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TMI Blog1961 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... first-party) in this court, from, 1 katha of land with some tatti structures standing on it, on the north-western corner of plot No. 27, appertaining to khata No. 53 in Ward No. 1 of Supaul town, which has a total area of 5 kathas. Defendant-respondent No. 1 is a Dhobin, and defendant-respondent No. 2 is her son. I shall henceforth refer to them in the course of this judgment as the defendants because they have mainly contested the case. 3. Admittedly, one Chakrapani Singh held plot No. 27, which consisted of a residential house and compound, as a raiyat. After his death, his sons, Tribeni Prasad Singh and Baldeo Prasad Singh, succeeded him, Shrimati Jageshwari Kumari (defendant No. 4) and Shri Kameshwar Prasad Sinha (defendant No. 5), both being defendants-second party, are the successors of Tribeni and Baldeo, and they held the plot in equal shares. Under three registered sale deeds, dated the 19th August, 1950, the 28th December, 1951, and the 6th December, 1952, the plaintiff acquired the plot in its entirety from defendants Nos. 4 and 5. They gave notice to quit to the defendants, and thereafter applied to the House Controller under the Bihar Buildings (Lease, Rent and Evict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of the Transfer of Property Act or the Bihar Tenancy Act because, under Section 107 of the Transfer of Property Act, a lease for more than a year can only be made by a registered instrument. A valid permanent lease could not, therefore, be created by means of an oral settlement or even by means of an unregistered document (exhibit D-1) if the Transfer of Property Act applied. That this is the correct legal position has not been challenged before us. 7. The point which Mr. Lalnarayan Sinha has canvassed on behalf of the appellants is that the Subordinate Judge is wrong in holding that the nature of the tenancy, held by Chakrapani Singh and his successors will govern the sub-lease alleged to be held by the defendants. He has contended that the purpose for which a lease, or even a sub-lease, is created must determine the applicability of the Transfer of Property Act or the Bihar Tenancy Act, and that the cases in which it has been laid down that the applicability of One Act or the other to a sub-lease will depend upon the nature of the head lease have been wrongly decided. Mr. Thakur Prasad, who has appeared on behalf of the defendants, has argued that the decisions which lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that Chapter V of that Act, which deals with leases, does not, in the absence of a notification issued by the State Government, "apply to leases for agricultural purposes". This provision makes it manifest that, it a lease, which certainly includes a sub-lease, is for a purpose other than agricultural purpose, the Act will apply. It would be a violation of the provisions of this section to hold that a sub-lease granted for an agricultural purpose will be governed by the Transfer of Property Act simply because the person who has granted the sub-lease held the land as a lessee under that Act. Conversely, it would, in my judgment, be against the plain meaning of this section to hold that a sub-lease created for a purpose other than agricultural purpose would not be governed by the Transfer of Property Act but by the Bihar Tenancy Act simply because the original Tenancy was governed by the latter Act. There is nothing in any provision in either of the two Acts to suggest that rights and obligations of a sub-lessee would be the same as those of the tenant under the original or head lease. 11. I may give some illustrations. Suppose a proprietor gives a thika lease of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of the legal position lacks precision. It is true that the Transfer of Property Act does not apply to leases for agricultural purposes; but it is not true to say that it would not apply to lands simply because they are agricultural lands. The second ground is that had the conclusion been otherwise, the result would be anomalous. He has explained this by saying that the rights and obligations as between the landlord and the raiyat would be regulated by the Tenancy Act, and that it was difficult to suppose that the rights and obligations as between the raiyat and the under-tenant would be regulated by a different Act. With great respect, I am unable to see the anomaly. Each transaction must be regulated by the appropriate enactment. In the illustration about the thika lease, which I have given, the original lease is governed by the Transfer of Property Act; but there is no difficulty in holding that the Bihar Tenancy Act is applicable to the sub-lease. There would be no anomaly. I may add that, as his Lordship has stated, the Tenancy Act has been passed for the protection of raiyats and under-raiyats. A raiyat is a tenant who holds land for cultivation by himself. