Khanderao vs Ganpatrao

V.R. Newaskar, J.—Material facts giving rise to this appeal are a as follows.

Plaintiff Ganpatrao and Marotirao sons of Anandrao filed the present suit for a declaration as to their title to the land in suit situated in Mauza Jamodi measuring 38 Bhighas 12/1 Biswas assessed to the revenue of Rs. 100-10-9 as against the Defendants Nos. 1 to 3 who are the brothers of deceased Kalidin and against Defendants Nos. 4 to 6 who are his sons. They also pay for correction of entries in the revenue records by replacing the Plaintiff''s name in place of those of the Defendants.

Their case is that in the Samvat Years 1979, 1980 and 1983 (i. e., 1922, 1923 and 1926) their deceased father Anandrao gave this lead on lease to Kalidin. Anandrao died subsequent to the creation of the lease in Samvat Year 1983. As the Plaintiff (then were minors their maternal uncle took them to Indore. Kalidin however used to send to the Plaintiff''s mother the real amount. Kalidin too died in Samvat Year 1990. Later there were settlement proceedings in Samvat Year 1991 in pursuance of the order of the Gwalior Government under whose territories the Sagour Jagir to which the village Jamodi belonged was situated. The Defendants taking advantage of the absence of the Plaintiffs from the village got their names mutated.

In place of that of deceased Anandrao and secured Patta in their own name. They then stopped paying any rent. They had secured their names, it is said by staying themselves as the heirs and legal representatives of deceased Anandrao which they in fact were not. The Plaintiffs later on making enquiries learned of the fraud practiced by the Defendants in getting their names mutated in place of the Plaintiffs or their father. They consequently claimed declaration as to their title and for correction of entries in the revenue record by replacing the Defendants'' name by their own.

The Defendants denied Plaintiffs allegation regarding leasing of land to Kalidin in the Samvat Years 1979, 1980 and 1983. According to them in the settlement that took place in Samvat Year 1979 their name had been recorded as Pukhta Morusi. According to them this land had been sold by the father of the Plaintiffs in Samvat Year 1979 (1922 A. D.) and in pursuance of this transaction of sale their names had been recorded. They denied the fact of payment of rent by Kalidin subsequent to 1979 or any promise to pay the same by Ramautar. They pleaded bar of limitation and challenged the jurisdiction of the Civil Court to entertain the suit having regard to the terms of Judicial and Legislative Circular No. 19/1979 of the erstwhile Gwalior State which was in force at the time of the institution of the suit in the year 1946 (4-4-1946).

The first appellate Court found agreeing with the decision of the trial Court that the Civil Court had jurisdiction to try the suit. It further held that to begin with the land in suit had been given on lease by deceased Anandrao under an agreement of sharing half the produce. Later on the Defendants had got their names mutated in the Year 1991 in place of that of the heirs of Anandrao who had gone to Indore. The entries, it is held, indicated that in getting their names thus mutated the Defendants were described as legal representatives which really could not have been so. The Defendants'' version that there was sale by Anandrao in their favour was held not established. It was consequently held that the Plaintiff had a good title to the land and that the Defendants'' possession could have become adverse at the most in the year 1935. The suit filed for declaration of title and possession in 1945 therefore was within 12 years and was not barred according to the law then in force.

In the second appeal at an earlier stage of the case the Defendants pressed the ground that a claim as against a Ryotwari sub-lessee was involved in this case and that u/s 4 of the Madhya Bharat Ryotwari Sub-lessees Protection Act of 1955, the case had to be stayed. This was upheld since the Plaintiffs had alleged that the Defendants were the sub-lessees who had fraudulently got their names mutated after the death of the Plaintiff''s father and behind the back of the Plaintiffs. The denial of the initial relationship by the Defendants and assertion of their being in possession pursuant to an agreement of sale did not mean that a question of ejectment of a Ryotwari Sub-lessee was not involved. After passing of the Madhya Pradesh Land Revenue Code which repealed the Madhya Bharat Ryotwari Sub-lessees Protection Act No. 29 of 1955, the second appeal came for hearing as the bar created by Section 4 of the latter Act had been removed. The appeal was heard by Krishnan J., Before him the Defendants pressed their claim u/s 185(1)(6) of the Code on the basis of their initial status as Sub-lessees of a Ryotwari tenant. The learned Judge found that after the decree of the first appellate Court on 12-31-951 the Defendants had been passed in Plaintiffs'' favour. This was some time in 1951. They had not secured restitution till the coming into force of the Code. They, therefore, according to the learned Judge, could not be persons who had held land as a Ryotwari sub-lessee at the coming into force of the Code and were consequently not entitled to the benefit of that provision. On other questions regarding the right claimed by the Defendants on the basis of alleged conditional sale and limitation, the learned Judge in second appeal agreed with the conclusions of the Courts below. The appeal was accordingly dismissed. However the learned Judge granted leave.

