- (1.) THE circumstances that give rise to this second appeal may briefly be stated as below. Lala Badri Prasad and others brought a suit against Sarwan for ejectment under sec. 175 of the Rajasthan Tenancy Act for alleged sub-letting in the court of the Assistant Collector in respect of the land in dispute. THE allegations in the plaint were that one Gainda was admitted as a tenant by the plaintiffs in Svt. 2004 on a fixed rent of Rs. 120/- per annum ; that Gainda admitted Sarwan defendant as a sub-tenant of one half of the land in Svt. 2008 in contravention of the terms of tenancy ; that Gainda tenant died without leaving behind any heirs in Svt. 2010 ; that Sarwan refused to surrender the land that was in his possession ; that during the continuance of the Rajasthan (Protection of Tenants) Ordinance, 1949, the defendant was not liable to ejectment that on the enforcement of the Rajasthan Tenancy Act on 15 10-1955 the sub-tenant became so liable and hence it was prayed that he be so ejected. Sarwan contested the claim on the ground that he was the tenant of the land in dispute since Svt. 2010; that he was so recognised by the Tehsildar when the dispute arose about his status; and that he has been paying the rent to the plaintiffs. It was also alleged by the defendants that Gainda was old and infirm and was, therefore, entitled to sub-let the land. THE trial court after examining the evidence led in the case came to the conclusion that Gainda was admitted as a tenant by the plaintiffs for a period of one year in Svt. 2006 ; that the plaintiff could produce no qabuliyat of Svt. 2007 ; that the defendant was made a partner by Gainda in Svt. 2008 and as this sub-letting took place prior to the enforcement of the Rajasthan Tenancy Act the defendant was not liable to ejectment. THE suit was, therefore, dismissed by the trial court. THE plaintiffs went up in appeal before the learned Commissioner who reversed the decision of the trial court on the ground that Gainda having died in Svt. 2010 Sarwan's sub-tenancy terminated thereby ; that sub-letting is permissible only in the circumstances mentioned in sec. 46 of the Rajasthan Tenancy Act ; and that Sarwan was liable to ejectment under sec. 183 of the said Act. THE defendant has come up in appeal before us.
(2.) DURING the hearing of the case it transpired that findings of the lower courts on the following points involved for determination in the case were not specifically recorded in their judgments : - (1) Did Gainda die heirless, if so when and with what effect ? (2) Does the appellant's sub-tenancy terminate on Gainda's death ? (3) Is the appellant liable to ejectment ? The parties were given opportunity to lead their evidence on these facta. None was led by the appellant. The respondent has filed a certified copy of an entry in the death register maintained by the Municipal Board Deeg wherein at item No. 8 dated 13. 8. 1953 Gainda Chamar resident of Ward No. 4 is shown as having died on 12. 8. 53 as reported by Shrimati Kalawati Khakroba. We have heard the parties and have examined the record. Restrictions on sub-letting have been laid down in sec. 45 of the Rajasthan Tenancy Act subject to the exceptions contained in sec. 46 of the Act. But the present case cannot be governed by these provisions for the obvious reason that the sub-letting in dispute was done much before the enforcement of the Rajasthan Tenancy Act. Sec. 175 of the act which deals with ejectment for illegal transfer or sub-letting lays down that if a tenant transfers or sub-lets the whole or part of this holding, shall on the application of the land-holder be liable to ejectment. The phraseology of this section makes it clear that the framers intended to give only prospective effect to this provision of law. There is nothing in this section to show that it was ever intended to have retrospective effect as well for in that case the section would have been made applicable to illegal sub-letting that took place prior to the enforcement of the Act itself. It is open to the legislature to give retrospective effect but it has to be given either through the words or by implication to be gathered from the provisions of the Act. We fail to find any express or implied intention of the legislature regarding retrospective effect of this provision of law. The trial court was, therefore, justified in holding that the defendant was not liable to ejectment under sec. 175 of the Rajasthan Tenancy Act as the sub-letting in the case took place before the enforcement of the Act. The learned additional Commissioner appears to have been influenced mainly by the consideration that Gainda having died heirless the sub-tenancy granted by Gainda comes to an end and hence Sarwan becomes liable to ejectment. The law on the point is set out in secs. 63 and 64 of the Rajasthan Tenancy Act. Sec. 63 lays down the conditions regarding extinction of tenancies. Sub-sec. (2) which is relevant for present purposes and which was inserted by sec. 14 of the Rajasthan Act No. 27 of 1956 published in Gazette Extra Ordinary dated 22. 9. 1956 Part IV-A, lays down that the extinction of the interest of a tenant shall operate to extinguish the interest of any sub-tenant holding under him. The learned Additional Commissioner appears to have noted this provision but apparently failed to examine the proviso immediately following the provision. We may reproduce the entire sub-section as below : - " (2) The extinction of the interest of a tenant shall operate to extinguish the interest of any sub-tenant holding under him : - Provided that in every case not being a case specified in clause (ii) of sub-sec. (1), such sub-tenant shall, unless he himself has also been ejected or has become or is liable to ejectment under any provision of this Act or any other law for the time being in force or unless he shall have been admitted to his holding otherwise than in accordance with law have the right to apply for acquisition of the rights of his tenant-in-chief in such holding and in the improvements therein on payment of compensation determinable in accordance with secs. 23, 24 and 25". It is clear, therefore, that a sub-tenant, excepting a sub-tenant of certain categories which have no application to the present case, has a right to apply for the acquisition of the rights of bis tenant-in-chief in such holding and in the improvements thereon on payment of compensation determinable in accordance with the secs. 23, 24 and 25 of the Act. There is absolutely nothing on the point to show that the attention of the appellant defendant was ever drawn to these provisions of law or that he was given an opportunity to exercise rights conferred by secs. 23, 24 and 25 upon him and that he refused to avail of the same. The proviso makes it incumbent upon the trial court to ensure that the sub-tenant is offered an adequate opportunity to exercise the right conferred upon him by law and unless the same is offered to him no order regard-ing ejectment can be passed against him. The suit was instituted after the enforcement of the Rajasthan Tenancy Act. We, therefore, allow this appeal, set aside the decrees and judgments of the lower courts and remand the case back to the court of the first instance with the direction that it be heard and determined afresh in the light of the observations made above. .;