P L D 1954 Dacca 1 (PLP)

SHAHABUDDIN, C.J.

‑The suit out of which this appeal arises was filed by respondents Nos. 1 to 6 for a declaration of their title to the suit land and for recovery of its possession from the defendant appellants Nos. 1 to

4. Respondents Nos. 7 to 13 were impleaded as pro forma defendants. This appeal being below Rs. 2,000 in, value came on for hearing before Guha J., sitting singly who, on account of the importance of the question involved, considered it necessary that it should be decided by a larger Bench. The case of the plaintiffs was that they had become owners of a 16 annas right in the suit plot by an amicable partition with the pro forma defendants; that one Gopinath Saha, pre decessor‑in‑interest of the appellants, took an oral lease of the suit land in temporary chandina right from plaintiffs Nos. 1 and 2, the predecessors‑in‑interest of the rest of the plaintiffs and the pro forma defendant at an annual rental of As. 4‑0‑6 and occupied it for over 12 years by putting up a katcha shed wherein he had his shop till his death which occurred on the 19th of January 1935, and that though Gopinath's right expired with him, his successors‑in‑interest, the appellants continued in possession without any right and were, therefore, in the same position as trespassers. The defense, inter alia, was that the plaintiffs did not have the sale right to the suit land ; that Gopinath had occupancy right by possession for over 12 years ; that the appellants inherited that right and that the suit was liable to be stayed under the provisions of the Bengal Non‑Agricultural Tenancy (Temporary Provisions) Act of 1990. Both the Courts below rejected this defence and decreed the suit. They held that the plaintiffs were solely entitled to the land in suit and that Gopinath did not have any occupancy right. One of the issues raised was. Whether the suit was maintainable without notice. The trial Court found that Gopinath had occupied the land on the basis of a temporary oral lease and that, even if it was assumed that the lease was for a definite period and Gopinath held over thereafter, such a conclusion would not help the defendants appellants, as whatever, right there was in Gopinath, expired with him. It was, therefore, held that the defendants were not entitled to notice. The first appellate Court agreed with this view. It referred to the evidence of the plaintiffs' clerk that Gopinath did not tale any settlement from the plaintiffs but continued in possession and paid rent. It also referred to the entry in the C. S. khatian wherein Gopinath was described as a dakhaldar that is a person in possession having no right in the land. The learned judge came to the conclusion that he could not but agree with the findings of the learned Munsif that Gopinath was merely a temporary tenant and that his interest in the suit land became extinguished when he died. He also held that the provisions of the Bengal Non Agricultural Tenancy Act 1940, did not apply. Bengal Act IX of 1940 was passed to provide for a tem porary stay of certain suits and proceedings filed for ejectment of non‑agricultural tenants. The expression "Non‑agricultural tenant" is defined in the Act as follows Non‑agricultural tenant means a tenant who holds under another person, and is liable to pay rent to such per son for, non‑agricultural land which, under the terms of any agreement, such tenant is entitled to use for any homestead or residential purpose or for the conduct thereon of any commercial or industrial enterprise or any trade or business and includes a tenant who holds agricultural land within any municipal area but does not include a tenant who holds non‑agricultural land together with any structure thereon erected or owned by the person under whom such tenant holds or by the superior or predecessor‑in‑interest of such person. Section 3 of that Act provides that every suit or proceeding in any Court for ejectment of a non‑agricultural tenant other than a suit or proceeding for ejectment on account of the non payment of rent by such tenant, shall be stayed for the period during which the Act continues in force. There was a proviso to that section but that is not relevant for the purpose of this appeal. It is clear from the preamble of this Act that it was a temporary measure pending further legislation in the matter. Further legislation was enacted in 1949 by Act XXIII of 1949 which repealed the earlier Act of 1940 and provided that non agricultural tenant who have been in possession for a contin uous period of 12 years or more cannot be evicted unless they have rendered the land unfit for certain purposes mentioned in section 4 of the Act. The expression "non‑agricultural tenant" in the later Act is defined in the following words "A person who holds non‑agricultural lands under another person with the consent of that person and is, or but for a special contract, would be, liable to pay rent to such person for that land and also includes the successors‑in‑interest of the former but does not include any person who holds any such land on which any premises occupied by such person if such premises have been erected, or are owned, by the person to whom such occupier, is, or but for a special contract would be, liable to pay rent for such occupation." In Chapter II classes of non‑agricultural tenants are mention ed and distinction is made between tenants and under‑tenants. The term "tenant" is defined there as meaning a person who has acquired from a proprietor or a tenure‑holder a right to hold non‑agricultural land for any of the purposes specified in this Act and includes alto the successors‑in‑interest of persons who have acquired such right. Section 7 of the Act provide that if a non‑agricultural land comprising any tenancy which has been or is created after the