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TMI Blog1977 (3) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed land in favour of the appellant on 14th September, 1954. THE appellant gave a notice to the respondent on 2nd Nov. 1954, asking him not to cultivate the disputed land after the expiry of the sub-lease in his favour. He, however, did not give possession and the appellant was, therefore, obliged to file a suit for his ejectment under S. 180 of the U.P. Tenancy Act. He also claimed ₹ 212/- by way of damages from the defendant. The claim was resisted by the respondent on various grounds, but it is not necessary to refer to those various pleas, as we are concerned in the present appeal, only with one point, namely, whether a suit under S. 180 of the U. P. Tenancy Act, in the present case, was maintainable or the proper remedy for the plaintiff was to file an application under S. 175 of the U. P. Tenancy Act. On the pleadings of the parties, as many as eight issues were framed and the trial court decided all the issues, except issue No. 3, in favour of the appellant. On issue No. 3, however, the trial court held that the respondent was not a trespasser and his status was only that of a sub-tenant and, therefore the suit under S. 180 of the U. P. Tenancy Act was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s holding for a term exceeding five years, or within three years of any portion of such holding being held by a subtenant. ( 5. ) Sub-section (2) of S. 40 stipulates that no non-occupancy tenant shall sub-let the whole or any portion of his holing for a term exceeding one year or within one year of any portion of such holding being held by a subtenant. ( 6. ) Section 45 of the Act provides for the extinction of tenancies. It reads: 45. The interest of a tenant shall be extinguished- (a) when he dies leaving no heir entitled to inherit in accordance with the provisions of this Act: (b) in land which has been sold in execution of a decree for arrears of rent or from which he has been ejected in execution of a decree or order of a court; (c) subject to the provisions of Ss. 82 to 88 by surrender, or by abandonment; (d) in land which has been acquired under the provisions of the Land Acquisition Act, 1894; (e) subject to the proviso to S. 46, by merger; (f) where the tenant has been deprived of possession and his right to recover possession is barred by limitation. '' Section 48 of the Act deals with the rights and liabilities of sub-tenants on extinction of sub-tenan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant respondent was only a trespasser on the date of the suit, the proper remedy for him was to file a suit under S. 180 of the Act. It is therefore; necessary to determine the status of the defendant on the date when the cause of action arose. As the defendant respondent was holding the land from the tenant-in-chief on the basis of a lease for five years, to start with, his status was that of a sub-tenant in view of the definition of sub-tenant given in S. 8 (22) of the Act. The tenant-in-chief, however, surrendered the disputed land in favour of the plaintiff appellant on 14th Sep., 1954. Section 47 of the Act deals with the rights of sub-tenant on tire extinction of the tenant's interest. Section 47 of the Act is very important for the purposes of the decision of the question involved in this case. In so far it is relevant for the purposes of this case, it reads:- 47. (1) Except as otherwise provided in sub-section (3) and sub-s. (4) the extinction of the interest of a tenant, other than a permanent tenure-holder or a fixed rate tenant shall operate to extinguish the interest of any tenant holding under him. (2) . . . . . . . . . . (3) . . . . . . . . . . (4) Where, at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the term of sublease, but for sub-section (4) of S. 47 of the Act, the sub-tenancy of the defendant respondent would have come to an end with the surrender of the tenancy rights by the tenant-in-chief in favour of the plaintiff on 14th Sept. 1954. ( 9. ) The contention of Sri G. N. Verma, on the other hand, is that there is no provision in the Act for the extinction of the tenancy rights, which includes sub-tenancy rights, by efflux of time and the interest of a tenant or sub-tenant can be extinguished only in the manner provided by the Act. Sri G. N. Verma referred to S. 157 of the Act, which provides that no tenant shall be ejected from his holding otherwise than in accordance with the provisions of this Act. He also relied upon S. 45 of the Act, which deals with various situations in which the interest of a tenant shall be extinguished, but none of the sub-sections of S. 45 of the Act contemplates the extinction of the tenancy or sub-tenancy rights by efflux of time. In short, his contention is that if a person is a sub-tenant, his status as a subtenant will continue till a suit for his eviction is filed and he is actually ejected in execution of a decree. ( 10. ) Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 1951, as that right was not extinguished by their eviction from the land. The principle laid down by the Allahabad High Court in that case does not apply, because the decision in that case depended on the circumstance that under the Tenancy Act the rights of a tenant continuing in possession after the expiry of the period of lease did not extinguish under S. 45 or 47 of the Tenancy Act which were the only sections which deal with the extinction of the rights of tenants. So far as the right granted by S. 47 (4) is concerned, it is granted by the statute itself for a limited period and once that period expires, it cannot be held that the right continues thereafter. There is no requirement in law that, after the expiry of that period, there must be eviction from the land in order to extinguish the right granted by S. 47 (4). The possession subsequent to 30th June, 1951 cannot, therefore, be held to be in pursuance of a right conferred on a sub-tenant referred to in S. 47 (4) of the Tenancy Act and, consequently, the land was not held by the appellants thereafter in the capacity mentioned in S. 19 (vii) of the Act. ( 11. ) Sri G. N. Verma sought to argue that the observation mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status of the defendant respondent as a sub- tenant came to an end with the surrender of the tenancy rights by the tenant-in-chief in favour of the plaintiff, a fresh contract of tenancy came into existence between the plaintiff appellant on the one hand and the defendant respondent on the other in view of the provisions of sub-s. (4) of S. 47 of the Act because the same covenant which was between the tenant-in-chief on the one hand and the defendant respondent on the other would continue as between the plaintiff landlord and the defendant respondent and, therefore, according to Sri Verma, a fresh tenancy came into existence which would be no other tenancy except non-occupancy tenancy under S. 31 of the Act and if once the defendant respondent became a non-occupancy tenant, he could be ejected only in accordance with the provisions of the Act and not otherwise. Whatever the status was conferred by S. 47 (4) of the Act, it was to last only for the remainder period of the sub-lease or for five years whichever was shorter. If the statute itself provides that the right or interest of the defendant respondent would come to an end on the expiry of the remainder term of the sub-lease, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under which the suit could be filed against him for his ejectment is a suit under S. 175 of the Act and not one under S. 180. ( 14. ) As observed earlier, the decision of the question depends upon the status of the defendant respondent on the date of the cause of action. If the status of the defendant respondent was that of a non-occupancy tenant or sub-tenant, the suit could be filed for ejectment only under S. 175 of the Act. If, on the other hand, the defendant respondent was taking or retaining possession of the disputed land otherwise than in accordance with law, and without the consent of the land-holder, S. 180 of the Act would be attracted. Admittedly, the tenant-in-chief had surrendered the plots in favour of the plaintiff appellant, the land holder, and, therefore, the sub-tenancy came to an end, but the extinction of the sub-tenancy was postponed for the remainder period of the sub-lease. But after the expiry of that period, the sub-tenancy or non-occupancy tenancy, whatever rights the defendant respondent had, came to an end and his possession thereafter was otherwise than in accordance with law. Therefore, in our opinion, the suit was rightly filed under S. 180 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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