- (1.) THIS is a reference to the Full Bench of the Board of Revenue under Sec. 11 of the Rajasthan Land Revenue Act, 1956. The terms of the reference are the following: - (1) Whether a tenant after the expiry of the period of lease is a trespasser or a tenant holding over? (2) Whether the Full Bench judgment of the Board of Revenue reported in 1961 R. R. D. 109 loses its significance after the amendment of Sec. 180 (1) (b) of the Rajasthan Tenancy Act, 1955 as a result of Rajasthan Act No. 5 of 1962, published on 21-4-1962?
(2.) BRIEFLY, the matter in dispute is that Mst. Gulab Kanwar respondent (plaintiff) filed a suit under Sec. 183 of the Rajasthan Tenancy Act, 1955 against the appellants (defendants) claiming that she had l/5th share in the disputed agricultural holding which she had let out to the defendants for a period of one year but the letter have refused to vacate the agricultural holding after the expiry of the lease. She claimed that the defendants had become trespassers after the expiry of the lease and they should be ejected u/s. 183 of the Rajasthan Tenancy Act, 1955. The disputed agricultural holding is undivided and the appellants (defendants) appear to hold 4/5th share of this holding from other co-sharers. The l/5th share belonging to the plaintiff is indeterminate for the holding is still joint and has not been partitioned. The second appeal No. 152 of 1968 was heard by a division Bench consisting of Sarvashri D. G. Joseph and K. S. Ujwal, Members. There was difference of opinion between the two learned Members. Shri D. C. Joseph held that the Full Bench decision of the Board of Revenue reported in 1961 R. R. D 109 lost all significance after the amendment of sec. 180 (l) (b) of the Rajasthan Tenancy Act as a result of Rajasthan Act No 5 of 1962 published on 21. 4. 1962 while Shri K. S. Ujwal held that the Full Bench decision of the Board continued to be in full-force even after the amendment of Sec. 180 (1) (b) of the Rajasthan Tenancy Act. The conclusions of the Full Bench decision of the Board have been affirmed by the Hon'ble Rajasthan High Court in its judgment dated 13-8-1966 published in 1968 R. R D. 11. In accordance with Sec. 13 of the Rajasthan Land Revenue Act, 1956 this difference of opinion case was referred to the 3rd Member of the Board who by his order dated 19. 12. 1973 did not think it proper to decide the matter and requested the Chairmain to refer the points formulated by him for reference to the full bench of the Board consisting of atleast 5 Members because the previous decision of the Full Bench of the Board reported in 1961 R. R. D. 109 had to be considered along with the judgment of the Rajasthan High Court reported in 1968 R. R. D. 11. Shri S. N Pareek, Shri Vedvrat and Shri Roop Chand Sogani have ably argued the points for reference before us and cited law which we have carefully perused. The leases of immovable property have been dealt with in Chapter V of the Transfer of Property Act, 1882 which is the general law applicable to such leases but the same can apply to leases for agricultural purposes only by a notification published by the State Government as provided in Sec. 117 of the same Act. No such notification appears to have been issued by the Government of Rajasthan so far hence the provisions contained in Chapter V of the Transfer of Property Act, 1882 do not apply to the leases of agricultural holdings in Rajasthan at present. The leases of agricultural lands are governed by the provisions of the Rajasthan Tenancy Act, 1955 which is the special law in force within the State of Rajasthan. In Full Bench ruling of the Board of Revenue reported in 1961 R. R. D. 109, it has been correctly he'd following Sec. 9 of the Specific Relief Act, 1963 that in a suit for relief based on contracts the person against whom the relief is claimed may plead by way of defence any ground which is available to hkn under any law relating to contracts. So far as leases of agricultural lands are concerned, the provisions of the Rajasthan Tenancy Act, 1955 can consequently be pleaded by way of defence. The relationship of lessor also called 'landlord' and lessee also termed 'tenant' in respect of leases of agricultural lands is based on contracts between them for the possession and profits of land on the one side and recompense by rent on the other and the term of the lease can be either for a fixed period or from year to year and it is normally a bilateral matter. In Sec. 5 (43) of the Rajasthan Tenancy Act, 1955, the 'tenant' has been defined to be the person by whom, rent is or would be, but for a contract express or implied, payable. This