Appeal No 955 of 1965
470 Appeal by special leave from the judgment and decree dated March 17 1961 of the Patna High Court in Appeal from Appellate Decree No 897 of 1956
UP Singh for the appellants
KK Sinha for respondent No 1
The Judgment of the Court was delivered by Hegde J
In this case a Full Bench of the Patna High Court differing from the view taken in a series
of earlier decisions of that High Court as well as the High Court of Calcutta held that the provisions of Bihar Tenancy Act to be briefly referred to hereinafter as the Act do not apply to a lease of a homestead though that homestead was a part of an earlier lease which was admittedly an agricultural lease and to which the provisions of the Act applied
The appellant challenges the correctness of that decision
The relevant facts as
found by the fact finding courts areOne Chakrapani Singh was the lessee of a plot which consisted of agricultural lands as well as a homestead
The homestead was later separately leased to defendants 1 and 2 appellants
Thereafter the plaintiffs purchased the rights of the main lessee and sued the appellants for possession of the homestead
The appellants resisted the suit mainly on the ground that it had not been brought in accordance with the provisions of the Act and hence not maintainable
The contention of the plaintiffs is that the lease is invalid as it did not conform to the provisions of section 117 of the Transfer of Property Act and therefore they are entitled to evict the appellants
The trial court decreed the plaintiff s suit but the first Appellate Court reversed the decree of the trial court and dismissed it
It followed the earlier rulings of the Patna High Court to the effect that if the main lease is a lease for agricultural purposes all sub leases of portions of that leasehold should also be considered as agricultural leases despite the fact that a particular sub lease may be that of a homestead only
The plaintiffs took the matter in second appeal to the High Court which was decided by a Full Bench which allowed the appeal as mentioned earlier
Two questions that arise for decision are 1 was the High Court right in holding that the lease in favour of the appellants is governed by section 117 of the Transfer of Property Act and 2 whether in view of the uniform view taken in the earlier decisions during a period of nearly 55 years the High Court was justified in reopening the question
Till the decision under appeal High Courts of Patna and Calcutta proceeded on the basis that if the main lease is governed 471 by the provisions of the Act and consequently taken out of the scope of the Transfer of Property Act then it must be held that all sub leases of portions of the properties included in the main lease are agricultural leases otherwise the main lease would cease to be a purely agricultural lease as it must be held to relate to both agricultural and non agricultural lands
We agree with the Full Bench that the ratio of these decisions is open to question
If the legal position had not been firmly settled by a long chain of decisions commencing from 1903 onwards it is likely that we would have concurred with the view taken by the Full Bench
But if we do so we would be unsettling a settled view of the law on the basis of which various rights must have been created transactions entered into and titles founded
The rule laid down in the earlier decisions was never departed from in the past
The Act was amended a number of times but yet the legislature did not think it necessary to alter or modify the said rule
Different considerations would have arisen if the disputed interpretation related to a penal provision or the same is detrimental to public interest or causes public inconvenience
Law is not always logic
It is a part of life and more so in a democratic set up
In law finality is of utmost importance
Unless so required in public interest questions
of law firmly settled by a long course of decisions should not ordinarily be disturbed and it is all the more so in the case of an interpretation affecting property fights
In the instant case there were no compelling reasons for the High Court to depart from the rule laid down earlier
The decision of the High Court if allowed to stand is bound to disturb numerous transactions
It is solely on that ground we propose to set aside that decision
Now we shall refer to the decided cases on the point
The earliest decision on the point is Babu Ram Roy vs Mahendra Nath Sarnanta1
The material facts of that case are similar to the facts of this case
The main lease in that case consisted of an agricultural lands as well as a homestead
The homestead was separately given on sub lease by the main lessee but no registered lease deed was taken
Subsequently the main lessee sued for possession of the homestead
It was contended on his behalf that the lease in favour of the sub lessee being a lease of non agricultural property the same is invalid as it was not given under a registered lease deed and hence he was entitled to a decree directing the ejectment of the defendants