commencement of the Transfer of Property Act of 11382, has been held for a period of not less than 12 years without any lease in writing the tenant holding the non‑agricultural land comprising such tenancy, shall not be ejected by his landlord except on the ground that he has used the land in a manner which has rendered it unfit for use for any of the purposes specified in section 4; and it is also stated in the same section that the interest of the tenant in the non‑agricultural land comprising such tenancy shall, in the case where such a tenant dies intestate in respect of such interest, be transmitted by inheritance in the same manner as his other immovable properties. Under section 9A of the Act, in computing the period for which any non‑agri cultural land has been held, a tenant is entitled to tack to the length of his possession any period during which his prede cessor‑in‑interest was in possession of the land, provided there be no break between the periods to be tacked. Section 88 makes the provisions of the Act applicable to suits, appeals and proceedings including those in execution for the ejectment of the non‑agricultural tenants, which were pending on the date of the commencement of the Act. Mr. Gopal Chandra Das appearing for the appellants did not contest the findings of fact arrived at by the Courts below, namely, that Gopinath had a temporary oral lease; that he died in 1935 and that he had no occupancy right. It was also not disputed that the plaintiffs neither received rent from the ap pellants nor recognised them as tenants. But relying on the provisions of the Act referred to above, the learned Advocate argued that the Act of 1949 is retrospective in operation and that the position of the appellants had to be considered with reference to its provisions. His argument is that, in view of the definition of a "non‑agricultural tenant" and a "tenant" in the Act where the words "successors‑in‑interest" occur, the appellants should be regarded as tenants, Gopinath being taken as the person who, held the land as tenant. As regards the definition of "non‑agricultural tenant" in the Act of 1949 which refers to a person who holds or his successors‑in interest, he argued that the term "holds" should not be taken literally, because in view of section 88 wet have to go back regarding the existence of tenancy and, therefore, that part of the definition could be taken to apply to Gopinath, and that the appellants, being his successors-in‑interest, came within that definition. In support oil this contention he relied on Sm. Sukumari Devi v. Rajdhari Pandey (46 C W N 174) a case under the Act of 1940 where also, in the definition of a non‑agricultural tenant the ex pression "holds" occurs. He further contended that under section 7, the apbellants have to be regarded as having inherited from Gopinath the right conferred under the Act and that under section 9A they can tack their possession to that of Gopinath. Reliance was also placed by him on the definition of "tenant" in the Act. We have been through the material provisions of both the Acts and in our opinion, the contentions of Mr. Das cannot prevail. As pointed out by Mr. Bhattacharjee for the respon dents, section 88 of the Act of 1949 makes that Act applicable to pending actions including appeals only if the case comes within the ambit of its provisions. Mr. Das's contention in f effect amounts to this that the definitions of the terms "tenant" and "a non‑agricultural tenant" apply to the last person in possession as a tenant even if he had died before the pending action was brought. If this was the intention of the legislature, section 88 would have been differently worded, and that section would not have stopped only with a reference to pending actions. It appears to us, therefore, that in view of section 88 we should presume that the Act was in force at the time the suit under appeal was filed. In other words, the farthest that we can go back in order to apply the provisions of the Act of 1949 is the stage when the suit was filed. The question, consequently, is what was the position of the appellants in 1943 ? The Act applicable at the time was the Act of 1940 and if they could come within the definition of a non‑agricul tural tenant mentioned in that Act, then the suit should have been stayed. But they did not come within that definition. As is seen from the definition quoted above, they should have been holding the land under the respondents, but the respon dents neither accepted rent from them nor recognised them as tenants. The trial Court observed that it was nobody's case that Gopinath had a lease for a term which had not expired by the time he died and that the appellants inherited any interest from him in respect of the land. However, the finding of the lower appellate Court, which is binding on us, is that Gopinath was merely a temporary tenant and that his interest in the suit land was extinguished with his death in 1935. It is not dis puted that a tenant‑at‑will or a tenant holding over does not leave any interest in the land to which his heirs can succeed. Therefore, when the Act of 1940 carne into force, the appel lants were mere trespassers. As for Sm. Sukumari Devi v. Rajdhari Pandey on which Mr. Das relies and which Guha, J. was inclined to regard as supporting the case of the present appellants, we think that it does not apply to this case. The learned Chief Justice of the Calcutta High Court who delivered the judg ment of the Special Bench in that case, pointed out that the expression "holds" in the definition should be taken in the popular meaning of the term. He observed as follows "It would appear, therefore, that the word, "tenant" is used not in its strict legal sense, but in its wider popular sense and includes not only the current tenant as set out in section 