definition makes it clear beyond any doubt that the contracts can be expressed or implied and that the tenant is bound to pay the rent according to the contract and he would be liable to such rent even when the cont-ract is not express but merely implied. The tenant includes a sub-tenant but not a trespasser. The tenant of an agricultural tenancy enters on a contract in a lawful manner for a fixed term or from year to year and if he continues to hold possession over the tenancy after the expiry of the lease he does not fall within the definition of trespasser as is the clear intention of Sec, 5 (43) of the Rajasthan Tenancy Act. The trespasser is, however, a person who takes or retains possession of the land without authority and prevents another person from occupying land duly let out to him as is the intention of Sec. 5 (44) of the Rajasthan Tenancy Act. The clear distinction bet-ween the tenant and the trespasser is that a tenant enters an agricultural holding in a lawful manner with the consent of his landlord and there is definite contract between the parties for a particular term of the lease and the rent payable by the tenant to the landlord but such is not the position in respect of the trespasser who enters the land without legal authority and who continues to hold the land in defiance of his landlord who might have let it out to another person and he prevents the lawful lessee from entering such land. The terms of agricultural tenancies are determinable by the provisions of the Rajasthan Tenancy Act, 1955. Every tenant is entitled to receive from his landholder a written lease consistent with the provisions of this Act as provided in Sec. 32. The presumption of Sec. 106 of the Transfer of Property Act is not applicable to agricultu-ral tenancies so as to make such tenant as running from year to year. The tenant of agricultural tenancy hold land either for a fixed term or for year to year for an unlimited period subject to the performance of the obligations incidental to the tenure. The khatedar-tenants in Rajasthan enjoy heritable rights and they can effect transfer of their rights Subject to the provisions of the Rajasthan Tenancy Act. The ghair-khate-dar-tenants have no such rights except of permitting sub lease not exceeding one year. Under Sec. 108 of the Transfer of property Act, the lessee is bound to restore the leased property in good condition to the lessor on the termination of the lease but there is no provision in the Rajasthan Tenancy Act providing for handing over the agricultural tenancy by a tenant to his landlord after the determination or extinction of tenancy. The tenant can surrender or abandon his tenancy or his tenancy can become extinct but this happens only under the specific provisions of Chapter V of the Rajasthan Te-nancy Act. The landlord or landholder can enter upon and take possession of the agricultural holding after the same has been surrendered or abandoned in the pres-cribed manner and a tenancy becomes extinct in accordance with Sec. 63 of the same Act. In Sec. 63 (1) (b), it has been provided that an interest of a tenant in his hold-ing is extinguished when he has been ejected therefrom in accordance with the provi-sions of this Act. This express provision in the Rajasthan Tenancy Act leads one to the conclusion that a tenant who has lawfully entered upon his agricultural tenancy can either surrender or abandon it after the expiry of the lease or before it but if he continues to occupy the tenancy after the efflux or determination or expiry of his tenancy it cannot become extinct except by ejection of the tenant therefrom in accor-dance with the express provisions of the Rajasthan Tenancy Act. We have already noticed above that a tenant does not become a trespasser even after holding over the agricultural tenancy after the expiry of his lease and so there is no alternative for the landlord or landholder to redeem the lease except by securing ejectment of the tenant therefrom. The provisions of Sec. 63 of the Rajasthan Tenancy Act provide substan-tive law on 'he subject and it applies with full vigour to all the agricultural tenancies in respect of which the question of holding over of the tenant after the expiry of the lease is involved. A tenant can hold over after the expiry of the lease with the tacit consent or otherwise of his landlord or landholder. Every tenant is liable to pay rent under the Rajasthan Tenancy Act to his landlord and a tenant is liable to ejectment from his agricultural tenancy only in accordance with the provisions of Rajasthan Tenancy Act and not otherwise as provided in Sec. 161 of this Act. A tenant can