It is not disputed that the Appellants were not in actual possession of the land on the date when the Madhya Bharat Act No. 29 of 1955 (Madhya Bharat Ryotwari Sub-lessees Protection Act) came into force and also on the date when the Madhya Pradesh Land Revenue Code came into force. It is however urged that the words:

Every person who at the coming into force of this Code holds any land as Ryotwari Sub-lessee.

do not require that the person should be inactual possession and enjoyment of the land either as continuing Ryotwari sub-lessee or as in ex-sub-lessee whose tenancy had come to an end. It is enough if he was entitled to actual possession on the coming in to force of the Code.

It is no doubt held in Nihalkaran v. Ramchandra, 1963 JLJ that even an ex-Ryotwari sub-tenant is entitled to the benefit of Section 185(1)(b) of the Code and that it is not necessary that he must have the continuing status of a Ryotwari sub-lessee either on the date of the coming into force of Madhya Bharat Act No. 29 of 1955 or of the Madhya Pradesh Land Revenue Code. The decision laid down that the words ''as Ryotwari sub-lessee included a person who had been a Ryotwari sub-lessee and continued in possession pursuant to the status even after his tenancy had been terminated. Question however which we have now to consider is whether the word ''hoid'' in Section 185 of the Code requires actual possession on the date of the commencement of the Code of the person who had been a Ryotwari sub-lessee or it is enough that he should have been in possession but for a decree and its execution when that decree is assailed in an appeal preferred against it.

It is contended on behalf of the Appellant that after the decree passed by the lower appellate Court on 12-3-1951 an order was passed in favour of the Appellants by the High Court in second appeal on 7-5-1951 staying the execution of the decree and the Appellants were dispossessed subsequent to the passing of that order. The action of the executing Court in putting the Respondents in possession after the order for stay of execution had been passed was wrong and without jurisdiction and that since no error of the Court should injure a rightful party we should proceed on the assumption as to what the position would have been but for the erroneous order. Reliance Is pieced upon the decision in Bisandas and Others Vs. Nirmal Kumar, , in support of the view that the effect of a stay order is to put a bar to the jurisdiction of the lower Court to proceed with the execution case from the moment it is passed and not when it is communicated.

Now as regards this on a question of fact there is nothing on record to satisfy us that the Appellants had been dispossessed subsequent to 7-5-1951 when the High Court passed the stay order and not earlier. But even if we assume that they were dispossessed and the Respondents were put in possession subsequent to 7-5-1951 that would, in our opinion, not entitle them to claim the right u/s 185(1)(ii)(b) since that right is only claimable by a person who holds land as a Ryotwari sub-lessee who had by his own act had not renounced his status as a Ryotwari sub-tenant and had not been claiming adverse to the landlord. Where a sub lessee abandons his status and acts contrary to that status and in open assertion of his title hostile to the landlord It is difficult to say that he holds land as Ryotwari sub-lessee or even as an ex-Ryotwari sub-lessee. On the findings which have become conclusive the Appellants had abandoned their status as sub-lessees and had begun to claim the land as lessees from the year 1935 and had also got their names mutated. This state of affairs continued till 1945 when the suit was brought. Their possession was held to be adverse to that of the Plaintiffs landlord though it bad not ripened into ownership. The suit was for possession on the strength of the Plaintiff''s title. In this state of findings it cannot be said that even on 7-5-1951 or earlier the Defendants could be said to have held the land as Ryotwari sublessees.

