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AMAR SINGH AND OTHERS

v .

RANA BALBAHADUR SINGH

January 27, 1966

[P. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, J. c. SHAH,

S. M. SIKRI AND V. RM!ASWAMI, JJ.]

Madhya Pradesh Land Revenue Code, 1954 s. 185(1) ands. 185(3) read with s. 168(2)-lease of ryotwari land prior to commencement of A.ct --Bhumiswami minor on date of lease but not at commencement of Act- Whether belonged to class of disabled persons within the meaning of s. 168(2)-Therefore whether lessee became occupancy tenant under s. 185(1).

Jn 1936, certain ryotwari lands belonging to the estate of the respondent in Madhya Bharat were leased for cultivation to the appellants' father M by the Court of Wards which was in management of the estate. After the Court of Wards released the estate in 1951, the respondent terminated the tenancy 0nd instituted a suit for a decree in ejectment and for mesne profits.

The trial Court passed a decree in the respondent's favour and this was confirmed in appeal by the District Court as well as by the High Court.

It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code, 1954, M acquired the status of an occupancy tenant as he held land of the nature described by s. 185 ( 1). On the other hand it was the respondent's contention that even though a ryotwari sub-lessee might acquire the status of an occupancy tenant; the tenant M was disentitled to that status since at the commence~ ment of the tenancy the respondent, was subject to a disability of the character set out in s. 168(2). Accordingly, the case fell within the exception to s. 185(1) provided in sub-s. (3) of that section.

HELD . By virtue of s. 185 (1), M became an occupancy tenant of the land when the Code was brought into operation; the appeal must therefore be allowed and the respondent's suit dismissed. [426 El

For the exemption from the operation of s. 185 (I) to apply, it had to be established that the respondent at the commencement of the code beloni:ed to the disabled class.

Although being a minor he belonged to the dISabled class at the time when the lease was granted, he did not belon.\l to the di•abled class at the commencement of the Code. What is decisive for the operation of the exemption under s, 185(3) read with G s. 168(2) is the status at the commencement of the code. [425 EJ

Rao Nihalkaran v. Ramgopal [1966] 3 S.C.R. 427; referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 354 of 1965 Appeal by special leave from the judgment and order dated December 18, 1962 of the Madhya Pradesh High Court (Indore H Bench) in Second Appeal No.77 of 1960.

B. R. L. Iyengar, G. L. Sanghi and A. G. Ratnaparkhi, for the appellants. 423 M !~Sup.C. T./66~· 14

SUPREME COURT

RF.PORTS

[ 1966] 3 S.C.R.

S. N. Andley, Rameshwar Narh and P. L. Vo/Ira, for the res- A pondcnt.

B. R. L. Iyengar, G. L. Sanglzi and A. G. Ratnaparklzi, for intervener No. I.

J. B. Dadachanji, 0. C. Mathur and Ra1inder Narain, for interi; encr No. 2.

The Judgment of the Court was delivered by

Shah, J.

Jn 1936 certain home farm land in Mouza Bclam Bujurg, Paragana Burwaha, of the estate of the respondent were leased for culti\'ation to one Mangtya by the Court of Wards which was in management of the estate. The Court of Wards released the estate on June 14, 1951. The respondent thereafter terminated the tenancy and instituted a suit in the Court of Civil Judge, Class IJ, Burwaha, against Mangtya for a decree in ejectment and for mesne profits. The Trial Court decreed the suit for possession and awarded mesne profits at the rate of Rs. 300/- per annum from the date of the decree till delivery of possession. The decree passed by the Trial Court was confirmed in appeal by the District Court, Nimar, and the High Court of Madhya Pradesh. Sons of Mangtya, who died after the judgment of this High Court have preferred this appeal with special leave.

The land in dispute is ryotwari land and Mangtya was a ryotwari sub-lessee of the land. It was contended before the High E Court in Rao Niha/karan v. Ramchandra & Otlzersl that even though a ryotwari sub-lessee of land in the Madhya Bharat region may ordinarily acquire under s. 185 (l)(ii)(b) on the commencement of the Code the status of an occupancy tenant, the tenant Mangtya was disentitled to that status since at the commencement of the tenancy the respondent was subject to a disability of the character set out in s. 168(2). The High Court upheld the plea of the res- F pondent; they held that the expression "holds the land from a Bhumiswami who belongs to any one or more of the classes" predicates two conditions-that the land is held by a tenant under a Bhumiswami, and that at the commencement of the tenancy the landlord who subsequently acquired the status of a Bhumiswami belonged to any one or more of the classes mentioned in sub-s.

(2) of s. 168 of the Code.

The only question which falls to be determined in this appeal is whether under s. 185 (3) of the Madhya Pradesh Land Revenue Code the tenant Mangtya was disqualified from claiming the status of an occupai1cy tenant.

