DINA NATH Vs. GOGI

JUDGEMENT

(1.) THIS is a revenue second appeal. The appellants before me constitute the landlords who preferred a suit in ejectment against the respondents -tenants on the ground that they required the land in question for their personal cultivation. The tenants resisted the suit, inter -alia, on the ground that the suit was incompetent and that the only remedy of the landlords was to prefer an application as contemplated by S.49 of the Tenancy Act. This plea did not find favour with the court of first instance. However on appeal the Collector upheld that plea and held that the suit was not competent but that the landlords only remedy was by way of an application under S.49 of the Tenancy Act. The landlords who are aggrieved by this order have now approached this court.

(2.) THE short point for determination in this appeal is whether the landlords have to file a suit or whether their remedy is to prefer an application under S.49 of the Tenancy Act. Before dwelling upon this point, I should refer briefly to the fact that the suit was instituted in the year 1959, the appellants having purchased the landlords interest some time in September 1958. This circumstance takes us directly to the point for determination, though from a slightly different but non -the -less effective angle. Can a landlord who brings a suit in the year 1959 on the ground that he requires the land for his personal cultivation invoke the provisions of S.49 of the tenancy Act? S. 49(1) of the Tenancy Act requires a landlord to apply for resumption of the land for personal cultivation within six months from the date the Jammu and Kashmir Tenancy (Amendment) Act, 1955, came into force. This amending Act was published in the Government Gazette on 9th December, 1955 and therefore it must be held to have come into force on that day. Therefore an application under S. 49(1) is required to be filed on the terms of that section on or before the 9th June 1956. No doubt there is a proviso which enables a landlord on proving the existence of sufficient cause for not making the application on or before 9th June 1956 to get the delay on his part condoned. This proviso does not in any manner nullify the substantive provision ; on the other hand it emphasises the substantive provision by affirming the period of six months provided in that section, unless and until a landlord is able to satisfy the concerned authority that the statutory concession accorded to him under the first proviso to that section is available to him on his being able to satisfactorily establish that there was sufficient cause for the delay in preferring the application. S. 49(1) as it stands does not permit of the interpretation that it is a permanent section which has to be resorted to by every landlord who invokes at any time the ground of need of land for personal cultivation. Suppose a landlord acquired land, as in the instant case, much after 1956. Or suppose the very need for self -cultivation arose in the year 1962. Could it be said that such a landlord also falls within the purview of S. 49(1) ? To answer this in the affirmative would be to strain unduly the plain term of S. 49(1) and also to pervert the intention of the legislature which can be gathered from the provisions of the Act. The fact of the matter seems to be that when the legislature made somewhat drastic changes by Act XII of 1955, it also had to make corresponding provisions for mitigating the rigour of the amendment. Thus when S. 47(2) said that all suits for ejectment pending on the date of the commencement of Act XII of 1955 on any of the grounds other than those specified in clauses (a) to (d) of S. 44(1) would abate, the legislature had in fairness to the landlord to make another provision for securing to the landlords the remedy for which they had brought those suits. This remedy is provided in S. 49(1) of the Tenancy Act. This is the reason why I am inclined to say that S. 49(1) cannot be said to be a permanent provision of the Tenancy Act. It was intended to be invoked only by those who are hit by S. 47(2). It may be that such persons who needed the land for personal cultivation on or before 9th June 1956 could also have taken advantage of S. 49(1), but to say that persons who acquired the land after 9th June 1956 or had the need to evict the tenant for self -cultivation thereafter would also have to proceed under S. 49(1) seems to be plainly to misread that section and divert its purpose to something for which it was never intended. Support for this view appears to come from the provisions of S. 44(1)(e), and more especially from the provisions of S. 85(1) First group (3) (d). If it was intended that there should be no suits at all filed in the revenue courts, if the landlord required the land for his own cultivation, nothing was easier for the legislature than to say so in express words. But in the case of a Tenancy Act such an intention is not expressed even by reasonable implication. When S. 85(1) First Group (3) (d) says that a suit for ejectment of a tenant by a landlord has to be filed in a revenue court, it is difficult to say how it is not intended to cover the present class of suits. To point to S. 84(1) First group (d) does not seem to be a sufficient answer. This provision is obviously intended to cover, amongst other things, applications which were contemplated by S. 49(1). But to cases where S. 49(1) has no application, the provisions of S. 85(1) First group (3) have obvious application.

(3.) I am thus satisfied that the landlords in the present case had pursued the proper remedy by instituting the suit in the revenue court for ejectment of the tenants. The Collectorâ„¢s view that a suit will not lie but the landlords were obliged to file an application under S. 49(1) does not seem to me to be tenable from any point of view. This second appeal is therefore allowed and the decision of the Collector is reversed. The case will go back to the Collector for being disposed of on merits in the light of the observations made above and according to law. Costs in this appeal will abide and follow the result of the case in the Collectorâ„¢s court.