Holding

A sub‑tenant’s interest is extinguished upon the tenant’s surrender and, after the sub‑lease expires, the occupant is liable to ejectment under s.180, not s.175.

Summary

The plaintiff, a land proprietor, sued the defendant, a sub-tenant, for ejectment after the original tenants surrendered their interests, causing the sub-tenant's interest to terminate. The defendant argued that his sub‑tenancy survived the tenants' surrender and that the suit should be filed under s.175, which was stayed by a 1953 government notification. The Supreme Court examined the United Provinces Tenancy Act, 1939, particularly sections 45, 47, 48, 175 and 180, and held that the extinction of a non‑occupancy tenant’s interest automatically extinguishes the sub‑tenant’s interest, subject only to a limited post‑extinction right under s.47(4). Once the sub‑lease expired on 31‑12‑1954, the defendant was no longer a tenant within the meaning of s.175 and became a person in unlawful possession, making s.180 the proper basis for ejectment. Consequently, the appeal was dismissed and the High Court’s decree upheld.

Issues considered

The suit for ejectment against a sub‑tenant after the principal tenant’s surrender is maintainable under s.180 of the United Provinces Tenancy Act, 1939, not s.175.
Whether the sub‑tenant’s interest is extinguished upon the extinction of the tenant’s interest under s.45 and s.47.
The effect of s.47(4) on the sub‑tenant’s right to remain in possession after the tenant’s surrender.
The applicability of the 23‑Jan‑1953 government notification staying proceedings under s.175.

Legislation cited

Land Acquisition Act, 1894s. 16
United Provinces Tenancy Act, 1939s. 175, s. 180, s. 31, s. 3(22), s. 3(23), s. 39, s. 45, s. 47, s. 48

Subjects

sub‑tenantejectmentextinction of interestUnited Provinces Tenancy Actsection 47section 175section 180agricultural tenancylandlord‑tenant law

Judgment

LALA RAGHURAJ SWARUP (DEAD) BY L.RS.
A
v.
HARDWARl LAL AND ORS.

AUGUST 21. 1991

B [DR. T.K. THOMMEN AND R.M. SAHA!, JJ.]

United Provinces Tenancy Act, 1939: Ss. 3(22), 3(23), 31, 39,
45, 47, 48, 175, 180/Notification dated 23.1.1953.
t
Nnn:occupancy tenants-Grant of suh-lease to sub-tenant-Sur-
e render of holding to land /:older before expiry of sub-lease-Notice uf
<'J<'clment by land holder to sub-tenant-Interest of sub-tenant-
Whether extinguishes on exti1iction of tenants' interest-Status of sub-
1rnant-Whether he holds land otherwise than under law--Suit for
<'/l't"tment of sub-tenant after expiry of sub-lease-Maintainability.

D The defendant-appellant was a sub-tenant in terms of a sub-lease
granted to him by the non-occupancy tenants for a period of five years
from l.l.1950 expiring on 31.12.1954 in respect of the land in dispute of
which the plaintiff-respondent was the proprietor. On 14.9.1954 the
original tenants surrendered their interests in the holding to the
proprietor who issued a notice dated 2.11.1954 to the sub-tenant
E demanding vacant possession of the land by 31.12.1954, the a~reed date
..
of expiry of the sub-lease, and, since the latter failed to comply with the
notice, the proprlttnr filed a suit for ejectment under s. 180 of the
Lnited Provinces Tenancy Act, 193,.

The Trial Conrt as well as the first appellate court decided all the
F issues in favour of the plaintiff, but dismissed the suit as not maintain·
able holding that the defendant being a sub-tenant was liable to be
ejected only in terms of s. 175 and not under s. 180 of the Act, and had
the suit been brought under s. 175 it would have been stayed in terms of
the Government Notification dated 23.1.1953.

G In the second appeal by the plaintiff the High Court held that the
suit was rightly brought under s. 180 and, finding the other issues in
favour of the plaintiff, it decreed the suit. Aggrieved, the defendant
filed the appeal by special leave to this Court.

It was contended on behalf of the defendant-appellant that his
l
H interest in the land was not extinguished on the extinction of the

072
SWARUP '· HARDWARI LAL 673

tenants' interest but continued even after termination of the period of
A
his sub-lease notwithstanding the plaintiffs' notice; that alth_ough the
term of lease had expired, he was not in unlawful or unauthorised
occupation but was in possession of the land by reason of bis being a
lessee, and, therefore, s. 175 of the United Provinces Tenancy Act, was
applicable; and that be ceased to be a sub-tenant and was elevated to
the position of a tenant on the extinction of the interests of the tenants B
on their surrender of the holding.

Dismissing the appeal, this Court,

HELD: (By the Court-Dr. T.K. Thommen & R.M. Sahai, JJ.)
(1) The interest of a non-occupancy sub-tenant, is liable to be ext-
inguished consequent on the extin;:!lon of the interests of the non- c
occupancy tenant, and he enjoys a legal right for a limited period in
terms of the statute.

(2) A person who continues to remain in occupation of the laud
even after the expiry ·or the period of his lease, and despite the land- D
lords' notice to quit the permises, can no longer be regarded as a
) tenant as referred to in clause (a) or clause (b) of s. 175 of the United
Provinces Tenancy Act, 1939.

(3) The persons who are not, or are no longer, tenants at the
time of the suit, and liable to ejectment, have to be proceeded against E
under s. 180 of the United Provinces Tenancy Act, 1939.

