Sikri, J. - (1.) This appeal by special leave is directed against the judgment and order of the High Court of Punjab in Letters Patent Appeal No. 146 of 1965 whereby the High Court dismissed in limine the Letters Patent Appeal filed by the appellant Surja against the judgment of the learned Single Judge allowing the writ petition filed by the respondent, Hardeva.
(2.) The relevant facts for determining the points raised before us as follows:Hardeva, respondent before us, is a big landlord of village Punniwala Mota in Sirsa Tahsil of Hissar District. Surja, the appellant, was an old tenant of Hardeva and had been cultivating the land in dispute since about 1949. Section 18 of the Punjab Security of Land Tenures Act 1953, (Punj. Act X of 1953)-hereinafter referred to as the Act-entitles a tenant of a land-owner other than a small land-owner to puchase from the land-owner the land held by him, but not included in the reserved area of the land-owner if he satisfies the conditions laid down in that Section. Section 18 (1) and (2) may be set out. "18 (1) Notwithstanding anything to the country 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 amounts 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 entiled to purchase from the land-owner the land so held by him but not included in the reserved area 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 falling 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, as 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. (2) A tenant desirous of purchasing land under sub-section (1), shall make an application in writing to an Assistant Collector of the First Grade having jurisdiction over the land concerned, and the Assistant Collector, after giving notice to the land-owner and to all other persons interested in the land and after making such inquiry as he thinks fit, shall determine the value of the land which shall be the average of the prices obtaining for similar land in the locality during 10 years immediately preceding the date on which the application is made." Surja accordingly applied on August 5, 1957, to the Collector, Hissar District, stating that he intended to purchase the land in dispute and that the land is outside the reserved area of the land owner. He further alleged that he had been in possession of the land for the last eight years. Hardeva in his written statement, inter alia, stated that Surja was in possession of the land only for three or four years. He alleged that Surja had already 150 bighas of cultivable land. He further stated that the land is reserved and for that reason Surja was not entitled to purchase it. In his evidence before the Assistant Collector given on March 25, 1958, Hardeva deposed: "The land is reserved. I do not know whether the land in dispute is reserved or not." By his order dated March 31, 1959, the Assistant Collector, Sirsa, held that Surja was entitled to purchase the land in dispute and, accordingly, fixed the price. Regarding reservation he observed: "It is admitted by the respondent that they are big land-owners and got this land reserved, but later on during his very cross examination, he denied any knowledge about the reservation. The respondent produced no evidence with regard to having this land got reserved though they are big land owners." Hardeva thereupon filed an appeal before the Collector, and one of the grounds teken was that the Assistant Collector erred in holding that the land in dispute was not reserved land. The Collector, by his order dated July 20, 1960, dismissed the appeal. It was common ground before him that Hardeva was a big land-owner and that Surja had been in continuous possession of the land in dispute for a more than six years, and the only point he determined was whether with the addition of the 28 bighas and 12 biswas of land which Surja had been permitted to purchase his total area would exceed the permissible area or not. On this point he held in favour of Surja and accordingly dismissed the appeal.
(3.) Hardeva then filed a revision before the Commissioner. In the grounds of revision dated October 27, 1960, various grounds were taken but there was no ground regarding reservation of land or selection of land under Section 5-B of the Act. On February 1, 1961, Hardeva filed an application in the Court of the Commissioner. In this application he stated that the entire land in dispute was included in the permissible area selected by him under Section 5-B of the Act by submitting form "E". He further stated that the Financial Commissioner had in Karam Singh vs. Angrez Singh, (1960) 39 Lah LT 57 held that selection under Section 5-B (1) had the same force as reservation under Section 5 of the Act, and this disentitled Surja from purchasing the land in dispute. He prayed that he may be allowed to raise the plea of selection under Section 5-B (1). He stated that this plea involved a question of jurisdiction and in the interst of justice he may be permitted to raise this plea as an additional ground of revision.;