The High Court rejected the plaintiff s claim holding that in order to maintain a suit for ejectment a notice under section 49 el 6 Bengal Tenancy Act was necessary and that notice had to be served in accordance with the rules framed under that Act
No notice having been given under that provision the suit was held to be non 1 VIII CWN 454
472 maintainable by Mitra J
His view was affirmed by a Division Bench consisting of Maclean CJ and Pargiter J
The above decision was affirmed by another Division Bench of the Calcutta High Court in Abdul Karim Patwari vs A bdul Rahaman 1
The same view was taken by the said High Court in Krishna Kanta Ghosh vs Jadu Kasya2 and in Kadrutulla and OrS vs Upendra Kumar Chowdhury3
The decision in Arun Kumar Sinha and Ors vs Durga Charan Basu4 iS Of special importance
That case was decided by a Division Bench consisting of BK Mukherjea J who later became the Judge as well as the Chief Justice of tiffs Court and Roxburgh J
There the learned Judges doubted the correctness of the earlier decisions but yet were of the opinion that public interest required that the interpretation placed on the provision of law by a long series of consistent decisions should not be departed
This what the learned Judges observed in that case
But the principle was never dissented from that in a case of this description the question whether the tenancy is governed by the Bengal Tenancy Act or the Transfer of Property Act would depend on the nature of the original tenancy and not on the character of the parcel included in the sub tenancy
The learned advocate who appears for the appellants has subjected these decisions to a good deal of criticism
Had the matter been yes integral we might have some hesitation in accepting the view enunciated in them
In the Bengal Tenancy Act the raiyat is defined to be a person who acquires land primarily for purposes of cultivation unless the letting was for purposes of agriculture the tenancy would not be governed by the Bengal Tenancy Act even if the superior interest was vested in the holding of the tenure to which the Bengal Tenancy Act was applicable
We do not think also
that any real anomaly would arise if as between a raiyat and his sublessee the rights were governed by the Transfer of Property Act
Mr Das who appears for the respondents has contended that difficulties would arise in enforcing the provisions of ch
14 Ben
What he says is that the purchaser of a raiyati holding has the right to annul all sub tenancies which are incumbrances under section 161 Ben
Act but if the raiyat has created a non agricultural tenancy in respect of a portion of his lands for a fixed period which is
governed by the 1 15 Cal
Law Journal 672
2 3 AIR 1925 Cal
4 AIR 1941 Cal
473 Transfer of Property Act to allow a purchaser to annul such sub tenancies would be to entitle him to go against the provisions of the Transfer of Property Act
We do not think that there is any substance in this contention
It is not necessary that the incumbrances which can be annulled under section 167 Ben
Act must be incumbrances created under that Act
A mortgage is certainly an incumbrance which is created under the Transfer of Property Act but it can never be suggested that because it is governed by the Transfer of Property Act it cannot be annulled by a purchaser who purchased the holding at a sale in execution of a rent decree under Chap
14 Ben
The difficulty however is created by the way in which the expression under Raiyat has been defined in section 4 Ben
An under raiyat has been defined to be a tenant who holds immediately or mediately under a raiyat
It is not stated here as in the case of a raiyat that he must hold also for purposes of cultivation
It may be argued that this must be the implication for the provisions relating to under raiyats which are contained in Chap
7 Ben
Act are appropriate only to this character as an agricultural tenant
It cannot be denied however that the wording of section 4 clause 3 Ben
Act is very wide and  when the word has been interpreted in one way for a period of nearly 40 years without any dissension whatever we think that we should not be justified in upsetting the long series of decisions
It is significant to note that considerable changes have been introduced the Bengal Tenancy Act in recent years but the Legislature which must be presumed to be aware of the law as laid down in the abovementioned decisions did not consider it necessary to make any changes in this respect
 It was not denied by the learned counsel  for the respondents that the principle enunciated in the abovementioned decisions was consistently followed by the Calcutta High Court even up to date
Hence it is not necessary to refer to the other decisions of that court
The Patna High Court consistently followed the decisions of the Calcutta High Court
In Mian Ahir and Ors vs Paramhans Pathak1 while considering a case similar to the present case the rule laid down in Babu Ram Roy s case was followed
also in Shrikishun Lal vs Harihar Sah and another 2
The law 1 AIR 1939 Pat 409
2 AIR 36 1949 Pat
474 laid down in those decisions was accepted as correct till the decision of the Full Bench in the present case
