S FAKHRUDDIN HUSAIN Vs. ABDUL WAHID

JUDGEMENT

(1.) This appeal arises out of a suit under Section 92, Agra Tenancy Act (Act 3 of 1926) for the ejectment of the defendant-respondent from old plot 70 corresponding to the present plot 101 in village Harwara. It is now common ground that the plot is situated within the zamindari of the plaintiff-appellant and that there existed a grove on the said plot of which the defendant was recorded as a rent free grove holder. The plaintiff alleged that five or six years before the date of the suit the trees of the grove had been out away and the grove lost its character as such and that since then the position of the defendant was that of a non-occupancy tenant and he was therefore liable to ejectment. The defendant contested the suit on various grounds, but the only ground which found favour with the lower Appellate Court, and with which I am concerned in the present appeal, was that the defendant had acquired a prescriptive title to the plot in dispute by adverse possession for more then 12 years and accordingly was not liable to ejectment. This contention of the defendant was overruled by the trial Court but given effect to by the lower Appellate Court. The lower Appellate Court has found as a fact that the grove ceased to exist about 20 years before the date of the suit and since then the defendant has been cultivating the plot without payment of rent to the plaintiff, appellant. On the basis of this finding, the lower Appellate Court in view of the provisions of Section 197(a), Agra Tenancy Act, (Act 3 of 1926), held that from the date that the grove lost its character as such, the position of the defendant became that of a trespasser and as he had been in possession for more then 12 years since that date, he could not be treated as a non-occupancy tenant and was not liable to ejectment. I am unable to agree with the lower Appellate Court. It is provided by Section 197(a) of the Act that: It shall be presumed that a groveholder holds the land in respect of which he is groveholder aa a non-occupancy tenant under a lease the term of which will expire when the land ceases to be groveland.

(2.) In view of this provision, it must be held that the defendant held the land in dispute as a non-occupancy tenant under a lease the term of which expired 20 years before the date of the institution of the suit giving rise to the present appeal. The question however remains whether the defendant's status as a non-occupancy tenant ceased from the date when the land in dispute ceased to be groveland or his position continued to be that of a non-occupancy tenant. I am not aware of any provision in the present Agra Tenancy Act by virtue of which a non-occupancy tenant holding over after the expiry of a lease ceases to be a non-occupancy tenant. Under the former Agra Tenancy Act (Act 2 of 1901) a non-occupancy tenant by cultivating his holding for a period of more then 12 years could acquire occupancy rights. There is no such provision under the present Tenancy Act and in accordance with the present Act a non-occupancy tenant cannot by any length of cultivation acquire occupancy rights. In other words under the present Act once a non-occupancy tenant is ever a non-occupancy tenant. It is clear from the provisions of Section 197 that the status of a groveholder is that of a non- occupancy tenant. There is no doubt a provision in the Section that a groveholder is to be deemed to be holding under a lease for the period for which the land retains the character of a groveland. This provision has been enacted by the Legislature with a view to ensure that a groveholder will not like other non- occupancy tenants be liable to ejectment from the groveland so long as the grove continues to exist, but in my judgment it does not follow from this provision that the moment the grove ceases to exist the tenancy ipso facts comes to an end and the groveholder becomes a trespasser from that moment.

(3.) It appears to me clear from Section 86 of the Act that a non-occupancy tenant holding under a lease which has expired or will expire before the end of the current agricultural year in which the suit is brought is liable to ejectment on the application of the landholder. This shows that a non-occupancy tenant who continues in possession of his holding after the expiry of a lease continues to be a non-occupancy tenant. It may be argued that as in Section 86 after the words a lease there is a comma and then follow the words "or for a period, which has expired, or will expire" the latter words do not govern the words a lease in the Section. In my judgment however there is no substance in this contention for the simple reason that the Legislature could not have intended that a non-occupancy tenant holding under a lease could be ejected before the expiry of the period of the lease. It follows that the words "expired or will expire" govern the words a lease in the said Section. The conclusion is therefore irresistible that a non- occupancy tenant whether holding or not holding under a lease is liable to ejectment at the instance of the landholder, even though ha may have continued in possession of the holding for a period of more then 12 years after the expiry of the term of a lease. That it is so is put beyond doubt by serial No. 11 of ground B of Sofa. 4 to the Agra Tenancy Act which provides that there is no period of limitation for the ejectment of a non-occupancy tenant from his holding. The lease under which a groveholder is presumed to hold as a non-occupancy tenant no doubt comes to an end when the grove ceases to exist, but even thereafter his position continues to be that of a non-occupancy tenant and he is therefore liable to ejectment at the instance of the landholder. The mere non payment of rent by him cannot affect his status as a non-occupancy tenant. I there, fore hold that the defendant continued to be a non-occupancy tenant and was liable to ejectment. The view that I take is in consonance with the decision of the Board of Revenue in Risal V/s. Ghasita (1934) 15 L.R.A. Rev. 283.