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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4245 OF 2012

SHYAM LAL       ...APPELLANT

VERSUS

DEEPA DASS CHELA RAM  CHELA GARIB DASS             ...RESPONDENT

J U D G M E N T

RANJAN GOGOI, J.

1. This  appeal  is  at  the  instance  of  the  tenant  who  is

aggrieved by an order of eviction affirmed by the High Court

following the expiry of period of lease.

A  two-Judge  Bench  of  this  Court  in  Sukhdev  Singh

(Dead)  through legal  representatives and Ors. V. Puran

and Ors.1 has  taken  the  view  that  a  tenant  under  Punjab

Security of Land Tenure Act, 1953 (hereinafter referred to as

the ‘1953 Act’)  ceases to be one on expiry of the fixed term 1  (2015) 12 SCC 344

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tenancy under the contract whereafter he is not entitled to the

statutory protection from eviction as envisaged under the Act.

A Co-ordinate Bench, for reasons indicated, could not agree

with the aforesaid view in Sukhdev Singh (supra).  Hence this

reference for an answer on a question that may be formulated

as hereunder:  

Whether  after  the  expiry  of  the  fixed  term tenancy in respect of an agricultural lease under the  Punjab  Security  of  Land  Tenure  Act,  1953 (hereinafter  referred  to  as  “the  1953  Act”)  the tenancy  gets  automatically  terminated  and  the person occupying the leased premises ceases to be a tenant?

2. It  will  be  useful  to  notice,  at  this  stage,  some  of  the

relevant  provisions  of  the  Statutes  dealing  with  the  issue.

“Tenant”  is  defined  by  Section  2(6)  of  the  1953 Act  in  the

following terms:

“Tenant” has  the  meaning  assigned  to  it  in  the Punjab Tenancy Act,  1887 (Act XVI of  1998),  and includes  a  sub-tenant,  and  self-cultivating  lessee, but shall not include a present holder, as defined in section 2 of the Resettlement Act.”

3. Section 4(5) of the Punjab Tenancy Act, 1887 (hereinafter

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referred to as “the 1887 Act”) defines “tenant” as under:

“4. Definitions-  In  this  Act,  unless  there  in something repugnant in the subject or context,-   xxxx

(5) “tenant” means a person who holds land under another person, and is or but for a special contract would be,  liable to pay rent  for  that  land to that other person; but does not include -

(a) an inferior landowner, or  

(b) a mortgagee of the rights of a landowner, or  

(c),  a  person  to  whom  a  holding  has  been transferred, or an estate or holding has been let in farm  under  the  Punjab  Land  Revenue  Act  1887 (XVII of 1887), for the recovery of an arrear of land revenue or of a sum _recoverable as such an arrear or  

(d) a person who takes from the Government a lease of unoccupied land for the purpose of subletting it.”  

4. The 1887 Act confers occupancy rights on the occupants

of  land who fulfill  the  requirements  spelt  out  by  Section 5

thereof.  An occupancy tenant is liable for ejectment under the

1887 Act on the grounds specified in Section 39(1), namely,  

(a)  that  he  has  used  the  land  comprised  in  the

tenancy in a manner which renders it unfit for the

purpose for which he held it;  

(b)  where  rent  is  payable  in  kind,  that  he  has

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without sufficient cause failed to cultivate that land

in  the  manner  or  to  the  extent  customary  in  the

locality in which the land is situate;  

(c) when a decree for an arrear of rent in respect of

his  tenancy  has  been  passed  against  him  and

remains unsatisfied.

5. On the other hand, under Section 40 of the 1887 Act, a

tenant who does not have a right of occupancy but holds the

land for a fixed term under a contract is liable to be ejected

from his tenancy  on the expiry of the term of the lease and

before such expiration on the following grounds:  

“(a)   that  he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it;  

(b)   where  rent  is  payable  in  kind,  that  he  has without sufficient cause failed to cultivate that land in  the  manner  or  to  the  extent  customary  in  the locality in which the land is situate ;  

(c)  on  any  ground  which  would  justify  ejectment under the contract decree or order.”

