CHIRUTHA Vs. KUNHIRAMAN NAYAR

JUDGEMENT

(1.) THE Decree in O. S. 141 of 1948 of the Court of the district Munsiff at Payyoli, in execution of which the matter in these two second Appeals arises was for the eviction of 37 defendants from the suit property. THE first defendant was impleaded in the suit as the tenant under the plaintiff and defendants 2 to 37 as sub-tenants under the first defendant. On november 28 ,1952 , the plaintiff obtained delivery of possession in execution without the issue of a prior notice to the defendants. Afterwards, defendants 2 and 4 filed execution application 557 of 1953, and defendants 6 and 25 to 27 filed execution application 556 of 1953, for the re-delivery of the property to them, which were both dismissed by the execution court; the appeals preferred by them were also dismissed by the Subordinate judge of Badagra, Second Appeal 148 of 1958 is by defendants 2 and 4 and Second appeal 151 of 1958 is by defendants 6 and 25 to 27. Whatever be the contentions which were advanced in the two Courts, the only two contentions which were pressed in these appeals were, first, that the delivery of possession made by the execution Court was, so far as the appellants were concerned, contrary to s. 43 of the Malabar Tenancy Act, 1929, as amended by the Malabar Tenancy (Amendment) Act, 1951 (Act XXXIII of 1951) and secondly, that the set off against dues recoverable from the first defendant of the value of improvements not solely payable to him but to the other defendants also, which was allowed by the execution Court at the time of ordering delivery of possession, was contrary to the proviso to S. 6 of the Malabar Compensation for Tenants improvements Act, 1899, which was introduced in that Act by the aforesaid Act xxxiii of 1951. THEse are the contentions to be examined.

(2.) ON the first contention it is desirable to set out s. 43 fully; it reads as follows: "notwithstanding anything contained in the Transfer of Property Act, 1882, or in any other law for the time being in force, or in any contract, a cultivating tenant or the holder of a kudiyiruppu shall be entitled to continue on the holding as such, although the rights of his immediate landlord or of any superior landlord have been extinguished, whether by eviction or by redemption of a mortgage or otherwise, subject, however, to a liability to pay fair rent and to the provisions of this Act applicable to a cultivating tenant or the holder of a kudiyiruppu, as the case may be. " When there is a landlord and a tenant and there is a subletting, there is neither privity of contract nor of estate between the landlord and the sub-tenant. So under the general law, the landlord could sue tenant to recover possession on the tenant's covenant to surrender possession on the determination of the tenancy and the sub-tenant's possession would be treated at the option of the landlord, as the tenant's possession. This is also the rule in S. III (c) of the Transfer of Property Act and has been so laid down in Jaswantrai Trichumal Vyas v. Rai Jiwi ( A. I. R. 1957 , Bombay 195 ). It has been held in Mangaldas Girdhardas v. Govindlal Ishwarlal (47 Bombay Law Reporter 118)that, a sub-tenant is not a necessary party in a suit by the landlord against the tenant to recover possession. Had the appellants here been no parties to the decree which was put in execution, on S. 43 coming into force on March 15,1952, subject to the condition that they are "cultivating tenants" or "holders of kudiyirupu", the sub-tenancy would be converted into a statutory tenancy with the landlord which would entitle them, notwithstanding the rule in the Transfer of Property Act or of the general law as stated above, to be in possession bona fide and on their account and to resist delivery of possession. This is made sufficiently clear by the non-obstante clause in the above Section, The effect of S. 14 of the Bombay Rents, Hotel and Lodging House rates Control Act, 1947, Act 57 of 1947, which reads: "where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sublet before the coming into operation of this Act shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord oh the same terms and conditions as he would have held from the tenant if the tenancy had continued. " and which is somewhat similar, was considered to be the creation of such a tenancy between the landlord and the sub-tenant in Jaswantrai Trichumlal Vyas v. Bai Jiwi (A. I. R. 1957 Bombay 195) and Harswarup Khannamal v. Nandram Shriram (A. I. R. 1956 Bombay 656 ). When, as in the present case, the appellants are parties to the decree for eviction and that decree has become final and conclusive, no such statutory tenancy can be set up by them unless it can be made out, that the Section would operate notwithstanding the decree. It would be too far-fetched to construe the word 'law' in the non obstante clause to include decrees. A decree is the command of the Court with adequate sanction to enforce it. The Legislature is very familiar with expressions such as "notwithstanding any decree or order of court to the contrary" and does not hesitate to use them, whenever it deems necessary to reopen decrees whether wholly or partially. In enacting S. 43, for reasons best known to it, the Legislature has not chosen to unsettle decrees which had been passed. In the generality of cases, in decrees for eviction by landlords, the sub-tenants might not be parties and S. 43 would enure to the advantage of the latter. It would be contrary to well-established rules of construction to hold on the language of S. 43, that it has retrospective operation. So, the result is that the conclusiveness of the decree for eviction was left untouched by S. 43 and the execution Court could only execute the decree. Decisions rendered under the Buildings (Lease and Rent control) Statutes, such as Bharat, Insurance Co. Ltd. v. Biyathu (A. I. R. 1953 t. C. 577) have been referred to by way of analogy, in support of the argument that in spite of a decree for the eviction of a tenant from a building the decree could not be executed, except in accordance with the Statute; the analogy wholly fails, as there are provisions in them which enact, that "a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions" of the Act. I am therefore of the view, that the appellants were liable to be evicted in execution of the decree.