Holding

The Supreme Court held that the High Court had mixed up the question of termination of the sub‑tenancy with the question of recovery of possession, and that the land holder was entitled to the decree under Section 171; consequently the decree is restored.

Summary

The case concerned a suit filed by Hari Shanker, a land holder under the United Provinces Tenancy Act, 1939, against his tenant Habib for sub‑letting the land to Ida for a period exceeding five years, contrary to Section 40 of the Act. The suit, instituted under Section 171, was decreed in favour of Hari Shanker, but the decree was set aside by the Additional Commissioner and later restored by the Board of Revenue. The Allahabad High Court Division Bench subsequently set aside the Board’s decree, holding that the suit should be dismissed, thereby mixing the issue of termination of the sub‑tenancy with the question of recovery of possession. On appeal, this Court held that the High Court had indeed conflated the two distinct questions and that Hari Shanker was entitled to the decree under Section 171. Accordingly, the decree of the Board of Revenue and the order of the Single Judge were restored. The pending applications for eviction and execution of the decree remain to be decided by the appropriate authorities.

Issues considered

The question whether termination of a sub‑tenancy under Section 40 is a condition precedent to the landlord’s right to recover possession under Section 171
Whether the decree passed under Section 171 in favour of the land holder is valid despite the sub‑tenant’s continued possession
Whether the High Court erred in setting aside the Board of Revenue’s decree by conflating termination of sub‑tenancy with recovery of possession

Legislation cited

United Provinces Tenancy Act, 1939s. 171, s. 295-A, s. 40, s. 47
Uttar Pradesh Agricultural Tenants (Acquisition of Privileges) (Amendment) and Miscellaneous Provisions Act, 1950s. 10

Subjects

sub-tenancyterminationpossessionUnited Provinces Tenancy ActSection 40Section 171land holderevictionSupreme CourtAllahabad High Court

Judgment

HARISHANKER
A
v.
BOARD OF REVENUE, U.P. & ORS.

SEPTEMBER 24, 1987

a (0. CHINNAPPA REDDY, M.H. KANIA AND
K.J. SHETTY, .JJ.]

United Provinces Tenancy Act, 1939-S. 171 read withs. 40-The
question of termination of sub_tenancy should not be mixed up with the
question of recovery ofpossession of land.
c Under s. 171 read with s. 40 of the United Provinces Tenancy Act, --t•"
1939, if a tenant sub-lets the land to a 'sub-tenant' and the sub-lease
continues for more than five years, the 'land holder' is entitled to eject
..
both the tenant and the sub-tanant from the land held by them. How-
ever, tenants are entitled to retain possession of land for certain periods
D in terms of provisions of s. 295-A of the Act and certain notifications
issued by the State Government under s. 10 of the Uttar Pradesh
Agricultural Tenants (Acquisition of Privileges) (Amendment) and Mis-
cellaneous Provisions Act, 1950, notwithstanding anything contained in
any law for the time being in force.

E The appellant, Hari Shanker, the 'land holder' of the land in

-
question, filed a suit under s. 171 of the United Provinces Tenants Act,
1939 against his 'exproprietory tanant'. Habib, on the ground that he
had sub-let the land for more than five years to a 'sub-tenant', Ida, in
contravention of s. 40 of the said Act. The suit was decreed in favour of
Hari Shanker and Habib was given the option to apply for ejectment of
f Ida and resume occupation of the land in terms of the proviso to s. 171.
On an appeal filed by Ida, the Additional Commissioner set aside the
decree and dismissed the suit. Allowing the second appeal filed by Hari
Shanker, the Board of Revenue restored the decree of the Trial Court.
Ida's writ petition against that order was dismissed by a Single Judge of
the High Court. Meanwhile, Hari Shanker had applied for execution of
G the decree and the objection filed thereto by Ida was dismissed, though
the application for execution itself was still pending. Habib also filed an
application against Ida as contemplated by the proviso to s. 171 of the
Act. Ida's appeal against the order aforesaid of the Single Judge and the
writ petitions filed by Habib and Ida against orders passed in execution
proceedings were heard together by the Division Bench of the High
H Court which allowed them and dismissed the suit of Harl Shanker.
328
HARi SHANKER v. BOARD OF REVENUE 329

