1. As common question of law and facts arise in these appeals and as such they are between the same parties and with respect to the very suit land in question both the appeals are decided and disposed of by this common judgment and order.
2. In both these appeals appellants have prayed to quash and set aside the impugned common judgment and order passed by the learned appellate Court-learned District Judge, Bhavnagar dated 23/09/1980 in Regular Civil Appeal No. 132/1979 preferred by respondent no. 1-original plaintiff of Regular Civil Suit No. 18/1976 as well as Regular Civil Appeal No. 134/1979 preferred by respondent no. 1-original defendant no. 1 of Regular Civil Suit No. 15/1977.
3. The facts leading to the present Second Appeals in a nutshell are as under;
3.1. The respondent herein preferred Regular Civil Suit No. 18/1976 against the appellants for permanent injunction restraining the appellants-original defendants of that suit from disturbing his possession of the suit land, which according to him was cultivated by him as a tenant. After the aforesaid suit was filed, the appellants-original owners of the land in question instituted Regular Civil Suit No. 15/1977 before the learned trial Court against the respondent herein-original defendant in Regular Civil Suit No. 15/1977 and original plaintiff in Regular Civil Suit No. 18/1977 for recovery of possession of the very suit land. The learned trial Court by impugned judgment and decree dated 12/11/1979 allowed the suit preferred by the appellants-original owners of Regular Civil Suit No. 15/1977 and passed the eviction decree against the respondent herein and dismissed Regular Civil Suit No. 18/1977 preferred by respondent no. 1, which was filed for permanent injunction and refused to grant permanent injunction as prayed for by observing that the lease under which the respondent herein- tenant was claiming possession is void considering provisions of the Saurashtra Prohibition of Leases of Agricultural Act, 1953 (hereinafter referred to as “the Act”). Being aggrieved and dissatisfied with the common judgment and decree passed by the learned Civil Judge (Junior Division), Vallabhipur, Sihor in Regular Civil Suit Nos. 18/1976 and 15/1977, the respondent herein preferred Regular Civil Appeal Nos. 132/1979 and 134/1979 and by impugned judgment and order the learned appellate Court has allowed the aforesaid appeals and quashed and set aside the impugned judgment and decree passed by the learned trial Court in Regular Civil Suit No. 18/1976 as well as Regular Civil Suit No. 15/1977 and consequently granted permanent injunction in Regular Civil Suit No. 18/1976 in favour of the respondent herein-tenant and dismissed Regular Civil Suit No. 15/1977 preferred by the appellants-landlord and quashed and set aside the eviction decree. Being aggrieved and dissatisfied with the impugned common judgment and order passed by the learned appellate Court in Regular Civil Appeal Nos. 132/1979 and 134/1979 the appellants-original owners have preferred the present Second Appeals under Section 100 of the Code of Civil Procedure.
4. Shri J.D. Ajmera, learned advocate appearing on behalf of the appellants-original owners has vehemently submitted that the learned appellate Court has materially erred in allowing the appeals preferred by respondent no. 1 herein-tenant and quashing and setting aside the judgment and decree passed by the learned trial Court and protecting the possession of the respondent-tenant. It is submitted that the learned appellate Court has also held that the lease in favour of the respondent- tenant was void in view of Section 5 of the Act and, therefore, the learned appellate Court ought to have confirmed the judgment and decree passed by the learned trial Court. It is submitted that as such by protecting the possession of the respondent-tenant and granting permanent injunction in favour of the respondent-tenant, the learned appellate Court has passed an order which would be contrary to Section 5 of the Act. It is further submitted by Shri Ajmera, learned advocate appearing on behalf of the appellants that the learned appellate Court has materially erred in granting permanent injunction in favour of the respondent-tenant and/or protecting his possession relying upon Sections 23 and 24 of the Contract Act.
4.1. Shri Ajmera,learned advocate appearing on behalf of the appellants has heavily relied upon the decision of this Court in the case of Bai Prembai Zaver and Ors Vs. Koli Tapur Ratna reported in 1960 (1) GLR 5 in support of his prayer to allow the present Second Appeals.
