SANT SHARAN Vs. BANKELAL RAMLAL

JUDGEMENT

(1.) H .R. Krishnan, J This is an appeal under Section 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 Section 12 of the Sthan Niyantran Vidhan (Accommodation Control Act) (Act 15 of 1950 Smt. 2006); more precisely whether the word ''tenant" in that Act, should be understood to include an ex -tenant who had, 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 Section 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 Section 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 Dass and Ram Chandra (1954 MBLJ 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 bad 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. v. Satya Niranjan Shaw and Anr. AIR 1928 PC 227) to cases where the ex -tenant's tenancy was terminated by lapse of the time or otherwise, after the commencement of the Act. The relevant facts are undisputed. There is a spacious plot of land within the Municipal area of Morena, belonging to the Plaintiff -Respondent and used by him as well as the Defendant for building purposes. Whether originally it was agricultural or abidi is purposely left open. There is insufficient material for this, and an answer is unnecessary for the decision of this case, and proceedings in this regard are likely between Government and the ex -Zamindar. Part of it, about 3 local bighas, was leased out to the Defendant for a 12 years term by a deed dated 30 -2 -1933, for the purpose of fitting tip an oil mill; there is no controversy about the location, area and the rent, or about the express provision that on the termination of the lease, the lessee should remove all the materials and leave the land in its original condition. The lease itself commenced on the 10th April of 1933 and was determined by lapse of time on the 10th April 1945. In July 1944 itself the then landlords (that is the sons of Ladli Prasad the original lessor) noticed the lessee that they did not intend to extend the term of the lease and called upon him to vacate the land and take away all the materials in time. Another notice was served later on repeating the request and demanding delivery of possession. When this too failed a suit was filed on 9 -2 -1947 for eviction and for damages and compensation. It is to be remembered that on the determination of the lease, the lessee became a tenant by sufferance, one for all purposes equivalent to a trespasser, nor was there any law at that time which could possibly give him rights to stay, or to arrest for the time the remedies open to the lessor. On various grounds, the Defendant managed to drag on the suit, till it was disposed of by a decree against him on 21st Jan. 1950. From this he appealed to the High Court on 9 -2 -1950; on grounds, which could not include either of the two grounds of the present special appeal.

(3.) DETERMINATION by lapse of time is not one of the grounds in Section 4. The appeal itself came up for hearing on 3 -12 -1953. Between the filing of the appeal in 1950 and the hearing, the M.B. Zamindari Abolition Act (No. 13 of 1951) had come into force on the 2nd October 1951. On that date the counsel for the Appellant filed a petition that he wanted to raise additional grounds, the first based on Sthan Niyantran Vidhan and the second on the Zamindari Abolition Act. The first was certainly argued out and as already mentioned dealt with in the judgment. The second, however, was as expressly stated by the single Bench to have been given up by the counsel for the Appellant. So there is no discussion or even mention of this ground in the judgment; possibly counsel was guided by the incompatibility between the two grounds. The appeal was dismissed. Soon after this judgment on 4 -1 -1954, a similar case came up before another single Judge (Mr. Justice Dixit) who felt that the decision in the present case notwithstanding, the question was a complicated one and that there should be an authoritative decision, as to whether the word 'tenant' in the definition of Sthan Niyantran Vidhan should not be given a special meaning so as not to nullify the obvious purpose of the enactment. This led to a Full Bench ruling in which the 3 Judges have each recorded a separate judgment coming to the same conclusion but on different grounds; the single Judge who disposed of this appeal, making it clear at the same time, that this was not comparable to the case before the Full Bench.