an  Assistant
Collector on an application made to him for this purpose by the land owner



Explanation - For the purposes of clause (iii), a tenant shall be deemed  to
be in arrears of rent at the commencement of this Act, only if  the  payment
of arrears is not made by the tenant within a period of two months from  the
date of notice of execution of decree or order, directing him  to  pay  such
arrears of rent.



(2)] Notwithstanding anything contained hereinbefore a tenant shall also  be
liable to be ejected from any area which he holds in any  capacity  whatever
in excess of the permissible area;



      Provided that the portion of the tenancy from which  such  tenant  can
be ejected shall be determined at his option if  the  area  of  his  tenancy
under the land-owner concerned is in excess of the area from  which  he  can
be ejected by the said land owner;



      Provided further that if the tenant holds land of several  land-owners
and more than one land-owner seeks his ejectment,  the  right  to  ejectment
shall be exercised in the order in which the applications have been made  or
suits have  been  filed  by  the  land-owners  concerned,  and  in  case  of
simultaneous  applications  or  suits  the  priority  for  ejectment   shall
commence serially from the smallest land-owner.



Explanation.- Where a tenant holds land jointly  with  other  tenants,  only
his share in the joint tenancy shall be taken into account in computing  the
area held by him."







16.   Section 10 makes provision for restoration  of  tenant  ejected  after
15th August, 1947.  The said provisions are as under:-

"10. Restoration of tenant ejected after the 15th of August, 1947-

Where a tenant has been ejected from any land in excess of  the  permissible
area on grounds  other  than  those  mentioned  in  section  9,  before  the
commencement of this Act, and after the 15th August, 1947, and such land  is
under self-cultivation, such tenant shall, [subject  to  the  provisions  of
this Act be entitled to be restored to his tenancy in the manner  prescribed
on the same terms and conditions on which it was held by him at the time  of
his ejectment, on an application made  to  an  Assistant  Collector  of  the
first  Grade  having  jurisdiction,  within  one  year  from  the  date   of
intimation of reservation after the commencement of  this  Act,  or,  if  no
such reservation is made within the period specified  in  sub-section(3)  of
section 5, two years from the date of commencement of this Act;



Provided that if more tenants than one  have  been  ejected  from  the  same
tenancy, the right of application for restoration shall  be  exercisable  in
serial order of priority commencing from the tenant  first  ejected  and  to
the extent in each case of the permissible area, after taking  into  account
any other tenancy or land which the ejected tenant holds at the time of  his
application for restoration.



On receipt of an application the Assistant Collector shall, after giving  to
the parties notice in writing and a  reasonable  opportunity  to  be  heard,
determine the dispute summarily, and shall keep  a  memorandum  of  evidence
and a gist of his final order with brief reasons therefor.



When an application has been made, any proceedings in relation to  the  same
matter pending in any other court or before any  other  authority  shall  be
stayed on receipt of information  by  that  court  or  authority  from  such
assistant collector of the fact of having received the application, and  all
such proceedings in a court or before any authority  shall  lapse  when  the
dispute has been determined by the Assistant  Collector  acting  under  this
Act.



A land-owner or any other person in actual possession of land  at  the  time
of restoration shall be entitled to such compensation as may  be  determined
by the Assistant Collector, from the tenant intended to be restored for  any
loss suffered in consideration of anything done prior to  the  date  of  his
first receiving information of the application.



Provided that no  ejected  tenant  shall  be  restored  to  his  tenancy  as
provided hereinbefore unless he has paid compensation as determined  by  the
Assistant Collector to the land-owner or other person, if any  as  the  case
may be."







17.   Section 14-A provides for ejectment and recovery of  arrears  of  rent
which reads as under :-

"14-A. Notwithstanding anything to the contrary contained in any  other  law
for the time being in force, and subject to the provisions of section  9-A.-


a land owner desiring to eject a  tenant  under  this  Act  shall  apply  in
writing  to the Assistant Collector First  Grade  having  jurisdiction,  who
shall  thereafter  proceed as  provided  for  in  sub-section  (2)  of  sub-
section 10 of this Act,  and  the  provisions  of  sub-section  (3)  of  the
said  section shall also apply in relation  to  such  application,  provided
that the  tenants  rights  to  compensation  and  acquisition  of  occupancy
rights, if any under the Punjab Tenancy Act, 1887 ( XVI of 1887), shall  not
be affected;
Provided that if the tenant makes payment of arrears of rent  and  interest,
to be calculated by the Assistant  Collector,  First  Grade,  at  eight  per
centum  per  annum  on  such  arrears  together  with  such  costs  of   the
application, if any, as may be allowed by Assistant Collector, First  Grade,
either on the day of first hearing or within fifteen days from the  date  of
such hearing, he shall not be ejected

