Gobinda vs Ram Parshad and others

Prem Chand Jain, J.—Briefly the facts of this case are as follows:

Lok Nath sold the land in dispute to Gobinda (vendee-appellant) for a consideration of Rs. 4000/- by a registered sale deed dated 29th September, 1965. Two suits for pre-emption one by Parmanand, son of the Vendor and the other by Ram Parshad, claiming to be the tenant of the land in dispute, were filed which were consolidated and tried together by the trial Court. The suits were contested by the appellant on various grounds but the main plea with which we are concerned, was that the sale being in favour of a tenant was not pre-emptible u/s 17-A of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act). On the pleadings of the parties, several issues were framed. Under issue No. 1, the trial Court held that the possession of the vendee was of a sub-tenant who by virtue of section 2 sub-section (6) of the Act should be deemed to be a tenant u/s 17-A of the Act and decided the issue in favour of the vendee appellant. I am not reproducing the findings on the other issues as for the purpose of this appeal we are only concerned with issue No. 1. only. In view of this finding, both the suits were dismissed with costs. Feeling aggrieved from the judgment and decree of the trial Court, two appeals were preferred separately by the two pre-emptors. The learned Additional District Judge, Gurgaon, after considering the entire nutter, did not agree with the view taken by the learned trial Court and set aside the finding on issue No. 1. Consequently the cases were remanded to the trial Court for decision of the other issues of merits. Dissatisfied from the order of the learned Additional District Judge, Gurgaon, the present second appeal has been filed by Gobinda vendee-appellant.

The finding that the appellant was a sub-tenant was not challenged before me by the learned counsel for the appellant. The only contention raised by Mr. Sarin was that the sale in favour of the sub-tenant was protected u/s 17-A of the Act. On the other hand, Mr. Bahri, learned counsel appearing on behalf of the respondents contended that the word ''tenant'' u/s 17-A of the Act did not include a sub-tenant and the vendee-appellant being admittedly a sub-tenant could not take advantage of the provisions of section 17-A of the Act. Thus the short question that requires determination in this case, on respective contentions of the learned counsel for the parties, is whether the sale in favour of a sub-tenant is protected u/s 17-A of the Act or not and the answer to this question would depend upon the interpretation of section 17-A which reads as follows :

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(after referring to section 17-A his lordship proceeded)

The word ''tenant is defined in section 2(6) as follows :

2(6) ''''Tenant" has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Act XVI of 1887) 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.

Relevant portion of section 18 of the Act is also reproduced below as reference was made to it by the learned counsel for the respondents -

Right of certain tenants to purchase land.

(1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a land-owner other than a small land-owner-

(i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six years, or

(ii) who has been restored to his tenancy under the provisions of this Act and whose periods of continuous occupation of the land Comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amount to six years or more, or

(iii) who was ejected from his tenancy after the 14th day of August, 1947, and before the commencement of this Act and who was in continuous occupation of the land comprised in his tenancy for a period of six years or more immediately before his ejectment, shall be entitled to purchase from the land owner the land so held by him but not included in the reserved are of the land-owner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in the case of a tenant filling within clause (iii) within a period of one year from the date of commencement of this Act :

Provided that no tenant referred to in this sub-section shall be entitled to exercise any such right in respect of the land or any portion thereof, if he had sublet the land or the portion, is the case may be to any other person during any period of his continuous occupation unless during that period the tenant was suffering from a legal disability or physical infirmity, or if a woman, was a widow or was unmarried.

Provided further that if the land intended to be purchased is held by another tenant who is entitled to pre-empt the sale under the next preceding section, and who is not accepted by the purchasing tenant, the tenant in actual occupation shall have the right to pre-empt the sale.

The question whether a sub-tenant can be regarded as a tenant of the land-owner so as to be able to derive the benefit conferred by section 18 of the Act, came up for consideration before this Court in Jaimal v. The Financial Commissioner, Punjab (1968) 65 P. L. R. 1072, wherein it was held, "Section 18 of the Act clearly coalers the right to purchase land from the landowner on his tenant and nobody else. If his tenant has been guilty of subletting, then he forfeits that right by virtue of the first proviso to sub-section (1) of section 18 of the Act. If he forfeits that right and cannot exercise it, it is difficult to see how the Legislature could have intended conferring that right on the sub-tenant who according to well-established principles would sink or swim with his landlord, namely, the tenant of the landowner". The decision in Jaimal''s case was considered by the Supreme Court in appeal and their Lordships upholding the view of this Court, dismissed Civil Appeal No. 2354 of 1968 Jaimal and another v. The Financial Commissioner, Punjab C. A. 2354 of 1968, on September 25, 1968.

The argument of the learned counsel for the respondents that the word ''tenant'' u/s 17-A of the Act would not include a ''sub-tenant'', was based solely on the reasoning adopted in Jaimal''s case. After giving my thoughtful consideration to the entire matter I feel that the decision of this Court as well as that of the Supreme Court in Jaimal''s case is of no help in deciding the point in controversy in this Appeal. The reason as to why the decision in, Jaimal''s case is not helpful, on the short ground is that the phraseology used by the Legislature in the two sections is different. u/s 18, the words used are, "a tenant of land owner other than a small landowner" while in section 17-A the words used are, "a sale of land comprising the tenancy of a tenant made to him by the landowner". u/s 18, before a person could claim benefit of the section, he had to be a tenant of a landowner and as observed by their Lordships of the Supreme Court, a tenant of a tenant could not be a tenant of the landowner. Further u/s 18 sub-section (1), a check has been placed on the right of a tenant to purchase the land in case he has sublet the land or a portion, as the case may be, to another person.