Allowing the appeals,
A
HELD: The Division Bench of the High Court mixed up the ques-
tion of termination of the sub-tenancy with the question of recovery of
possession. It is common ground that Habib was a "sub-tenant" of
Hari Shanker in respect of the suit land. He granted a "sub-tenancy" to
Ida which was from year to year. The "sub-tenancy" was created in
1943 and it admittedly continued for a period of more than 5 years. It is B
not disputed that the said "sub-tenancy" was not terminated by Habib
in spite of the provisions of s. 40 of the United Provinces Tenancy Act,
1939. It may be true that even if the sub-tenancy had been terminated
Habib might not have been able to recover possession of the suit land
from Ida but that does not affect the question of the continuance of the
"sub-tenancy". As the said "sub-tenancy" contravened the provisions C
of s. 40, Hari Shanker was clearly entitled to file a suit as contemplated
bys. 171 of the said act against Habib as well as Ida on the ground that
the tenant Habib has sub-let the suit land otherwise than in accordance
with the provisions of the said Act, namely, in excess of 5 years. There
is, on the record, no defence to that suit which was rightly decreed by
the Board of Revenue. [333D-H] D
The question whether Habib is in a position to evict Ida and
obtain possession of the suit land is a question which will have to be
decided in the application filed by Habib against Ida for the eviction of
J Ida from the suit land and recovery of possession thereof. Similarly, the
.)_
question as to whether the appellant, Hari Shanker, has become en· E
titled to execute the decree in the suit to which he is entitled will have to
be disposed of in the application filed by Hari Shanker against Habib as
• well as Ida. All these applications, we understand, are pending before
the relevant authorities and they will have to be decided according to
law. However, in our opinion, there is no doubt that in the circum·
stances set out above. Hari Shanker is entitled to the decree which the p
Board of Revenue passed in his favour and which was upheld by the
learned Single Judge, 1333H; 334A·Cl

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 237
to 239 of 1974.
G
From the Judgment and Order dated 13.3.1973 of the Allahabad
High Court in Special Appeal Nos. 394 and 418 of 1970 and Writ
-4 Petition Nos. 6 J3 and 910 of 1971.

R.R. Agarwal, Manoj Saxena and R.D. Upadhyaya for the
Petitioners. H
330 SUPREME COURT REPORTS [1988) 1 S.C.R.

A.K. Gupta for the Respondent.

The Judgment of the Court was delivered by

KANIA, J. These appeals are directed against the judgment of a
Special Bench comprising two learned Judges of the High Court of
El Judicature at Allahabad in Special Appeal No. 394 of 1970 along with
Special Appeal No. 418 of 1970, Writ Petition No. 613 of 1971 and
Writ Petition No. 910 of 1971.

The facts giving rise to these appeals are as follows:

Hari Shanker, the appellant before us, is a "land holder" within
C the meaning of said expression in the United Provinces Tenancy Act,
1939 (referred to hereinafter as "the said Act"). On 1st February, -{
1961, Hari Shanker filed a suit as contemplated under Section 171 of
the said Act against one Habib Ahmad, who was his tenant in respect
of the land in suit on the ground that in 1943 Habib had sub-let the suit
D land to his "sub-tenant", Ida, and the said sub-lease was for more than
five years and hence illegal and in contravention of Section 40 of the
said Act. The said suit was contested by Habib but a decree was passed
in favour of Hari Shanker in that suit on 18th November, 1961. Under
the decree Habib was given an option to apply for the ejectment of Ida
within one month and resume occupation of land in dispute in terms of
E the proviso to Section 171. On an appeal filed by Ida, the "sub-
tenant", the aforesaid decree was set aside by the Additional Commis-
sioner on 18th April, 1962 and the suit of Hari Shanker was dismissed.
Hari Shanker filed a second appeal which was allowed by the Board of
Revenue by its judgment dated 13th March, 1963iJ7th April, 1964 and
the decree of the Additional Commissioner was set aside and that of
-
F the Trial Court"was restored. Ida challenged the aforesaid decision of
the Board of Revenue by way of Civil Miscellaneous Writ No. 2386 of
1964. That writ petition was dismissed on 26th March, 1970 by a
learned Single Judge of the Allahabad High Court and Special Appe-
als Nos. 394 and 418 of 1970 were filed in the said High Court against
the said judgment of the learned Single Judge. After his suit was
G decreed by the Board of Revenue, Hari Shanker filed an application
for execution of the decree in which an objection was filed by the
"sub-tenant", Ida, which was dismissed by the Revenue authorities
but, we are informed, the said application itself has not been finally
disposed of. Habib also filed an application dated 16th August, 1964
against Ida as contemplated under Section 171 to the proviso of the
H said Act. According to Habib, the said application has not so far been
HARI SHANKER v. BOARD OF REVENUE [KA"IIA, J.[ 331

