BHOLU KHEMA GUJAR Vs. CHHAJJULALSA

JUDGEMENT

(1.) 1. It has been established that the field in suit has been recorded as the sir field of the plaintiff-respondent at the last two settlements. That being so, it is clear that the appellant could not acquire occupancy rights in the field and that under Section 37 (2) (b). Tenancy Act, he must be deemed to be a subtenant of the land. Consequently under Section 38 of the Act he can only hold on such terms as may be agreed upon between him and the landlord. The plea raised by the appellant and the other defendant in the suit that there has been a permanent lease in their favour has been found against them by the lower appellate Court. That is a finding of fact, and as such is now conclusive. The contention that the record of the land as sir was ultra vires need hardly be seriously considered. The power to record land as sir rests solely with the revenue authorities, and the only remedy, which a person aggrieved by an entry of land as sir at a settlement has, is to institute a suit within one year of the date on which assessment is offered to the proprietor under Section 68 (5), Land Revenue Act. Admittedly no such suit was brought by the appellant, and the entry of the land as sir is now conclusive and final. The learned Counsel however who appeared for the appellant raised a further argument relying on a case reported in Liladhar v. Moolchand (1928) 109 IC 513 that the entry of the land as sir was made at the last settlement, which was held in 1913, and was therefore under the previous Land Revenue Act of 1881 and also at a time when the previous Tenancy Act of 1898 was in force. It was argued therefore that Sections 37 and 38 of the present Tenancy Act of 1920 did not apply and that under Section 69 (c) of the Act of 1898 a tenant whose holding consisted entirely of sir land was considered an ordinary tenant. It was further argued that, as the class of ordinary tenants has been abolished by the present Tenancy Act of 1920, such tenants would now become occupancy tenants.

(2.) THERE is however a clear fallacy in the argument inasmuch as it first of all supposes that the provisions of Sections 37 and 38 of the present Tenancy Act shall not have retrospective effect, which is no doubt correct, but goes on to hold that the further provisions of the present Tenancy Act of 1920, abolishing the class of ordinary tenants, shall have retrospective effect and that the tenants who were classed as ordinary tenants at the time the present Act came into force should ipso facto become occupancy tenants. That is no doubt the general rule, but it surely cannot be meant to be enforced with regard to that special class of ordinary tenants whose holding consisted entirely of sir lands. If the appellant then takes his stand on the Tenancy Act of 1898, he must be judged under that Act and according to Section 69 (c) of the Act he can, as an ordinary tenant, be ejected from his holding on the ground that the holding consists entirely of sir land. If, on the other hand, he wishes to rely on the provisions of the present Act of 1920, he must be judged under Sections 37 and 38 of that Act. I am of opinion therefore that, whether the appellant be considered an ordinary tenant under the Act of 1898 or a sub-tenant under the present Act of 1920, he is liable to ejectment and that the decree of the lower Courts is correct. It is true that the appellant has been in possession for a great number of years, but that will not give him any title or right to continue in occupation in the absence of a permanent lease in his favour. The suit has been rightly decided and I dismiss the appeal. Costs of the appeal will be borne by the appellant. Other costs as ordered by the lower appellate Court.