Ramji Dass vs Ram Rakha

T.U. Mehta, C.J.—This Letters Patent Appeal arises out of the decision given by the High Court of Delhi, Himachal Bench, Simla, in R.S.A. No. 34 of 1967 holding that the disputed land sold to the Respondent Ram Rakha is not liable to be pre-empted in view of the fact that Ram Rakha was a tenant inducted in this laud by the Collector under the East Punjab Utilization of Lands Act, 1949 (Act 38 of 1949), on the date of the sale.

Short facts of the case can be stated as under. The land in dispute in this Letters Patent Appeal is covered by khasra Nos. 603, 604, 606 and 382 min, situated in village Bhalota, Tehsil Una. This land originally belonged to One Hariya Ram who died in the year 1952 leaving behind him three heirs named (1) Ramji Dass the present Appellant-Plaintiff, (2) Dina Nath and (3) Savitari Devi, the widow of Banka Ram who had pre deceased Hariya Ram. Thus on the death of Hariya Ram this land came to be inherited by the above three co-sharers.

It is found that on 1-9-1961 Dina Nath and Savitari Devi the two heirs of Hariya Ram sold their 2/3rd share in the disputed land to the Respondent Ram Rakha for the amount of Rs. 800/-.

Evidence shows that the possession of the ''arid comprised by khasra Nos. 603, 604, 606 and 382 min, was taken over by the Collector u/s 3 of the East Punjab Utilization of Lands Act, 1949, Which provides that if any land is not found to have been cultivated for last six or more harvests, the Collector can issue show cause notice to the owner of that land and if as a result of this notice, the Collector finds that the explanation given by the landowner for not cultivating the land for the above said period, is not satisfactory, he may take possession of that land forthwith. u/s 5 of that Act the Collector, after taking the possession of the land, is empowered to give the same on lease to any person on such terms and conditions as he may deem fit for a period which should not be less than seven years and more than twenty years. It is an admitted position that under these provisions the Collector had already given a lease of the above referred khasra numbers to Ram Rakha for a period of ten years. The said lease in favour of the Respondent Ram Rakha was executed on 8-12-1951 and was to come into force from Kharif and Rabi of the year 1952 and was to remain in force upto Rabi 1962 which admittedly fell in the month of December 1962. Thus it is an admitted position that when the sale which is sought to be pre-empted was made on 1-9-1961, the lease in favour of the purchaser Ram Rakha was already in existence.

On 5-5-1962 Ramji Dass, the third co-sharer filed a suit for pre-emption against the sale in favour of Respondent Ram Rakha This suit was decided by the trial Court in his favour. An appeal against the same failed and on second appeal being carried to the High Court, the suit was remanded to the trial Court. The trial Court again decreed the suit for pre-emption and it is in the second appeal preferred against that decree that the order which is the subject matter of this Letters Patent Appeal was passed by the High Court of Delhi. The learned single Judge who has decided this second appeal has come to the conclusion that since the Respondent Ram Rakha fell within the definition of the word "tenant" Section 17A of the Punjab Security of Land Tenures Act, which saves the sale made to the tenant from being pre-empted, applies and, therefore, the suit for pre-emption filed by the present Appellant should fail so far as khasra numbers 603, 606, 604 and 382 min, arc concerned. It is against this view which is taken by the High Court in the second appeal that this Letters Patent Appeal is preferred by the original Plaintiff.

The only contention of substance which is raised by the present Appellant (the Plaintiff) is that the Respondent Ram Rakha cannot take advantage of Section 17A of the Punjab Security of Land Tenures Act, 1953 (Punjab Act No. 10 of 1953), which is shortly referred to in this judgment as "Security Act", for the simple reason that he does not fall within the definition of the word "tenant'' which is used in Section 17A there of.

The relevant portion of Section 17A of the Security Act is in the following terms:

17A. Certain sales of tenancy lands not pre-emption.-(1) Notwithstanding anything to the contrary contained in this 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 he pre-emption under the Punjab Pre-emption Act, 1913, and no decree of pre-emption passed after the commencement of this Act in respect of any such sale of land shall be executed by any Court:

Provided that for 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 land-owner.

(2)...

Since the only question which is required to be determined in this appeal is whether the sale in dispute is pre-emption or not, the question which is required to be decided with reference to the above quoted portion of Section 17A is whether the land in question "comprised any tenancy of a tenant" as contemplated by Sub-section (1) of Section 17A or not. For understanding the meaning of the word ''''tenant" which is used in Section 17A, Sub-section (1), we have first to enquire whether the Security Act gives any statutory definition to this word. By reference to Sub-section (6) of Section 2 of this Act, we find that the Act has incorporated within itself the definition of the word "tenant" given in Punjab Tenancy Act, 1887 (Act 16 of 1887). This will be clear by reference to Sub-section (6) of Section 2 which reads as under:

(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.