)r decided on merits. Writ Petitions Nos. 613 of 1970 and 910 of 1971
A
were filed by Habib and Ida respectively against the orders passed by
the Revenue authorities in execution. The said Special Appeals and
Writ Petitions were heard together and decided by a Division Bench of
the Allahabad High Court in the impugned judgment.

It may be mentioned here that it is common ground that Habib is B
an "ex-proprietary tenant" for the purposes of Sec. 40 of the said Act
y and Ida is his "sub-tenant" in respect of the said land within the
meaning of the said term in the said Act. The Division Bench of the
Allahabad High Court set aside the judgment of the learned Single
Judge and allowed the Special Appeals as well as the Writ Petitions.
They set aside the order of the Board of Revenue decreeing the suit of
Hari Shanker for ejectment of Habib & Ida under Section 171 of the
c
)- said Act and dismissed the said suit. It is against this judgment that the
present appeals are directed. As the facts are common and the appeals
are against a common judgment, we propose to dispose them of by a
common judgment.
D
We may, at this stage, take note of the relevant provisions of the
said Act and certain notifications issued by the Government of Uttar
Pradesh which are material for our purposes. The relevant portions of
the said Act run as follows:
)
"Section 40: (1) No occupancy tenant in Agra, or ex- E
proprietary tenant or hereditary tenant shall sub-let the

.. whole or any portion of his holding for a term exceeding
five years, or within three years or any portion of such
holding being held by a sub-tenant."

"Section 47: Except as otherwise provided in sub-section F
--{ (3) and sub-section (4) the extinction of the interest of a
tenant, other than a permanent tenure-holder or a fixed
rate tenant, shall operate to extinguish the interest of any
tenant holding under him."

"Section 171: (I) If ·a tenant transfers, or sub-lets, the G
whole or any portion of his holding otherwise than in
accordance with the provisions of this Act, and the trans-
~. feree or sub-lessee has entered into possession in pursua-
nee of such transfer of sub-lease both the tenant and any
person who may have thus obtained possession of the
whole or any part of the holding shall on the suit of land- H
332 SUPREME COURT REPORTS ( 1988] 1 S.C.R.

holder be liable to ejectment from the area so transferred ')(
or sublet at the date of the institution of the suit.

Provided that, in the case of a voidable sub-lease, if
the suit succeeds, the court shall pass a decree permitting
the tenant to apply in the same proceedings within a time
B not exceeding one month from the date of the decree, for
the ejectment of the person in whose favour the voidable
sub-lease has been made, and directing that if the tenant so
applies and if he ejects such person and resumes occupa-
tion of the land within such further time as the court, either
in the decree itself or by means of a subsequent order, may
fix having regard to the provisions of section 181, the
c decree shall not be execuied against the tenant except in
respect of costs. In such a case, the decree shall direct that
if the tenant either fails to apply for the ejectment of such
person within the time fixed in this behalf or fails to resume
occupation within the further time allowed by the court for
D that purpose, the tenant as also the sub-lessee shall be
ejected from the area sub-let at the date of the institution
of the suit."

"Section 295-A: Notwithstanding any contract to the con-
trary or anything contained in this Act or any other Jaw for
E the time being in force every person who on the date of the
commencement of the United Provinces Tenancy {Amend-
ment) Act, 1947, is a sub-tenant shall, subject to the provi-
sions of the proviso to sub-section {3) of Section (7) of the ~-

United Provinces Tenancy (Amendment) Act, 1947, be en-
titled to retain possession of his holding for a period of five
F years from that date, and for this period nothing in sub-
section (2) of Section 44 or Section 171 shall render the }--
landholder of such-tenant liable to ejectment under the pro-
visions of section 171."