Per Dr. Thommen, J.

1.1 The extinguishment of the interest of a non-occupancy tenant
would, as envisaged by s. 47(1) of the United Provinces Tenancy Act, F
1939, extinguish the interest of his sub-tenant except as otherwise pro-
vided in sub-ss. (3) and (4). [685A-B]

1.2 Notwithstanding the extinction of the interest of the tenant by
reason of his surrender or any other reaSon mentioned under sub~
section (4) of s. 47, a sub-tenant whose sub-tenancy had not expired, was G
protected for the remainder of the term of the sub-lease or for 5 years,
whichever period be the shorter, but subject to the requirement of
sub-section (S) about rent. [681G-H]

2.1 In the instant case, the interests of the tenants had become
extinguished in terms of clause (c) of s. 45 of the United Provinces H
674 SL:PREME COURT REPORTS [1991] 3 S.C.R.

A Tenancy Act by reason of-suneilder of their interests in the holding on
14.9.54 in favour of the proprietor-plaintiff. [679G-H]
-....:.
Once the interest of the person under whom the defendant held
the land was extinguished, the defendant was no longer a sub-tenant,
but a person enjoying a legal right for a limited period in terms of the
B
statute. [6858]

Birendra Pratap Singh & Anr. v. Gu/want Singh & Ors., [1968] 2
SCR 870, referred to.
)._

Biswabani (P) Ltd. v. Santosh Kumar Dutta & Ors., [1980] I
C SCR 650, held inapplicable. ....

The in_terest of the defendant, being that of a non-occupancy sub-
tenant, was, subject to the provisions of sub-ss. (4) and (5) of s. 47,
. liable to be extinguished consequent on the extinction of the interests of
the non-occupancy tenants. [6818-C]
D
2.2 The statutory right. vested in the defendant remained in force (
only for the statutorily limited period, for the purpose of removal of
standing crops aud other products of the earth, and he had an obliga- "
lion to vacate the holding, as envisaged bys. 48. (681H; 682A]
E
2.3 The terms and conditions under which the defendant held the
sub-lease under the tenants continued to be binding and enforceable
between the plaintiff and the defendant for the period from 14.9.1954,
which was the date of surrender by the tenants, till 31.12.1954, which
was the date on which the defendant's sub-lease expired. This was,
however, subject to sub-s. (5) of s. 47 which provided that, if the rent
payable by the sub-tenant was less than the rent that was payable by the
tenant, the sub-tenant had the option of vacating the holding or con-
tinuing in possession forlhe period permitted by the statute on payment
of rent at the higher rate which was applicable to the tenant. [681E-F]

3.1 Section 175 of the United Provinces Tenancy Act, dealing
G with a non-occupancy tenant, is confined to a person who is a tenant
either in terms of an unexpired lease or by reason of his being allowed to
continue in possession after the expiry of the period of the lease. The
section has no application to past tenants whose interests have become
extinguished for the reasons stated in s. 45 or s. 47 or whose lease has
been duly determined._ [68W-G; 683E]
H
SWARUP v. HARDWARJ LAL 675

3.2 There must be an existing or continuing legal relationship
A
between the owner and the person in possession of the land. In the
absence of any such relationship, either because no lease or any other
interest or right was ever granted or because it was duly determined or
extinguished, a person retaining possession of the land without the con-
sent and contrary to the will of the landlord does not come within the
purview ofs. 175. [684A-B] B
\

3.3 Persons who are not, or, who are no longer, tenants at the
time of suit, and liable to ejectment, have to be proceeded against under
s. 180. [682G-HI

3.4 S. 180 has no application to a present tenant. It is meant for
ejectment of a person who has no present right· to retain possession of c
land either because his occupation commenced without any such right
or the right by which he commenced the occupation has since been duly
extinguished or terminated in accordance with the law in fom" [683B; 6848-C]

Bhinka & Ors. v. Charan Singh, [1959] Supp. 2 SCR 798, D
referred to.

4. The learned Judges of the High Court were correct in holding
that insofar as the defendant continued to remain in ocrnpation of the
land even after the expiry of the. period of his lease, and despite the
landlord's notice to quit the premises, he could no longer he regarded as E
a tenant referred to in clause (a) or (b) of s. 175 and, therefore, that
section had no application to him. The right section in terms of which a
suit had to be brought against him, as the plaintiff did in the instant
case, was section 180. [686G-H; 687 A]

Per Sahai. J.: F

l. l Sub-tenant, literally or statutorily either in the Rent Control
legislations or agricultural tenancies, normally is a person in possession
holding from the tenant. His right or interest depends on provisions in
the statute. [687C I
G
1.2 Under U.P. Tenancy Act, sub-tenant according to clause (22)

'
of s. 3 holds land from a tenant, and even though he is included in the
definition of tenant in clause (23) and is non-occupancy tenant under
s. 31 of the Act, yet, he is inferior class of tenant as he is specifically
precluded by s. 39 from subletting and has no security of tenure as he
can be evicted under s. 175 of the Aet and his interest in the holdir.g H
67b SUPREME COURT REPORTS [1991] 3 S.C.R.