5. Both these Second Appeals are opposed by Shri Dhirendra Mehta, learned advocate appearing for Shri P.V. Hathi, learned advocate appearing on behalf of the respondent- tenant. It is submitted that as rightly held by the learned appellate Court, in view of the contract between the parties, when the respondent-tenant was cultivating the land lawfully under the Contract, which otherwise was not against the public policy, the learned appellate Court has rightly granted the injunction so far as the respondent-tenant is concerned. It is further submitted that as rightly observed by the learned appellate Court the respondent-tenant cannot be evicted even as a lessee without following the due procedure and law and, therefore, no illegality has been committed by the learned appellate Court in dismissing the suit preferred by the appellants-original owners and quashing and setting aside the eviction decree and granting the permanent injunction in favour of respondent-tenant restraining the appellants-original owners from disturbing his possession. It is further submitted by Shri Mehta, learned advocate appearing on behalf of the respondent-tenant that the notice terminating the tenancy was not in accordance with law and it could not have been said that the lease in favour of the respondent-tenant was validly terminated. Making the above submission, it is requested to dismiss the present Second Appeals.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted and it is not in dispute that the respondent-tenant claimed possession as a tenant and even there are concurrent findings of fact given by both the Courts below that as such the respondent-tenant was the lessee. It is also not in dispute that with respect to the suit land in question provisions of the Act would be applicable and as per Section 5 of the Act as any lease of the land within the area on and after the date on which the Act came into force could be void. It is not in dispute that admittedly the lease in favour of the respondent-tenant was after the date on which the Act came into force and, therefore, the lease in favour of the respondent-tenant was hit by Section 5 of the Act and was void. It is also required to be noted at this stage that as such there are concurrent findings of fact given by both the Courts below that as such lease in favour of the respondent-tenant was void. It is also required to be noted that even prior to filing of the suit by the appellants-original owners, the tenancy was terminated and notice was issued to the respondent-tenant, which the respondent-tenant refused. However, the learned appellate Court protected the possession of the respondent-tenant solely relying upon Sections 23 and 24 of the Contract Act. However, it is required to be noted and as stated hereinabove, the lease in favour of the respondent- tenant is void under Section 5 of the Act. Under the circumstances, when the lease under which the respondent- tenant is claiming possession was found to be void there cannot be any injunction in his favour restraining the appellants-original owner from getting back possession and/or disturbing his possession, which was under the lease, which is held to be void and, therefore, any injunction protecting the possession of the respondent-tenant would be contrary to Section 5 of the Act. Once the lease under which the respondent-tenant was claiming possession is held to be void, there is no question of protecting his possession. Under the circumstances, the learned appellate Court has materially erred in granting permanent injunction in favour of the respondent-tenant and has materially erred in dismissing the suit filed by the appellants-original owner, which was filed for recovery of possession. Even the controversy in question is squarely covered by the decision of this Court in the case of Bai Prembai Zaver and Ors (Supra). In the case before the Division Bench the lease was not registered as required under Section 4 of the Act and the original owner initiated the proceedings for eviction and to that the Division Bench of this Court has observed that mere fact that the lease was not registered as required under Section 4of the Act does not result in the consequence of its being declared void, though of course in such a case, it will be open for the original owner to initiate the proceedings for eviction by other process of law. It is required to be noted that in the present case there is no question of non registration of the lease as admittedly lease in favour of the respondent-tenant was after the Act came into force and, therefore, it is directly hit by Section 5 of the Act and such lease was void and, therefore, on terminating the tenancy, appellants-original owner would be entitled to possession from the respondent-tenant. Considering the aforesaid facts and circumstances of the case, the learned appellate Court has materially erred in quashing and setting aside the judgment and decree passed by the learned trial Court in Regular Civil Suit Nos. 18/1976 and 15/1977.
7. In view of the above and for the reasons stated hereinabove, both the Second Appeals succeed. The impugned judgment and order dated23/09/1980 in Regular Civil Appeal Nos. 132/1979 and 134/1979 are hereby quashed and set aside and the judgment and decree passed by the learned Civil Judge (Junior Division), Vallabhipur, Sihor dated 12/11/1979 in Regular Civil Suit Nos. 18/1976 and 15/1977 are hereby restored. Consequently there shall be decree for possession in favour of the appellants against the respondent- original tenant in Regular Civil Suit No. 15/1977. No cost.
(M.R. SHAH, J.) siji