At page 154 of Craies on Statute Law 6th Edition it is observed In 1958 Lord Evershed MR said There is wellestablished authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior court not strictly bound itself by the decision
 Again at page 155 it is observed Earlier in Morgan vs Crawshay Lord Westbury had thus stated the rule After explaining that it was unnecessary to examine the interest of a galee in iron ore mines because supposing it to be regarded as a tenement and not merely as an incorporeal right I should still arrive at the conclusion that we must bow to the uniform interpretation which has been put upon the statute of EliZabeth and must not attempt to disturb the exposition it has
received
If we find a uniform interpretation of a statute upon a question materially affecting property and perpetually recurring and which has been adhered to without interruption it would be impossible for us to introduce the precedent of disregarding that interpretation
Disagreeing with it would thereby shaking rights and ritles which have been rounded through so many years upon the c onviction that interpretation is the legal and proper one and is one which will not be departed from
In that the House of Lords decided that iron mines and all other mines except coal mines were under the Statute of Elizabeth exempt from liability to
the poor rate
The statute mentioned coal mines only and a long course of decision had established that the rule expressi unius est exclusio alterius applied to the enactment that decision is reported in In Harding vs Howell1 Lord Fitzgerald speaking for the Privy Council while dealing with the interpretation of a provision in a statute observed Their Lordships do not intend in the least to question the principle which governs the construction and effect of that statute as now long established by decided cases
It has been over and again said that so many titles stand on it that it must not be shaken  and in that their Lordships concur 1 14 AC 307 475 In Pugh vs Golden Valley Railway Co1
Thesiger LJ bserved And the case is in principle a distinct authority for the proposition that in such circumstances as those which exist in the present case the diversion of a river is unjustifiable
Viewed simply as the decision of a Court of first instance the authority of this case notwithstanding the respect due to the Judges who decided it is not binding upon us but viewed in its character and practical results it is one of a class of decisions which acquire a weight and effect beyond that which attaches to the relative  position of the Court from which they proceed
It constitutes an authority which after it has stood for so long a period unchallenged should not in the interests of public convenience and having regard to the protection of private rights be overruled by this Court except upon very special considerations
For twelve years and upwards the case has continued unshaken by any judicial decision or criticism as an authoritative exposition of the meanmg of sect
16 of the Railways Clauses Consolidation Act 1845 in respect of the matter here in dispute
During such period hundreds
of Special Acts of Parliament have been passed sanctioning the construction of lines of railway and the consequent interference with private fights and mcorporating for that purposes the provisions of the General Act
Promoters
must have sought their powers landowners must have regulated their course of action and parliamentary committees must have given their sanction to the projects submitted to them upon the faith and footing of a limit to the powers sought and conceded being found in the provisions of the general Act as interpreted from time to time by judicial decisions
If so it is to be presumed that the limit put upon the powers of a railway company in regard to the diversion of roads and rivers by the decision of the Court of Kueens  Bench in Reg
vs Wycombe Railway Company must have exercised a material influence upon the relations of persons owing land proposed to be affected by special railway legislation and the promoters of that legislation
 In Murphy vs Deichler and Ors2
Lord Loreburn LC speaking for the House of Lords observed I think this case falls within the rule that it is  not necessary or advisable to disturb a fixed practice 1 15 Ch
Division 330
2 476 which has been long observed in regard to the disposition of property even though it may have been disapproved at times by individual judges where no real point of principle has been violated
 The Full Bench was of the view that the rule laid down in Babu Ram Roy s case and the decisions following it are clearly wrong
Hence even though that rule held the field for about 55 years there is no justification for sustaining it
The Full Bench was of the opinion that in all cases where the terms of the statute are clear even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to the meaning of the enactment It accepted that to be the correct position in law and that rule is unqualified
In support thereof they relied on the Full Bench decision of the Allahabad High Court in Lallu Singh vs Gur Narain and Ors1 and the decision of the Privy Council in Tricomdas Cooverji Bhoja vs Sri Gopinath Jiu Thakur2