By s. 157 of the Code there was to be in the State of Madhya Pradesh a single clao; s of tenure holders of H land held from the Stte to be known as Bhumiswami. The

(I) L. P. A. No. 14 of 19<ot decided on Sept. 24, 1962.

AMAR SINGH V. R. B, SINGH (Shah, J.) 425

respondent may be by virtue of s. 158(b) deemed to be a Bhumiswami. The rights of a Bhumiswami under the Code .are heritable but in the matter of transfer inter vivas they are subject to restritions prescribed by ss. 165 & 168. Land comprised in the holding of a Bhumiswami may not by virtue of s. 168(1) be transferred by way of a lease, except in the conditions mentioned in sub-ss. (2) & (3) of s. 168. A Bhumiswami subject to one or more of the disabilities mentioned in sub-s. (2) may grant a lease of his holding. It has to be noticed that the provisions which create the tenure of a Bhumiswami and the restrictions thereon are prospective. We have held in Appeal No. 365 of 1965-Rao Niha/karan v.

Ramgopa/(1)-that a person whose tenancy rights were determined before the commencement of the Code will be invested with the status of an occupancy tenant provided he holds land of the nature described in sub-s. (I) of s. 185. But upon this rule is engrafted an exception by sub-s. (3) of s. 185 that nothing in sub-s. (1) shall apply to a person who at the commencement of the Code holds the land from a disabled Bhumiswami.

At the commencement of the Code the respondent acquired the tenure of a Bhumiswami under s. ! 58(b) of the Code, but it cannot be said that the respondent "belongs to any one or more of the classes mentioned in sub-section (2) of section 168". For the exemption from the operation of s. 185(1) it had to be established that the respondent at the commencement of the Code "belongs" to the disabled class. He undoubtedly did belong to the disabled class when the lease was granted, but not at the commencement of the Code, and what is decisive for the operation of the exemption under sub-s. (3) is the status of Bhumiswami at the commencement of the Code. By s. 168(2) the prohibition against a Bhumiswami against transfer by way ofa lease of the land comprised in his holding is inoperative, where the Bhumiswami is subject to any one of the disabilities mentioned in els. (i) to (ix) of sub-s. (2). That provision is undoubtedly prospective. The Legislature has by sub-s. (3} of s. 185 prohibited the acquisition of occupancy tenancy rights by a tenant of a Bhumiswami who was when the Code came into force subject to any of the disabilities mentioned in s. 168 (2). It is clear from the terms of sub-s. (2) of s. 168 proviso 2 that a lease made by a Bhumiswami who is subject to a disability remains valid only during the disability and one year after the determination of that disability, by death or otherwise. Therefore a lease created by a Bhumiswami, even if he was at the date when he created the lease subject to a disability would become invalid on the termination of the disability and a period of one year thereafter. By sub-s. (4) of s. 168 it is provided that a lease granted in pursuance of sub-ss.

(2) or (3) shall be held on such terms and conditions as may be agreed upon between the Jessee and the Bhumiswami and it is further

(!) n966] 3 S.C.R. 427

426 SUPRl!MB COURT REPORTS

(1966] 3 S.C.R.

provided by sub-s. (5) that on the coming into force of the Code where any land is held on lease from a Bhumiswami who belongs to any one or more of the classes mentioned In sub-s. (2) such lease shall, on the coming into force of the Code, be deemed to be a lease granted in pursuance of sub-s. (2). The lease granted by a person who on the commencement of the Code acquires the status of a Bhumiswami is therefore deemed to be a lease granted in pursuance of sub-s. (2) of s. 168, if the Bhumiswami "belongs" to the class mentioned in sub-s. (2).

Reading s. 185(3) with s. 168 (2) and s. 168 (5) it is clear that to attract exclusion from the operation of s. 185 (I) the Bhwniswami must, at the commencement of the Code, be subject to the disability mentioned in sub-s. (2)of s. 168. What is determinative is not the existence of disability at the date of the grant of the lease before the commencement of the Code, but the disability of the Bhumiswami at the commencement of the Code.

On the date on which the Code was brought into force, the respondent was not a Bhumiswami belonging to any one or more of the classes mentioned in sub-s. (2) of s. 168, and the exception provided by s. I 85 (3) will not apply. It is true that the respondent was a minor at the time when the lease was granted by the Court of Wards. But he ceased to be a minor in 1951. By virtue of s. 185 (I) the tenant, notwithstanding the institution of the suit, became an occupancy tenant of the land when the Code was brought into operation and the mere fact that the respondent was a minor at the date of the lease did not prevent the statutory acquisition of the status of an occupancy tenant by Mangtya under s. 185(1).

The appeal must therefore be allowed and the decree passed by the High Court set aside. The suit filed by the respondent will stand dismissed. There will he no order as to costs throughout.

Appeal allowed