February 22.
386 SUPREME COURT REPORTS [1962] SUPP.
TEKAN AND OTHERS v. GANESHI
(P. B. GarexpraGapkar, A, K. Sarkar and K. N. WANCHOO, Jd.)
Landlord and Tenant—Security of land Tenures—Landowner—Lessee—Mortgage—Tenant —Lessee not landowner—No ° right to eject—Punjab Security of Land Tenures Act, 1953 (Punjab 10 of 1953), ss. 2/1), 9 (1), 444 (1)—East Punjab Displaced Persons Land Resettlement Act, 1949 (Last Punjab 36 of 1949), 8. 2—Punjal Land Revenue Act, 1887 (Punjab 17 of teary 8, 3 (2) 4 (5)- Punjab Tenancy Act, 1887 (Punjab 16 of 1887).
The appellant is a lessee from the owner of the land and his lease comprises a large area of land including the land of which the respondent is the tenant, The appellant applied to the Assistant Collector under s. 14A (1) read with s.9 (1) of the Punjab Security of Land Tenures Act for the ejectment of the respondent on the ground that the appellant was a land owner and he required the land for his own cultivation. The application was allowed. The respondent thereupon appealed to the Collector alleging as the main ground that only a landowner could dispussess a tenant-at-will and that since the appellant was not a landowner within the meaning of s- 2 (1) of the Act was rot entitled to ask for ejectment uncer s. 14A (1). The
_ Gollector accepted this contention and allowed the appeal.
Thereafter the appellant appealed to the Commissioner who allowed the appeal on the ground that a lessee being like a mortgagee with possession was a landowner for all purposes. On revision the Financial Commissioner held that the appel- ° lant was not a landowner and therefore not entitled to cjectment. Phe appellant appealed to this Court by special leave. The only contention that was urged in the appeal was that appellant was a landowner within the meaning of s. 2(1).
Held, as a lessee the appellant holds land under another person namely the owner of the land from whom he has taken the lease and is liable to pay rent. The appellant therefore being a tenant within s.4 {5} of the Punjab Tenancy Act cannot be a landowner under s,3(2) of the Punjab Land Revenue Act or a landowner within the meaning of s. 2 (1) of the Punjab Security of Land Tenures Act. Hence he is not entitled to eject the respondent.
38.C.R. SUPREME COURT REPORTS 387
Civ, APPELLATE JuRIsDIctTION : Civil Appeal No 367 of 1959. a
Appeal by special leave from the judgment and order dated November’ 23, 1957, of the Additional Commissioner Punjab, in Revision No. 143 of 1956-57.
I. M. Lal and A. G. Ratnaparkhi, for the appellants.
Achhru Ram and K. L. Mehia, for the résponde t. ;
1962. February 22. ‘The Judgment of the Court was delivered by
WancuHoo, J.—This isan appeal by special leave from the order of the Financial Commissioner Punjab in respect of the application made by the appellant under s. 14-A(i) of the Punjab Security of Land Tenures Act, No, X of 1953, (hereinafter referred to as the Act), read with s, 9 (1) thereof, for ejectment of the respondent, on the ground that he was a small landowner. The appellant claimed that he was the landowner and the respondent was a tenant-at-will under him. He therefore claimed ejectment of the respondent on the ground that he had less than thirty standard acres and required the land for his own cultivation. The application was .
- filed before the Assistant Collector who held that the respondent was liable to ejectment and allowed the application. Thereupon there was an appeal by the respondent to the Collector and it was urged there that only a landowner could dispossess a tenant-at-will under s. 14-A, (i) and as the appellant was not a landowner but merely a landlord of the respondent he was not entitied to the benefit of s. 14-A(i). The Collector accepted this contention and held that the appellant was not a landowner and therefore allowed the appeal and dismissed the application for ejectment. The appellant then went
Tekan Vv
Wanchoo J
Tekan v
———
Wanchoo J,
388 SUPREME COURT REPORTS [1902} SUPP.
in appeal to the Commissioner. It may be mentioned that the appellant is a lessee from the owner of the land and his lease comprises a larger area of land including the land of which the respondent is the tenant. The contention on behalf of the appellant before the Commissioner was that he was a landowner within the meaning of that word in s. 2(1) of the Act and was therefore entitled to eject the respondent. ‘The Commissioner held that the position of a lessee was just like a mortgagee with possession and that a lessee was a landowner for all purposes. He therefore allowcd the appeal and restored the order of ejectinent passed by the Assistant Collector. Thereupon the respondent went in revision to the Financial Commissioner, who held that a mere lessee with only constructive possession as in this case could not be included in the term “landowner” as used in the Act, and that even if the appellant was the landlord of the respondent he could not be held tv be a landowner within the meaning of the Act. He therefore allowed the revision, set aside tho. order of the Commissioner and restored that ofthe Collector dismissing the appellant’s application for ejectment. This was followed by an application by the appe- Nant to this Court for special leave, which was granted; and that is how the matter has come up before us.
