GUR CHARAN Vs. RAM KHILAWAN

JUDGEMENT

(1.) Facts giving rise to this Writ Petition are neither intricate nor longish but they expend over long years giving rise to series of litigations once between landlord, tenant and its sub tenants, then between tenant, landlord and sub-tenants and finally between sons of sub-tenants them selves who are now petitioners and opposite parties. One Lokman, admittedly, occupancy tenant, mortgaged hind in dispute with Sahtu, one of whose son is petitioner and the other two are opposite parties. This led to filing of suit under Section 171 of U. P. Tenancy Act by the Zamindarand as transfer of occupancy holding was prohibited under law the suit was decreed. Having got rid of Lokman the Zamindar permitted Sahtu to continue in possession and settled the land with him. In 1947 U. P. Legislature passed Act X of 1947 in order to provide security to tenants and grant relief against illegal ejectment by the Zamindar. Lokman who was aggrieved by his ejectment immediately filed an application for reinstatement against Zamindar and Sahtu who was inducted as tenant. The application was allowed on 28-3-49 and Sahtu was relegated to his earlier status of being a sub-tenant, this time of course not by letting but due to operation of law under Section 27 (3) of Act X of 1947, and to use the language of Full Bench in Prem Singh v. Hart Singh (1973 A. L. J. 912), became immune from ejectment for three years. During this period Sahtu appears to have died and his sons became sub-tenants by inheritance. After expiry of three years in March 1952 Lokman probably being out of possession and having come to know of U. P. Zamindari Abolition and Land Reforms Act I of 1951 counselled it better to sell the land and on 3-6-52 a registered sale-deed was executed by him in favour of opposite parties Nos. 2 and 3. The recital in the deed states about obtaining of permission from Zamindar, a fact which has been subject matter of serious dispute during arguments advanced by learned counsel for parties and is one of the important questions to be decided. In any case Lokman washed off his hand and passed on the legacy of litigation to the brothers. Despite sale-deed names of all three brothers continued till consoli dation, was enforced when opposite parties filed objection under Section 9 of U. P. Consolidation of Holdings Act and claimed that they were sole tenants. This did not appeal to Consolidation Officer as sale-deed was executed by Lokman without obtaining permission from Zamindar. And the permission which was filed before him suffered from defect of not being registered and not proved. The appellate authority did not agree as recital in sale- deed, that it was being executed after obtaining permission made the sale deed above suspicion. As the entire case hinges on validity or invalidity of sale-deed it is not necessary to notice other findings on question of possession etc. To assail the finding of re visional and appellate authority the learned counsel for petitioner submitted that sale of occupancy holding was illegal therefore the opposite parties did not acquire any title under it and the petitioner and opposite parties continued to be sub-tenants and they became asami under Section 21 (1) (c) of Zamindari Abolition and Land Reforms Act. It was also argued by him that even accepting that sale of occupancy could be made with permission of Zamindar the appellate and rovisional authority having not set aside the finding that permission was not registered and not proved committed manifest error of law in allowing opposite parties objection. And the last but most controversial submission was that since permission was obtained and sale-deed was valid it did not affect petitioner's right as sale by Lokman being of part of lease rights there was no merger of superior and inferior rights and the petitioner continued to be asami. Reliance for this was placed on Babu Narayan v. Rammeshwar Dayal, (A. I. R. 1951 S. C. 186 ). The learned counsel maintained that as limitation to eject an asami under Section 21 (1) (c ). was 'one year' from the date of vesting which period no doubt was replaced in 1954 with words 'none' but amendment being not retrospective as held in P. Singh's case and no suit having been filed within one year the petitioner became sirdar under Section 202 (b) of Zamindari Abolition and Land Reforms Act. On the other hand the learned counsel for opposite party attempted to get the orders upheld on decision of this Court in Raghimatlt v Dudhram (A. I. R. 1930 All. 315), and urged that sale of occupancy holding was permissible. The permission by Zamindar was sought to be defended by recital in sale deed and on principle that agreement could be written or oral and even if agreement in writing was proved to be invalid for some reason it could be treated as oral. In respect of acquisition of sirdari rights under Section 204 it was submitted that petitioner could at best be asami from year to year as held by Full Bench. He submit that limitation to file suit no doubt was one year from the date of vesting if cause of action accrued prior to it but as tenancy was never terminated till 1954 when law was amended the petitioner did not acquire sirdari rights. It cannot be disputed that although under Section 33 of U. P. Tenancy Act occupancy holding was not transferable but it was open to Zamindar to enter into an agreement conferring transferable rights on a tenant under sub section (4) of Section 4 of the Act. The question is whether it could be by registered