Section 10 of the Uttar Pradesh Agricultural Tenants {Acquisition of
G Privileges) (Amendment) and Miscellaneous Provisions Act, 1950
inter alia provides that notwithstanding anything contained in any law
for the time being in force, all suits, applications or proceedings of the
categories specified in the Schedule to the said Amendment Act of '!-
1950 under Section 10, pending on the date of the commencement of
that Act or which might thereafter be instituted, presented or com-
H menced shall be and remain stayed for so long as the said Amendment
HARI SHANKER v. BOARD OF REVENUE (KANIA, J.) 333

~- Act of 1950 remains in force. The said Amendment Act came i,nto
force in 1950. There is a proviso to the said Section which empowers A
the State Government by notifications to declare that such categories
of suits, applications proceedings and in such local area as the State
Government might specify which are stayed under Section 10 shall
cease to remain stayed. The State Government was also empowered to
reimpose the stay under a second proviso to the said Section. A B
perusal of Category III of the said Schedule shows that the suits,
y applications and proceedings under Sections 63, 114, 117, 175 and

- under Sections 180 and 181 of the U.P. Tenancy Act, 1939 to the
extent set out in the Schedule were stayed under Section 10. The rest
of the provisions in the said Schedule are not material for our
purposes. The stay in respect of suits, applications and proceedings in
c
respect of categories I, II & III in the said Schedule to the said Amend-
"
)- ing Act VII of 1950 was lifted by a notification dated June 30, 1953.
The stay was, however, reimposed by a notification dated January 23,
1953 in respect of suits, applications and proceedings under Section
175 and 181 to the extent prnvided therein.
D
In our view, these appeals can be very shortly disposed of. It is
common ground that Habib was a "sub-tenant" of Harl Shanker in
respect of the suit land. He granted a "sub-tenancy" to Ida which was
from year to year. The "sub-tenancy" was created in 1943 and it
... admittedly continued for a period of more than 5 years. It is not
disputed that the said "sub-tenancy" was not terminated by Habib E
inspite of the provisions of Section 40 of the said Act, namely, the

- United Provinces Tenancy Act, 1939. It may be true that even if the
sub-tenancy had been terminated Habib might not have been able to
recover possession of the suit land from Ida but that does not affect the
question of the continuance of the "sub-tenancy". As we have pointed
out that "sub-tenancy" was from year to year and on the expiry of the F
--{ period of sub-lease, Ida continued to hold over as "sub-tenant" on the
same terms & conditions from year to year. The "sub-tenancy" was,
therefore, continued in excess of five years and thus was in violation of
the provisions of Section 40 of the said Act. As the said "sub-tenancy"
contravened the provisions of Section 40, Harl Shanker was clearly
entitled to file a suit as contemplated by Section 171 of the said Act G
against Habib as well as Ida on the ground that the tenant Habib has
sub-let the suit land otherwise than in accordance with the provisions
--1 of the said Act, namely, in excess of 5 years. There is, on the record,
no defence to that suit which was rightly decreed by the Board of
Revenue. The question whether Habib was in a position to evict Ida
and obtain possession of the suit land is a question which will have to H
334 SUPREME COURT REPORTS [1988] I S.C.Rc

A be decided in the application filed by Habib against Ida for the eviction
of Ida from the suit land and recovery of possession thereof. Similarly,
the question as to whether the appellant, Hari Shanker, has become
entitled to execute the decree in the suit to which he is entitled will
have to be disposed of in the application filed by Hari Shanker against
Habib as well as Ida. All those applications, we understand, are pend-
B ing before the relevant authorities and they will have to be decided
according to law. However, in our opinion, there is no doubt that in
the circumstances set out above, Hari Shanker is entitled to the decree
which the Board of Revenue passed in his favour and which was up-
held by the learned Single Judge. In our opinion, the learned Judges of
the Allahabad High Court who decided the aforesaid Special Appeals
c and Writ Petitions have mixed up the question of termination of the
sub-tenancy with the question of recovery of possession.

In the result, the aforesaid Civil Appeals are allowed and the
order of the learned Single Judge of the Allahabad High Court dated
26th March, 1970 is restored. We may clarify that the decree passed by
D the Board of Revenue in favour of Hari Shanker is restored. Looking,
however, to the facts and circumstances of the case, there will be no
order as to costs.

H.L.C. Appeals allowed.

-
}-