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amsuddin AIR 1942 Cal 330. That decision appears to me, however, to be distinguishable. The tenancy was originally created for agricultural purposes; but, subsequently, the defendant, who was the raiyat, used a major portion of her holding for residential purposes. It was held that the tenancy being one entity and one portion of land out of the holding being still used for agricultural purposes, the tenancy could not cease to be governed by the Tenancy Act. The facts of that case are thus quite different and it has no application to the present case. 17. There are, at least, three decisions of the Calcutta High Court in which the views expressed in 8 Cal WN 454 (supra) and cases in which that case has been followed have been adversely commenced upon. In Arun Kumar Sinha v. Durga Charan Basu AIR 1941 Cal 606, B.K. Mukherjea and Roxburgh, JJ. followed 8 Cal WN 454 (supra) on the ground that the principle laid down therein had been accepted for a long time and had not been dissented from; but they observed that, had the matter been res integra, they would have hesitated in accepting the views expressed in that decision and in other decisions which followed it. Their Lordships have ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed, has stated : "However strong our dissent may be from that proposition taken as a general proposition of law, it is too late in the day to question the actual decree made in that case, seeing that that case has been followed so long, and to decide cases exactly of the type in 8 Cal WN 454, in a different way. But as the case before us is of the converse type we are free to hold otherwise. In passing, we may however say that it is not quite apparent to us what anomalies would result if by reason of the purpose of the tenancy the head lease were to be governed by the Transfer of Property Act and the sub-lease by the Bengal Tenancy Act". 19. Mitter, J. has observed that, if, as stated by their Lordships in AIR 1941 Cal 606 (supra), a tenant under a raiyat has to be held to be an under-raiyat, whatever the purpose of his tenancy may be, the actual decision in 8 Cal WN 454 (supra) may be supported. He has not agreed with this proposition, and I may say with respect that, as Section 4 (3) does not define but merely gives as one of the attributes of an under-raiyati that he must hold his land under a raiyat, it cannot be accepted as correct. His Lordship has further o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endants was not created for agricultural purposes, the Bihar Tenancy Act applied to it simply because the original holding, out of which the sub-tenancy was carved out, was an agricultural holding, and that defendant No. 2 was consequently an under-raiyat. No ground has been given in support of this conclusion, nor has reference been made to any case in which this has been laid down. 23. In AIR 1949 Pat 444, the original tenancy was governed by the Tenancy Act. One plot out of that holding was given in sub-lease for building purposes. Following the decision in AIR 1942 Pat 71 (supra), it was held that, if the head lease was governed by the Tenancy Act, the sub-lease must also be governed by the same Act, irrespective of the purpose for which it was created. Reliance has also been placed in that decision upon the cases of 8 Cal WN 454 (supra) and AIR 1941 Cal 606 (supra). The only ground which Meredith, J., with whom Agarwala, C. J. agreed, has given is that the definition of 'raiyat' in Section 5 shows the purpose for which he must acquire a right to hold the land; but no such purpose has been mentioned in the definition of 'under-raiyat' in Section 4 (3). Referrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed in the course of his judgment: "A farming lease, therefore, is evidently not a lease for agricultural purpose and the lessee cannot be a tenure-holder under the Bengal Tenancy Act which was enacted only for agriculturists and those concerned in agricultural operations". He has also stated : "Strictly speaking, it will not be correct to say that even though the lease be not an agricultural one, yet it may be governed by the Bengal Tenancy Act, if the lessee is a tenure-holder in the sense in which the term is defined in the Bengal Tenancy Act. A person is not a tenure-holder under the Bengal Tenancy Act unless he is a tenant as defined in the Act and he is not a tenant unless he holds land for agricultural purpose". Just as a person cannot be a tenure-holder unless he is a tenant, a person cannot be an under-raiyat unless he is a tenant because, under Section 4 of the Bihar Tenancy Act, tenure-holders, raiyats and under-raiyats are all different classes of tenants. If, as stated by Fazl Ali, C.J., a person cannot be a tenant unless he holds land for agricultural purpose, a person cannot be an under-raiyat unless he holds his land for that purpose. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "Where the terms of a statute or ordinance are clear then even a long and uniform course of judicial interpretation of it may be overruled, if it is contrary to the clear meaning of the enactment; but where such is not the case, then it is our duty to accept the interpretation so often and so long put upon the statute by the Courts, and not to disturb those decisions ....." 33. The observations made in the cases referred to above lay down the true principle, and, keeping them in view, the position is that Section 117 of the Transfer of Property Act has been ignored in the decisions in which it has been held that the applicability of the Tenancy Act or the Transfer of Property Act to a sub-lease depends upon the nature of the original lease. Section 4 (3) of the Tenancy Act has been wrongly held to define the word 'under-raiyat'. The whole purpose of the Tenancy Act is to regulate the rights and obligations of agriculturists, and it is clear that a person cannot be an under-raiyat within the meaning of that Act unless he is a tenant and holds land for agricultural purposes. This also appears to have been lost sight of. 34. Although the case of 8 Cal WN 454 (s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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