instrument or even otherwise. Section 17 (1) (b) of Registration Act requires any non-testamentary instrument which purports or operate to create any interest to be registered but by sub-section (v) of 17 (2) an exception is created if the documant itself does not create any interest but merely creates a right, to obtain another document which when executed creates any right, title or interest. The agreement contemplated under sub-section (4) does not create an interest by itself. It merely removes the bar imposed by Section 33. Aright or title is created by sale or other document executed in pursuance of agreement. The conferment of right to transfer cannot be considered to be covered under this clause. The permission therefore did not require registration. But in order to be admissible the document should have been proved. Tim recital in sale-deed that permission had been obtained did not make it admissible nor did it dispense with its proof. It may lend support that permission was obtained and it was genuine. But proof and its ad mission are one thing and its authenticity another. The document was to be proved first then question of authenticity was to be examined. The Consolidation Officer found that it was not proved. The appellate authority despite argument that it had been proved did not record any finding nor it set aside the findings that it was not proved and proceeded to decide that it was authentic. In doing so he committed manifest error of law. This was sufficient to dispose of this petition but the Full Bench decision in Prem Singh's case evoked lot of controversy as if sale-deed is held to be valid the question shall arise whether petitioner acquired rights of sirdar under Section 204 of the Zamindari Abolition and Land Reforms Act as no suit for ejectment was filed within one year of the date of vesting. And if the sale-deed is held invalid the question does not lose its significance as both petitioner and opposite parties shall Chen become asami under Section 21 (1) (c) and the question would still be whether they became sirdar under Section 204. Originally when the Act was enforced an asami under Section 21 (1) (c) was liable to ejectment within one year from the date of vesting if the cause of action accrued prior to it. In 1954 an amendment was made in serial 25 (ii) of Appendix III of rules and the word 'one year' was substituted by 'none'. The questions that arose before Full Bench were whether this amendment was retrospective and whether a sub-tenant under Section 27 (3) held laud from year to year within meaning of Section 202 (b) of Zamindari Abolition and Land Reforms Act. It was held that amendment was prospective and a sub- tenant under Section 27 (3) held Land from year to year. The observation of the majority that sub-tenant under Section 27 held land from year to year has been severally criticised. It was urged that in support of its opinion the Full Bench did not rely on any statutory provisions or principle and it is open to same infirmity as was found in judgment of Division Bench in Vachan Singh v. Board of Revenue (1962 A. L. J. 219), namely it was assumed that a sub-tenant held land from year to year. The learned counsel submitted that the majority in the Full Bench did point out right and liabilities of a sub-tenant from year to year and the manner of its determination but it nowhere gave any reason for arriving at conclusion that a sub-tenant under Section 27 (3) held the land from year to year. Whether the argument has substance or not as the opinion was given by the Full Bench it is binding. But it may not be out of place to notice what is meant by a tenant from year to year. A tenancy from year to year is not the same thing as tenant for one or more years. The latter is described as periodic, terminus, fixed term tenancy. One basic difference between the two is that a periodic tenancy is definite and certain and its beginning and end is defined whereas tenancy from year to year is uncertain. The former comes to an end by efflux of time but if the tenant continues in possession either by sufferance or at will and the land holders accepts rent it may give rise to tenancy from year to year, but the latter expires every year. A tenancy from year to year on the other hand continues unless determined by notice. It may arise by agreement but normally it is result of statute and is implied under law for instance Section 116 of Transfer of Property Act. In Halsbury Laws of England 3rd Ed. Vol. 23 page 570 it has been stated; "tenancy from year to year arises either by express agreement or by presumption of law or statute. . . . . . A tenancy from year to year arises by assumption of law where a person who has entered upon premises pays rent with reference to a yearly holding, provided tint there are no circumstances to rebut the presumption. . . . . . The presumption that a person in possession and paying rent on a yearly basis has a tenancy from year to year may be rebutted, for example by proving from the circumstances and conduct of parties an intention that the occupier should only be licensee of a statutory tenant or that a new contractual tenancy should be created. " In American Jurisprudence 2nd Ed. Vol. 49 page 46 tenancy has been described: "thus it has been said that all leases for uncertain terms are, prima facie leases at will, it is the reservation of annual rent that terms them into leases from year to year. " In U. P. Tenancy Act sublease could be created under Sections 39 and 40 of the Act. There was no provision for