A extingnishes, statutorily, nnder s. 47 on extinction of interest of his
tenant under s. 45 of the Act. [687C-D]

2.1 A combined reading of sub-sections (1) and (4) ofs. 47 shows
that the interest of a sub-tenant extinguishes on surrender by his tenant
but this is deferred for the period mentioned in sub-section (4). The
B extinction is complete bnt its operation is postponed to a later date. The
right created by sub-section (4) being limited in operation it cannot
extend beyond the period mentioned in it. [689G-H; 690A-B]

2.2 Section 47 is wider in application and immediate in operation.
It extends to every tenant holding under a tenant other than permanent
tennre holder or fixed rate tenant. The interest of such tenant extin-
c guishes, automatically and immediately by operation of law on extinc-
tion of interest of his chief tenant. No further requirement is contemp-
lated. He becomes Iiabl•~ to ejectment. If he continues in possession he is
a trespasser unless he holds with consent of the landholder /landlord
expressly or impliedly, and, as envisaged by s. 48, he is required to
D vacate the holding except for the standing crops and produce which he
is permitted to remove as any other tenant ejected in accordance with
the provisions of the Act. [689A-C]

.Section 47(4) does not ~ extinction. It only postpones it. [690C-D]

E Birendra Pratap v. Gu/want Singh and Others, AIR 1968 SC 1068
referred to.

2.3 The expression, 'Except as provided' in sub-section (1) of
s. 47 does not carve out an exception to extinction of interest of sub-
tenant but to its immediate operation. That is inte,est in the holding is
.,i
F extinguished but form a future date namely expiry of the period of
teases or five years whichever is shorter. This benefit or concession
cannot be stretched to vest any fresh tenancy right in him after expiry of
the period. [689F-G]

2.4 No new tenancy is created by sub-s. (4) ofs. 47. What is made
G binding and enforceable is the old covenant existing between the
tenant and sub-tenant for the remainder period of the sub-lease. What-
ever right a sub-tenant acquires it ceases to operate after the expiry of
period of lease or the period mentioned in the sub-section. N~ eecond
extinction is visualised. [690E-F]

H 3.1 Status of a person in possession after expiry of the remainder
SWARUP v. HARDWARI LAL [THOMMEN, J.] 677

period of lease or five years as provided in s. 47(4) can neither be of A
statutory teuant nor a tenant holding over as understood in common
parlance. He is a person in possession without authority oflaw. [690G I

3.2 A sub-tenant whose extinction is postponed as a matter of
concession because of the tenant's prejudicial acts cannot be placed any
higher than other sub-tenants who are required to vacate their holding B
immediately under s. 48. Therefore, retention of possession by such
person cannot be except otherwise than in accordance wit!t the provi-
sions oftbe Act for the time being in force. [690G-H; 691A]

4. The Full Bench of the High Court was right in holding that the
effect of extinction of sub-tenant's interest under s. 47(1) of the Act was c
not only that 'he could no longer be held to be in the capacity of sub-
tenant' but even the 'new right' of continuance for the remainder
peri_od of lease which was created under s. 47(4) was limited and did not
vest any right in such person to continue after that date nor any fresh
right of sub-tenancy could be deemed to accrue; consequently, posses-
sion of such person after expiry of the extended period, was otherwise D

- than in accordance with the provision of law against whom a suit for
ejectment under s. 180 of the Act was maintainable, [691A-C]

CIVIL APPELLATE JURISDICTION: Civil·Appeal No. 937
of 1977.
E
From the Judgment dated 24.3.1977 of the Allahabad High
Court in Second Appeal No. 2746 of 1965.

Shanti Bhushan, J.P. Goyal, Satish Chandra, V.M. Tarkunde.
R.P. Singh, A.K. Shukla, J.M. Khanna, M.R. Bidsar, K.K. Gupta.
Vijay Kumar Verma, Ms. Shefali Khanna, P.K. Chakraborty and F
R.C. Verma for the appearing parties.

The Judgment of the Court was delivered by

THOMMEN, J. This appeal by leave arises from the judgment
of the Full Bench of the Allahabad High Court in Second Appeal No. G

r 2746 of 1965, whereby the High Court, reversing the finding of the
courts, below, held that the suit instituted by the present respondent
·was maintainable under section 180 of the United Provinces Tenancy
Act, 1939 (the 'Act'). That is the only question which arises for con-
sideration in this appeal brought by the defendant in the suit.
H
678 SUPREME COURT REPORTS (1991) 3 S.C.R.

The suit relates to 10 plots of land of which the plaintiff is the
A proprietor and situated in District Muzaffarnagar. The suit was
instituted for ejectment of the defendant-appellant Lala Raghuraj
Swarup (now represented by his Legal Representatives and herein-
after referred to also as the 'sub-tenant'), who was granted a sub-lease
in the suit properties by the original tenants, Raimal and Bhartu (the
B 'tenants') for a period of five years commencing from 1.1.1950 and
expiring on 31. 12. 1954. However, on 14.9. 1954 the tenants surren-
dered their interest in the holding to the plaintiff. The plaintiff there-
upon issued notice dated 2.11.1954 to the defendant calling upon him
to deliver vacant possession of the land to the plaintiff on 31.12.1954
which was the agreed date of expiry of the sub-lease. Since the I..

defendant failed to comply with that demand, the plaintiff instituted
c the suit for ejectment under section 180 of the Act.

Various contentions were raised by the defendant in answer to
the plaint allegations and all of them, except the question whether the
suit was maintainable under section 180 of the Act, were rejected by
o the trial court as well as by the first appellate court. Holding tha: the
suit was not maintainable, they stated that, in view of the fact that the
defendant was holding the land as a sub-tenant, he was liable to be
ejected only in terms of section 175, and not section 180, and had the
suit been brought under section 175, it would have been clayed in
terms of the Government Notification dated January 23, 1953 statir. ';
E that all suits, applications or proceedings under section 175 we1 e
stayed.