6. Section 9 of the 1953 Act which deals with the liability of

a tenant to be ejected is in the following terms:

“9. Liability of the tenant to be ejected.—

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(1) Notwithstanding anything contained in any other law for the time being in force, no land-owner shall be competent to eject the tenant except when such tenant –

(i) is a tenant on the area reserved under this Act or is a tenant of a small land-owner, or

(ii) fails  to  pay  rent  regularly  without  sufficient cause, or

(iii) is in arrears of rent at the commencement of this Act, or

(iv) has failed, or fails, without sufficient cause, to cultivate the land comprised in his tenancy in the manner or to the extent customary in the locality in which the land is situate, or

(v) has used, or uses, the land comprised in his tenancy  in  a  manner  which  has  rendered,  or renders it unfit for the purpose for which he holds it, or

(vi) has  sublet  the  tenancy  or  a  part  thereof, provided that where only a part of the tenancy has been sublet, the tenant shall be liable to be ejected only from such part, or

(vii) refuses to execute a Qabuliyat or a Patta, in the  form prescribed,  in respect  of  his  tenancy on being called upon to do so by an Assistant Collector on an application made to him for this purpose by the land owner  

Explanation  –  For  the  purposes  of  clause  (iii),  a tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period

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of two months from the date of notice of execution of decree or order, directing him to pay such arrears of rent.

(2)]  Notwithstanding  anything  contained hereinbefore  a  tenant  shall  also  be  liable  to  be ejected  from  any  area  which  he  holds  in  any capacity whatever in excess of the permissible area;

Provided that the portion of the tenancy from which  such  tenant  can  be  ejected  shall  be determined at his option if the area of his tenancy under the land-owner concerned is in excess of the area from which he can be ejected by the said land owner;

Provided further that if the tenant holds land of several land-owners and more than one land-owner seeks his ejectment, the right to ejectment shall be exercised  in  the  order  in  which  the  applications have  been  made  or  suits  have  been  filed  by  the land-owners  concerned,  and  in  case  of simultaneous applications or suits the priority for ejectment shall commence serially from the smallest land-owner.

Explanation.-  Where  a  tenant  holds  land  jointly with  other  tenants,  only  his  share  in  the  joint tenancy shall be taken into account in computing the area held by him.”

7. It will be necessary at this stage to take note of Section

14A  of  the  1953  Act  which  deals  with  the  procedure  for

ejectment:

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“14-A.  Notwithstanding  anything  to  the  contrary contained  in  any  other  law for  the  time  being  in force, and subject to the provisions of section 9-A.-

(i) a land owner desiring to eject a tenant under this Act shall apply in writing to the Assistant Collector First Grade having jurisdiction, who shall thereafter proceed  as  provided  for  in  sub-section  (2)  of sub-section  10  of  this  Act,  and  the  provisions  of sub-section (3) of the said section shall also apply in relation  to  such  application,  provided  that  the tenants rights  to compensation and acquisition of occupancy rights, if any under the Punjab Tenancy Act, 1887 ( XVI of 1887), shall not be affected;

Provided  that  if  the  tenant  makes  payment  of arrears of rent and interest, to be calculated by the Assistant Collector, First Grade, at eight per centum per  annum  on  such  arrears  together  with  such costs of the application, if any, as may be allowed by  Assistant  Collector,  First  Grade,  either  on  the day of first hearing or within fifteen days from the date of such hearing, he shall not be ejected

(ii) a land-owner desiring to recover arrears of rent from a tenant shall apply in writing to the Assistant Collector  Second  Grade,  having  jurisdiction,  who shall thereupon send a notice in the form prescribed to  the  tenant  either  to  deposit  the  rent  or  value thereof , if payable in kind or give proof of having paid it or of the fact that he is not liable to pay the whole  or  part  of  the  rent  or  of  the  fact  of  the landlords refusal  to receive the same or to give a receipt,  within  the  period  specified  in  the  notice. Where,  after  summary determination,  as  provided for in sub-section (2) of Section 10 of this Act, the Assistant  Collector  finds  that  the  tenant  has  not

