PETITIONER:
MUNSHI & ORS.
Vs.
RESPONDENT:
RICHPAL & ORS.
DATE OF JUDGMENT17/02/1977
BENCH:
SINGH, JASWANT
KRISHNAIYER, V.R.
CITATION:
1977 AIR 1206 1977 SCR (3) 1
1977 SCC (2) 665
ACT
Pepsu Tenancy and Agricultural Lands Act, 1955--Ss. 7 and
7A--Scope of.
HEADNOTE
Section 7 of the Pepsu Tenancy and Agricultural Lands
Act, 1955, which deals with termination of tenancy, provides
that no tenancy shall be ’terminated except on any of the
grounds mentioned in the section. Section 7 gives additional
grounds for termination of tenancy in certain cases.
Respondent no. 2 sold his land to the appellants.
Claiming that he was a non-occupancy tenant under respondent
no. 2, respondent no. 1 filed a suit for possession of the
land by pre-emption. The trial Court decreed the suit in
favour of the plaintiff-pre-emptor holding that he had been
a tenant-at-will on the date of the sale and that he was
forcibly dispossessed after the sale.
The District Judge as well as the High Court upheld the
trial Court’s decision.
It was contended on behalf of the appellants that the
pre-emptor had to prove his subsisting right of pre-emption
on the date of sale, date of institution Of the suit and
date of passing of the decree and since the plaintiff had
failed to file a suit for recovery of possession under s. 50
of the Punjab Tenancy Act, 1887 his right and title had been
extinguished.
Dismissing the appeal,
HELD: The plaintiff cannot but be deemed to be the
tenant of the suit land on the date of sale as well as on
all other material dates and is thus fully qualified and
entitled to pre-empt the land. [5H]
The point now sought to be raised was not raised by the
appellant in the Courts below. In view of the provisions of
ss. 7 and 7A of the Pepsu Tenancy and Agricultural Lands
Act, 1955, which have an over-riding effect and the decision
of this Court in Rikki Ram & Anr v. Ram Kumar & Ors [1975] 2
SCC 318 it cannot be disputed that an order or decree di-
recting eviction of a tenant is necessary to be obtained to
bring about a determination of the tenancy. A fortiori,
the person who has been in possession of the land with the
right to possess it continues to hold the land and be a
tenant in spite of having been wrongfully put out of posses-
sion specially if he has initiated proceedings for recovery
of possession. [3E & 5F]
Since in the instant case, it has been concurrently
found by the Courts below that the plaintiff-pre-emptor was
a tenant of the suit land on the date of sale and it has
not been alleged that his tenancy was thereafter determined
or terminated on any of the grounds set out in ss. 7 and 7A
of the Act and the plaintiff had applied to the Tehsildar
for restoration of possession, he could not but be deemed to
be a tenant of the suit land on the date of the sale as well
as on all other material dates and thus fully qualified and
entitled to pre-empt the land. [5G]
Rikki Ram & Anr. v. Ram Kumar & Ors. [1975] 2 S.C.C. 318
followed.
Bhagwan Das v. Chet Ram [1971] 2 S.C.R. 640 and Dindyal
& Anr. v. Rajaram [1971] 1 S.C.R. 298 referred to.
2
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2054/69.
(Appeal by Special Leave from the Judgment and Order
dated the 5-8-1969 of the Punjab and Haryana High Court in
Regular Second Appeal No. 983 of 1969).
V.C. Mahajan, Mrs. Urmila Kapoor and Miss Kamlesh
Bansal, for the appellants.
Ram Sarup and R. A. Gupta, for respondent No. 1. The Judg-
ment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave which is
directed against the judgment and order dated September 24,
1969, of the High Court of Punjab and Haryana at Chandigarh,
passed in R.S.A. No. 983 of 1969 arises in the following
circumstances :-
Bhawani Dass, respondent No. 2 herein, who owned agri-
cultural land measuring 50 kanals and 6 mafias comprised in
Khewat No. 223, Khatauni No. 467-468, situate in village
Kohlawas, Tehsil Dadri, District Mohindergarh, sold the
same to Munshi, Dina and Rani Dutt, appellants before us, in
lieu of Rs.10,000/- by means of registered sale deed (Ext.
