Case: Rao Nihalkaran Vs. Ramgopal

of 1950, S. 185 (1) (ii) (b) of the Code will not apply to any class of ryotwari sub-lessees. This is a strong ground in support of the view taken by the High Court that the expression "ryotwari sub-lessee" in S. 185 (1) (ii) (b) of the Code includes persons whose contractual relation has been determined either under the terms of contract of sub-lease or statutorily under Act 66 of 1950. If that be the true meaning of the expression "ryotwari sub-lessee" there would be no reason to think that the Legislature sought to make a distinction between tenants, sub-tenants and ordinary tenants of Inam land in S. 185 (1) (ii) (a) of the Code and ryotwari sub-lessees of other lands in S. 185 (1) (ii) (b). A member belonging to those classes would, therefore, be included in the protection provided at some time prior to the date on which the Code was brought into force, if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of commencement of the Code.13. The alternative argument that S. 185 of the Code has no application in respect of pending proceedings for ejectment is without substance. By S. 261 of the Code a large number of statutes specified in Sch. II were repealed. By S. 261 certain enactments specified in Sch. II including the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 and the Madhya Bharat Muafi and Inam Tenants and Sub-tenants Protection Act 32 of 1954 were wholly repealed. But it is expressly provided in S. 261 that the repeal shall not affect-(a) the previous operation of any law so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation of liability acquired, accrued or incurred under any law so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Act had not been passed. Section 262 which deals with transitory provision by sub-s. (2) provides:"Any case pending in Civil Court at the coming into force of this Code, which would under this Code be exclusuvely triable by a Revenue Court, shall be disposed of by such Civil Court according to the law in force prior to the commencement of this Code."14. Relying upon these two provisions it was urged that persons who were tenants, sub-tenants or ordinary tenants of Inam land prior to the date on which the Code was brought into force, whose rights have consistently with the law in force before that date been terminated, cannot set up rights of occupancy tenants acquired under S. 185, for, within the meaning of S. 261 the right to eject a tenant has accrued to the landlord before the commencement of the Code and a proceeding for enforcement of that right may be continued and the right enforced as if the Code had not been passed, and the Court in which the proceeding is pending would be bound to dispose of the proceeding according to the law in force prior to the commencement of the Code. The argument is misconceived. Act 66 of 1950 did not deal with the right of a landlord to evict a tenant from land. Act 66 of 1950 was expressly repealed by the Code, but since the right to evict a tenant was governed by the general law of landlord and tenant the proviso to S. 261 had no operation. In terms the proviso to S. 261 protects a right, provilege, obligation or liability which had been acquired, accrued or incurred under the law repealed by the Code. The right to obtain possession not having been acquired under the law repealed, a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law "then in force". That was expressly provided by S. 6 of Act 32 of 1954 and by S. 6 of Act 29 of 1955. If at the date of the trial the tenant had acquired the right of an occupancy tenant, he could not be evicted otherwise than in the manner and for reasons mentioned in S. 193 of the Code. Personal requirement for cultivation of land is not, however, a ground on which a claim, since the commencement of the Code, for ejectment may be maintained.15. Section 262 (2) is a transitory provision which enables a Civil Court to hear and dispose of a suit notwithstanding that under the Code such a proceeding would be triable by a Revenue Court. It is expressly declared that such a proceeding shall be disposed of according to the law in force prior to the commencement of the Code. That, however, does not imply that the contract between the parties which was sought to be enforced unaffected by the statutory declaration of occupancy tenants under S. 185 in favour of the tenant may be enforced. In our view sub-s. (2) is only procedural; it provides that a Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, which, if it had been instituted after the Code was passed, would have been tried by a Revenue Court, and in the disposal of such a suit the Civil Court will be governed by the procedural law applicable thereto prior to the commencement of the Code. There is nothing in S. 262 (2) which seeks to nullify the statutory conferment of occupancy rights upon persons in the position of tenants, sub-tenants or ordinary tenants against whom proceedings were taken at the date when the Code was brought into force.16.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The definition of the expression "tenant in Section 2 (y) postulates a subsisting tenancy, but that definition may be resorted to for interpreting S. 185 (1) only if the context or the subject-matter of the section does not suggest a different meaning. A tenant is by the definition a person who holds land as an occupancy tenant from a Bhumiswami: but the status of a Bhumiswami is recognized for the first time by the Code, and an occupancy tenant from a Bhumiswami would mean only a person belonging to that class who acquires rights of occupancy tenant after the Code comes into force. The position of a tenant prior to the date on which the Code was brought into force does not appear to have been dealt with in this definition. The definition which is specially devised for the purpose of the Act throws no light on the nature of the right which invests the holder of land with the status of an occupancy tenant at the commencement of the Code. In the context in which the expression "tenant occurs in S. 185 the definition could not be intended to apply in determining the conditions which invest upon a holder of land the status of an occupancy tenant. If the expression "tenant in S. 185 (1) be released from the artificial definition as given in S. 2 (y), in view of the context in which it occurs, the expression "tenant in S. 185 (1) (ii) (a), having regard to the object of the enactment would be ascribed the meaning that expression had in Act 32 of 1954.This view is strengthened by certain indications found in Cl. (ii) (b) of S. 185 (1) which provides that in the Madhya Bharat region every person who at the commencement of the Code holds