The decision in Nihalkaran''s case (1963 JLJ 318) was concerned with the case of a sub lessee. It no doubt related to ex-sub-lessee whose tenancy had come to an end. It was held that although the sub-lessee''s lease had come to an end he was entitled to the benefit of Section 185(1)(ii)(b). But the decision did not intend to lay down the same principle, with reference to all the kinds of termination of tenancies as contemplated by the principle underlying Section 111 of the Transfer of Property Act. For example where there is express or implied surrender by a sub-lessee to a lessee it cannot be said that he still continued to hold the land as a Ryotwari sub-lessee at the coming into force of the Act. In the case therefore of disclaimer which results in forfeiture bringing about termination of sub-tenancy the sub-tenant cannot be allowed to claim the right which he by his own act had placed beyond this reach If this was allowed to be done it will mean that he could reprobate and approbate at the same time. It is well known that no man can be allowed to approbate and reprobate. If therefore follows that the Defendants, having set up disclaimer, could not be allowed to claim on the basis that they held land as Ryotwari ex-sub-lessees and Nihalkaran''s case (supra) which did not relate to the case of termination by denial of tenant''s title by sub-tenant was inapplicable. It therefore follows that even if they had been in actual possession and had not lost it as a result of the stay order being implemented they could not have been allowed to claim the newly conferred right. It is therefore really not necessary on the facts of the present case to consider the broader question whether a person can be said to hold as Ryotwari sub-lessee on the date of coming into force of the Madhya Pradesh Land Revenue Code. If he was entitled to be in possession but for an erroneous action of a Court and can therefore claim the benefit of Section 185(1)(ii)(b) of the Code or whether to claim such benefit actual possession is indispensable. However as the learned Judge in second appeal has expressed his opinion holding that actual possession on the date of coming into force of the Code is necessary for the purpose and has granted leave on that point. I will briefly deal with that aspect.

The reasoning of the learned Judge is brief and can best be stated in his own words:

If on the day on which the Act of 1955 came into force, the ex-sub tenant against whom the ejectment decree has been passed is still ''holding'' the land, that is, if he is an actual possession, he should get the rights of a Pucca tenant u/s 185(1)(b) Land Revenue Code. How he is still holding, is immaterial. He may be holding because the decree had not yet been put into execution or the execution has not yet ended with the delivery of possession. It may also be that the decree having put into execution, has been stayed by the superior Court.

Then the learned Judge considered the defects of the present case with reference to the order for stay and application for restoration which was not pressed and concluded:

Whatever the reason, even on the assumption that the Defendants could fall back on their original status as sub-tenant, they cannot get now the benefit from section 185(1)(b) of the Code as they were not holding'' the land on the date of its commencement, not having held it on the date of commencement of the Protection Act of 1955.

Thus he considered the fact of actual possession by the person claiming occupancy right u/s 185(1)(ii)(B) at the date of commencement of Act No. 29 of 1955 as the crucial test.

For the purpose of the present case it is not necessary to go to that length. For even if we hold that the term ''hold'' as used in Section 185(1) of the Code ought to include the case of a person who has got a right to hold but for the wrongful act of the opposite party at the date of the commencement of the Code, the Appellants are not entitled to succeed. For the purpose of Section 185(1) of the Code the present or one time sub-lessee who had lost possession ought to be able to say that he had lost it because of the wrongful act of the opposite party. In the present case this cannot be said. The Plaintiff claimed possession alleging that the Defendants who were sub-tenants long back had fraudulently renounced their character as a sub tenant, had in assertion of title in themselves, secured entry of their own name in the revenue records as tenants and that the claim to possession of the Plaintiffs had not become barred by adverse possession. The Defendants claimed to be in possession under a conditional agreement of sale and pleaded bar of limitation. Both the grounds were found against them by the first two Courts and a decree for possession was passed they were not in actual possession on the date of the commencement either of Act No. 29 of 1955 or the Code. They would have been held entitled to a right to hold the lead if it had been held in second appeal that they were entitled to the land as the purchasers from Anandrao or their right had matured by the lapse of time into ownership. When both these points are ultimately rejected they had neither the possession nor the right to hold the land. They were therefore rightly held disentitled to claim the occupancy right as not holding the laud on the date of coming into force of the Code.

The appeal accordingly has no force and is hereby dismissed with costs.