The meaning assigned to the word "tenant" in the Punjab Tenancy Act, 1887, is in the following terms:

"tenant" means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include-

(a) an inferior landowner; or

(b) a mortgagee of the rights of a landowner; or

(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land-Revenue or of a sum recoverable as such an arrear; or

(d) a person who takes from the Government a lease of unoccupied land for the purpose of subletting it".

It is thus apparent that the Punjab Security Act, 1953, incorporates within itself the above definition of the expression "tenant" as given in the Punjab Tenancy Act, 1887. This definition of the Tenancy Act should, therefore, be read as if given in the Security Act, 1953 itself. Therefore, when we have to consider whether the Provisions of Section 17A of the Security Act, which save certain types of sales from being pre-empted, applies to the facts of the present case or not, we have to consider whether the above quoted definition of the word "tenant" as given in the Punjab Tenancy Act, 1887, applies to the facts of the case or not. Now the two requirements of this definition are that in order to be a tenant a person should hold a land under another person and that he should be liable to pay rent for that land to that other person.

So far as the facts of this case are concerned, they dearly show that on the day on which the disputed sale took place, that is on 1-9-1961, the Respondent Ram Rakha was holding lease-hold rights over the disputed land under the lease given to him by the Collector pursuant to Sections 3 and 5 of the Punjab Utilization of Lands Act, 1949. The Respondent Ram Rakha, therefore, was undoubtedly a person who was holding land under another person namely the Collector and was also liable to pay rent for that land to the Collector. Therefore, for all purposes he was satisfying the definition of the word "tenant" as given in the Punjab Tenancy Act, 1887.

However, the argument which was advanced by the learned Advocate of the Appellant was that Ram Rakha was the tenant of the Collector and not of the landowner and therefore, he could not have been considered as a tenant who would be entitled to the protection as against pre-emption contemplated by Section 17A of the Security Act, 1953. In this connection the learned Advocate of the Appellant also drew our 4tention to the definition of the word "tenant" given in Clause (h) of Section 2 of East Punjab Utilization of Lands Act, 1949. The said definition is as under:

''tenant'' means a person to whom land is leased by the Collector under the provisions of this Act.

Our attention was also drawn to the two decisions, one of the Supreme Court and the other of the Punjab High Court, going to show that so far as the tenancies which are created under the East Punjab Utilization of Lands Act, 1949, are concerned, the provisions of Tenancy Act are not relevant and could not be applied because the East Punjab Utilization of Lands Act, 1949, is all comprehensive and the tenants contemplated by that Act are not necessarily tenants who can get advantage of the provision of the Tenancy Act.

We shall refer to the decisions which are cited at the Bar on behalf of the Appellant at a subsequent stage, but at this stage we would like to clarify that so far as this appeal is concerned, we are principally concerned about the applicability or other wise of the provisions contained in Section 17A of the Security Act, 1953, because the sole question which is involved in this appeal is whether the sale in question is a sale exempted from pre-emption under the provisions of Section 17A, or not. There fore, if we concentrate our attention to the provisions of Section 17A, it would be apparent that it contemplates the saving from pre-emption of those sales of land which are "comprising the tenancy of a tenant". The expression "comprising tenancy of a tenant" is clearly indicative of the tenancy rights in the land and is not indicative of the derivation of these tenancy rights from a particular person. Therefore, the moment it is found that the land which is sold is burdened with tenancy rights of a particular person, whether created by virtue of a contract with the landowner or with a person who is in legal possession of that land, the provisions of Section 17A are attracted and the sale in question would not be liable to be pre-empted. Our attention was also drawn to the fact that Sub-section (1) of Section 17A makes reference to the "land-owner". However, the use of the expression "land-owner" is made by the Sub-section with reference to the sale and not with reference to the creation of tenancy. Under the circumstances, we do not find anything in Sub-section (1) of Section 17A to suggest that the section has application only to those cases wherein the tenancy is created in the land by the land owner and not by the person who is in legal possession of the land.

In this connection it should be noted that under the provisions of the East Punjab utilization of Lands Acts, 1949, the Collector is authorised to take over the possession of any land which is not found to have been cultivated without reason for the last six or more harvests. As a result of this taking over of the possession, the landowner is entitled to compensation u/s 4 of that Act. Section 5 of that Act further provides that after taking over the possession u/s 3, the Collector can create lease over the land for a period not less than seven years and not more than twenty years. Thus under these provisions of the East Punjab Utilization of the land in question. After bringing in legal possession of the land he is entitled to create legal lease over the same and once such a lease is created, the land becomes the land "comprising tenancy of a tenant" within the meaning of Sub-section (1) of Section 17A of the Security Act. Under the circumstances the contention that the tenancy contemplated by Section 17A should be the tenancy which is created by the landowner, cannot hold any water.

