ivil Appeal No 1048 of 1980
From the Judgment and Order dated 11380 of the Rajas than High Court in SA No 52 of 1980
section Ganesh and PH Parekh for the Appellant
SS Khanduja for the Respondent
The Judgment of the Court was delivered by SHARMA J
This appeal by special leave is directed against the decision of the Rajasthan High Court confirming the decree of eviction of the appellant from certain prem ises under section 131f of the Rajasthan Premises Control of Rent and Eviction Act 1950 hereinafter referred to as the Act on the ground that he had denied the title of the respondent landlord
The appellant has been in possession of the structure in ques 332 tion since 1953 when he was inducted therein by the owner one Nawab M Ali Khan
In 1969 Nawab M Ali Khan died and it appears that some dispute arose between his legal repre sentatives and the present respondent No 1
It further appears that the dispute was finally settled in favour of the respondent No 1 and according to the case of the appel lant he duly recognised him as his landlord and started paying rent
In 1973 the appellant received a notice from the Municipal authorities asking him to remove the disputed structures on the ground that it was erected on Government land
According to the appellant s case the notice was issued at the instance of the respondent No 1 who was anxious to evict the appellant
The appellant in the situa tion was forced to file a suit in the civil court challeng ing the validity of the notice and praying for injunction against the Municipal authorities from interfering with his possession
The respondent No 1 filed the present suit on the twin Founds of default in payment of rent and denial of his title
The case of default in payment of rent was re jected but the suit was decreed on the ground of denial of title
On appeal the Additional District Judge confirmed the decree
The appellant s second appeal was also rejected by the High Court at the admission stage
The appellant s plaint in the earlier suit by which it is suggested that he challenged the respondent s title was filed in the present case and marked as Ext
The first appellate court has while recording its finding against the appellant observed that the statements in the plaint amount to disclaimer and in any event it appears that the appellant failed to acknowledge the land lord s title therein and consequently he was liable to eviction under clause f of section 131 of the Act which reads as follows 13
Eviction of tenants 1 Not withstanding anything contained in any law or contract no Court shall pass any decree or make any order in favour of a landlord whether in execution of a decree or otherwise evicting the tenant xxx so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act unless it is satisfied  a                
fthat the tenant has renounced his charac ter as such or denied the title of the landlord and the 333 latter has not waived his right or condoned the conduct of the tenant or We do not agree
There is no statement in the plaint at all challenging the landlord s right and there was no occasion for the appellant to deal with this aspect in view of the scope of his suit
On the other hand the pleading shows that he described the nature of his possession as that of a tenant and the interest of the present respondent No 1 who was defendant No 2 in that suit as that of a landlord
Mr SS Khanduja the learned counsel for the re spondent relied on the last sentence of paragraph 1 of the plaint as mentioned below and contended that since the defendant No 2 was not one of the heirs of the deceased Nawab M Ali Khan this sentence should be read as denial of his title He sold out some portion of his property in his life time and the remaining property came to be owned by his heirs ie defendants No 2 to 6
 Firstly it has to be noticed that although the respondent was wrongly described as an heir his title to the property was acknowledged
Further this sentence cannot be read in isolation
The position is explained in paragraph 5 of the above noted plaint in the following terms 5
That the land where the stall type Kachhi shops of the plaintiffs have been constructed the Defendant No 2 has built his house after taking the land on a long term lease from Nawab Mukarram Ali Khan
In between these there is a Pakka Dola 
There is dispute about the ownership of the land between the Defendant No 2 and the Defendant No 3 to 6 since the death of Nawab Mukarram Ali Khan in the year 1969
Later on the matter has been compromised in between the four heirs the Defendant No 2 developed a bad motive and he wants that anyhow the plaintiffs should be evicted from the premises as early as possible and he
should occupy the same
 The argument is that the title of the respondent defendant No 2 in the earlier case was nowhere accepted in the plaint
After mentioning the dispute between him and the legal representatives of the deceased Nawab the appellant did not proceed to clarify the position
So far as 334 the statement in paragraph No 1 of the plaint is concerned the grievance is that the title of the landlord was denied if not completely then at least in part by describing the defendants 3 to 6 as co owners with him
We are not in a position to agree with the contention of the learned counsel that for these reasons the appellant has to be evicted
Even interpreting the plaint in a manner as favourable to the landlord as may be possible it has to be accepted that the document cannot be construed to clearly deny the respond ents  title in unambiguous terms
One thing that is conspic uous is that the appellant did not claim any title in him self
We expressly described the character of his possession as that of a tenant
Is it in this situation permissible to forfeit his lease on the ground of disclaimer of title In providing disclaimer as a ground for eviction of a tenant in clause f of section 131 of the Act the Legislature decided to give effect to the provisions of clause g of section 111 of the 
The principle of forfeiture on disclaimer is rounded on the rule that a man cannot appro bate and reprobate at the same time