It is not disputed that had the suit been brought under s.ectic•n
175, it was liable to be stayed for the notification is still in force and has
remained in' force at all material times. On the other hand, if the suit
F was rightly brought under section 180, there was no stay and in that
event, all the other issues having been found in favour of the plaintiff,
the suit has to be, and ought to have been, decreed. The High Court
has so held by the impugned judgment.

To examine this question, we shall presently refer to sections 175
G and 180, but before we do so, it is necessary to refer to the provisions
concerning the status of a sub-tenant (vis-a-vix a tenant) whose rights
arc extinguished by operation of law.
1'
The expression 'tenant' in sub-section (23) of section 3 of the Act
includes a 'sub-tenant' as defined in sub-section (22) of that section.
H These sub-sections read:
SWARUP v. HARDWARI LAL (THOMMEN, J.J 679

"3(22). 'sub-tenant' means a person who ho.Ids land from
A
the tenant thereof other than a permanent tenure-holder,
or from· a grove-holder or from a rent-free.grantee or from
a grante.e at a favourable rate of rent and by whom rent is,
or but for a contract express or implied, would be payable;

3(23). 'tenant' means the person by whom rent is, or but B
for a contract express or implied would be, payable and,
except when the contrary intention appears, includes a sub-
tenant, but does not include a mortgagee of proprietary or
under-proprietary rights, a grove-holder, a rent-free
grantee, a grantee at a favourable rate of rent or, except as ·
otherwise expressly provided by this Act, an under-pro- C
prietor, a permanent lessee or a thekadar;"

It is not disputed ttiat the defendant at the material time was a
'sub-tenant' as defined under section 3(22) in terms of the sub-lease
granted to him by Raimal and Bhartu, who were 'tenants' within the
meaning of section 3(23). Nor is it disputed that the defendant and D
Ritimal and Bhartu were non-occupancy tenants as defined under
) section 31 which reads:

"31. All tenants other than permanent tenure-
holders, fixed-rate tenants, tenants holding on special
terms ·in Oudh, ex-proprietary tenants, occupancy tenants E
and hereditary tenants are non-occupancy tenants."

S~cticms 45 to 48 speak of extinction of tenancies. Section 45, so
far as it is material to the facts of this case, provides:

"45. The interest of a tenant shall be extinguished- F

(a).'....................................... ; ....... .

(b) ................................................ .

(c) ............. by surrender, or by abandonment; G

r .............................................. •,•• ..

It is not disputed that, in respect of the two tenants, their interests had
become extinguisht>d in terms of clause (c) by reason of surrender of
their interests in the holding on 14.9.1954 in favour of the proprietor- H
680 SUPREME COURT REPORTS [1991] 3 S.C.R.

A plaintiff. The effect of.such surrender on the interest of the sub-tenant
is dealt with in section 47. It is with reference to this section that the
applicability of section 180 has to be considered.

- It is important to remember that the material portions of section
47, namely, sub-sections (.1), (4) and (5) dealing with the interests of
B
sub-tenants on the extinction of the tenants' interests, are concerned
only with tenants other than permanent tenure holders or fixed rate
tenants. In other words, these suh-sections (unlike sub-section (2) c' m-
cerning a transferee from a permanent tenure holder or a fixed-rite
tenant or sub-section (3) dealing with mortgages executed prior to
January, 1902) deal with non'occupancy tenants, as in the present
c case, and not with any other class of tenants. Section 47, so far as it is
material, reads:

"47. (1) Except as otherwise provided in sub-section
(3) and sub-section (4) the extinction of the interest of a .
tenant, other than a permanent tenure-holder or a fix1~d ·
D
rate tenant, shall operate to extinguish the interest of any
tenant holding under him ...... .
(
(2) Subject to the provisions of section 16 of the
Land Acquisition Act, 1894, the extinction of the intere:>t
of a permanent tenure-holder or a fixed rate tenant shall
E
not of itself affect the rights of any transferee from such
tenant under a valid transfer. but after the transfer all!
covenants binding and enforceable as between the landhol-
der and the tenant shall be binding and enforceable as bet-
ween the landholder and the transferee.
F
(4) Where, at the time of the extinction by surrender
or abandonment, or by death without any heir entitled to
inherit such interest, of the interest in a holding of a tenant
other than a permanent tenure-holder or fixed-rate tenant,
there is in existence a valid sub-lease of the whole or of a
portion of the holding, executed on or after the first day of
January, 1902, all covenants, binding and enforceable as
between the tenant and the sub-tenant shall, subject to the
provisions of sub-section (5), be binding and enfor~eable as
between the tenant's landholder and the sub-tenant for the
remainder of the term of the sub-lease or for five years,
1
whichever period may be the shorter.
H
SWARUP v. HARDWARI LAL [THOMMEN, J.) 681

