BAI PREMBAI ZAVER Vs. KOLI TAPUR RATNA
LAWS(GJH)-1960-6-11
HIGH COURT OF GUJARAT
Decided on June 22,1960

BAI PREMBAI ZAVER Appellant
VERSUS
KOLI TAPUR RATNA Respondents

JUDGEMENT

S. T. DESAI, N. M. MIABHOY - (1.)This Special Civil Application and the second Appeal which are directed to be heard together arise in circumstances to be immediately stated. The petitioners in Special Civil Application are the appellants in the Second Appeal and they are occupants of agricultural lands admeasuring acres 65 and 10 gunthas situated in the village Kantasar. The lands were leased out by them to opponent No. 1 to the Special Civil Application Koli Tapur Ratna under a lease for a period of eight years. About a month before the due date for the expiry of the lease the petitioners gave a notice to opponent No. 1 calling upon him to land over possession of the lands on the expiry of the lease by efflux of time. The lease expired on 8/12/1953. Opponent No. 1 refused to hand over possession of the lands and the petitioners filed a suit for eviction in the Court of the Civil Judge at Mahuva. Various contentions were raised in that suit by opponent No. 1. He contended that he had been in possession of the lands for 21 years. That was not believed by the learned Judge in the trial Court who on evidence reached the conclusion that opponent No. 1 had been put in possession of the lands by the petitioners themselves. He also contended that he had been in possession of the lands in part performance of a contract for sale. That contention also was rejected by the trial Court. The trial Court also held that opponent No. 1 tenant had denied the title of the petitioners and had forfeited his right as tenant. It determined the suit in favour of petitioners and passed a decree for possession in their favour. The opponent-tenant preferred an appeal against that judgment. At the hearing of the appeal before the learned District Judge Gohilwad District the advocate for the opponent-tenant urged only one contention and that was a new contention. It was urged that the suit for eviction was filed after the coming into force of the Prohibition of Leases Act 1953 The lease was not registered by the petitioners and therefore the contention proceeded no decree could be passed in favour of the petitioners. In his judgment the learned District Judge has stated that although the point was a new one he allowed it to be raised. One of the arguments urged before us by Mr. Hathi who appears for the petitioners is that the learned Judge was in error in allowing the new contention to be raised. The question has all along been treated as one of law and no objection appears to have been raised before the District Judge that any facts were involved. In our opinion the learned District Judge was not in error in allowing the new contention of law being raised for the first time at the hearing of the appeal before him.
(2.)The contention of law raised before him was rather ingenious but devoid of any real substance. It was urged that sec. 4(1) of the Saurashtra Prohibition of Lease of Agricultural Lands Act made it incumbent upon every occupant of the land who had leased his occupancy prior to the coming into force of the Act to get it registered and if the lease was not registered section 4(2) would come into operation and the unregistered lease would not be recognised as such and the provisions of section 6 would apply to such lease is if it were granted in contravention of sec. 5. In order to appreciate the contention raised before the learned Judge and which found favour with him it will be convenient to set out certain relevant provisions of the Saurashtra Prohibition of Leases of Agricultural Lands Act 1953.
"4. Registration of leases:- (1) Every occupant who has leased his occupancy or part thereof prior to the coming into force of this Act shall on or before 1/09/1954 get such lease if subsisting on the date of coming into force of this Act registered with a revenue officer not below the rank of a Mahalkari furnishing such particulars as may be prescribed by Government. (2) No lease other than a lease which has been registered under sub section (1) shall be recognised as such and the provisions of section 6 shall apply to such lease as if it were granted in contravention of section 5.
5 Prohibition of lease; occupant to cultivate personally:-
(1) On and after the date on which this Act comes into force an occupant shall not save as otherwise expressly provided by or under this Act lease to any person or renew any lease registered under sub-section (1) of section 4 in respect of his occupancy but shall cultivate it personally. (i) Lease in contravention of sub-section (1) void:--Any lease granted or renewed whether by an instrument or an oral agreement in contraventi1on of the provisions of sub-section (1) shall be void. 6 Penalty for contravention of sub-section (1) of section 5. (1) Any occupant who contravenes the provisions of sub-section (1) of section 5 shall on conviction be punishable with fine which may extend to; (i) in the case of contravention for the first time an amount equal to six times the assessment; (ii) in the case of contravention for the second time an amount equal to twenty times the assessment (iii) In the case of contravention for more than two times an amount equal to twenty times the assessment EXPLANATION:---For the purposes of this section assessment shall mean the assessment leviable at full and not reduced rate on the occupancy in respect of which the provisions of sub-section (1) of section 5 are contravened. 8 Summary eviction:-- Any person unauthorisedly occupying or being wrongfully in possession of any occupancy:-- (a) the transfer of which either by the act of the parties or by the operation of law is invalid under the provisions of this Act or (b) to the use and occupation of which he is not entitled under the said provisions; may be summarily evicted by the Collector or by any officer not below the rank of a Deputy Collector authorized by the Collector in this behalf."

The argument was founded on sections 4 5 and 6. The argument was that the trial Court was in error recognising the lease when it passed a decree in favour of the occupants (the petitioners before us.) It was urged that the lease had become void and no effect could be given to it for any purpose. The learned District Judge also appears to have taken the view that Civil Court had no jurisdiction to entertain the suit.

(3.)In the penultimate part of his judgment the leaned District Judge observed that it was unfortunate that two illiterate women should be prevented from being restored to the lands which they had got from their mother and that the tenant did not deserve the resultant benefit of continuing in possession. He pointed out that it would be competent to the petitioners to apply to the Mamlatdar under Section 8 of the Act for summary eviction. It is clear from that judgment that the appeal succeeded on the short point that the lease had not been-registered as required by section 4 of the Act.
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