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paid or deposited the rent he shall eject the tenant summarily and put the landowner in possession of the land concerned;

(iii) (a)  if a landlord refuses to accept rent from his tenant  or  demands  rent  in  excess  of  what  he  is entitled  to  under  this  Act,  or  refuses  to  give  a receipt,  the  tenant  may  in  writing  inform  the Assistant  Collector  second  Grade,  having jurisdiction of the fact;

(b)  on  receiving  such  application,  the  Assistant Collector  shall  by  a  written  notice  require  the landlord to accept the rent payable in accordance with  this  Act,  or  to  give  a  receipt,  as  the  case maybe, or both, within 60 days of the receipt of the notice“

8. Before proceeding any further  it  must be clarified that

both the enactments i.e. the 1887 Act and the 1953 Act are in

force and continue to operate in their respective fields. Insofar

as common spheres are concerned, the 1953 Act by virtue of

the non obstante clause in the relevant provisions prevail over

the pari materia provisions of the 1887 Act. Section 40 of the

1887 Act dealing with ejectment of tenants and Section 9 of

the 1953 Act is one instance where such an interplay between

the provisions of the two Acts occur.  

9. The arguments  advanced on behalf  of  the rival  parties

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relate to a true and proper construction of the provisions of

Section 9 and 14-A of the 1953 Act in the light of the definition

of  “tenant”  under  both  the  Acts  and also  the  provisions  of

Section 39 and 40  of  the  1887 Act.   It  is  argued  that  the

appellant herein is a self-cultivating lessee and, therefore, a

tenant  under  Section 2(6)  of  the  1953 Act  entitling  him to

protection under Section 9 of the Act. A person who is a tenant

under the 1953 Act can be ejected only on any of the grounds

enumerated in Section 9 of the 1953 Act. Such protection does

not cease merely on the expiry of period of tenancy in view of

the  statutory  protection  granted  under  the  Act.  In  fact  the

contractual tenancy loses all relevance in case of a lessee who

is a tenant under either of the statutes in question. Though

under  Section  40  of  the  1887  Act  eviction  of  a  tenant  on

completion of the period of lease is contemplated, there is no

such provision in the 1953 Act.  The  non obstante clause in

Section 9 gives the said provision of the 1953 Act an overriding

effect  over  the  aforesaid  provisions  of  the  1887  Act.

Sub-section (viii) of Section 9 of the Act of 1953, introduced by

Punjab Act 17 of 2011 (not made applicable to the State of

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Haryana) has also been placed before the Court. Besides, the

procedure for ejectment/eviction must necessarily conform to

what  is  spelt  out  in  Section  14-A  of  the  1953  Act  and

proceedings for eviction must be before the Revenue authority

and not the Civil Court.  These are the broad propositions that

have been advanced on behalf of the appellant to answer the

question arising.   

10. In  reply,  it  is  contended that  statutory  protection to  a

tenant would be available after the expiry of  the fixed term

lease  only if  the definition of tenant under the Act is broad

enough  to  include  a  person  whose  contractual  period  of

tenancy  is  over.  No  such  provision  exists  either  under  the

1887 Act or the 1953 Act.  The definition of tenant in either of

the  Statutes  does  not  include  a  tenant  whose  period  of

tenancy is over. In the absence of any such provision, a person

whose  period  of  lease  is  over  ceases  to  be  a  tenant  and,

therefore, is not entitled to the protection under the 1953 Act.

A self- cultivating lessee would be a tenant under the Act only

for the duration of the lease. On expiry of the period of the

lease  he  would  cease  to  be  a  tenant  unless  the  statute

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specifically provides for such a status which is not so provided

for by either of the Acts i.e. Act of 1953 and of 1887.  