any land as ryotwari sub-lessee as defined in the Madhya Bharat Ryotwari Sub-Lessee Protection Act, 29 of 1955 shall be called an occupancy tenant. Unless a ryotwari sub-lessee as defined in Act 29 of 1955 included a sub-lessee whose tenure was terminated before the commencement of the Code, that clause would not apply to any concrete case. The Court would not unless compelled by unambiguous language impute to the Legislature an intention to enact a provision which was ineffective. By S. 73 of Act 66 of 1950 a Pakka tenant could not sub-let for any period any land comprised in his holding except in the cases provided for in S. 74, and by S. 75 it was provided that all sub-leases in force at the commencement of the Act were to terminate either on the expiry of the period of sub-lease or expiry of four years whichever was earlier. All sub-leases except those which were covered by S. 74, i.e., sub-leases granted by disabled persons before the commencement of Act 66 of 1950 stood terminated some time before the end of 1954 and by the express terms of S. 76 the sub-lessees were to be deemed trespassers and liable to ejectment in accordance with the provisions of the Act.Notwithstanding these provisions, by another Act 29 of 1955, scheme of which was substantially the same as the scheme of Act 32 of 1954 ejectment of ryotwari sub-lessees other than a sub-lessee under S. 74 of Act 66 of 1950 was supended for the duration of the Act, and all suits and proceedings in execution for ejectment were to be stayed. By S. 2 (b) of Act 29 of 1955 "Ryotwari sub-lessee" was defined as meaning" a person to whom a Pakka tenant of any ryotwari land has sub-let on sub-lease any part of his ryotwari land". By S. 3 a ban was imposed against ejectment of all ryotwari sub-lessees other than sub-lessees under S. 74 of Act 66 of 1950. By S. 4 provision was made for ejectment of ryotwari sub-lessees and provisions similar to Ss. 5 and 6 of Act 32 of 1954 were made in this Act also. A ban was, therefore, imposed against eviction of ryotwari sub-lessees and proceedings for eviction againt them were stayed by Act 29 of 1955. Therefore, ryotwari sub-lessees who had ceased by determination of the sub-leases to have right in the lands were still protected from eviction during the pendency of Act 29 of 1955, and by S. 185 (1) (ii) (b) of the Code upon the ryotwari sub-lessees the rights of occupancy tenants were conferred. If the expression "ryotwari sub-lessee" were to be construed to mean a ryotwari sub-lessee between whom and his lessor there was a subsisting contract of sub-letting, the protection for all purposes would be ineffective, for, by express statutory provision read with S. 74 of Act 66 of 1950 all ryotwari sub-leases stood determined before Act 29 of 1955 was brought into force, and by virtue of S. 185 (3) of the Code a holder of land from a disabled Bhumiswami belonging to a class mentioned in S. 168 (2) of the Code does not qualify for the status of an occupancy tenant. It may be noticed that in the class of disabled persons in sub-s. (2) of S. 162 of the Code are included all persons who are declared disabled by sub-s. (2) of S. 74 of Act 66 of 1950.If ryotwari sub-lessees of disabled persons mentioned in sub-s. (2) of S. 74 of Act 66 of 1950 cannot claim rights of occupancy tenants by virtue of S. 185 (3) of the Code and other ryotwari sub-lessees cannot qualify for those rights because of the determination of their interest as sub-lessees by virtue of Ss. 75 and 76 of Act 66 of 1950, S. 185 (1) (ii) (b) of the Code will not apply to any class of ryotwari sub-lessees. This is a strong ground in support of the view taken by the High Court that the expression "ryotwari sub-lessee" in S. 185 (1) (ii) (b) of the Code includes persons whose contractual relation has been determined either under the terms of contract of sub-lease or statutorily under Act 66 of 1950. If that be the true meaning of the expression "ryotwari sub-lessee" there would be no reason to think that the Legislature sought to make a distinction between tenants, sub-tenants and ordinary tenants of Inam land in S. 185 (1) (ii) (a) of the Code and ryotwari sub-lessees of other lands in S. 185 (1) (ii) (b). A member belonging to those classes would, therefore, be included in the protection provided at some time prior to the date on which the Code was brought into force, if he was in possession of land as a tenant, sub-tenant or ordinary tenant and he continued to hold the land till the date of commencement of theargument is misconceived. Act 66 of 1950 did not deal with the right of a landlord to evict a tenant from land. Act 66 of 1950 was expressly repealed by the Code, but since the right to evict a tenant was governed by the general law of landlord and tenant the proviso to S. 261 had no operation. In terms the proviso to S. 261 protects a right, provilege, obligation or liability which had been acquired, accrued or incurred under the law repealed by the Code. The right to obtain possession not having been acquired under the law repealed, a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law "then in force". That was expressly provided by S. 6 of Act 32 of 1954 and by S. 6 of Act 29 of 1955. If at the date of the trial the tenant had acquired the right of an occupancy tenant, he could not be evicted otherwise than in the manner and for reasons mentioned in S. 193 of the Code. Personal requirement for cultivation of land is not, however, a ground on which a claim, since the commencement of the Code, for ejectment may be maintained.Section 262 (2) is a transitory provision which enables a Civil Court to hear and dispose of a suit notwithstanding that under the Code such a proceeding would be triable by a Revenue Court. It is expressly declared that such a proceeding shall be disposed of according to the law in force prior to the commencement of the Code. That, however, does not imply that the contract between the parties which was sought to be enforced unaffected by the statutory declaration of occupancy tenants under S. 185 in favour of the tenant may be enforced. In our view sub-s. (2) is only procedural; it provides that a Civil Court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, which, if it had been instituted after the Code was passed, would have been tried by a Revenue Court, and in the disposal of such a suit the Civil Court will be governed by the procedural law applicable thereto prior to the commencement of the Code. There is nothing in S. 262 (2) which seeks to nullify the statutory conferment of occupancy rights upon persons in the position of tenants, sub-tenants or ordinary tenants against whom proceedings were taken at the date when the Code was brought into force.