(ii)       a land-owner desiring to recover arrears of rent  from  a  tenant
shall apply in writing  to the  Assistant  Collector  Second  Grade,  having
jurisdiction, who shall  thereupon send a notice in the form  prescribed  to
the tenant either to deposit the rent or value thereof , if payable in  kind
or give proof of having paid it or of the fact that he is not liable to  pay
the whole or part of the  rent or of the fact of the  landlords  refusal  to
receive the same or to give a receipt, within the period  specified  in  the
notice. Where, after summary determination, as provided for  in  sub-section
(2) of Section 10 of this  Act,  the  Assistant  Collector  finds  that  the
tenant has not paid  or  deposited  the  rent  he  shall  eject  the  tenant
summarily and put the landowner in possession of the land concerned;

(iii)   (a)  if a landlord  refuses  to  accept  rent  from  his  tenant  or
demands rent in excess of what he is entitled to under this Act, or  refuses
to give a receipt, the tenant may in writing inform the Assistant  Collector
second Grade, having jurisdiction of the fact;
(b)    on receiving such application, the Assistant  Collector  shall  by  a
written  notice  require  the  landlord  to  accept  the  rent  payable   in
accordance with this Act, or to give a receipt, as the case maybe , or  both
,within 60 days  of the receipt of the notice "



18.   Perusal of Section 18 of 1953 Act would  show  that  the  tenant  have
also been  given  right  to  purchase  the  land  if  he  is  in  continuous
possession of the land for a minimum period  of  six  years.   This  Section
even gives a right to a tenant, to purchase land, who was ejected  from  his
tenancy after  14th August, 1947 and who was  in  continuous  possession  of
the land for a period of six years.

19.   Considering the provisions of Sections 9, 14, 14A and 18 together,  we
have no doubt in our mind that a tenant of an agricultural  land  is  liable
to be evicted only in the manner provided under the Act notwithstanding  any
contract on the basis of which tenant occupied possession of  the  land  for
the purpose of cultivation.  We  are  also  of  the  view  that  action  for
eviction of a tenant can be taken before a Revenue Authority to  whom  power
and jurisdiction has been conferred by the said Act.

20.   The defendant-respondent's own case in the written statement  is  that
the appellant-tenant came in possession of the land in 1986 and remained  in
continuous possession till 2005.  Indisputably,  the  appellant's  name  was
recorded in Jamabandies, which is evident from  the  Exhibit  P-1  and  P-2.
Khasra Girdwari entries are also in the name of appellant.  The trial  court
without appreciating the evidence came to the following conclusion that  the
appellant became a trespasser.  The court held:-
"The jamabandies produced by both the parties are  self  contradictory.  The
jamabandies produced by the plaintiff name of the plaintiff is  entitled  in
the gair marusi record and chakota as the name is entered at Rs.3,000/-  per
annum and Ram Dass Chela Garib Dass has given the aforesaid  land  to  Shyam
lal on lease from 29.5.1956 to 28.5.2005 for Rs. 1,60,000/-.  Therefore,  it
proves that the possession of  the  plaintiff  over  the  suit  property  is
termed to be a trespasser and plaintiff has not having any right  to  remain
over the suit property as tenant.  It  is  also  pointed  out  that  if  the
plaintiff is a gair marusi tenant.  He has to  prove  on  file  the  payment
made by him to the land owner but there  is nothing on record to prove  this
fact that the plaintiff has paid any amount to the defendant/land owners."

21.   The Appellate Court, although  took  notice  of  the  entries  in  the
revenue record wherein plaintiff-appellant  was  recorded  as  Gair  Marusi,
held that those entries are without any basis  and  liable  to  be  ignored.
The learned Appellate Court further held that  after  the  expiry  of  lease
period in 2005 the appellant loses authorization to hold possession  of  the
land and his right to hold possession is not more than a trespasser.

22.   Similar provisions have been made in the  Orissa  Tenancy  Act,  1913.
Section 3(23) is the definition of tenant which means  a  person  who  holds
land under another person, and is, but for  a  special  contract  would  be,
liable to pay rent for that land to that person.