!5). In the cases referred to in, sub-section (3) and
A
sub-section (4), ifthe rent payable by the sµb-tenant is less
than that hitherto payable by the tenant, the sub-tenant
shall have the option of vacating the holding, but shall, if
he continues in possession, be liable to pay rent at the rate
hitherto payable by the tenant .... "
B
Section 47(1) shows that in tbe case of all non-occupancy
tenants, (as disiinguished from permanent tenure holders or fixed-rate
tenants with whom we are not concerned) the extinction of their
interests as such tenants will, subject to the protection of sub-sections
(3) and (4), operate to extinguish the interests of tenants holding
under them. The interest of the defendant, being that of a non-
occupancy sub-tenant, is thus liable to be extinguished consequent on C
the extinction of the interests of the non-occupancy tenants Raimal
and Bhartu. This extinction of the defendant's interest is, however,
subject to the provisions contained is the relevant sub-sections, which
on the facts of this case, are sub-sections (4) and (5). Sub-section (4)
shows .that, in the event of the extinction of the interesi of a non- D
·occupancy ienant by reason ·of his surrender or abandonment of such
interest, or his death. without any heir to inherit such interest, all
covenants binding and enforceable as between the tenant and the sub-
tenant, subject to the provisions of sub-section (5), will be bindiag and
enforceable as between the tenants' landholder (proprietor) and the
sub-tenant for the remainder of the term of the sub-lease or for five E
years whichever period may be the shorter. This means that the terms
and conditions under which the defendant held the sub-lease under
Raimal and Bhartu continued to be binding and enforceable between
the plaintiff and the defendant for the period from 14.9.1954, which
was the date of surrender by the tenants, till 31.12.1954, which was the
·date on which the defendants' sub-lease expired. This is, however, F
subject to sub-section (5) which provides that, if the reni payable by .
the sub-tenant is less than the rent that was payable by the tenant, the
sub-tenant has the option of vacating the holding or continuing in
possession for the period permitted by the statute on payment of rent
at the ·higher rate which was applicable to the tenant.
G
These provisions show that, notwithstanding the extinction of
the interest of the tenant by reason of his surrender or any other
reason mentioned under sub-section (4), a sub-tenant whose sub-
tenancy has not expired, is protected for the remainder of the term of
the sub-lease or for 5 years, whichever period be. the shorter, but
subject to the requirement of sub-section (5) about rent. The statutory H
682 SUPREME COURT· REPORTS [1991) 3 S.C.R.

A right vested in the defendant thus remained in force only for the
statutorily limited period, and not a~y further. The limited right of the
sub-tenant thereafter for the purpose of removal of standing crops and
other products of the earth, and his obligation to vacate the holding
are stated in section 48:
B
"48. When the interest.of a sub-tenant is extinguished he
shall vacate his holding but shall have in respect of the
removal of £landing crops and 01her products of the earth
the same rights as the tenant would have upon ejectment in
accordance with the provisions of this Act".

c This section further emphasises the need to vacate the holding upon
extinguishment of the interest, but without prejudice to the right of
removal of the standing crops etc.

We shall now consider the two provisions under which a suit can
D be brought. Section 175 (the operation of which now remains stayed)
deals with the ejectment of a non-occupancy tenant, while section 180
deals with ejectment of a person in ·occupation of land without con-
sent. We shall first read section 175, and then· section 180, so far as
they are material:

"175. . ... a non-occupancy tenant shall also be liable to
E
ejectment on the application of the landholder on any of
the following grounds, namely: '

(a) that he is a tenant holding from year to year;

(b) that he is a tenant holding under a lease for a
F
period which has expired or will expire before the end of
the current agricultural year."

Significantly, this section, dealing with a non-occupancy tenant,
refers to a tenant falling under clause. (a) or clause (b ), i.e., a tenant
G having a present interest in terms of an unexpired lease or an expired
lease under whiCh he holds over. The section has no application to past
tenants whose interests have become extinguished for the reasons ·,
stated in section 45 or section 47 or whose lease has been duly
determined. On the other hand, persons who are not, or, who are no
longer, tenants at the time of the suit, and liable to ejectment, have to
H be proceeded against under section 180:

\
SWARUP v. HARDWARI LAL (THOMMEN, J.] 683

"180. (1) A person-taking or retaining possession of a plot
A
of land without the consent of the person entitled to admit
him to occupy such plot and otherwise than in accordance
,4. with the provisions of the law for the time being in force,
shall be liable to e jectment under this section on the suit of
the person so entitled, and also to pay damages which may
extend to four times the annual rental value calculated in B
accordance with the sanctioned rates applicable to heredi-
tary tenants.
/

Section 180· has no application to a present tertant. This section C
provides for ejectment of a person in occupation of land without a
valid consent. He is a person who has taken or retained possession of
land without the consent of the landlord and contrary to law. He may
have iaken possession by trespass, pr after being in .lawful occupation,
retained possession contrary to the will of the person entitled to admit
him to occupy the land· and without the support of law; in either event D
he is a person liable to be ejected under section 180. It makes no
difference for the purpose of this section that .a person was in
unauthorised occupation at all material times, or, the occupation was
authorised at its commencement, but became unauthorised by reason
of the authority to occupy having been extinguished by operation of
law, or duly determined by the person entitled to give such authority. E

Unlike section 175, which is, as seen above, confined to a person
who is a tenant either in terms of an unexpired lease or by 'reason of his
being allowed to continue in possession after the expiry of the period
of the lease, section 18CI concerns a person who was never, or who is no
a
longer, tenant. Apart from a mere trespasser, a person remaining in F
possession of the land, notwithstanding the extinguishment of his
·interest or c!.!ter.:nination of his lease, and without the consent of and
contrary to the will of the landlord, and otherwise than as permitted by
law, equally falls within the ambit of section 180. Any such person
does not hold under a lease and is not a 'tenant' within the meaning of
section 175. He has no present right df 'holding' or 'retaining posses- G

r sion' of the land. The expression 'holding' is defined under section 3(7)
as:

"a parcel or parcels of land held under one lease, .engage-
ment or grant, or in the absence of such lease, engagement
· or grant under one tenure and in the case of a thekadar H
includes the theka area".
684 SUPREME COURT REPORTS [1991] 3 S.C.R.

