UPPER GANGES SUGAR MILLS LIMITED KHALIL UL RAHMAN Vs. KHALIL UL RAHMAN:UPPER GANGES SUGAR MILLS LIMITED

JUDGEMENT

(1.) THESE two connected appeals will be disposed of by one judgment. Appeal No. 196 of 1952 is by the Upper Ganges Sugar Mills Ltd. (hereinafter called the Company) while Appeal No. 4 of 1959 is by Mohd. Khalilul Rehman and others (hereinafter called the landlords). The brief facts necessary for present purposes are these. Mukhtiar Ahmed, father of the landlords, granted a thekas to the Company in August 1933 (corresponding to 1341F) of the lands in dispute for a period of ten years ending with 1350 F (June 1943). The theka contained a clause giving option to the Company to get it renewed for five years and in consequence the theka was renewed for five years from 1351 F to 1355 F (that is upto June 1948). Thereafter the theka provided for option to renew the lease with the lessor. In March 1948, the landlords gave notice to the Company to the effect that the theka would not be renewed after 1355 F. The Company, however, did not agree to hand over possession to the landlords and consequently a suit was filed by the landlords for ejectment of the Company under the U. P. Tenancy Act, 1939. It was resisted by the Company on the ground that it was not a thekedar but a tenant and had become hereditary tenant under Sec. 29 of the U. P. Tenancy Act. This plea failed and the suit was decreed on 3/11/1948. There was an appeal by the Company against the decree. This appeal also failed. Then the Company went up in second appeal to the Board of Revenue and eventually the second appeal was dismissed on 22/07/1950. During all this period from November 194 8/07/1950, the Company remained in possession of the land in dispute on account of stay orders obtained from the appellate Courts. Execution began in October 1950 and it isis said that possession was delivered to the landlords on 13/10/1950, and a Dakhalnama was filed on 15/10/1950. It appears, however, that the Company offered resistance to actual ejectment and this led to proceedings under Sec. 145 of the Code of Criminal Procedure and the magistrate ordered the attachment of the land in November 1950 and appointed two superdars (caretakers). The Company applied to the Board for a certificate which was granted; and that is how Appeal No. 196 has come to this Court.

(2.) IN the meantime, U. P. Zamindari Abolition and Land Reforms Act, No. 1 of 1951, (hereinafter called the Act) came into force. On 1/07/1953, the Company thereupon instituted proceedings to recover actual possession of the land under S. 232 of the Act read with Sections 12 and 20 thereof. The Sub-Divisional Officer decided in January 1954 in favour of the Company and ordered delivery of possession to it holding that the Company was entitled to possession both under S. 12 as well as under S. 20 of the Act. The landlords went up in appeal, which was dismissed in January 1955. The appellate Court held that the Company was entitled to recover possession under S. 12 but did not decide the case put forward by the Company under S. 20. Thereupon there was a second appeal to the Board of Revenue which was dismissed in January 1956. The Board also decided the appeal on the basis of S. 12 and did not consider the case as put forward under S. 20. The landlords then came to this Court and were granted special leave to appeal in May 1956; and that is how Appeal No. 4 became pending in this Court.

(3.) IT is conceded by learned counsel for the landlords that if Appeal No. 4 fails and the right of the Company either under S. 12 or under S. 20 is upheld, it would not be necessary to go into Appeal No. 196. On this view the Company would have acquired a new right under the Act, which would not be affected by the decision in Appeal No. 196, even if it goes against the Company. We shall therefore first deal with Appeal No. 4.