The only question that has been urged on bo-, half of the appellant before us is that the Financial Commissioner went wrong in holding that he was not a landowner. The question whether the appelant is a landowner or not depends upon the definition of that term in the Act, which is in these terms :—
(1) ‘Landowner’ means a person defined as such in the Punjab Land Revenue Act, 1887, (Act XVII of 1887), and shall include an ‘allottee’ and ‘lessee’ as defined in clauses (b) and (c) respectively of section 2 of the East
3 8.C.R. SUPREME COURT REPORTS 389
Punjab Displaced Persons (Land Resettlement) Act, 1949, (Act XXXVI of 1949) hereinafter referred to as the ‘Resettlement Act’.
Explanation —In respect of land mortgaged with possession, the mortgagee shall be deemed to be the landowner.”
It is not in dispute that the appellant is not an allottee or a lessec as defined in cls. (b) and (c) of s.2of the East Punjab Displaced Persons (Land Resettlement) Act, (No. XXXVI of 1949). It is also not in dispute that the appellant is not a mortgagee with possession. Therefore he can only claim to be a landowner within this definition if he is a landowner as defined in the Punjab Land Revenne Act, (No. XVII of 1887). Inthat Act the definition of the word “landowner” as given in s. 3 (2) is in these terms :-—~ .
* ‘landowner’ does not include a tenant or an assignee of land revenue, but does include a person to whom a holding has been transferred, or an estate or holding has been let in farm under this Act for the recovery of an arrear of. land-revenue or of a sum recoverable as such as arrear and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof or in the enjoyment of any part of the profits of an estate.”
The contention on behalf of the appellant is that he must be held to bea landowner within the meaning of this sub-section ashe is in the enjoyment of the part of the profits of the estate. It is obvious that the last part of the definition on which this argument is based applies to persons who are other than tenants and assignees of land revenue, and so we will have to determine whether the appellant is a tenant; if he is, he is not a landowner. We have therefore to goto the Punjab Tenancy Act, (No. XVI of 1887), to find oyt who isa tenant, and
Tekeii v ,
Wanchoo J.
——
Tekan
Vv. Ganeshé
““anchoo J.
390 SUPREME COURT REPORTS [1962] SUPP.
whether the appellant is a tenant, within that Act. Definition of “tenant” in 8. +(5) of that Act is as follows :—
(5) ‘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
(¢) a person to whom a holding hasbeen 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 not in dispute that the appellant does not come within the four exceptions mentioned in this sub-section. It has therefore to be seen whether the appellant is 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. We are of opinion that the appellant satisfies this definition of tho term “tenant” in s. 4 (5). Asa lessee he holds land under another person, namely, the owner of the land from whom he has taken the lease and is liable to pay rent equal to the lease money for the land which he has taken on lease to that other person. The appellant is theretore clearly a tenant within s.4 (5) of the Punjab Tenancy Act. He cannot therefore be a landowner under s. 3 (2) of the Punjab Land Revenue Act, Incidentally we may add that this conclusion is borne out by the fact that in the copy of the Girdwari entries, the appellant is shown as a
3S.C.R. SUPREME COURT REPORTS 391 tenant, the entry being “Tekan and others, Gairmaurasian first through Ganeshi Gair Maurasi secondhalf. The appellant is thus a tenant of the land of which he has taken lease and cannot be a landowner | keeping in view the definition of that term in the Act and in the Punjab Land Revenue Act. The appeal therefore fails and is hereby dismissed with costs.
Appeal dismissed.
COMMISSIONER OF INCOME-TAX, BOMBAY CITY I, BOMBAY v.
BAT SHIRINBAI K. KOOKA
(S. K. Das, J. L. Kapur, P. B. GasenDRAGADKAR, A. K. Sarkar, K. Supspa Rao, K. N. WancHoo and N. RasaGopata Ayyanaar, JJ.)
Income-tax-—Profits—Shares purchased by assessce for invesiment—Sales of Shares subsequently as trading activity— Computation of profit.
The assessee purchased shares by way of investment in 1939-40 at a cost price which was much less than their market value on April 1, 1945. Her dividend income therefrom was assessed to income tax. In the financial year 1945-46 the assessee converted these shares into her stock-in-trade and carried on business in the shares. Per income for the assessment year 1946-47 was computed on the basis of the profits which she made by the sale of her shares as a trading activity. The assessee contended that the cost price of the shares for compu- ting the profits was their market value at the beginning of the ~ year when she started the trading activity, i.e., on April 1,
1945. The Department contended that the cost Price of the .
shares was the actual price for which they were purchased by the assessee, no matter when she bought them and for what purpose.
Held (per Das, Kapur, Gajendragadkar, Subba Rao, Wanchoo and Ayyangar, JJ. Sarkar, J., contra), that the profits
Tekan’ ve Ganeshi
W anchoo J.
February 23.