The word ''tenant'' has been defined in section 2, sub-clause (6) and it includes a sub-tenant also. u/s 17-A, the word ''tenant'' occurs. In order to find out the meaning of the word ''tenant'' occurring in section 17A, the meaning to be ordinarily given to it is that given in the definition clause; but this is not inflexible as it may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless the context otherwise requires. It is a well-established rule of interpretation that even where the definition is exhaustive inasmuch as the word define is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. So present is a case where endeavour is to find out the interpretation of the word ''tenant'' occurring in section 17-A of the Act.

Sub-section (1) of section 17-A provides that notwithstanding anything to the contrary contained in the Act or the Punjab Pre-emption Act, 1913, a sale of land comprising the tenancy of a tenant made to him by the land-owner shall not be pre-emptible under the Punjab Pre-emption Act, 1913, and a decree of pre-emption if passed after the commencement of this Act in respect of such sale shall not be executed by any Court. Under the provision to sub-section (1) it is provided that for the purposes of this sub-section the expression ''tenant'' includes the ''joint tenant'' to whom whole or part of the land comprising the joint tenancy is sold by landowner. By simply importing the definition of the word ''tenant'' no manner of doubt can be left that a ''sub-tenant'' is also entitled to the benefit of the provisions of this section. However, the question that arises for consideration is whether by importing the definition of the word ''tenant any violence will be done to the plain language of section 17A and will it result into some absured results which the Legislature never intended to have ? The requirement u/s 17-A is that it should be a sale by a landowner to a tenant of the land which forms part of the tenancy of a tenant. Under this section, it is nowhere provided that a tenant has to be a tenant of a landowner which is the first requirement u/s 18. It may be mentioned that section 17-A was inserted by section 3 of the Punjab Security of Land Tenures (Amendment) Act, 1959 (Act 4 of 1959) and as to why this amendment was introduced will be clear from the Statement of Objects and Reasons of the Bill wherein it is provided that it had come to the notice of the Government that landowners, who were not competent to eject their tenants from lands comprising their tenancies under the Punjab Security of Land Tenures Act, 1953, were circumventing the provisions of that Act by executing mala fide transactions of sales in favour of the tenants. Subsequently such a sale was pre-empted under the Punjab Pre-emption Act, 1913, by an eligible pre-emptor with the connivance of the vendor (erstwhile landlord) and the pre-emptor took possession of the land comprising the tenancy. In order to safeguard the rights and interests of the tenants against such mala fide transactions this legislation was introduced. So the main purpose of introducing section 17-A was to save the tenants from ejectment on the basis of mala fide transfers. If the word ''tenant'' is given a restricted meaning as was done u/s 18 and the definition u/s 2(6) is not imported then the object of this section shall be frustrated to some extent as. for example, in the present case two suits were filed one by the son of the vendor and the other by the tenant. u/s 15(1) of the Punjab Pre-emption Act; a son admittedly has a superior right of pre-emption as compared to that of the tenant and naturally a decree in favour of the son shall have to be granted in preference to a tenant. In execution thereof, the son would be able to get possession of the land. This is precisely what the Legislature intended to do away with by introducing section 17-A of the Act. From the plain reading of the section, it could not be spelled out that the intention of the Legislature was to restrict the meaning of the ''tenant'' and not to give the meaning as has been given in the definition clause. On the basis of the proviso to section 17-A(1) wherein it is provided that for the purposes of this sub-section the expression ''tenant'' includes a joint tenant to whom whole or part of the land comprising the joint tenancy is sold by landowner, it was argued by Mr. Bahri that section 17-A was complete in itself and the definition of the word ''tenant'' could not be imported for the purposes of this section. According to the learned counsel, if the definition was to be imported then the Legislature would not have further provided in the proviso that the expression ''tenant'' shall include the joint tenant also. The learned counsel, in my view, has ignored the definition of the ''tenant'' because in that definition it is not provided that a tenant shall include a joint tenant also. That is why the necessity for the Legislature arose to include in this section by way of proviso that the expression ''tenant'' shall include a joint tenant also. The only important requirement under the section is that the land should comprise the tenancy of a tenant the sale of which is made by a landowner in his favour. If the Legislature had intended not to allow a sub-tenant to take benefit of the provisions of section 17-A then phraseology similar to the one used in section 18 would have been incorporated in section 17-A also, or it would have specifically provided in the proviso to sub section (1) that the expression ''tenant'' does not include a sub-tenant In this view of the matter, I hold that the word ''tenant'' in section 17-A includes sub-tenant also and any sale made in favour of a sub-tenant would be protected under the provisions of section 17-A of the Act.

No other point was urged.

For the reasons recorded above, allow this appeal, set aside the judgment of the learned Additional District Judge and restore that of the trial Court. In the circumstances of the case, the parties are left to bear their own costs.