RAMKRISHANDAS JAMUNADAS Vs. SHANKARPURWALI RAMHANS

JUDGEMENT

(1.) THE applicant, who is a Pucca tenant of the suitland applied under section 76, M.B. Land Revenue and Tenancy Act for the ejectment of Ramhans, non -applicants' predecessor -in -title on the ground that the non -applicant -defendant was continuing in possession in spite of applicant -plaintiff's having asked him to vacate the land. The applicant also pleaded in his plaint that he is a blind person and that his disability had been determined because his sons had become major and could cultivate the land. The Tahsildar, after discussing the evidence on record, came to the conclusion that the relationship of tenant and sub -tenant between the parties had been established and that this relationship had commenced prior to the coming into force of the M.B. Land Revenue and Tenancy Act, i.e., prior to 15 -8 -1950. The defence plea was that the period of the defendant's Patta had not expired; but as the defendant was unable to produce the Patta, the Tahsildar drew an adverse inference against him and held that since on the date he passed the order, four years' period had passed after the commencement of the Tenancy Act, the defendant was liable to be ejected. He accordingly decreed the plaintiff's suit. The defendant went up in appeal to the Sub -Divisional Officer who stayed the ejectment proceedings in accordance with the provisions of the M.B. Ryotwari Sub -lessees Protection Act, 1955 (hereinafter called the Protection Act). Against the order of the Sub -Divisional Officer, applicant -plaintiff filed a second appeal to the Commissioner who set aside the order of the Sub -Divisional Officer and remanded the case to the Tahsildar for further enquiry as to whether the Patta in favour of the defendant was issued prior to 15 -8 -1950 or subsequent to that date. The learned Commissioner took the view that since the plaintiff's case fell under section 74 or section 78 of the Tenancy Act, the provisions of section 3 of the aforesaid Protection Act cannot be applied unless it is established that the sub -lease was created subsequent to the commencement of the Tenancy Act. It is against this order that the applicant -plaintiff has filed the present revision.

(2.) THE order of the learned Commissioner is patently wrong. The Tahsildar's order shows that there is no doubt that the sub -lease in question was created prior to 15 -8 -1950, the date of the commencement of the Tenancy Act. This is also clear from the pleadings of the plaintiff himself where it is stated that the rent for the past 6 years (the date of the plaint being 19 -3 -1953) had not been paid by the defendant and that he should have vacated the land after the commencement of the Tenancy Act. In view of these facts, there was no necessity to remand the case to ascertain whether the lease was prior to the commencement of the Act or not.

(3.) IT is true that if the applicant -plaintiff is a disabled person, section 3 of the Protection Act would apply only if it is shown that the disabled person had created the sub -lease after the commencement of the Tenancy Act. If this is shown, the sub -lessee would not be protected and can be ejected irrespective of section 4 of the Protection Act. But, on the plaintiff's own showing, he cannot take advantage of section 74, firstly, because the sub -lease was created before the passing of the Tenancy Act and, secondly, even if it is assumed that the lease was created after the Tenancy Act, the applicant -plaintiff's disability cannot be said to have determined just because his sons had become major, and, as the Tahsildar has correctly pointed out, this disability can be determined only after a blind man regains his sight, or, after his death. The applicant -plaintiff's case cannot rest on two contradictory pleadings. On the one hand he claims ejectment of the defendant under section 76 and on the other he seeks advantage of the provisions of section 74. The relief under these two sections is intended for two different types of sub -leases. Section 74 deals with lease by a disabled person created after the commencement of the Tenancy Act and section 76 deals with sub -lease created prior to the commencement of the Tenancy Act. In view of the stand taken by the applicant -plaintiff in his pleadings, it is clear that his case falls within the ambit of section 76 and not section 74 or section 78.