11. In the present case, admittedly, eviction of the tenant had

not been sought on any of the grounds enumerated in Section

9  of  the  1953  Act  and  by  following  the  procedure  under

Section 14-A of the 1953 Act. In fact, it is the appellant before

this  Court  who  had  filed  a  suit  for  injunction  seeking  a

restraint  on  his  ouster  and  it  is  in  the  said  suit  that  the

respondent  –  landlord,  as  the  defendant,  had  filed  a

cross-objection seeking mandatory injunction for the vacation

of the premises by the appellant-tenant on the ground that he

had ceased to be a tenant on expiry of the period of lease.  

12. Having  noticed  the  elaborate  arguments  advanced  on

behalf  of  the parties,  we may now proceed to deal  with the

specific question referred to us, as noticed above, and in this

regard  take  note  of  the  questions  formulated  by  the  High

Court for an answer in the second appeal before it which is in

the following terms-   

(i) Whether  a  tenant/lessee  of  agricultural  land

can  be  ordered  to  be  evicted  by  way  of  suit  for

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mandatory injunction or the only remedy with the

landlord is to seek eviction under the provisions of

the Punjab Security of Land Tenures Act, 1953

(ii) Whether the lease deed of an agricultural land

is  admissible  in  evidence  in  the  absence  of

registered instrument as required under Section 107

of the Transfer of Property Act, 1882 and Section 17

of the Registration Act, 1908.

13. The  Transfer  of  Property  Act,  1882,  as  evident  from

opening provision thereof, makes it clear that it is not to be

applicable to the State of Punjab (including the present State

of  Haryana  which  was  included  in  the  erstwhile  State  of

Punjab).  However, by a Gazette Notification dated 26th March,

1955  (No.1605-R(CH)-55/589)  published in the Punjab Govt.

Gazette dated 1st April, 1955 (Part I, page 372) the provisions

of Sections 54, 107 and 123 of the Transfer of Property Act,

1882 were  extended to the entire State of Punjab with effect

from 1st April, 1955. The Gazette Notification in question reads

as follows:

“The  26th March,  1955

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No.1605-R(CH)-55/589. In exercise of the powers conferred  by  section  1  of  the  Transfer  of Property Act, IV of 1882, and all  other powers enabling  him  in  this  behalf,  the  Governor  of Punjab  is  pleased  to  extend  the  provisions  of sections 54, 107 and 123 of the said Act with effect from the 1st April, 1955 to the entire State of Punjab. The Punjab Government notification No.183-ST dated the 27the April, 1935, is hereby cancelled.”

14. Sections 54, 107 and 123 of the Transfer of Property Act,

1882 were applied to the PEPSU area of that State with effect

from  15th May,  1957  by  Notification  dated  15th May,  1957

published in the Punjab Government Gazette (Extraordinary)

(at page 633 dated 15th May, 1957), which is in the following

terms:

“Punjab Government Gazette Extraordinary

Published by Authority Chandigarh, Wednesday, May 15, 1957

Revenue Department Notification

The 15th May, 1957

No.305-ST-57/2166.-  In  exercise of  the powers conferred  by  section  1  of  the  Transfer  of Property Act, 1882 (Central Act IV of 1882), and all other powers enabling him in this behalf, the Governor  of  Punjab  is  pleased  to  extend  the provisions of Sections 54,  107 and 123 of the said  Act  to  the  territories  which,  immediately

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before the 1st November, 1956, were comprised in the State of  Patiala and East Punjab States Union, with effect from the date of publication of this notification in the official Gazette.”

15. Section 107 of the Transfer of Property Act, 1882 which

has been made applicable to the State of  Punjab (including

Haryana) by the above notifications require annual leases of

immovable property to be made by a registered instrument.

Though  Section  117  of  the  Transfer  of  Property  Act,  1882

makes the  provisions  of  Chapter  V,  which includes  Section

107, inapplicable to agricultural leases, Section 117 has not

been  made  applicable  to  the  State  of  Punjab  by  the

notifications referred to  above.   Therefore,  the  provisions of

Section 107 of the Transfer of Property Act, 1882 would apply

with full force and vigor to all  leases of immovable property

including agricultural leases in the State of Punjab (including

Haryana).  

