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Gopilal Badrilal Vaishva v. Bajranga And Others
Structured Summary of the Opinion — Second Appeal (M.P. Land Revenue Code)
Factual and Procedural Background
The respondents (plaintiffs) filed a suit in the Court of Civil Judge (Class II), Sheopur, seeking a declaration that they had acquired the rights of occupancy tenants in respect of survey Nos. 39, 249, 364, 365, 566, 607 and 614 in village Indrapura. Their claim was that they were sub-tenants of the appellant defendant and that, upon the coming into force of the M.P. Land Revenue Code, they had acquired the status of occupancy tenants and were, therefore, entitled to be conferred with the rights of Bhoomiswami.
The appellant defendant, in his written statement, pleaded that he was a "disabled person" within clause (v) of section 168(2) of the M.P. Land Revenue Code, and on that basis argued that section 185 prevented the plaintiff-respondents from being conferred occupancy rights. The defendant produced a medical certificate and examined Dr. Pathak, who testified that the appellant suffered from foot drops in both lower legs and could walk slowly but not fast or run.
The trial Court dismissed the plaintiffs' suit, holding that the defendant fell within clause (v) of section 168(2) and so the plaintiffs could not claim occupancy rights under section 185. On appeal, the Additional District Judge (A.D.J.), while accepting the trial court's factual finding on disability, held that the disability was not such as to prevent the appellant from getting cultivation done through servants under his supervision, and therefore allowed the appeal and decreed the suit. The present second appeal was filed by the appellant against that appellate judgment.
Legal Issues Presented
- Whether the appellant defendant is a "person subject to physical or mental disability due to old age or otherwise" within the meaning of clause (v) of section 168(2) of the M.P. Land Revenue Code.
- Whether, for the purposes of clause (v) of section 168(2), the disability must be of such a nature as to prevent the person from "cultivating personally" as that phrase is defined in section 2(z-2) of the Code (i.e., whether inability to cultivate even through servants is a necessary condition for entitlement to sub-letting/exemption under clause (v)).
- Whether the learned Additional District Judge erred in adding a requirement (a rider) that the disability must prevent cultivation through servants under the person's supervision, thereby denying the protection of clause (v) in the present case.
Arguments of the Parties
Appellant's Arguments
- The appellant relied on clause (v) of section 168(2) of the M.P. Land Revenue Code, claiming he was a "disabled person" within that clause and thus entitled to the protection which prevents conferring occupancy rights on sub-tenants under section 185.
- Counsel for the appellant argued that the earlier Madhya Bharat provision (section 74 of the Madhya Bharat Land Revenue and Tenancy Act) expressly used the phrase "a person incapable of personally cultivating," but the legislature intentionally omitted that specific phrase when enacting clause (v) of section 168(2) in the M.P. Land Revenue Code. That omission, he contended, shows legislative intent not to impose the additional restriction (i.e., inability to cultivate even through servants) on the definition of disability.
- The appellant produced medical evidence (certificate and testimony of Dr. Pathak) establishing a physical disability (foot drops of both lower legs), which the trial court accepted as falling within clause (v).
Respondents' Arguments
- The respondents contended that the nature of the disability must be considered in substance and relied on earlier decisions which, in similar factual settings, treated as relevant whether the disability prevented cultivation through servants under the person's supervision.
- Counsel for the respondents relied specifically on Roop Narain v. Board of Revenue and Ors., 1969 MP Revenue Nirnaya Page 131, where it was observed that the disability did not prevent cultivation through servants under supervision and that factual finding was not to be disturbed in the Article 226 proceedings. Counsel also relied on Mainabai v. Raghunath, 1963 JLJ Short Note 126, though that decision dealt with the provisions of the earlier M.P. Land Revenue and Tenancy Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Roop Narain v. Board of Revenue and Ors., 1969 MP Revenue Nirnaya Page 131 | Authority where the court observed that the disability in that case did not prevent cultivation through servants under supervision; the factual finding was not interfered with in Article 226 proceedings. | The Court treated this decision as fact-specific and arising in Article 226 proceedings. It concluded that Roop Narain could not be treated as a precedent on the interpretation of clause (v) of section 168(2), because the observations reflected a factual finding in a different context (the petitioner being in government service) and the decision did not interpret sub-clause (v) exhaustively. |
| Mainabai v. Raghunath, 1963 JLJ Short Note 126 | Cited for authority concerning disability/exemption from sub-letting, but the case concerned provisions of the earlier M.P. Land Revenue and Tenancy Act. | The Court noted Mainabai was decided under a different statutory regime (Madhya Pradesh Land Revenue and Tenancy Act) and therefore its applicability to interpret clause (v) of section 168(2) of the M.P. Land Revenue Code was limited. |
Court's Reasoning and Analysis
The Court engaged in a statutory-interpretive analysis focused on the language the legislature chose (and omitted) when enacting the M.P. Land Revenue Code. The reasoning proceeded in the following steps, based solely on the material in the opinion:
- Comparison with earlier statute: The Court examined section 74 of the Madhya Bharat Land Revenue and Tenancy Act, which explicitly permitted sub-letting by a "person incapable of personally cultivating" due to infirmity and which had been interpreted to require that the infirmity be such that the person could not get cultivation done even through servants under supervision.