23.   Sub-section 2 of  Section  5  of  the  Orissa  Act  defines  the  term
"Raiyat", which means primarily a person who has acquired the right to  hold
land for the purpose of cultivating it  by  himself  or  by  person  of  his
family or by hired servants  and  also  includes  successors-in-interest  or
person who have acquired such right.  Further, where a tenant  of  land  has
the right to bring it under cultivation shall be deemed to have  acquired  a
right to hold it for the purpose of cultivation.




24.   We find similar definition of tenant under the Rajasthan Tenancy  Act,
1955.  Section 5(43) defines the word 'tenant' as under :-

"(43) "Tenant" shall mean the  person  by  whom  rent  is,  or,  but  for  a
contract, express  or  implied,  would  be,  payable  and  except  when  the
contrary intention appears, shall include -

(a)   in the Abu area, a permanent tenat or protected tenant,

(b)   In the Ajmer area, an ex-proprietory tenant or an occupancy tenant  or
a hereditary tenant or a non-occupancy tenant or a Bhooswami or Kashtkar,

(c)   in the Sunel area, an ex-proprietory tenant or a pakka  tenant  or  an
ordinary tenant,

(d)   a co-tenant,

(e)   a grove-holder,

(f)   a village servant

(ff)  a tenant holding from a landowner,

(g)   a tenant of Khudkasht,

(h)   a mortgages of tenancy rights, and

(i)   a sub-tenant

but shall not include a grantee at a favourable rate of rent or an  ijaradar
or a thekadar or a trespasser"




25.  Now we shall discuss the decisions relied upon by the  learned  counsel
on either side.  In Dhanapal Chettiar's  case  (supra),  the  question  that
came for consideration before the larger Bench  of  this  Court  was  as  to
whether under the Rent Control Act notice under Section 106 of the  Transfer
of Property Act is necessary for  the  purpose  of  proceeding  against  the
tenant for his eviction  on  the  grounds  mentioned  in  the  Rent  Control
Legislation.  This Court held that in the case of eviction  under  the  Rent
Act, the tenancy actually terminates on the passing of the order  or  decree
for eviction.  Hence, determination  of  a  lease  in  accordance  with  the
Transfer of Property Act is not necessary and a mere surplusage because  the
landlord cannot get eviction of the tenant even  after  such  determination.
The tenant continues to be so even thereafter.



26.   Similarly the  decision  relied  upon  by  the  respondent  in  Bhupal
Prasad's case (supra) is also  have  no  application  in  the  present  case
inasmuch as it was a case under the Rent Control  Act.   In  our  considered
opinion, the aforesaid two decisions of this Court deal with the  status  of
the tenant under the Rent Control Act after the expiry of fixed  term  lease
and the right of landlord to get eviction on certain grounds.  In  the  case
of tenant holding agricultural land, the tenancy and procedure of  ejectment
of tenant are governed by relevant State Tenancy  Laws,  which  are  special
Act and such tenancy is not covered by Transfer of Property Act.



27.   In the case of Sukhdev Singh (D) thr. Lrs. & ors. vs.  Puran  &  ors.,
[SLP(C)No.18654 of 2008], a Bench of this  Court  on  consideration  of  the
provisions of the Punjab Security of  Land  Tenure  Act,  1953  was  of  the
opinion that after the expiry of  the  fixed  term  tenancy  in  respect  of
agricultural land, the provision of 1953 Act will have no  application.  The
Court observed:-

      "In our view, the aforesaid argument of the learned counsel  does  not
merit acceptance.  Admittedly, the petitioners were  granted  lease  of  the
suit land in 1955 for a period of 20 years  and  the  term  of  their  lease
ended in 1975.  Section 9 of the 1953 Act is attracted only  when  a  tenant
is sought to be evicted. The said section is not applicable to a case  where
the tenancy gets terminated by efflux of time and the person  occupying  the
lease premises no longer remains tenant.  There is no provision in the  1953
Act similar to those contained in the Urban Rent Control Legislations  under
which a tenant becomes statutory tenant  after  expiry  of  the  contractual
tenure of the tenancy."