D-1) dated October 17, 1966. Alleging that he held as a
non-occupancy tenant under Bhawani Dass the aforementioned
land on the date of its sale to the appellants and had
continued to do so and as such had a preferential right of
its purchase under clause Fourthly of section 15(1)(a) of
the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913)
which still applies to the State of Haryana, Richpal, re-
spondent No. 1 herein, brought a suit on October 17, 1967
for possession of the said’ land by pre-emption, in the
Court of the Sub-Judge, Charkhi Dadri. The suit was resist-
ed by the appellants contending inter alia that the plain-
tiff-respondent was neither a nonoccupancy tenant of the
land in question under Bhawani Dass, vendor, nor was he in
possession of the land either on the day of the aforesaid
sale or on the day of the institution off the suit. After
settling the necessary issues and recording the evidence
adduced by the parties, the trial court by its judgment
dated February 1, 1969, decreed the suit in favour of the
plaintiff-pre-emptor on payment of Rs. 10,000/- (the consid-
eration of the aforesaid sale) plus Rs. 727/- (the costs
incurred by the vendees-appellants on the stamps, registra-
tion fee etc.) holding that he had been a tenant-at-will
under the vendor from Kharif, 1957 to Rabi, 1968; that he
was forcibly dispossessed after the sale; that wrongful
eviction of a tenant could be of no consequence in the eye
of law; that the plaintiff-pre-emptor continued to hold his
rights as a tenant, including the right to immediate posses-
sion and cultivation of the land notwithstanding his wrong-
ful ouster therefrom by the vendees who could not be allowed
to take advantage of their own wrongs and the former must be
deemed to continue in legal possession of the land which was
comprised in his tenancy under the vendor on the date of the
sale right upto the date of the suit and the date of the
decree of the trial court in his favour. The trial court
further held that ’a tenant’s eviction can only be had
under sections 7 and 7A of the Pepsu Tenancy and Agricul-
tural Lands Act, 1955, and there is nothing on the record of
the case to even insinuate that the plaintiff’s tenancy
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which subsisted at the time of the impugned sale was ever
determined or terminated under section 7 or 7A of the Act
and the plaintiff who was in physical possession of the land
in suit as a tenant at the time of the sale has to be
taken to be in legal possession up till the present moment’.
In conclusion, the trial could held that the mere act of
forcible dispossession of the plaintiff-pre-emptor at the
hands of the vendees after the sale could not have the
effect of divesting him of his right to hold the land which
he had acquired as a tenant of the vendor and in the eye of
law he must be presumed to have continued to be a tenant all
along and as such had a preferential right of pre-emption.
The judgment and decree passed by the trial court was
affirmed in appeal not only by the Additional District
Judge, Gurgaon, but also by a learned Single Judge and
Letters Patent Bench of the High Court. Aggrieved by these
decisions the vendees-appellants have, as already stated,
come up in further appeal to this Court.
The sole point that has been urged before us on behalf
of the appellants is that as according to the decision of
this Court in Bhagwan Das v. Chet Ram(1) the plaintiff-pre-
emptor has to prove his subsisting right of pre-emption on
all the three material dates viz.(1) the date of sale, (2)
the date of institution of the suit and (3) the date of
passing of the decree and in the instant case, he failed to
file a suit in the revenue court for recovery of possession
of the suit land within one year of the date of his dispos-
session as contemplated by section 50 of the Punjab Tenancy
Act 1887 not only his remedy was destroyed but his
right and title was also extinguished at the expiry of that
period on the general principles underlying section 27 of
the Limitation Act, 1963, which may not in terms be applica-
ble to the present case. Though the learned counsel for the
appellants cited a few cases in support of his contention
but did not unfortunately bring to our notice the decision
of this Court in Dindyal & Anr. v. Raja Ram (2) which may in
an appropriate case require reconsideration by a larger
bench of this Court, we think, he cannot be allowed canvass
the aforesaid point. A reference to the record of the case
shows that the point now sought to be agitated before us was
not raised by the appellants either in their written state-
ment or in the grounds of the three appeals preferred by
them before the courts below. All that appeals from the
record to have. been urged by them in the grounds of the
aforesaid appeals was that the evidence had not been proper-
ly appraised and that in the absence of any lease deed in
his favour or any receipt evidencing payment of rent by him
to the vendor, mere entries in the khasra girdawaries were
not enough to establish that the plaintiff-pre-emptor was a
tenant of the suit land under the vendor at the time of the
sale. The suit land being situate in the district of
Mohindergarh which formed part of the territories of the
erstwhile of Pepsu, the case, as rightly observed by the
court of first instance, was governed by sections 7 and 7A
of the Pepsu Tenancy and Agricultural Lands Act, 1955, which
in view of section 4 of that Act have an overriding effect
and provide as under :--
"4. Act to over ride other laws--Save, as
otherwise expressly provided in this Act, the
provisions
of this Act
(1) [1971] 2 S.C.R. 640.
(2) [1971] 1 S.C.R. 298.
4
shall have effect notwithstanding anything
inconsistent therewith contained in any other
law for the time being in force or any instru-
ment having effect by virtue of any such law
or any usage, agreement, settlement, grant,
sanad or any decree or order of any court or
other authority.
