HARISHANKER versus BOARD OF REVENUE, U.P. & ORS.

Citation: [1988] 1 S.C.R. 328 · Decided: 24-09-1987 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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HARISHANKER 
v. 
BOARD OF REVENUE, U.P. & ORS. 
SEPTEMBER 24, 1987 
(0. CHINNAPPA REDDY, M.H. KANIA AND 
K.J. SHETTY, .JJ.] 
United Provinces Tenancy Act, 1939-S. 171 read withs. 40-The 
question of termination of sub_tenancy should not be mixed up with the 
question of recovery of possession of land. 
Under s. 171 read with s. 40 of the United Provinces Tenancy Act, 
1939, if a tenant sub-lets the land to a 'sub-tenant' and the sub-lease 
continues for more than five years, the 'land holder' is entitled to eject 
both the tenant and the sub-tanant from the land held by them. How-
ever, tenants are entitled to retain possession of land for certain periods 
D in terms of provisions of s. 295-A of the Act and certain notifications 
issued by the State Government under s. 10 of the Uttar Pradesh 
Agricultural Tenants (Acquisition of Privileges) (Amendment) and Mis-
cellaneous Provisions Act, 1950, notwithstanding anything contained in 
any law for the time being in force. 
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The appellant, Hari Shanker, the 'land holder' of the land in 
question, filed a suit under s. 171 of the United Provinces Tenants Act, 
1939 against his 'exproprietory tanant'. Habib, on the ground that he 
had sub-let the land for more than five years to a 'sub-tenant', Ida, in 
contravention of s. 40 of the said Act. The suit was decreed in favour of 
Hari Shanker and Habib was given the option to apply for ejectment of 
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Ida and resume occupation of the land in terms of the proviso to s. 171. 
On an appeal filed by Ida, the Additional Commissioner set aside the 
decree and dismissed the suit. Allowing the second appeal filed by Hari 
Shanker, the Board of Revenue restored the decree of the Trial Court. 
Ida's writ petition against that order was dismissed by a Single Judge of 
the High Court. Meanwhile, Hari Shanker had applied for execution of 
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the decree and the objection filed thereto by Ida was dismissed, though 
the application for execution itself was still pending. Habib also filed an 
application against Ida as contemplated by the proviso to s. 171 of the 
Act. Ida's appeal against the order aforesaid of the Single Judge and the 
writ petitions filed by Habib and Ida against orders passed in execution 
proceedings were heard together by the Division Bench of the High 
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Court which allowed them and dismissed the suit of Harl Shanker. 
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HARi SHANKER v. BOARD OF REVENUE 
329 
Allowing the appeals, 
HELD: The Division Bench of the High Court mixed up the ques-
tion of termination of the sub-tenancy with the question of recovery of 
possession. It is common ground that Habib was a "sub-tenant" of 
Hari Shanker in respect of the suit land. He granted a "sub-tenancy" to 
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Ida which was from year to year. The "sub-tenancy" was created in 
1943 and it admittedly continued for a period of more than 5 years. It is B 
not disputed that the said "sub-tenancy" was not terminated by Habib 
in spite of the provisions of s. 40 of the United Provinces Tenancy Act, 
1939. It may be true that even if the sub-tenancy had been terminated 
Habib might not have been able to recover possession of the suit land 
from Ida but that does not affect the question of the continuance of the 
"sub-tenancy". As the said "sub-tenancy" contravened the provisions C 
of s. 40, Hari Shanker was clearly entitled to file a suit as contemplated 
bys. 171 of the said act against Habib as well as Ida on the ground that 
the tenant Habib has sub-let the suit land otherwise than in accordance 
with the provisions of the said Act, namely, in excess of 5 years. There 
is, on the record, no defence to that suit which was rightly decreed by 
the Board of Revenue. [333D-H] 
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The question whether Habib is in a position to evict Ida and 
obtain possession of the suit land is a question which will have to be 
decided in the application filed by Habib against Ida for the eviction of 
Ida from the suit land and recovery of possession thereof. Similarly, the 
question as to whether the appellant, Hari Shanker, has become en· 
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titled to execute the decree in the suit to which he is entitled will have to 
be disposed of in the application filed by Hari Shanker against Habib as 
well as Ida. All these applications, we understand, are pending before 
the relevant authorities and they will have to be decided according to 
law. However, in our opinion, there is no doubt that in the circum· 
stances set out above. Hari Shanker is entitled to the decre
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