28.   In the case of Bhajan Lal vs.  State  of  Punjab,  (1971)  1  SCC  34,
considering the provisions of Sections 9, 14A and Section 18 of  the  Punjab
Security of Land Tenure Act, 1953 and discussing the right of the tenant  to
purchase the land, this Court held:

"6. It was urged that since Section 18 commences with a non-obstante  clause
viz. "Notwithstanding anything to the contrary contained in any  law,  usage
or contract", if a proceeding in ejectment  is  lodged  against  the  tenant
which ulitmately is allowed, the tenant  cannot  make  a  claim  during  the
pendency of the proceeding to purchase the land. To hold otherwise,  it  was
urged, would enable a tenant in default to defeat the claim  in  a  suit  in
ejectment by commencing a proceeding for purchasing  the  land.  We  do  not
think  that  the  expression  "Notwithstanding  anything  to  the   contrary
contained in any law, usage or contract" whittles  down  the  right  of  the
tenant at the date when he  makes  a  claim  to  purchase  the  land  merely
because the tenancy is liable to be terminated in a proceeding then  pending
for an order in ejectment under Section 14-A, at the instance of  the  land-
owner. Under the Act, the tenancy does not stand terminated  merely  because
a proceeding in ejectment is instituted. The tenancy is determined  only  in
the conditions prescribed by  Section  9  and  in  the  manner  provided  by
Section 14-A. If a tenant is in default in payment of  rent  the  land-owner
desiring to recover rent due by the tenant  may  apply  in  writing  to  the
Assistant Collector who shall thereupon send  a  notice  to  the  tenant  to
deposit the rent due or give proof of having paid it. If  the  tenant  fails
to pay the rent or give proof of payment,  the  Assistant  Collector  shall,
after a summary inquiry, if he is of the view that the tenant has  not  paid
or deposited the rent, eject the tenant summarily and put the land-owner  in
possession of the land concerned. But so long  as  the  Assistant  Collector
has not passed the order ejecting the tenant the right of the tenant is  not
extinguished: he continues to remain a tenant  and  being  a  tenant  he  is
entitled to exercise his right to purchase the land."



29.   In Sanwat Singh vs. Zail Singh, (1997) 9  SCC  468,  while  discussing
tenant's right under 1953 Act in a case where the land in possession of  the
tenant is sold by the owner of the land, this Court held that  a  tenant  as
defined under Punjab Tenancy Act, 1887 means a person  who  holds  the  land
under another person and is, but for a special contract,  would  be,  liable
to pay rent and he is  liable to be evicted only  under  certain  conditions
as provided under Section 9 of the said Act.  Referring  Section  9  of  the
said Act, this Court held:

"5. In other words, notwithstanding anything contained in any other law  for
the time being in force, including  the  law  relating  to  prescription,  a
tenant in possession of the demised property by the vendor is not liable  to
ejectment except in accordance with the provisions contained  in  Section  9
of the Punjab Security of Land Tenures Act, 1953. It is not  his  case  that
he has contravened any of the provisions and is liable to be  ejected.  Even
otherwise, if his case is that he has contravened  any  of  the  provisions,
unless appropriate action in accordance with law is taken and order  passed,
he  is  entitled  to  resist  unlawful  interference  with  the  possession.
Thereby, the decree granted by the appellate  court  and  confirmed  by  the
High Court is not correct in law."




30.   In Tulsi vs. Paro, (1997) 2 SCC  706,  this  Court  after  considering
provisions of Section 105 of the Transfer of Property Act observed:

"It is not necessary that lease should always be reduced  to  writing.  What
is necessary is for transfer of a right of enjoyment of  the  property  made
for a certain time, expressed  or  implied  and  for  consideration  of  the
price, paid or promised, the transferee must have been put in possession  of
the demised property. It is also necessary that an agreement can be  entered
into for rendering periodical service and for consideration thereof  and  on
transfer of the land  to  the  transferee  and  acceptance  thereof,  either
orally or in writing, the lease comes into existence. It is seen  that  when
the name of the appellant has successively found place in  the  records  for
the period from 1951-52 to  1971-72  as  "tenant  at  will",  the  necessary
conclusion is that he is a tenant at will liable to  eviction  according  to
law. The theory that he is a licensee, as has  been  accepted  by  the  High
Court and the trial court, is untenable. A licensee  has  no  right  in  the
property, not to speak of any right  to  the  exclusive  possession  of  the
property and animus of possession always  remains  with  the  licensor;  the
licensee gets the possession only with the consent of the  licensor  and  is
liable to vacate when so asked. In this case, since the  appellant  remained
in uninterrupted possession and  enjoyment  of  the  property  for  over  20
years, it is unthinkable to conclude that they are only licensee.  The  High
Court and the trial court, therefore, were clearly in error in reaching  the
conclusion that the appellant is only a licensee. On the  other  hand,  from
the facts, it is clear that the appellant is a tenant and he will be  liable
for ejectment only in accordance with law. If he is  otherwise  entitled  to
tenancy right of the property, the right can be had in accordance  with  law
and it is open to him to work out the same in accordance with law."