7. Termination of tenancy.--(1) No
tenancy shall be terminated except in accord-
ance with the provisions of this Act or except
of any of the following grounds, namely :--
(b) that the tenant has failed to pay rent
within a period of six months after it falls
due;
Provided that no tenant shall be ejected
under this clause unless he has been afforded
an opportunity to pay the arrears of rent
within a further period of six months from the
date of the decree or order directing his
ejectment and he had failed to pay such ar-
rears during that period;
(c) that the tenant, not being a widow, a
minor, an unmarried woman, a member of the
Armed Forces of the Union or a person incapa-
ble of cultivating land by reason of physical
or mental infirmity has after commencement
of the President’s Act sublet without the
consent in writing of the landowner, the land
comprising his tenancy or any part thereof;
(d) that the tenant has, without sufficient
cause, failed to cultivate personally such
land in the manner and to the extent customary
in the locality in Which such land is situat-
ed;
(e) that the tenant has used such land or
any part thereof in a manner which is likely
to render the land unfit for the purpose for
which it was leased to him;
(f) that the tenant, on demand in writing
by the landowner, has refused to execute a
kabuliyat agreeing to pay rent in respect of
his tenancy in accordance with the provisions
of sections 9 and 10.
(2)..............................
7A. Additional grounds for termination
of tenancy in certain cases.--(1) Subject to
the provisions of sub-sections (2) and (3), a
tenancy subsisting at the commencement of the
Pepsu Tenancy and Agricultural Lands (Second
Amendment) Act, 1956 may be terminated on
the following grounds in addition to the
grounds specified in section 7, namely :-
(a) that the land comprising the tenancy
has been reserved by the land-owner for his
personal cultivation in accordance with the
provisions of Chapter II:
(b) that the landowner owns thirty standard
acres or less of land and the land falls
within the permissible limit;
5
Provided that no tenant shall be ejected
under this subsection--
(i) from any area of land if the area under
the personal cultivation of the tenant does
not exceed five standard acres,
(ii) from an area of five standard acres,
if the area under the personal cultivation of
the tenant exceeds five standards acres.
until he is allowed by the State Government
alternative land of equivalent value in stand-
ard acres.
(2) No tenant, who immediately preceding
the commencement of the President’s Act has
held any land continuously for a period of
twelve years or more under the same land-owner
or his predecessor in title, shah be ejected
on the grounds specified in sub-section (1)-
(a) from any area of land, if the area
under the personal cultivation of the tenant
does not exceed fifteen standards acres, or
(b) from an area of fifteen standards
acres, if the area under the personal cultiva-
tion of the tenant exceeds fifteen standard
acres;
provided that nothing in this sub-section
shall apply to the tenant of a landowner who
both, at the commencement of the tenacy and
the commencement of the President’s Act, was
a widow, a minor, an unmarried woman, a member
of the Armed Forces of the Union or a person
incapable of cultivating land by reason of
physical or mental infirmity.
Explanation.--In computing the period of
twelve years, the period during which any land
has been held under the same land-owner or his
predecessor in title by the father, brother or
son of the tenant shall be included.
(3) For the purpose of computing under
sub-sections (1) and (2) the area of land
under the personal cultivation of a tenant,
any area of land owned by the tenant and under
his personal cultivation shall be included."
It cannot, in view of the above noted provisions of law
and the decision of this Court in Rikh Ram & Anr. v. Ram
Kumar & Ors.(1) be disputed that an order or decree direct-
ing eviction of a tenant is necessary to be obtained to
bring about a determination of the tenancy. A fortiori, a
person who has been in possession of land with the right to
possess it continues to hold the ’land and to be a tenant in
spite of having been wrongfully put out of possession espe-
cially if he has initiated proceedings for recovery of
possession. As in the instant case, it has been concur-
rently found by all the courts below that the
plaintiff-pre-emptor was a tenant of ’the suit land on the
date of sale
(1) [1975] 2 S.c.c. 318.
6
and it has not been alleged much less proved that his
tenancy was, thereafter determined or terminated on any of
the grounds set out in sections 7 and 7A of the Pepsu Tenan-
cy and Agricultural Lands Act, 1955 and he had admittedly
applied to the Tehsildar for restoration of his posses-
sion, he cannot but be deemed to be a tenant of the suit
land on the date of the sale as well as on all other materi-
al dates and thus fully qualified and entitled to pre-empt
the land. We must fairly state that our judgment is based
on the provisions of law brought to our notice by counsel
and our conclusion is confined to the interpretation of the
Acts referred to above.
For the foregoing reasons, we do not find any merit in
this appeal which is dismissed. In the circumstances of the
case, we leave the parties to bear their own costs of this
appeal.
P.B.R. Appeal
dismissed.
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