- Examination of the Code's definitions: The Court identified that section 2, sub-clause (z-2) of the M.P. Land Revenue Code expressly defines "to cultivate personally" to include cultivation by servants on wages or by hired labour under personal supervision. Thus, if the phrase "cultivate personally" had been intended in clause (v) of section 168(2), the legislature could — and had elsewhere in the Code — defined it.
- Legislative omission as interpretive guide: The Court emphasized that although "to cultivate personally" is defined in the Code, the legislature did not incorporate that phrase into clause (v) of section 168(2). The Court concluded that this omission was deliberate and indicative of legislative intent not to add the extra condition (i.e., inability to cultivate even through servants) into clause (v).
- Limitation of precedents relied upon by respondents: The Court considered Roop Narain and Mainabai but found them either fact-specific (Roop Narain — involved Article 226 and factual findings about a petitioner in government service) or concerned with a different statutory regime (Mainabai). Consequently, the Court held that Roop Narain could not be regarded as establishing a principle for interpreting clause (v) of section 168(2).
- Interpretation of clause (v): Given the plain language of clause (v), which refers simply to "a person subject to physical or mental disability due to old age or otherwise," and the legislative choice not to incorporate "cultivating personally" into that clause, the Court concluded it would be improper for the courts to read into clause (v) an additional requirement not expressed by the legislature.
- Application to facts: On the factual record (medical evidence accepted by the trial court and acknowledged by the lower appellate court), the appellant's condition — foot drops of both lower legs, permitting only slow walking —fall within the category of physical disability. Thus, under the Court's interpretation of clause (v), the appellant qualifies as a "disabled person" and thereby is entitled to the protection that prevents the plaintiffs from being conferred occupancy rights under section 185.
The Court expressly refrained from introducing any judicially created rider (such as inability to cultivate through servants) into clause (v), noting that such an amendment would be the legislature's province and not the court's.
Holding and Implications
Holding: The appeal is allowed. The Court set aside the judgment and decree passed by the lower appellate Court (Additional District Judge) and restored the judgment and decree of the trial Court. The appellant (defendant) is held to be a "person subject to physical or mental disability" within clause (v) of section 168(2) of the M.P. Land Revenue Code. Consequently, by application of section 185 of the Code, the respondents cannot claim to have acquired the rights of occupancy tenants.
Direct consequences for the parties:
- The trial Court's dismissal of the plaintiffs' suit is restored.
- The appellant is entitled to the costs of this appeal; counsel's fee as per schedule is to be paid if certified.
Broader implications: The Court interpreted clause (v) of section 168(2) to mean that the statute's plain language — "a person subject to physical or mental disability due to old age or otherwise" — governs eligibility for the protection, and that courts should not read into it an additional requirement (such as inability to cultivate even through servants) which the legislature omitted. The opinion treated earlier decisions cited by parties as limited in applicability and fact-specific; it did not purport to establish a new, general precedent beyond the interpretation applied to the statute's language in this case.
Disposition: Appeal allowed.
This second appeal has been filed by the appellant defendant against whom a decree has been passed by the A.D.J. Morena in C.A. No. 102/68, dated 31-10-69, setting aside the judgment and decree passed by Civil Judge (Class II) Sheopur in C.S. No. 29-A/66, dated 21-9-66.
2. The respondents plaintiffs filed a suit in the Court of Civil Judge (Class II) Sheopur for declaration in respect of survey Nos. 39, 249, 364, 365, 566, 607 and 614 situated in village Indrapura that they had acquired the rights of occupancy tenants on the ground that they were sub-tenants of the appellant defendant and by coming into force of the M.P. Land Revenue Code, they had now acquired the status of occupancy tenants and, therefore, entitled to be conferred with the rights of Bhoomiswami.
3. The appellant defendant's plea in the written statement was that he was a disabled person as contemplated in clause (v) of section 168 (2) of the M. P. Land Revenue Code. It was also contended that in this view of the matter, he being a person protected, the rights of occupancy tenants could not be conferred on the plaintiff's respondents in view of the language of section 185 of the M. P. Land Revenue Code.
4. The defendant appellant submitted a certificate of one Dr. Pathak and also examined him in evidence. He stated that the appellant defendant is suffering from foot drops of both the lower legs as a result of which he is not in a position to walk fast or run, but he can walk slowly. On this evidence, the trial Court dismissed the suit holding that the appellant defendant falls within the ambit of clause (v) of section 168 (2) of the M. P. Land Revenue Code and, therefore, under section 185 of this act, the plaintiff respondents are not entitled to the rights of occupancy tenants.