tenancy from year to year although Sections 57 and 175 did contemplate that a tenancy from year to year could be created. But that could be by agreement and not under any provision of the Act. It was for the first time that under proviso to sub-section (3) of Section 27 of U. P. Act X of 1947 a tenant inducted by Zamindar and found liable to ejectment was declared to be sub-tenant and immune from ejectment for three years if he was not a servant or relation of the landholder. The proviso determined the rent to be paid as well. The tenancy thus created was-not by agreement of parties but by operation of law therefore its nature could be determined from the statute itself. It came to end after three years giving option to landholder to eject. Leaving the discussion on this question as the opinion of Full Bench is binding it may now be seen whether the tenant under Section 27 (3) of U. P. Tenancy Act who held land from year to year as held by the Full Bench and became Asami under Section 21 (1) (c) of U. P. Zamindari Abolition and Land Reforms Act could be considered to be an asami from year to year. On this the Full Bench is silent although it has been observed in paragraph 27: "this controversy was set at rest by a Full Bench of this Court in Aziz Alam v. Deputy Director Consolidation, S. N. Dwivedi J. referring to entry 25 (ii) of Appendix III held that where the sub-tenant holds land from year to year the cause of action will arise only when the landholder has determined the lease. In such a case time would run from the day on which the lease ceases to have effect. If no suit is instituted within limitation the asami would become a sirdar. Thus a suit for the ejectment of an asami holding from year to year will not become barred by time on 1st July, 1954, unless the landholder has determined the tenancy more than one year prior to that date. " From these observations it can legitimately be argued as has been done by learned counsel for opposite party that an asami under Section 21 (I) (c) holds land from year to year and he is not liable to ejectment unless his tenancy is determined by landholder. But this was not the question referred nor did the Full Bench record its opinion on it. The decision therefore on this aspect direct or by inference cannot be accepted as binding. In Rana Sheo Amhar Singh v. Allahabad Bank Ltd, (A. I. R. 1961 S. C. 1790), it was held that tenureship created under Zamindari Abolition and Land Reforms Act is not continuance of old tenancy but creation of new rights. Section 21 enumerates various classes of persons who held land on the date of vesting in various capacities and declared that such persons shall be asamis Section 133 provides that asamis under the Act shall have the right and liabilities given in the Act. There are various sections defining these rights and creating liabilities, for instance Section 146 which confers right of exclusive possession; Sections 156 and 157 empower an asami to let out his holding during disability or the recognised institution; Section 184 authorises an asami to acquire sirdar rights etc. Similarly an asami is not entitled to transfer, gift or will, is liable to ejectment and execution of bhumidhari or sirdari into rest under whom he holds operates to extinguish his rights etc. But none of these sections give the slightest inkling that he holds land from year to year. Even under U. P. Tenancy Act there was no tenant, sub-tenant or non-occupancy tenant from year to year as a matter of law. It all depended on terms of contract and agreement. It is therefore not possible to accept that an asami under Section 21 (1) (c) holds land from year to year. The contention further stands negatived by Section 21 (2) which provides that an occupant of grove land shall be an asami from year to year. The Full Bench itself repealed the contention that merely because an asami under Section 21 (2) held land from year to year it shall be deemed that asami under Section 21 (1) also held land from year to year. The learned counsel for opposite parties argued that Section 202 (b) provided two conditions for ejectment of an asami one that he shall be an asami under Section 21 (1) (c) and the other that he should have held land from year to year. The argument overlooks all the parts of sub-sections which haye to be read as one. It enumerates various classes of asamis under Section 202 (b) and provided that they shall be liable to ejectment if they held land from year to year or the period of lease had expired etc. As in the class of asamis who are liable to ejectment under Section 202 (b) asamis of Section 21 (2) is also mentioned the words year to year appear to apply to it only as under Z. A. and L. R. Act there is no other asami who holds land from year to year except the one which may be created by Land Management Committee. Moreover Section 202 provides procedure for ejectment. It cannot throw any light on the controversy whether an asami under Section 21 (1) holds land from year to year or not. That has to be found from Section 21 itself. And as none of the asamis under Section 21 (1) have been declared to hold land from year to year the argument of learned counsel cannot be accepted. In the result this petition succeeds and is allowed. The order passed by Deputy Director is quashed. He is directed to decide revision afresh in light of observation made above and in accordance with law. He shall decide whether permission obtained from Zamindar has been proved in accordance with law. The parties shall bear their own costs. .