The learned Advocate of the Appellant had put reliance in support of his contention on the decision given by a single Judge of the High Court of Punjab and Haryana in Ram Chand v. Lachhman reported in 1977 PLJ 40. It is no doubt true that in that decision the learned single Judge has taken the view which is canvassed on behalf of the Appellant in this case. The learned Judge in that case has observed in paragraph 7 of the reported judgment as under:

Section 17A of the Punjab Security of Land Tenures Act, 1953, envisages that there must be a relationship of landlord and tenant between the vendee and the vendor within the meaning of the Punjab Tenancy Act.

We do not find any justification for taking such a view because as already stated above, Section 17A nowhere says that there must be a relationship of landlord and tenant between the v. vendee and the vendor and that the only fact which is required to be found is whether the land which has been sold comprises any tenancy or not. Further, with a view to find out the intention of the legislature, it would not be out of place to mention that while Section 17A of the Punjab Security Act makes a reference to a tenancy simpliciter, the previous Section namely, Section 17A makes a specific reference to a "tenant of a landowner" while prescribing his preferential rights over other pre-emptors. The use of the expression "tenant of a landowner" made in Section 17A and the want of such an expression in Section 17A clearly suggests the intention of the legislature to specifically describe a tenant who has derived his right from a landowner when such a tenant is referred to for a particular purpose. The fact that Section 17A does not make reference to tenancy derived from a landowner further induces us to take the view which we have taken on this controversial point.

As observed above, the learned Advocate of the Appellant relied upon the decision given by the Supreme Court in Dasaudha Singh v. State of Haryana reported in 1973 PLJ 1 and another decision of the High Court of Punjab and Haryana in. The question which arose in these cases was whether a tenant whose tenancy expires and from whose possession the leased land is taken over u/s 7 of the Punjab Utilization of Lands Act, 1949, is entitled to compensation under the Punjab Tenancy Act or not. The Supreme Court and the High Court of Punjab held that he is not so entitled because the provisions of the East Punjab Utilization of Lands Act, 1949, are all comprehensive and do not invite other provisions of the Tenancy Act. In our View none of these two decisions is applicable to the facts of the present case because the main question which arises to be considered by us is whether the facts of the case fall within the provisions of Section 17A of the Punjab Security Act or not. Since the Punjab Security Act incorporates within itself the definition of the word "tenant" as given in the Punjab Tenancy Act, this definition would be the definition contemplated by the Punjab Security Act itself and the provisions of the Punjab Tenancy Act are applicable to the facts of this case Only so far as the statutory meaning attached by that Act to the word "tenant" is concerned and not for any other purpose.

We find that the view which we are taking in this matter get support from the decision given by the High Court of Punjab and Haryana in Gobinda v. Ram Parshad reported in 1969 PLR 886. The learned Judge who has given that decision has pointed out that the main purpose of introducing Section 17A in the Punjab Security Act was to save tenants from ejectment On the basis of ma4ifide transfer and that if the word "tenant" is given a restricted meaning, as is done in the above referred decision of Ram Chand v. Lachhman 1977 PLJ 40, the object of Section 17A shall be frustrated to some extent. In that case of Gobinda v. Ram Parshad, it was contended that the word "tenancy" occurring in Section 17A should be construed as meaning the tenancy between the vendor and the vendee. Dealing with this contention, the High Court held that it is nowhere provided in Section 17A that the tenant has to be a tenant of the landowner and that from the plain reading of that Section it could not be spelt out that the intention of the legislature was to restrict the meaning of the word "tenant" and not to give the meaning as has been given in the definition clause.

We, therefore, see no reason to interfere with the judgment and order recorded by tile learned Single Judge on this point.

Another minor contention which was raised on behalf of the Appellant was that the original sale was for six khasra numbers and the learned single Judge has passed the decree with regard to khasra Nos. 595, 605 and 382 min admeasuring 1 kanal and 0 marla and 382 min admeasuring 0 kanal and 11 marla on payment of the whole of the amount of consideration of Rs. 800/-. The contention was that the learned single Judge should have apportioned the amount of consideration for the lands as regards which he has passed the decree. After discussing the matter with the learned Advocate of the parties, we order that the Appellant shall pay the amount of Rs. 600/- and not the amount of Rs. 800/- for the above referred land with regard to which the learned single Judge has passed the decree for pre-emption. The prayer for pre-emption of the remaining land is rejected and the appeal fails to that extent.

The oral request of the learned Advocate of the Appellant for a certificate for preferring an appeal to the Supreme Court under Article 133 of the Constitution is rejected as there is no substantial question of law of public importance involved in this matter.