5. On appeal, the learned Additional District Judge accepted the finding arrived at by the trial court, but observed that the doctor's evidence does not disclose that the disability is of such a nature that the appellant could not get the cultivation done through a servant under his supervision and, therefore, felt that as the appellant could get the land cultivated personally through servants under his supervision, he will not fall within the category-of 'disabled person' as defined in clause (v) of section 168 (2). The learned Additional District Judge therefore, allowed the appeal and set aside the judgment and decree passed by the trial court and decreed the suit filed by the respondents plaintiffs. Against this the present second appeal has been filed.
6. Learned counsel appearing for the appellant contended that in section 74 of Madhya Bharat Land Revene and Tenancy Act, the terminology 'a person incapable of personally cultivating' was specifically provided, whereas the legislature, in its wisdom, when enacting clause (v) of section 168 (2), omitted such terminology and what was provided was only 'physical or mental disability due to old age or otherwise'. It was contended that this omission of that phraseology as was in section 74 of the Madhya Bharat Land Revenue and Tenancy Act in the provision of clause (v) of section 168(2) of the M. P. Land Revenue Code itself is a pointer that the legislature, when enacting the M. P. Land Revenue Code, did not want that restriction to be further imposed in the clause of disability. He, therefore, contended that the learned Additional District Judge committed an error of Law in incorporating those considerations which could be under section 74 of the Madhya Bharat Land Revenue and Tenancy Act. In this case the question to be considered was as to whether the appellant was a disabled person within the meaning of clause (v) of section 168 (2) of the M. P. Land Revenue Act. He, therefore, contended that the learned court below committed an error of law in allowing the appeal and decreeing the suit filed by the plaintiffs.
7. Learned counsel for the respondents on the other hand contender that the disability has further to be considered and he relied on a decision reported in Roop Narain v. Board of Revenue and Ors., 1969 MP Revenue Nirnaya Page 131, in which it was observed that the disability was not such as to prevent the petitioner who was in Govt. Service, from cultivating the land through servant under his supervision, and therefore, he will not be entitled to exception from prohibition to sub-letting contemplated under the M.P. Land Revenue Code” Learned counsel also placed reliance on a decision reported in Mainabai v. Raghunath, 1963 JLJ Short Note 126, but m that decision, the provisions of M P. Land Revenue and Tenancy Act were considered.
8. Section 74 of the Madhya Bharat Land- Revenue and Tenancy Act which provided for exemption from sub-letting in certain special circumstances, reads as under:
'74. Sub-lease by a disabled personal) A Pakka tenant who is a widow a minor, a lunatic and idiot or a person incapable of personally cultivating by reason of blindness or other physical infirmity or because he is in the military, Naval, or Air service of the Indian Dominion or the United State or is under detention or imprisonment may sub-let the whole or any part of his holding:
Provided that where a holding is held jointly by more than one person, the provisions of this section shall not be applicable unless all such persons belong to any one or more of the classes aforesaid:
Provided also that any sub-lease made in pursuance of the provisions of this section shall cease to be in force after one year of the determination of the disability by death or otherwise; and provided further that the rent payable by the sub-tenant shall not exceed twice the amount of revenue or rent payable by the Pakka tenant in addition to water-cess or other water charges, if any.”
In this provision, what has been provided is that if a person is incapable on account of physical or mental infirmity and is incapable of personally cultivating the land, then alone he was permitted to sub-let. It is, therefore, clear that this provision did not stop at infirmity only, but further provided that an infirmity should be such which did not permit the person to cultivate personally and it was this phrase that came up for consideration and it was interpreted to mean that if it was not possible for the person to cultivate through servants under this provision, then alone this exception will be available to protect a sub-letting.
9. Learned counsel for the respondents drew my attention to section 2, sub-clause (z-2) of the M. P. Land Revenue Code where cultivating personally has been defined. It is as under:
“(z-2) 'to cultivate personally' means to cultivate on one's own account --
(1) by one's own labour; or
(ii) by the labour of any member of one's family; or
(iii) by servants on wages payable in cash or kind but not in crop share; or
(iv) by hired labour under one's personal supervision or the personal supervision of any member of one's family.”
10. It is significant that in spite of the fact that in this Code the phrase 'to cultivate personally' has been specifically defined and in this definition it has also been provided that if one gets his land cultivated by servants on wages payable in cash or kind, but not in crop share, will also be included in the phrase 'Cultivate personally.' Therefore, it is clear that if the phrase 'cultivate personally' is used, it will not only mean cultivating personally through one's own labour, but will also include cultivation through servants who are paid in cash or kind except the share in the crops. It is, therefore, clear that in section 168 of the M. P. Land Revenue Code, in spite of the fact that this phrase 'cultivating personally' was defined, it was not incorporated. This goes to show the legislative intent. If the Legislature intended to put a further restriction in section 168 (2)(v), this phrase 'cultivating personally' would have been introduced, but it appears that the Legislature, in its wisdom, chose not to put this further fetter on clause (v) of section 168 (2).
