ORDER
M.M. Punchhi, J.
1. These are two Letters Patent Appeals Nos. 849 and 850 of 1982 arising out a common judgment of an Hon'ble single Judge of this Court. The facts giving rise thereto are common and can be narrated as follows:
2. Three brothers, namely, Chuni Lal, Ganga Bishan and Bhagarawat owned 1920 bighas and 13 biswas of agricultural land in village Jandwala Bhishnoian, tehsil Debwali, district Hissar, on the date of the commencement of Punjab Security of Land Tenures Act, 1953 (hereafter referred to as 'the Act1). On the death of Bhagarawat, his son Amar Singh succeeded to his estate. That in the eye of law did not alter anything. The three co-sharers, namely, Chuni Lal, Ganga Bishan and Amar Singh continues to be in the enjoyment of their joint folding till 1-9-1964 when by means of an oral partition, they had a mutation sanctioned whereby they split their holdings. Before-hand, however, 521 Bighas 1 Biswas of land had been taken away by occupancy tenants and the remaining 1399 Bighas 12 Biswas was effectually the subject matter of the mutation. Thereunder Chuni Lal received 466 Bighas 12 Biswas of land. The respective three owners after the partition continued to be big landowners as the term in contradistinction is known vis-a-vis the term 'small landowner' as defined in the Act.
3. Now there was a tenant by the name of Bhagirath, respondent No. 4 herein, who was in cultivation over a sizeable tract of land under the joint owners. It appears that hisentire tenanted land felt to ihe share of Chuni Lal. Nearly two years thereafter, Chuni Lal died on January 6, 1966. Chuni Lal was succeeded by eight natural heirs. There were four sons, a widow and three daughters who succeeded to his estate equally. The Letters Patent appellant herein, Smt. Parmeshwari, is a daughter of Chuni Lal and her share in the estate came to 58 Bighas 6 Biswas. On that mathematical calculation, concededly and undisputably, she was a small landowner as the term is known to the Act.
4. Bhagirath filed an application for purchase of 94 Kanals 18 Marlas of land (admeasured differently from the measure of bighas and biswas) impleading Smt. Parmeshwari appellant as the landlord on whom the claim was focussed. That petition was made under S. 18 of the Act, which provides that a tenant other than a tenant of a small landowner can purchase tenancy from the landowner subject to the fulfilment of the conditions mentioned therein and in the manner mentioned in that provision. It is crystal clear that such right of purchase is not exercisable against a small landowner, for that is the clog to the right. On the other hand, Smt. Parmeshwari on March 13, 1969, filed an application for ejectment of Bhagirath, respondent No. 4, under section 9(1) read with section 14 of the Act, seeking ejectment of the tenant on the basis of being a small landowner. Both these applications were clubbed together for disposal. It appears that simultaneously other tenants had filed applications against some heirs of Chunj Lal as well as against the other owners, namely, Ganga Bishan and Amar Singh. Those too were taken up together along with the dispute between the present parties. The Assistant Collector thus had before him seven matters which find enumerated in order Annexure 'A' dated December 24, 1969, which he disposed of by a common order. The result thereof, so far as the present parties were concerned, was that the purchase application of respondent No. 4 was dismissed and the application for ejectment of Smt. Parmeshwari appellant was allowed. It was observed that the appellant being a small landowner was entitled to eject the tenant and the tenant in turn could not purchase the area of the appellant, she being asmall landowner. The position was maintained in appeal by the Collector, as is evident from order Annexure 'B' dated September 18, 1970.
5. However, it is worthy of notice that the four sons of Chuni Lal were all the same big landowners. Sofarasthe rights of the tenants against the sons of Chuni Lal were concerned, they were kept preserved. The tenants were allowed to purchase their tenanted lands from them under the provisions of Section 18 of the Act, on account of the protection to their tenancies under the provisions of the Act. Since the order of the Assistant Collector was vague in details as to how would the tenants' right be protected as against the big landowner sons of Chuni Lal, the appellant was aggrieved and it is for that reason that she too had filed an appeal against the said order before the Collector. As has been said earlier, . the Collector affirmed the view of the Assistant Collector.
6. Three revision petitions were filed before the Commissioner, Ambala (Camp Hisar) two by the tenant-respondents and one by the appellant. Before the Commissioner, it was conceded by the tenant that as far as l/3rd share of land belonging to Chuni Lal was concerned, he had lost his rights as accrued to him under the provisions of Section 6 of the Act as also under Section 16, whereunder the rights of the tenant are protected from mala fide transfers. Section 6 provides that no transfer of land, except a bona fide sale or mortgage with possession or a transfer resulting from inheritance, made after the 15th August, 1947, and before 2nd February, 1955, shall affect the rights of the tenant on such land under the Act. Conti-nuingly Section 16 provides that save in the case of land acquired by the State Government under 'any law for the time being in force, or by an heir by inheritance, no transfer or other disposition of land effected after the 1st February, 1955, shall affect the rights'of the tenant thereon under the Act. So, the concession was rightly and validly made to affirm that when by virtue of the mutation sanctioned on September 1, 1964, Chuni Lal had separated from his other co-sharers, the tenancy rights of respondent No. 4 had notbeen affected whatsoever. In other words, he was a tenant under joint big landowners and after partition he continued to be a tenant under one big landowner; for obviously there could be no bar to partitioning of land between the three landowners.
