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
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
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
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
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-
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
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
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
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
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
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
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
(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..
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