31.   In the case of Ram Lal vs. Darshan Lal and ors., (2008) 3 RCR  (Civil)
427, a Bench of Punjab and Haryana High Court was considering the  right  of
the tenant conferred by Section 9 of  the  1953  Act.   In  that  case,  the
tenant was in possession of the agricultural land on the basis of the  lease
for 20 years.  Upon expiry of the said lease period, a suit  for  possession
was filed contending that after expiry of the lease the tenant's  possession
became illegal and unauthorized.  Hence, he  is  liable  to  be  evicted  by
obtaining a decree from  civil  court.   Rejecting  the  contention  of  the
landlord, the High Court held that in terms of provisions contained in  1953
Act, a tenant shall be evicted only on the grounds mentioned  in  Section  9
of the said Act.  The Court observed

"6. In Shri Raja Durga Singh Versus Tholu and others, AIR 1963  SC-361,  the
Court  found  that  suit  for  possession  and  mesne  profits  against  the
defendant who claims to be occupancy tenant and  status  as  tenant  is  not
barred from the cognizance of the  Civil  Court.  However,  in  the  present
case, it is the admitted fact that defendant No.1  was  inducted  as  tenant
for a period of 20 years. Therefore,  the  question  which  requires  to  be
examined is whether after the expiry of the period of lease, the tenant  can
be evicted by filing a Civil Suit for possession. The said question was  not
the question raised or decided in the aforesaid  judgment.  Therefore,  even
the said judgment provides little assistance to the appellant.



7. In the present case, the  Punjab  Security  of  Land  Tenures  Act,  1953
protects the tenancy of agricultural land  in  favour  of  the  tenant.  The
Punjab Security of Land Tenures Act, 1953 specifies the grounds of  eviction
which are available to the landlord. The eviction  of  a  tenant  after  the
expiry of lease is not a ground  mentioned  therein.  Therefore,  after  the
expiry of lease, the tenant would be a statutory tenant and such tenant  can
be  evicted  only  in  terms  of  one  or  the  other  grounds  of  eviction
contemplated under Section 9 of the Punjab Security  of  land  Tenures  Act,
1953.  Such eviction proceedings have to be initiated before  the  competent
Revenue Court. Therefore, I do not find any illegality  or  irregularity  in
the finding recorded that the Civil Court has no  jurisdiction  to  grant  a
decree for possession."





32.   Taking into consideration the various tenancy laws applicable  in  the
State of Punjab and the law discussed by this Court and the High  Court,  in
our considered opinion the trial court, the appellate  court  and  the  High
Court have committed error of law in holding that a tenant  of  agricultural
holding becomes a trespasser after the expiry of  period  of  tenancy.   The
High  Court  and  the  lower  courts  have  failed  to  consider  that   the
agricultural tenancy are governed  by  the  State  Tenancy  Laws  which  are
special Acts for the purpose of regulating the tenancy  and  protecting  the
tenants from eviction without following  the  procedure  provided  in  those
State Laws.  The procedure for eviction of tenant in occupation of  building
by  approaching  the  civil  court  under  Rent  Control  Act  will  not  be
applicable for evicting the  tenants  holding  agricultural  land.   We  are
further of the view that it is the  Revenue  Court  specially  empowered  to
take action for eviction of tenant in the  manner  provided  under  the  Act
notwithstanding any contract on the  basis  of  which  the  tenant  occupied
possession of the agricultural land for the purpose of cultivation.



33.   Be that as it may, in Sukhdev Singh's case (supra)  a  Bench  of  this
Court on consideration of the provisions of Punjab Security of Land  Tenures
Act, 1953 was of the opinion that after the expiry of fixed term tenancy  in
respect of agricultural land, the tenancy gets terminated by efflux of  time
and person occupying the lease premises no longer remains tenant.  With  due
respect, we are not in agreement with  the  view  taken  by  this  Court  in
Sukhdev Singh's case (supra).



34.   In the aforesaid circumstances, to maintain judicial  discipline,  the
matter needs to be referred to a larger Bench  for  laying  down  a  correct
law.



35.   We, therefore, direct the Registry to place the record before  Hon'ble
the Chief Justice of India for placing the matter before a larger Bench.



                                        ..................................J.
                                                                (M.Y. Eqbal)



                                        ..................................J.
                                                         (Shiva Kirti Singh)
New Delhi
February 27, 2015

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.