be ejected for non-payment of rent in execution of a decree of a competent revenue court. He can be ejected for illegal transfer or subletting. A tenant or sub tenant holding an agricultural tenancy from year to year can also be ejected after the determination of the lease or sub lease under Sec. 180 of the same Act. The Explanation added to clause (b) of Sec, 180 (1) of the Rajasthan Tenancy Act makes it further clear that a tenant or sub tenant holding from year to year shall include a tenant or sub-tenant who remains in possession of the holding after the determination of the lease or sub-case. This Explanation makes it amply clear that a tenant or sub-tenant also includes a tenant or sub-tenant holding over after the determination of the lease or sub-lease. In other words, it means that a tenant holding over after the expiry of the lease does not lose his status or character as a tenant or sub-tenant and he does not become a trespasser for otherwise the legislature which amended Sec. 180 by Rajasthan Act 5 of 1962 pub-lished on 21 4 1962 would have made clear such an intention. Thus, the finding of the learned Full Bench of the Board in the case of "shri Ummedaram Vs. Ramdeo" reported in 1961 R. R. D. 109 applies with full vigour to the reference before us that a tenant or sub-tenant holding over after the expiry of lease has to be evicted in accor-dance with the provisions of the Rajasthan Tenancy Act under sec. 180 thereof for his possession over agricultural tenancy even after expiry or determination of the lease is protected by the Rajasthan Tenancy Act, 1955 There is no provision for extinction of a tenancy by efflux of time or expiry of the term of the lease under the Rajasthan Tenancy Act which is the position under Sec. 111 of the Transfer of Pro-perty Act which does not apply to agricultural tenancies in Rajasthan. The lease of agricultural lands does not determine by efflux of time in Rajasthan. The tenant holding over after the expiry of the lease may retain the land with the consent of his landlord or landholder or otherwise for his interests are pro-tected by law unless he is ejected therefrom under Sec. 180 of the Rajasthan Tenancy Act. A rank trespasser is, however, to be ejected under Sec. 183 of the Rajasthan Tenancy Act. The tenant holding over after the expiry of the lease derives authority to continue over the holding until otherwise ejected from the provisions of the Rajas-than Tenancy Act. We, therefore, see no reason to depart from the conclusions of the earlier Full Bench judgment of the Board reported in 1961 R. R. D 109 in the pre-sent reference. Moreover, we find that the Hon'ble Rajasthan High Court in the case of "ramdeo vs. Board of Revenue" reported in 1968 R. R. D. 11 has confirmed the opinion of the Board of Revenue by holding that a sub-tenant holding over after the expiry of agreed lease does not become a trespasser but has to be evicted form his tenancy under Sec. 180 of the Rajasthan Tenancy Act. Thus, the earlier Full Bench decision of this Board reported in 1961 R. R. D. 109 has found support form Rajasthan High Court as well. The decision of Hon'ble Rajasthan High Court is fully binding on all revenue courts in Rajasthan and must be respectfully followed We are not competent to review the decision of the Hon'ble Rajasthan High Court in the present matter.
(3.) FOR the foregoing reasons, we are unable to agree with the able arguments of sarvashri S. N. Pareek and Vedvrat, Advocates that a tenant or sub-tenant holding over after the expiry of the lease become trespasser and is liable to ejectment under Sec 183 of the Rajasthan Tenancy Act. We have held above following 1961 R. R. D. 109 and 1968 R. R. D. 11 that a tenant or sub-tenant holding over is not a trespasser and he has to be ejected from the tenancy in accordance with the provisions of the Rajasthan Tenancy Act under Sec. 180 and not under Sec. 183 of the same Act. We agree with the reasoning advanced by Shri Roop Chand Sogani in this res-pect who has appeared as amicus curiae before us in the present case. The provisions of the Rajasthan Tenancy Act are based on U. P. Tenancy Act subsequently amended by the U. P. Zamindari Abolition and Land Reforms Act. In AIR 1964 All. 498 which is the Full Bench decision of the Allahabad High Court it has been held that a sub tenant is immune form any liability to ejectment on the ground of efflux of the period of sub-lease. This is a very important ruling on the subject which makes it clear that the interest of a tenant or sub tenant does not deter-mine as a result of efflux of lease. It has been argued before us that the ex-tenant or