The Full Bench decision of the Allahabad High Court relied on the Privy Council decision in Tricomdas Cooverji Bhoja s case and the Privy Council in its turn followed the decision in Arthur John Pate vs WC Pate and Ors3
In the Allahabad case the contention of the defendant was that under Hindu Law as settled by decisions delivery of possession was absolutely necessary for the completion of a gift
Their Lordships held that whatever might have been the strict law prior to the passing of the Transfer of Property Act it must now be held that gift of immovable property can be validly effected by registered instruments signed either by or on behalf of the donor and attested by at least two witnesses and nothing further is necessary to effectuate the transfer
It is in that context their Lordships observed that Where the terms of the statute or ordinance are clear then even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to the clear meaning of the enactment
In fact in that case the learned Judges did not depart from the rule laid down in the earlier cases as regards the scope of section 123 of the Transfer of Property Act
They held that the earlier decisions under the Hindu Law cannot be followed in view of the change in the law effected by section 123 of the Transfer of Property Act
In Tricomdas Cooverjee s2 case the Privy Council did not depart from any well established principle of law
In fact their Lordships in the course of the Judgment referred to certain conflict of decisions on the point under consideration and in that context they happened to make the observations to which we have referred while dealing with the Allahabad decision
As mentioned 1 AIR 1922 All 467
2 AIR 1916 PC 182
3 1915AC 1100
477 earlier the decision of the Privy Council which was followed by the Full Bench of the Allahabad High Court relied on the decision in Pate vs Pate 1
That decision if we may say so with all respect explains the true legal position
In that case while dealing with the various decisions cited before them their Lordships observed With aH respect to the learned judges who so read the Ordinance in 1871 their Lordships not only think that their decision was erroneous but also that even after the interval of forty four years it ought to be overruled
The present is not one of those cases in which inveterate error is left undisturbed because titles and transactions have been founded on it which it would be unjust to disturb emphasis supplied
From these observations it is clear that the rule that where the terms of a statute or ordinance are clear then even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to the clear meaning of the enactment is inapplicable to decisions on the basis of which titles and transactions must have been founded
For the reasons mentioned hereinbelow this appeal is allowed and the suit dismissed with costs of this Court
GC Appeal allowed


Summary:
C was the lessee of a plot which consisted of agricultural land as well as a homestead
The homestead was later leased to the appellants
The respondents purchased the rights of C and brought a suit against the appellants for possession of the homestead
The contention of the appellants in defence was that the suit had not been brought according to the provisions of the Bihar Tenancy Act and hence was not maintainable
The contention of the respondents was that the lease of the homestead was not an agricultural lease within the meaning of section 117 of the Transfer of Property Act and was invalid under the provisions of the latter Act
The trial court decreed the suit
The first appellate court however dismissed it
In doing so it relied on earlier rulings of the Patna and Calcutta High Courts which had held the field for over 55 years to the effect that if the main lease is a lease for agricultural purposes all sub leases of portions of that leasehold should also be considered as agricultural leases despite the fact that a particular lease may he that of a homestead only
The High Court in further appeal departed from the view taken in the earlier cases and decided against the appellants who came to this Court
The main question for consideration was whether the High Court was justified in departing from the settled view
HELD The rule laid down in the earlier decisions was never departed from in the past
The Tenancy Act was amended a number of times but yet the legislature did not think it necessary to alter or modify the said rule
In law finality is of the utmost importance
Unless so required in public interest questions of law firmly settled by a long course of decisions should not ordinarily be disturbed and it is all the more so in the ease of an interpretation affecting property rights
471 C E The rule that where the terms of a statute or ordinance are clear then even a long and uniform course of judicial interpretation of it may be overruled if it is  contrary to the clear meaning of the enactment is inapplicable to decisions on the basis of which titles and transactions must have been rounded 477 D Case law referred to