16. The  above  is  inextricably  connected  to  the  issue  of

determination  of  the  primary  question  arising,  namely,

whether the lease between the parties is a fixed term lease or

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not, a question that would depend for its answer on the terms

of  the  lease  deed  between  the  parties.  Unfortunately  and

regrettably the Gazette Notifications referred to above were not

brought to the notice of the High Court leading the High Court

to answer the question framed by holding that Section 117 of

the Transfer of Property Act makes the provisions of Section

107  inapplicable  to  an  agricultural  lease  and  therefore  the

terms of the lease can be looked into for a determination of the

above question.

17. It is not in dispute that in the present case the appellant

tenant remained in possession of the land for the fixed term

envisaged in the lease agreement i.e. from 29th May, 1996 to

28th May, 2005 and even thereafter.  As the lease in question

was not  a registered instrument and as Section 117 of  the

Transfer  of  Property  Act  has  no  application to  the  State  of

Haryana, in view of the provisions of Sections 17 and 49 of the

Registration  Act  read  with  Section  107  of  the  Transfer  of

Property Act, 1882 the terms of the lease deed would not be

admissible in evidence and, therefore, cannot be looked into

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for  the  purpose  of  determining  the  duration  of  the  lease.

Though in Anthony v. K.C. Ittoop & Sons & Ors.2 it  was

held that in such a situation a oral lease not exceeding one

year  can  be  presumed  it  must  not  be  lost  sight  that  in

Anthony  (supra)  the  lease  in  question  was  one  under  the

Kerala Buildings (Lease and Rent Control) Act, 1965, namely,

a non-agricultural lease.  In the present case, the lease being

admittedly an agricultural lease the same can be deemed to be

from year to year in view of the provisions of Section 106 of the

Transfer of Property Act.

18. If the lease in the instant case has to be deemed to be a

lease from year to year and the terms thereof cannot be looked

into to determine the total duration thereof what would follow

is that the tenant remained in possession beyond the legally

presumptive period of  the  lease (one  year)  with the  implied

consent of  the landlord.   In the  present case such consent

ceased to exist only upon institution of the cross objection in

the suit filed by the tenant, as mentioned earlier.  The tenant,

2 (2000) 6 SCC 394

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therefore,  acquired the status of  a tenant holding over or a

tenant at will, which would confer on him protection under the

1953 Act requiring the landlord to establish proof of any of the

conditions specified in Section 9 of the 1953 Act before being

entitled to a decree of  eviction.   From the above it  would

necessarily follow that to be entitled to protection from

eviction  under  the  1953  Act  any  person  claiming  such

protection has to come within the fold of the expression

“tenant”  under  the  1953  Act  read  with  the  relevant

provisions of the 1887 Act.  Statutory protection would be

available  only  to  a  statutory  tenant,  namely,  a  tenant

under  the  Act.  The  Punjab  Act  of  1953  read  with  the

relevant  provisions  of  the  1887  Act  do  not  include  a

tenant  whose  lease  has  expired.  Nevertheless,

retention/continuance  of  possession  after  expiry  of  the

duration of the lease with the consent of the landlord will

continue to vest in the erstwhile tenant the same status

on the  principle  of  holding  over. Such  continuance  even

after expiry of the deemed period of the lease under Section

106 of the Transfer of  Property Act, as in the present case,

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would clothe the occupant with the status of a tenant under

the Act in view of Section 116 of the Transfer of Property Act

which  deals  with  the  consequences  of  holding  over.   The

operation of Section 116 of the Transfer of Property Act would

confer legitimacy to the possession of the tenant even after the

termination or expiration of the deemed period of the lease so

as to confer on him a status akin to that of a statutory tenant

and  hence  protection  from  eviction  as  envisaged  by  the

provisions of the Act of 1953.  

19. We accordingly answer the question referred in the above

terms, and allow this appeal and further set aside the order of

the High Court under challenge.  

........................................,J.          (RANJAN GOGOI)

              ......................................,J.              (ARUN MISHRA)

......... ..............................,J.      (PRAFULLA C. PANT)

NEW DELHI; JULY 05, 2016.