ivil Appeals Nos
Z37 to 239 of 1974
From the Judgment and order dated 1331973 of the Allahabad High Court in Special Appeal Nos 394 and 418 of 1970 and Writ Petition Nos 613 and 910 of 1971
RR Agarwal Manoj Saxena and RD Upadhyaya for the Petitioners
330 AK Gupta for the Respondent
The Judgment of the Court was delivered by KANIA J
These appeals are directed against the judgment of a Special Bench comprising two learned Judges of the High Court of Judicature at Allahabad in Special Appeal No 394 of 1970 along with Special Appeal No 418 of 1970 Writ Petition No 613 of 1971 and Writ Petition No 9 l0 of 1971
The facts giving rise to these appeals are as follows Hari Shanker the appellant before us is a land holder within the meaning of said expression in the United Provinces Tenancy Act 1939 referred to hereinafter as the said Act
On 1st February 1961 Hari Shanker filed a suit as contemplated under Section 171 of the said Act against one Habib Ahmad who was his tenant in respect of the land in suit on the ground that in 1943 Habib had sub let the suit land to his sub tenant Ida and the said sub lease was for more than five years and hence illegal and in contravention of Section 40 of the said Act
The said suit was contested by Habib but a decree was passed in favour of Hari Shanker in that suit on 18th November 1961
Under the decree Habib was given an option to apply for the ejectment of Ida within one month and resume occupation of land in dispute in terms of the proviso to Section 171
On an appeal filed by Ida the subtenant the aforesaid decree was set aside by the Additional Commissioner on 18th April 1962 and the suit of Hari Shanker was dismissed
Hari Shanker filed a second appeal which was allowed by the Board of Revenue by its judgment dated 13th March 196317th April 1964 and the decree of the Additional Commissioner was set aside and that of the Trial Court was restored
Ida challenged the aforesaid decision of the Board of Revenue by way of Civil Miscellaneous Writ No 2386 of 1964
That writ petition was dismissed on 26th March 1970 by a learned Single Judge of the Allahabad High Court and Special Appeals Nos 394 and 418 of 1970 were filed in the said High Court against the said judgment of the learned Single Judge
After his suit was decreed by the Board of Revenue Hari Shanker filed an application for execution of the decree in which an objection was filed by the sub tenant Ida which was dismissed by the Revenue authorities but we are informed the said application itself has not been finally disposed of
Habib also filed an application dated 16th August 1964 against Ida as contemplated under Section 171 to the proviso of the said Act
According to Habib the said application has not so far been 331 decided on merits
Writ Petitions Nos 613 of 1970 and 910 of 1971 A were filed by Habib and Ida respectively against the orders passed by the Revenue authorities in execution
The said Special Appeals and Writ Petitions were heard together and decided by a Division Bench of the Allahabad High Court in the impugned judgment
It may be mentioned here that it is common ground that Habib is an ex proprietary tenant for the purposes of Sec 40 of the said Act and Ida is his sub tenant in respect of the said land within the meaning of the said term in the said Act
The Division Bench of the Allahabad High Court set aside the judgment of the learned Single Judge and allowed the Special Appeals as well as the Writ Petitions
They set aside the order of the Board of Revenue decreeing the suit of Hari Shanker for ejectment of Habib  Ida under Section 171 of the said Act and dismissed the said suit
It is against this judgment that the present appeals are directed
As the facts are common and the appeals are against a common judgment we propose to dispose them of by a common judgment
We may at this stage take note of the relevant provisions of the said Act and certain notifications issued by the Government of Uttar Pradesh which are material for our purposes
The relevant portions of the said Act run as follows Section 40  1 No occupancy tenant in Agra or exproprietary tenant or hereditary tenant shall sub let the whole or any portion of his holding for a term exceeding five years or within three years or any portion of such holding being held by a sub tenant Section 47 Except as otherwise provided in sub section 1 3 and sub section 4 the extinction of the interest of a tenant other than a permanent tenure holder or a fixed rate tenant shall operate to extinguish the interest of any tenant holding under him Section 171 1 If a tenant transfers or sub lets the whole or any portion of his holding otherwise than in accordance with the provisions of this Act and the transferee or sub lessee has entered into possession in pursuance of such transfer of sub lease both the tenant and any person who may have thus obtained possession of the whole or any part of the holding shall on the suit of land 332 holder be liable to ejectment from the area so transferred or sublet at the date of the institution of the suit