7. The Commissioner, Ambala Division, yet recommended to the Financial Commissioner, Haryana, that the Collector's order Annexure 'B'dated September 18, 1970, be set aside, besides that of the Assistant Collector, Annexure 'A' directing a remand on the basis that he was entitled to purchase 2/ 3rd of the land for reasons mentioned in his order. Now it is difficult to find out his reasons in that regard, except when reading between the lines. Parhaps he thought that the tenant had some residuary rights left to purchase land from Ganga Bishan and Amar Singh. This impression is affirmed from his observation extracted below:
'......But the learned counsel for the petitioner tenant asserts that his right to purchase I/3rd each of the land belonging to Ganga Bishan and Amar Singh remains intact because both these landowners survive.'
And further,
'......Thus in this case, when prior to 1-9-1964, the petitioner tenant lost his right to purchase l/3rd land in dispute belonging to Chuni Lal on his death as the land had gone to heirs of Chuni Lal on opening of succession to his share of land, but the petitioner tenant's right to purchase 2/3rd of the land in dispute is not extinguished merely because on 1-9-1964 the land in dispute was partitioned.'
So the thrust of the Commissioner's order was to create room for the tenant against Ganga Bishan and Amar Singh and leave the share of Chuni Lal alone. The said recommendation contained in order Annexure 'C' was accepted by the Financial Commissioner on November 5, 1979, vide order Annexure 'D'. And it is to challenge these orders that Smt. Parmeshwari approached this court for having the orders quashed lest it cast reflection on her rights as a small landowner.
8. The learned single Judge who dealtwith the matter made her worse of by dismissing her petition and taking the view that the mutation dated September 1, 1964, was a disposition and it having taken place after February 1, 1955, had the effect of affecting the rights of the tenants sitting thereon and ordered that the same to be ignored for the purpose of determining the case of the tenant-respondents. Otherwise, the views of the revenue officers below were affirmed by the learned single Judge. It is not only to question that view of the learned single Judge that the appellant has filed these two Letters Patent Appeals, but also to challenge the view of the revenue officers below in keeping her fate uncertain.
9. We have heard learned counsel for the parties at great length and we deem it appropriate to substitute and clarify the position with regard to the rights of the parties emerging from the factual controversy, as has been noticed earlier.
10. We are not, for the moment, going to pronounce as to whether the partitioning of the land by means of a mutation would be a transfer or other disposition of land or not. We would take it for the sake of argument that it is a disposition of land coverable under Section 16 of the Act. The point which arises in the instant case is whether it had affected the rights of the tenant silting on the land. As hinted earlier in express words, the rights of respondent No. 4 had not been affected by partition. Repetitively we say that he was a tenant of joint big landowners and after the partition he became the tenant of one big landowner. Once again we repetitively say that he could not stand in the way of land being partitioned. His rights on the land could only be protected if he had been left worse of' in any manner on the date of the partition. As is evident, his tenancy was not divided. The tenanted land together with the tenant sitting thereon was taken over by one big landowner. It could well be that another big landowner out of the co-sharers could have taken him in a similar way. After September 1, 1964, he became tenant of Chuni Lal. His right to purchase land from Chuni Lal was least affected. As has been held in Kanaya Ram v. Rajender Kumar, AIR 1985 SC 371, in thecontext of the provisions of the Act, that under Section 18 thereof the tenant had a more hope or expectation of, or liberty to apply for, acquiring a right and not a right; already acquired or accrued under S. 18(1) of the Act. It was authoritatively pronounced that a mere right to take advantage of an Act: is not an accrued right. It is a misfortune that the tenant did not exercise his right under Section 18 of the Act while Chuni Lal was alive. On the death of Chuni Lal on January 6, 1966, his estate dividedly came to the hands of the appellant and she was, as said before, admittedly a small landowner. So it is the inheritance which affected the right of the tenant. Section 16 clearly safeguards that position that the rights of the tenant would be affected by inheritance. In our view, the concession made before the Commissioner and the Financial Commissioner affirming that concession, was right in law, but the Hon'ble single Judge, as it appears to us, was in error in making the tenant-respondent walk out of that concession and doubt the mutation of partition dated September 1, 1964, holding it to be ineffective in view of the provisions of Section 16 of the Act, so this part of the order of the learned single Judge we reverse straightway.
11. The next point for consideration is --what should be the scope of the remand which has been proposed by the Commissioner accepted by the Financial Commissioner and affirmed by the learned single Judge. Now here again a difficulty arises. Whatever be the tenancy of Bhagirath respondent, it by virtue of inheritance is affected to the extent that it is partly under big landowners and partly under small landowners, for it is held by the Assistant Collector 1st Grade that four heirs of Chuni Lal i.e. his sons are big landowners and four female heirs of Chuni Lal are small landowners. Partition inter se to affect the rights of the tenant would obviously be in violation of the protection given in Section 16 of the Act. So half of the tenancy of respondent No. 4 is not purchasable under Section 18 of the Act, and it is only the other half which has fallen to the share of the four big landowners' sons which is purchasable under Section 18 of the Act. We think, this explana-tion is necessary for the officers deciding the case of purchase and the corresponding ejectment while disposing of the matter. And to this extent we modify the scope of the remand ordered by the Commissioner and as affirmed by the Financial Commissioner. Our view is further strengthened by the fact that it has nowhere been pleaded either before the officers below or before this Court that any regular partition has taken place between the heirs of Chuni Lal. The patent fact is that the tenant wanted to purchase 94 Kanals 18 Marias of land from the appellant and she correspondingly seeks his ejectment therefrom. It is uncertain on this record as to whether these 94 Kanals 18 Marias of land represent the due share of the appellant in the estate of her father. Having clarified the legal and the factual position in that regard, we do not tahink it desirable to express any further on this point.
12. For the foregoing reasons, we partially allow the Letters Patent Appeals to the extent afore-indicated and order the revenue officers to pass appropriate orders in the matters remanded to them in the light of the afore-observations. No costs.
13. Appeals partly allowed.