BANKELAL Vs. SANT SHARAN

JUDGEMENT

(1.) THIS is an appeal u/s 23 of the Madhya Bharat High Court of Judicature Act corresponding to clause 10 of Letters Patent from the decision of the Single Bench (Mr. Justice B.K. Chaturvedi) dismissing defendant's (ex -tenant's) appeal against a decree of eviction from land leased out by him from the plaintiff -respondent, for a non -agricultural purpose, that is, for building a factory. The latter had in his own turn filed a cross -appeal in regard to the profits and compensation, but there is no certificate or special appeal on his behalf. The questions for decision are, firstly, whether the Single Bench is correct in holding that this decree is not affected by the subsequently enacted S. 12 of the Sthan Niyantran Vidhan (Accommodation Control Act) (Act 15 of 1950) (Samvat 2006) more precisely whether the word "tenant" in that Act, should be understood to include an ex -tenant who bad, even before the commencement of that Act become one by sufferance, who is no better than a trespasser. Secondly, whether and to what effect at all the appellants can be heard in the Special Appeal to urge that in view of the operation of the Zamindari Abolition Act, the plaintiff lessor, has ceased to be the landlord and, so has no interest in pursuing the litigation for eviction of the lessee from this land. It may be noted even here that the second ground definitely bars the appellant from asking for the benefit of S. 12 of the said Act, even if it is otherwise available to him. Because, a tenant who denies the title of the landlord is to be deemed unwilling to pay rent to him, which, in any view of the matter, is an essential condition for the application of S 12 of the said Act.

(2.) ASSUMING that the claim on the first issue is not neutralised by the stand on the second, the appellant is to a considerable extent supported by the F.B. decision of the M.B. High Court in Bhagwan Das Vs. Ram Chandra, 1954 M.B.L.J. 616. The single Judge who has certified this special appeal was also on the Full Bench and while agreeing with his brothers in that case, has expressly stated that the principles governing the Full Bench decision were not in his view applicable to the present case, which he had disposed of earlier, and which in fact was the reason why another single judge thought fit to make a reference to a Full Bench we have not; made a reference to another Full Bench because we assume that a F.B. decision of the now defunct M.B. High Court is persuasive, and is to be given due consideration, but is not binding, and it is open in appropriate cases for a Divisional Bench of the new Madhya Pradesh High Court to differ from it. This view is accepted by counsel on both sides in this appeal. Nor do we question in any manner the applicability of that ruling (following Karnani Industrial Bank Ltd. Vs. Satya Niranjan Shaw, 1928 P.C. 227 to cases where the ex -tenant's tenancy was terminated by lapse of the time or; otherwise, after the commencement of the Act.

(3.) ON that date Sthan Niyantran Vidhan (Act 15 of 1950) came into force. It defines 'tenant' in the same terms as is usual in such enactments of restriction, "Tenant means a person by whom rent is, or but for a contract express or implied would be, payable for any accommodation and includes any person occupying this accommodation as a sub -tenant." Clearly the liability to pay rent being the essence of the definition, it excludes a trespasser or tenant by sufferance. On the other hand, the difficulty experienced by those giving effect to restrictive statutes has been that on a strict interpretation of this word 'tenant' the very purpose of the enactment might to a considerable extent fail. The single bench was of the view that the appellant was not a tenant for the purpose of this enactment, and, therefore, should not claim the benefit of Sec. 12 which runs thus: -