sub-tenant after holding over can at best be a tenant or sub-tenant at sufferance but he is not a trespasser until his tenancy or sub-tenancy has been extinguished or deter-mined for both words cannot the same meaning. The legal character of a person cannot be terminated except in accordance with law as held in A. I. R. 1974 All. 1 and A. I. R. 1974 S. C. 198 unless the same goes out of the realm of the contract. We fur-ther find that Hon'ble Rajasthan High Court in the case of "nandigir Vs. Board of Revenue" reported in 1963 R. R. D. 250 has further held that there is no provision in the Rajasthan Tenancy Act where by a tenancy may extinguish with the lapse of time. They have discussed the provisions of S. 187-B of the Rajasthan Tenancy Act which enables a tenant for reinstatement over his holding if he has been forcibly ejected there-from without his consent and not in accordance with law. The Hon'ble Rajasthan High Court has correctly held that a tenancy for a fixed term does not extinguish simply because the period of lease has expired. They have also held that a tenant holding over could not be ejected under Sec. 183 of the Rajasthan Tenancy Act after the repeal of the Rajasthan (Protection of Tenants) Ordinance and the right procedure to be followed for a landholder was to get ejectment of a tenant under Sec. 177 and 180 of the Rajasthan Tenancy Act. We respectfully follow this finding of the Hon' ble Rajasthan High Court as well which affirms earlier decision of the Board. In A I. R. 1952 Cal. 567, the Hon'ble Calcutta High Court has held that agricultural lease for a fixed period is terminable by a decree of a court and a suit for ejectment must be filed. Almost similar view has been held in respect of tenant for a fixed term holding over after the expiry of lease in A. I. R. 1963 Himachal Pradesh 469. We have carefully examined the Explanation added to sub clause (b) of Sec. 180 (1) of the Rajasthan Tenancy Act. It merely clarifies that a tenant or sub-tenant holding a lease from year to year shall also include such a tenant or sub-tenant who holds over such tenancy or sub-tenancy after the determination of the lease or sub-lease. Such an Explanation does not enlarge the scope of Sec. 180 (1) (b) and merely explains the scope of the original Section as held by Full Bench of the Allaha-bad High Court (Lucknow Bench) in AIR (38) 1951 All. 155. As already observed above, the provisions of the Rajasthan Tenancy Act, 1955 apply with full vigour to all agricultural tenancies and in view of Sec. 117 of the Transfer of property Act, the provisions contained in Chapter V of the Transfer of Property Act do not apply to agricultural tenancies in Rajasthan If f> r any matter, the provisions of the Rajasthan Tenancy Act are not in existence, then only the principles of the Transfer of Property Act can be made applicable to agricultural tenancies on the ground of the principle of justice, equity and good conscience. In A I. R. 1953 S. C. 228, the Hon'ble Supreme Court has discussed this point and observed that a court should be very careful in applying statutory provisions and the assistance of the Transfer of Property Act as a guide to matters which have been excluded from the purview of the Act by express words should not be invoked, unless the provisions of the Act embody principles of general application and almost similar view has been he d in A I. R. 1964 Raj. 88. We can-not, therefore, apply the provisions of the Transfer of property Act to the agricultural tenancies in Rajasthan in view of the clear provisions of the Rajasthan Tenancy Act. We do not want to burden this judgment with the plethora of rulings of the various High Courts in India and the Supreme Court cited by Shri S. N. Pareek. In view of our findings above after exhaustive consideration of the provisions of the Trans-fer of Property Act and the Rajasthan Tenancy Act and our conclusion that only Rajasthan Tenancy Act, 1955 is applicable to agricultural tenancies in Rajasthan and not the Transfer of Property Act, 1882, most of the cited rulings which relate to the provisions of the Transfer of Property Act, became irrelevant and not applicable to the circumstances leading to the present reference before us. It is wholly unnecessary for us to import the principles of Transfer of Property Act for the determination of the present reference on the ground of justice equity and good conscience for the exis-ting provisions of the Rajasthan Tenancy Act are patently clear and unambiguous. When a special law is applicable to the circumstances of a case we cannot go beyond its scope for determination of the point-in-issue. ;