This shows that there must be an existing or continuing legal relation-
A
ship between the owner and the person in possession of the land. In
the absence of any such relationship, either because no lease or any
other interest or right was ever granted or because it was duly
determined or extinguished, a person retaining possession of the land
without the consent and contrary to the will of the landlord does not
B come within the purview of section 175.

While the legislature provides for the ejectment of a non-
occupancy tenant on the grounds specified under section 175, section
180 is meant for ejectment of a person who has no present right to
retain possession of land either because his occupation commenced
without any such right or the right by which he commenced the occu-
c pation has since been duly extinguished or terminated in accordance
with the law in force.

Speaking of section 180, K. Subba Rao, J. (as he then was) in
Bhinka & Ors v. Charan Singh, [1959] Supp. 2 SCR 798 at 808,
D observes:

" ..... The word "taking" applies to a person taking pos-
session of a land otherwise than in accordance with the
provisions of the law, while the word "retaining" to a
person taking possession in accordance with the provisions
E of the law but subsequently retaining the same illegally
"

So construed, it is section 180, and not section 175, which should apply
to a person who is in unlawful or unauthorised occupation of land. !.
F Mr. V.M. Tarkunde, counsel for the the appellant-defendant,
however, submits that the defendant is not in unlawful or unauthorised
or illegal occupation of the land, but he is inoccupation by reason of his
being a lessee, although the term of the lease has since expired. In the
case of such a person, it is section 175 that applies. Mr. Tarkunde says
that the interest of the defendant in the land continues even after
G termination of the period of his sub-lease and notwithstanding the
plaintiff's notice calling upon him to quit. His interest in the land, .,,'
counsel 'says, is not extinguished by reason of the extinction of the
interests of the tenants. The defendant ceased to be a sub-tenant and
was elevated to the position of a tenant upon the extinction of the
interests of the tenants by reason of their surrender of the holding.
H This argument is urged by counsel on the basis of his construction of
SWARUP v. HARDWARI LAL [THOMMEN. J.] 685

section 47 which, in our view, is not correct.
A

Section 47(1), as seen above, specifically says that, except as
otherwise provided in sub-section (3) and sub-section (4), the ext-
inguishment of the interest of a non-occupancy tenant will extinguish
the interest of his sub-tenant. Once the interest of the person under •
whom the defendant held the land was extinguished, the defendant B
was no longer a sub-tenant, but a person enjoying a legal right for a
limited period in terms of the statute. As stated by this Court in
Birendra Pratap Singh & Anr. v. Gu/want Singh & Ors., [1968] 2 SCR
870, 878-879:

" ..... The subsequent possession was, however, under a c
legal right and that right accrued to the appellant's under
sub-section (4) of section 47 ..... This sub-section does
) not lay down that the original sub-lease executed by the
chief tenant, who surrenders his rights, is to continue
in force. What this provision does is to create a new right in D
the sub-tenant and that is the limited right to continue in
possession for the remainder of the term of the sub-lease or
for five years whichever period may be shorter ..... ".

This shows that the sub-tenant was no longer a holder of any par.eel of
land once his right to hold was extinguished and his statutory right for E

-
the limited period had also expired in terms of section 47. When that
event has occurred, he has no further interest in the land and his·
continued occupation is, as pointed out by this Court in Bhinka
(supra), only an unauthorised or illegal occupation.
F
Referring to sub-section (4) of section 47, this Court, in Birendra
Pratap Singh (supra} stated: ·

, " .... So far as the right granted bys. 47(4) is concerned, it
is granted by the statute itself for a limited period and, once
that period expires, it cannot be held that the right con-
tinues thereafter. There is no requirement in law that, after
the expiry of that period, there must be eviction from the
land in order to extinguish the right granted by s. 47(4).
G

The possession subsequent to 30th June, 1951 cannot,
therefore, be held to be in pursuance of a right conferred
H
on a sub-tenant referred to ins. 47(4) of the Tenancy Act
686 SUPREME COURT REPORTS ( 1991] 3 S.C.R.

and, consequently, the land was not held by the appellants
A
thereafter in the capacity mentioned ins. 19(vii) of the Act
"

' 47(4) of the Act was made by this
This observation regarding section
Court with reference to section 19(vii) of the U.P. Zamindari Aboli-
B tion and Land Reforms Act, 1950 (No. l of 1951). The construction
placed on section 47(4) of the Act in that decision supports the view we
have indicated on the point in issue, and that decision was rightly
relied on by the High Court in coming to the conclusion which it did .

. Mr. J.P. Goyal, supplementing the arguments ofMr. Tarkunde,
c places reliance on certain observations of this Court in Biswabaili ( P)
Ltd. v. Santosh Kumar Dutta & Ors., [1980] 1SCR650. That decision
refers to the protection of a statutory tenant in terms of the West
Bengal Premises Tenacy Act, 1956. This Court stated that, even after
the expiry of the contractual tenancy, the tenant would continue as a
D statutory tenant, except where he has surrendered possession or has
been evicted under the enabling provisions of the relevant Rent Rest-
riction Act. That decision. has no relevance to the facts of this case
where the question relates to the construction of the relevant provi-
sions of the Act under which separate and special provisions have been
made to regulate the rights and liabilities of different categories of
E tenants, including non-occupancy tenants with· whom alone we are
concerned. Their liability to ejectment, following the extinction of

-
their interests and rights in the land, is regulated by statute.

