SOMAN Vs. KEDAR NATH

JUDGEMENT

(1.) This appeal arises out of two suits instituted by Kedar Nath, plaintiff-respondent, for recovery of possession over a number of plots in village Kundri and for damages. One of them was against Soman and three others and related to nine plots measuring 3.15 acres and Rs. 400 damages. The other was against Soman alone and related to two plots measuring 4.9 acres and BS. 200 damages. The plaintiff claimed to be a hereditary tenant of the lands in suit. He characterized the defendants as trespassers who had entered into occupation since 1351F. The defendants contended that they were sub-tenants of over thirty-two years standing since the time of plaintiff's cousin, Indarjit, and that the plaintiff took over the plots from the aforesaid tenant-in-chief under some arrangement in 1351 and acknowledged the defendants' sub-tenancy on the same rent as before, namely, ES. 61 per annum; and that the suit for possession and damages was not maintainable in the civil Court. The issue of subtenancy was referred to the revenue Court and was decided both by that Court and the Court of appeal against the defendants' contention. The Courts below also agreed in deciding the other issues against the defendants. The latter have come up now by way of second appeal.

(2.) The appellant's learned counsel has raised two contentions on behalf of his clients :

(3.) The second contention, in my opinion, has no force. Section 47 (4) makes an exception to the general rule enunciated in Sub-section (1) in favour of sub-leases made after 1st January 1902. It lays down that if a tenant-in-chief surrenders or abandons a holding or dies without leaving an heir, all covenants of the sub-lease shall he binding and enforceable as between the tenants landholder and the sub-tenant for the remainder of the term of the lease or for five years whichever period may be shorter, on the rent on which he held under the tenant or at the rent at which the tenant held the land if that rent be more than the rent paid to him by the sub-tenant. The defendants have failed to prove that they were sub-tenants with any unexpired period of tenancy. The utmost length to which it may be possible to go to uphold their rights is that they were sub-tenants from year to year of Indarjit who surrendered the holding in 1851F, corresponding to 1942-43. It follows that their sub-tenancy came to an end with the surrender. Section 295-A merely provides that all subtenants would be entitled to retain possession over their holdings for five years from the date of commencement of the Amending Act 10 of 1947. The section could have no operation so far as tenancies already extinguished are concerned.