Provided that in the case of a voidable sub lease if the suit succeeds the court shall pass a decree permitting the tenant to apply in the same proceedings within a time not exceeding one month from the date of the decree for the ejectment of the person in whose favour the voidable sub lease has been made and directing that if the tenant so applies and if he ejects such person and resumes occupation of the land within such further time as the court either in the decree itself or by means of a subsequent order may fix having regard to the provisions of section 181 the decree shall not be executed against the tenant except in respect of costs
In such a case the decree shall direct that if the tenant either fails to apply for the ejectment of such person within the time fixed in this behalf or fails to resume occupation within the further time allowed by the court for that purpose the tenant as also the sub lessee shall be ejected from the area sub let at the date of the institution of the suit
 Section 295 A Notwithstanding any contract to the contrary or anything contained in this Act or any other law for the time being in force every person who on the date of the commencement of the United Provinces Tenancy Amendment Act 1947 is a sub tenant shall subject to the provisions of the proviso to sub section 3 of Section 7 of the United Provinces Tenancy Amendment Act 1947 been titled to retain possession of his holding for a period of five years from that date and for this period nothing in sub section 92 of Section 44 or Section 171 shall render the landholder of such tenant liable to ejectment under the pro visions of section 171
 Section 10 of the Uttar Pradesh Agricultural Tenants Acquisition of Privileges Amendment and Miscellaneous Provisions Act 1950 inter alia provides that notwithstanding anything contained in any law for the time being in force all suits applications or proceedings of the categories specified in the Schedule to the said Amendment Act of 1950 under Section 10 pending on the date of the commencement of that Act or which might thereafter be instituted presented or commenced shall be and remain stayed for so long as the said Amendment 333 Act of 1950 remains in force
The said Amendment Act came into force in 1950
There is a proviso to the said Section which empowers the State Government by notifications to declare that such categories of suits applications proceedings and in such local area as the State Government might specify which are stayed under Section 10 shall cease to remain stayed
The State Government was also empowered to reimpose the stay under a second proviso to the said Section
A perusal of Category III of the said Schedule shows that the suits applications and proceedings under Sections 63 114 117 175 and under Sections 180 and 181 of the UP Tenancy Act 1939 to the extent set out in the Schedule were stayed under Section 10
The rest of the provisions in the said Schedule are not material for our purposes
The stay in respect of suits applications and proceedings in respect of categories I II  III in the said Schedule to the said Amending Act VII of 1950 was lifted by a notification dated June 30 1953
The stay was however reimposed by a notification dated January 23 1953 in respect of suits applications and proceedings under Section 175 and 181 to the extent provided therein
In our view these appeals can be very shortly disposed of
It is common ground that Habib was a sub tenant of Hari Shanker in respect of the suit land
He granted a sub tenancy to Ida which was from year to year
The sub tenancy was created in 1943 and it admittedly continued for a period of more than 5 years
It is not disputed that the said sub tenancy was not terminated by Habib inspite of the provisions of Section 40 of the said Act namely the United Provinces Tenancy Act 1939
It may be true that even if the sub tenancy had been terminated Habib might not have been able to recover possession of the suit land from Ida but that does not affect the question of the continuance of the sub tenancy
As we have pointed out that sub tenancy was from year to year and on the expiry of the period of sub lease Ida continued to hold over as sub tenant on the same terms  conditions from year to year
The sub tenancy was therefore continued in excess of five years and thus was in violation of the provisions of Section 40 of the said Act
As the said sub tenancy contravened the provisions of Section 40 Hari Shanker was clearly entitled to file a suit as contemplated by Section 171 of the said Act against Habib as well as Ida on the ground that the tenant Habib has sub let the suit land otherwise than in accordance with the provisions of the said Act namely in excess of 5 years
There is on the record no defence to that suit which was rightly decreed by the Board of Revenue
The question whether Habib was in a position to evict Ida and obtain possession of the suit land is a question which will have to 334 be decided in the application filed by Habib against Ida for the eviction of Ida from the suit land and recovery of possession thereof
Similarly the question as to whether the appellant Hari Shanker has become entitled to execute the decree in the suit to which he is entitled will have to be disposed of in the application filed by Hari Shanker against Habib as well as Ida