11. Section 168 (main part) is as under:
“168. Leases (1) (Except in cases provided for in sub-section (2), no Bhumiswami shall lease any land comprised in his holding for more than one year during any consecutive period of three years).” Sub-clause (v) of section 168 (2) reads as under : (2) A Bhumiswami who is -- (v) a person subject to physical or mental disability due to old age or otherwise;”
This provision only talks of a person subject to physical or mental disability due to old age or otherwise. Otherwise there is a wider phrase which indicates that disability may be either due to ailment, disease or by birth, but it has not been stated as to what should be the extent of the disability and it has not been provided that the disability should be such which will prevent the person from cultivating personally as 'cultivating personally' which is defined in this Code, even goes to the extent of cultivating through servants. Under these circumstances, therefore, when the Legislature, in their wisdom, chose not to incorporate this further restriction in sub-clause (v), it is difficult to understand how this Court, while interpreting the provision, could further put a rider which the Legislature, in their wisdom, chose not to put.
12. Learned counsel placed reliance on the Division Bench decision of this Court reported in M. P. Revenue Nirnaya 1969, 131, cited above. In this decision, the only passage which could be referred to section 185 (3) of the Code, reads as under:
“The petitioner's contention that he was a disabled person and therefore the non-applicants could not become his occupancy tenants under section 185 (3) of the Code must also be rejected. The applicant stated that the disability from which he was suffering was a fracture in his backbone and dislocation of his left shoulder joint. The Board of Revenue, the Additional Commissioner and the Sub-Divisional Officer have all found as a fact that this alleged infirmity of the petitioner was not such as to prevent the petitioner, who was in Government service, from cultivating the land through servants under his supervision. This finding of fact cannot be disturbed in these proceedings.”
A perusal of these observations would show that their Lordships, while considering the petition under Article 226 of the Constitution of India, felt that the finding of fact arrived at by the Revenue Tribunals could not be interfered with. A casual observation has been made about the finding of fact arrived at by the Revenue Tribunals to the effect 'all found as a fact that this alleged infirmity of the petitioner was not such as to prevent the petitioner, who was in Government service, from cultivating the land through servants under his supervision. This finding of fact cannot be disturbed in these proceedings.'
13. It is, therefore, clear that we don't have the complete finding of fact arrived at by the Revenue Tribunals, but what appears from these observations would show that the person was in Government service and in this context, it appears that the disability was considered. It is further clear from these observations that their Lordships were not considering the implication of sub-clause (v) of section 168(2) of the M. P. Land Revenue Code, but in the circumstances of that case, in view of the finding of fact arrived at by the Revenue Tribunals, chose not to exercise discretion under Article 226 and interfere with the decisions of the Revenue Tribunals. Under these circumstances, it could not be said that this decision could be quoted as a precedent on interpretation on clause (v) of section 168(2).
14. Learned counsel for both the parties frankly conceded that except this decision, there is no other decision of this Court which has considered the language of clause (v) of section 168(2). It is, therefore, clear that the language of clause (v) of section 168(2) does not contemplate a further rider, but what it contemplates is either physical or mental disability.
15. If the question of disability which would permit a person to cultivate through servants under his supervision is extended, it could be contended that in all cases of physical disability, the person can employ servants and get cultivation done through them under his supervision so long as he is mentally fit. This will negative the use of the phrase 'physically disabled' and will only lead to a further amendment of clause (v) which in my opinion is not the domain of the Courts which are only expected to interpret the provisions and not to legislate. Looking to these circumstances in my opinion it is clear that in clause (v) of section 168(2) of the M.P. Land Revenue Code, nothing further could be introduced except what has been specifically provided by the Legislature. In this view of the matter, therefore, the view taken by the learned A.D.J. does not appear to be justified.
16. The medical opinion in the present case which is not disputed now as has been found as a fact by the learned lower appellate Court, is that the appellant has the disability of the lower legs and this disability it is not disputed, will fall within the ambit of physical disability and in this view of the matter, therefore, the appellant is a person who is permitted to sub-let the lands within the meaning of clause (v) of section 168(2) and, therefore, by coming into force of the M. P. Land Revenue Code and by application of section 185, the respondents cannot claim to have acquired the rights of occupancy tenants.
17. The appeal is, therefore, allowed. Judgment and decree passed by the lower appellate Court are set aside and those passed by the trial Court are restored. Appellant shall be entitled to costs of this appeal. Counsel's fee as per schedule, if certified.
Appeal allowed.
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