2 but the ex‑tenant remaining in occupation who formerly held in the manner described in section 2 as non agricultural tenant. "That seems to be recognized by the proviso to section 3 which is that every proceeding for delivery of possession in execution of a decree for ejectment, etc., shall be stayed . . . on certain terms. When ejectment proceedings have reached the execution stage, a decree for possession has been passed against the tenant, and the tenant has no longer his rights under the tenancy agreement". This view was approved of in 79 C L J 87 (F C) where the following observation occurs in respect of the Act of 1940 "As pointed out by the High Court, it is clear from the tenor of the section that the word 'tenant' is there used in the popular sense, that is of a person who was a tenant before the decree in ejectment was sought or obtained against him". Normally, the expressions used in an Act have to be taken in their plain meaning unless such an interpretation results in an absurdity and defeats the object of the Act. Now, in respect of the Act of 1940, as a strict interpretation of the term "non agricultural tenant" would have defeated the object of the proviso to section 3 of that Act, the learned judges of the Calcutta High Court and of the Federal Court of undivided India interpreted the word "holds" in its popular sense. The same meaning, it appears to us, has to be given to the expres sion "holds" in the definition in the Act of 1949, as a strict interpretation of that expression would create difficulties when the execution proceedings are taken up even if under section 88 one goes back up to the date of the execution proceedings. But there can be no justification for the extension of the inter pretation beyond the limit indicated above and unless we go beyond what has been indicated in the above decisions it does not help the appellants. It must be noted that from the above observations of the Calcutta High Court and the Federal Court it is clear that the reference there is to one and the same person, that is, a person who once was a tenant and having ceased to be a tenant is still in possession. Now under section 88 the farthest back that we can go is the date of the suit in 1943. If Gopinath was alive at that stage and the tenancy had termi nated by the filing of the suit he could have been taken as coming within the definition of a non‑agricultural tenant and if he had died subsequently the appellants could have come within the same definition as his successors‑in‑interest. But as pointed out already, Gopinath died in 1935 and the present appellants have all along been trespassers. In the nature of things, the legislature could not have intended in passing either of these Acts to give protection to persons who were trespassers at the time the Acts came into force. As for the definition of the term "tenant" in section 3 of the Act of 1949, we think there is considerable force in the contention of Mr. Bhattacharjee that this definition can be of no help to the appellants unless they come under the definition of non‑agricultural tenant. He has drawn our attention to a decision of the Judicial Committee in Mahanth Jagarnath Das v. danki Singh and others (35 C L J 506) where the question was about the period of limitation for a suit to eject a tenant from a private land under the Bengal Tenancy Act. Their Lordships had to consider the question as to when Janki Singh, a person to be ejected, ceased to be a tenant. They referred to the definition of the tenant in section 3 of the Bengal Tenancy Act of 1885 where the words used are "holds land under another", and observed as follows "That is merely a definition. That definition applied to the position of Janki Singh during the continuance of the term for which he held the land, and did not apply to Janki Singh's position after his term had expired, as then, in the circumstances of this case, Janki Singh became a trespasser liable to be ejected". This would have applied to this case but for the difficulty felt with regard to the execution proceedings under both the‑Acts referred to above. But their Lordships of the Judicial Com mittee then went on to deal with section 4 of the Act before them which, like section 3 of the Act of 1949, under consi deration mentions the different classes of tenants and defines them. With regard to this section their Lordships observed as follows "Section 4 was merely a section specifying the classes of tenants to which the Act applied; it did not confer upon any tenant a status or any right; that was done by Chap ters III, IV, V, VI and VII. Apart from this position, we think that the expressions "has acquired" and "have acquired" occurring in this definition apply to persons alive when the Act came into force. As we have pointed out above, the Act has to be taken as having come into force when the pending action was brought. In this case the suit was in 1943 and as Gopinath was not alive then and the present appellants were then trespassers, that defini tion would not apply to them. In these circumstances we do not think that we shall be justified in holding that this Act applies to a case like the one before us. As has been pointed out already Gopinath died in 1935 and by the time the 1940 Act was passed the appellants had been in possession for 5, years as trespassers ; they had not inherited any interest in this land from Gopinath. So, their case is to be viewed only with reference to the character of their possession which obviously would not give them any right unless it amounted to adverse possession for 12 years ; but by the time the suit was filed they were not in adverse possession for the requisite period. They were in possession for 8 years only. The appeal is, therefore, dismissed with costs. AKBAR, J.‑

I agree. A H. Appeal dismissed.