D.K. Mahajan, J. - (1.) THE only question in this Letters Patent appeal concerns itself with the proposition that a 'sub -tenant' is included in the word 'tenant' in Section 17 -A of the Punjab Security of Land Tenures Act, 1953 (hereinafter called the Act).
(2.) THERE is no dispute on facts. The land in question is under the tenancy of Ram Parshad. Ram Parshad had inducted a tenant under him, namely, Gobinda. Lok Nath, the landowner, sold the land in dispute to Gobinda for a sum of Rs. 4,000. This sale was preempted by one Parma Nand, who is the son of the vendor and by Ram Parshad, the tenant. Both suits were consolidated. The vendee claimed that the sale being to a tenant was not pre -emptible. The trial Court dismissed the suit holding that - 'sub -tenant' is a 'tenant' within the meaning of the expression in Section 17 -A of the Act. On appeal, the learned District Judge reversed the decision of the trial Court on the basis of a decision of this Court in Jaimal v. The Financial Commissioner Punjab, 1963 P.L.R. 1072, which was later affirmed by the Supreme Court in Jaimal v. Financial Commissioner Punjab : A.I.R. 1969 S.C. 392, holding that a sub -tenant is not included in the word 'tenant' in Section 18 of the Act. Against the decision of the learned District Judge, Gobinda preferred an appeal to this Court. A learned Single Judge of this Court has taken the view that a 'sub -tenant' is included in the word 'tenant' in Section 17 -A. The learned Judge has been mainly influenced by the definition of 'tenant' in Section 2(6) which is in the following terms: In this Act, unless the context otherwise requires: 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. It will appear from the opening words that the definition of 'tenant' has a yield to the context in which the word 'tenant' is used in the main body of the Act. At this stage it will be useful to set down the relevant parts of Sections 17 -A, 17 -B and 18 because on the interpretation of these provisions the decision hinges: 17 -A(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 be pre -emptible 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 the purposes of this subjection 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) Where, after the commencement of this Act, a tenant, to whom the land comprising his tenancy is sold by the landowner has been dispossessed of such land by a pre -emptor in execution of a decree for pre -emption or otherwise the tenant so dispossessed shall in the prescribed manner have the option either to purchase the land from the pre -emptor on payment of the price paid to the tenant by the pre -emptor or to be restored to his tenancy under the pre -emptor on the same terms and conditions on which it was held by him immediately before the sale, on an application made by him to an Assistant Collector of the First grade having jurisdiction within a period of one year from the commencement of the Punjab Security of land Tenures (Amendment) Ordinance, 1958. 17 -B(1) Where, after the commencement of this Act, land comprising the tenancy of a tenant is mortgaged to him with possession by the landowner, and such land is subsequently redeemed by the landowner, the tenant shall notwithstanding such redemption or any other law for the time being in force, be deemed to be the tenant of the landowner in respect of such land on the same terms and conditions on which it was held by him immediately before the execution of the mortgage as if the mortgage had never been executed. 18. (1) Notwithstanding anything to the contrary contained in any law, usage or contract, a tenant of a landowner other than a small landowner - - (i) who has been in continuous occupation of the land comprised in his tenancy for a minimum period of six year, 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 entitled to purchase from the landowner the land so held by him but not included in the reserved area of the landowner, 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.
(3.) WITH utmost respect to the learned Single Judge, it appears to us, that, he overlooked the fact that under Section 17 -A(1), the sale of land comprising the tenancy of a tenant made to him by the landowner is not pre -emptible. Therefore, the parties to the sale which cannot be pre -empted are necessarily the landowner and the tenant. In this context, the sub -tenant does not come in. It is only the sale by the landowner to the tenant which is not pre -emptible, the implication being that there has to be a jural relationship of landowner and tenant. The vendee has to be a tenant of the vendor. There is no such relationship between the sub -tenant and the landowner. M the intention of the Legislature was to bring in the subtenant, they would have omitted the words "by the landowners" and "made to him". In that eventuality the section would have read:"' a sale of land comprising the tenancy of a tenant made to him shall not be pre -emptible." But by bringing in the words "made to him by the landowner", the matter is taken beyond the pale of speculation. As between the vendor and the vendee, there has to be a relationship of landowner and tenant. It is only such a sale which is immune from pre -emption. The sale to a sub -tenant does not make Section 17 -A applicable. Such a sale is not immune from pre -emption. If reference is made to Section 17 -B(1), this matter is further clarified. The contention of Mr. Sarin, learned Counsel for the Respondents, that a sub -tenant is covered by the expression "tenant", wherever this expression occurs in the Act, is wholly untenable. The context in which this expression is used will have to be seen before it can be held that the expression "tenant" includes a sub -tenant or not.;