The views expressed by the Full Bench of the High Court are
correct. The .learned Judges have rightly held that insofar as the
F defendant has continued to remain in occupation of the land even after
the expify of the period of his lease, and despite the landlord's notice
to quit the premises, he can no longer be regarded as a tenant referred
to in clause (a) or (b) of section 175 and, therefore, that section has no
application fo him. The right section in terms of which a suit has to be
brought against him, as the plaintiff has done in the present case, is
G section 180.

Accordingly there is no merit in this appeal.

R.M. SABAi, J. While joining in the opinion of brother Thom-
men, J., few words are being added, on nature of interest created
.. 687
SWARUP v. HARDWAR! LAL [SAHA!, J.]

under sub-section (4) of Section 47.of the U.P. Tenancy Act of 1939
·A
(referred hereinafter as the Act).

Sub-tenant, literally or statutorily either in the Rent Control
legislations or agricultural tenancies, normally, is a person in posses-
sion holding from the tenant. His right or interest depends on provi-
B
sions in the Statute. Under U.P. Tenancy Act, sub-tenant according to
clause (22) of section 3 holds land from a tenant. Even though he is
included in the definition of tenant in clause (23) and is non-occupancy
tenant under Section 31 of the Act, yet, he is inferior class of tenant as
he is specifically precluded by Section 39 froni subletting and has no
security of tenure as he can be evicted under Section 175 of the Act
and his interest in the holding extinguishes, statutorily, under Section c
47 on extinction of interest of his tenant under Section 45 of the Act.
Similar· provision for extinction of tenancy existed in Agra Tenancy
Act of 1926. Sub-section 3 and 4 are, in fact, identical with sub-section
2 and 3 of the 1926 Act. Even Section 28 of N.W.P. Tenancy Act 1901
(Act II of 1901) provided for extinction of interest of sub-tenant on
ejectment of his tenant under Section 57 of that Act. And on extinc-
tion, for other reasons, the covenant binding and enforceable as bet-
ween tenant and the sub-tenant became binding between tenants land- ·
holder and the sub-tenant and he was permitted, at his option, to
continue, in possession for the remainder period of lease, on payment
of the rent which was being paid by the tenant. Therefore, continuance
of sub-tenant under the covenant between tenant and sub-tenant exis- E
ted in Tenancy legislations right from 1901. But there existed a vital
difference between 190 l Act on one hand and 1926 and 1939 Act on
the other. In 1901 Act the sub-lessee could continue 'for the remainder
period of the term of the sub-lease' whereas under 1926 and 1939 Acts
the period was fixed depending on if the sub-tenancy was created
before or after 1st )anuary 1902. In the former case the sub-lessee F
could continue for, 'the remainder term of the sub-lease or for the
lifetime of the tenant or for ten years', wh.ichever period was the
shortest and in latter 'for the ·remainder period of the lease or five
years' whichever was shorter. Reason for fixation of. p~riod by latter
enactments, namely 1926 and 1939 was to remove uncertainty about
landholders interest as the tenants, particularly widows, who had G
limited .interest, only, at times created permanent sµb-tenancy or sub-
tenancies for long durations under 1901 Act. This resulted in mass of
litigation and at times there was sharp divergence of opinion between
Board of Revenue, the highest. authority in the hierarchy of revenue
courts dealing with agricultural holdings and the High Court. It was to
H
. put this controversy at end _a_nd rationalise. the law, in keeping with the
688 SUPREME COURT REPORTS [1991] 3 S.C.R.

spirit of those times when tiller of the soil concept was still far, that the
A
Legislature altered the law and provided for durational or limited
interest. To appreciate its. nature during subsistance of the covenant
and thereafter it is necessary to extract relevant sub-sections of Section
47:.

B "47. (l)Except as otherwise provided in sub-section (3)
· and sub-section (4) the extinction of the interest of a
a
tenant, other than permanent tenure-holder or a fixed
rate tenant, shall operate to extinguish the interest of any
tenant holding under him.

c . (2) " ... ..

(3) " .... ..

(4) Where, at the time of the extinction by surrender or
D abandonment, or by death without any heir entitled to
inherit such interest, of the interest in a holding of a tenant
other tlian a perm?nent tenure-holder or fixed-rate tenant,
there is in existence a valid sub~lease of the whole or of a
portion of the holding, executed on or after the first day of
January 1902, all covenants, binding and enforceable as
E between the tenant and th~ S!lb-tenant shall, subject to the
provisions of sub-section (5), be binding and enforceable as
between the tenant's landholder and the sub-tenant for the
remainder of the term of th<': sub-lease or for .five years,
whichever period may be the shorter.
F
(5) In the cases referred to in sub-section (3) and sub-
section (4), if the rent payable by the sub-tenant is less than
that hitherto payable by the tenant, the sub-tenant shall
have the option of vacating the holding, but shall, if he
continues in possession, be liable to pay rent at the rate
G hitherto payable by the tenant.