All those applications we understand are pending before the relevant authorities and they will have to be decided according to law
However in our opinion there is no doubt that in the circumstances set out above Hari Shanker is entitled to the decree which the Board of Revenue passed in his favour and which was upheld by the learned Single Judge
In our opinion the learned Judges of the Allahabad High Court who decided the aforesaid Special Appeals and Writ Petitions have mixed up the question of termination of the sub tenancy with the question of recovery of possession
In the result the aforesaid Civil Appeals are allowed and the order of the learned Single Judge of the Allahabad High Court dated 26th March 1970 is restored
We may clarify that the decree passed by the Board of Revenue in favour of Hari Shanker is restored
Looking however to the facts and circumstances of the case there will be no order as to costs
HLC Appeals allowed


Summary:
Under section 171 read with section 40 of the United Provinces Tenancy Act 1939 if a tenant sub lets the land to a sub tenant  and the sub lease continues for more than five years the land holder  is entitled to eject both the tenant and the sub tanant from the land held by them
How ever tenants are entitled to retain possession of land for certain periods in terms of provisions of section 295 A of the Act and certain notifications issued by the State Government under section 10 of the Uttar Pradesh Agricultural Tenants Acquisition of Privileges Amendment and Miscellaneous Provisions Act 1950 notwithstanding anything contained in any law for the time being in force
The appellant Hari Shanker the land holder  of the land in question filed a suit under section 171 of the United Provinces Tenants Act 1939 against his exproprietory tanant 
Habib on the ground that he had sub let the land for more than five years to a sub tenant  Ida in contravention of section 40 of the said Act
The suit was decreed in favour of Hari Shanker and Habib was given the option to apply for ejectment of Ida and resume occupation of the land in terms of the proviso to section 171
on an appeal filed by Ida the Additional Commissioner set aside the decree and dismissed the suit
Allowing the second appeal filed by Hari Shanker the Board of Revenue restored the decree of the Trial Court
Ida s writ petition against that order was dismissed by a Single Judge of the High Court
Meanwhile Hari Shanker had applied for execution of the decree and the objection filed thereto by Ida was dismissed though the application for execution itself was still pending
Habib also filed an application against Ida as contemplated by the proviso to section 171 of the Act
Ida s appeal against the order aforesaid of the Single Judge and the writ petitions filed by Habib and Ida against orders passed in execution proceedings were heard together by the Division Bench of the High Court which allowed them and dismissed the suit of Hari Shanker
329 Allowing the appeals  HELD The Division Bench of the High Court mixed up the question of termination of the sub tenancy with the question of recovery of possession
It is common ground that Habib was a sub tenant of Hari Shanker in respect of the suit land
He granted a sub tenancy to Ida which was from year to year
The sub tenancy was created in 1943 and it admittedly continued for a period of more than 5 years
It is not disputed that the said sub tenancy was not terminated by Habib in spite of the provisions of section 40 of the United Provinces Tenancy Act 1939
It may be true that even if the sub tenancy had been terminated Habib might not have been able to recover possession of the suit land from Ida but that does not affect the question of the continuance of the sub tenancy
As the said sub tenancy contravened the provisions of section 40 Hari Shanker was clearly entitled to file a suit as contemplated by section 171 of the said act against Habib as well as Ida on the ground that the tenant Habib has sub let the suit land otherwise than in accordance with the provisions of the said Act namely in excess of 5 years
There is on the record no defence to that suit which was rightly decreed by the Board of Revenue
333D H I The question whether Habib is in a position to evict Ida and obtain possession of the suit land is a question which will have to be decided in the application filed by Habib against Ida for the eviction of Ida from the suit land and recovery of possession thereof
Similarly the question as to whether the appellant Hari Shanker has become entitled to execute the decree in the suit to which he is entitled will have to be disposed of in the application filed by Hari Shanker against Habib as well as Ida
All these applications we understand are pending before the relevant authorities and they will have to be decided according to law
However in our opinion there is no doubt that in the circumstances set out above
Hari Shanker is entitled to the decree which the Board of Revenue passed in his favour and which was upheld by the learned Single Judge
333H 334A C