(6) ........ "

What is apparent, from a bare perusal of sub-section ( 1) of
H Section 47 is that it is wider in application and immediate in operation.
SWARUP v. HARDWARI LAL [SAHA!, J.[ 689

It extend~ to every tenant holding under a tenant other than per-
A
manent tenure holder or fixed rate tenant. The interest of such tenant
extinguishes, automatically and immediately by operation of law on
extinction of interest of his chief tenant. No further requirement is
contemplated. He becomes liable to ejectment. If he continues in
possession he is a trespasser unless he holds with consent of the land-
holder/landlord expressly or impliedly. For sub-tenants it has been B
made more explicit by Section 48 of the Act as he is required to vacate
the holding except for the standing crops and produce which he is
permitted to remove as any other tenant ejected in accordance with
the provisions of the Act. Thus a tenant more so a sub-tenant, continu-
ing in possession after extinction, of his interest as provided by Section ..
47, cannot be considered to be in possession in any other capacity but
as retaining possession otherwise than in accordance with the law for
c
the time being in force.

Is the result any different for a sub-tenant who is permitted to
continue for the remainder period of sub-lease by sub-section (4) of
-- Section 47? Tenancy extinguishes under section 45 for various reasons.
Consequence of it on right of a tenant holding under him is mentioned
D

in Section 47. Since sub-tenant, is tenant and holds from the tenant his
interest, too, extinguishes by operation of law. But the Legislature
made ·an exception in favour of those sub-tenants whose interest came
to an end either because the tenant surrendered or abandoned his
h.olding or died without any heir to inherit his interest, obviously, to E
avoid any prejudice to a weaker class of tenant due to conduct of his
tenant or for reasons beyond control of anyone. But the expression,
'Except as provided' in sub-section (1) does not carve out an exception
to extinction of interest of sub-tenant but to its immediate operation.
That is interest in the holding is extinguished but from a future date
namely expiry of the period of leases or five years whichever is shorter. F
This benefit or concession cannot be stretched to vest any fresh
tenancy right in him after expiry of the period. On a combined reading

...
of sub-section (1) of Section 47 with sub-section (4) the plain and
simple meaning that emerges is that the interest of a sub-tenant exting-
uishes on surrender by his tenant but this is, deferred for the period
mentioned in this sub-section. The right created by sub-section (4) G
being limited in operation it cannot extend beyond the period
mentioned in it. Otherwise the sub-section (4) and sub-section (1) of
the Act would be on cross purpose with each other. Interpreting the
sub-section in any other manner would be against principle of con-
struction, as sub-section (4) cannot be read in isolation. That is the
H
consequence provided for-Hi sub-section (1) do take place but in the
690 SUPREME COURT REPORTS [ 1991] 3 S.C.R.

A manner provided by sub-section (4). To put it, simply, the extinction is
complete but.its operation is postponed to a later date.

·i.-l~
Effort was made to distort -the otherwise plain and simple con-
struction by urging that since sub-section (5) enjoins paying of same
B rent, as the tenant who had surrendered, the right and interest of the
sub-tenant stands enhanced, by operation of law and he stands sub-
stituted in place of his tenant with higher rights than he held. Natural
follow up of it, added the learned counsel, is that new-right or interest
created under Section 47(4) cannot extinguish after expiry of the
period except as provided under section 45 of the Act. The argument ',.
suffers from inherent fallacy, Section 47(4) does not arrest extinction.
c It only postpon~s it. In Birendra Pratap v. Gu/want Singh and Others,_
\.

AIR 1968 SC 1068 this Court while construing sub-section (4) of
Section 47 observed as under:

"So far as the right granted by Sectioh 47(4) is concerned,
D
it is granted by the statute itself for a limited period and,
once that period expires, it cannot be held that the right A=-

contiriues thereafter."

~
No new tenancy is created. What is made binding and enforceable is
E the old covenant existing between the tenant and sub-tenant for the
remainder. period of the sub-lease. Thus whatever right a sub-tenant
acquires under sub-section (4) it ceases to operate after the expiry of
period of lease or the period mentioned in the sub-section. No second
extinction is visualised. That would be not only doing violence to the

F
language of ,the sub'sections but would also result in nullifying the
. effect of sub-section ( 1) completely. AJ
Status -0f a person in possession after expiry of the remainder
period of lease or five years as provided in Section 47(4) can neither be
of statutory tenant nor a tenant holding over as understood is common
parlance. He is a person in possession without authority of law. A
G sub-tenant whose extinction is postponed as a matter of concession
because of the tenant's prejudicial acts cannot be placed any higher
than other sub-tenanis who are required to vacate their holding
·~
immediately under Section 48. Therefore retention of possession by
such person cannot be except otherwise than in accordance with the
provisions of the Act for the time being in force.
H
SWARUP v. HARDWARI LAL [SAHAI. J.] 691

The Full Bench therefore did not commit any error of law in
qpplying the ratio laid down by this Court in Birendra Pratap Singh v. A
Gu/want Singh and Others, (supra) that the effect of extinction of
··-* sub-tenant's interest under Section 47(1) of the Act was not only that,
'he could no longer be held to be in the capacity of sub-tenant' but
even the 'new right' of continuance for the remainder period of lease
which was created under Section 47(4) was limited and did not vest any B
right in such person to continue after that date nor any fresh right of
sub-tenancy could be deemed to accrue consequently possession of
smh person after expiry of the extended period, was otherwise that in
accordance with the provision of law against whom a suit for ejectment
under Section 180 of the Act was maintainable.

c
The appeal thus as held by brother Thommen, J., is devoid of
any merit.

ORDER
D
For the reasons stated by us in our separate but concurring judg-
ment.s dated August 21, 1991, we see no merit in this appeal and it is
accordingly dismissed with costs throughout.

R.P. Appeal dismissed.