Since the consequence of applying the rule is very serious it must be held that the denial has to be clear and in unequivocal terms
The decision of this Court in Mohammad Amir Ahmad Khan vs Munic ipal Board of Sitapur and another AIR 1965 SC 1923 relied upon by the learned counsel for the appellant high lights this aspect
The facts in that case would show that the tenant there had made statements against his landlord which were far more serious than those in the case before us and still was not penalised
It may be appreciated that in the present case the 1973 suit was not directed against any of the defendants excepting the Municipality and the state ments in the plaint referred to above were made by way of giving the background in which the impugned notice by the Municipal officers had been issued
No relief against the other defendants including the present respondent was prayed for
Examining the entire plaint in this background we are of the opinion that the ground contemplated under section 131f of the Act is not made out
We therefore set aside the judgments of the courts below and dismiss the suit
The appeal is accordingly allowed with costs through out
NPV Appeal allowed


Summary:
The respondent had entered into contracts with Universi ties and other educational institutions for printing of question papers for them
In the demand notes prepared the respondent gave the charges for printing blocks packing handling delivery postal and also value of paper and value of packing materials separately in the relevant assessment years
On re examination the Assessing Officer noticed that printing charges and block making charges escaped assessment and brought them to tax
In respect of subsequent assessment also claims for exemption towards printing charges and block making charges were disallowed
The appeals preferred by the Respondents were dismissed by the Appellate Assistant Commissioner who reached a finding that the contracts were only for supply of printed question paper as a finished product and that there was no scope to disintegrate cost of paper with separate charges for printing and block making though the bills were made out in a different way
The respondent preferred appeals to Sales Tax Appellate Tribunal
The Tribunal held that the respondent was assessa ble only on the sale value of paper and that printing and block making charges were not to be included in the assess ment
Against the Tribunal s Orders the appellant preferred tax cases before the High Court
The High Court dismissed the cases and held that the contract between the assessee and the Universities is of highly confidential nature and that the printing of question papers could be entrusted only to those in whom the institutions got the highest confi dence and that the price paid for such confidentiality and trust is not 302 the price for the sale of goods
The present appeals by Special Leave are against the High Court s Orders
In this appeal it was argued on behalf of the appellant that printing charges and block making charges are includi ble in the assessable turnover of the Respondent
On behalf of the Respondent it was argued that the contract entered into between her and the educational institutions was a contract of work and labour and in the performance of the contract indicentally she had to sell paper to them and hence except to the extent of the cost of paper she was not liable to pay sales tax in respect of the other amounts receive by her
Dismissing the appeals HELD 11 Contract for work in the execution of which goods are used may take one of three forms
The contract may be for work to be done for remuneration and for supply of material used in the execution of works in which the use of materials is accessory or incidental to the execution of the work or it may be a contract for work and use or supply of materials though not accessory to the execution of the contract is voluntary or gratuitous
In the last class there is no sale because though property passed it did not pass for a price
Whether a contract is of the first or the second class must depend upon the circumstances if it is of the first it is a composite contract for work and sale of goods where it is of the second category it is a contract for execution of work not involving sale of goods
307H 308A B 12 In each case the nature of the contract and the transaction must be found out
And this is possible only when the intention of the parties is found out
The fact that in the execution of a contract for work some materials are used and the propertygoods so used passes to the other party the contractor undertaking to do the work will not necessarily be deemed on that account to sell the materi als
Whether or not and which part of the job work relates to that depends on the nature of the transaction
316G H 13 Normally it may be that the goods prepared by the assessee which could not be exhibited for sale would not be decisive of the matter and could in certain circumstances be sales liable to sales tax but in all circumstances it depends upon the nature of the sale and the nature of the transaction involved
Printing of question papers at the 303 behest of University or educational institutions is rather a delicate and confidential type of work and the price paid for supplying such printed question papers or printed mat ters entails primarily the confidence and secondly the skill and to a very small measure the material
If that is the position it cannot be categorised as entailing sale of goods but it is rather a contract for works done
309G H 310A Government of AP vs Guntur Tobaccos Ltd XVISTC 240 relied on
Hindustan Aeronautics Ltd vs State of Kerala 1984 ISCC 706 and PT Varghese vs State of Kerala 37 STC 1171 approved
Saraswati Printing Press vs CST Eastern Division Nag put X STC 286 and State of AP vs Sri Krishna Power Press Vizianagaram XI STC 498
PM Venkatachalam Pillai vs State of Madras XXIII STC 72 State of Orissa vs Ramnath Panda XXVII STC 98 SRP Works and Ruby Press vs State of AP XXX STC 195 and STO Special Circle 11 Palghat vs I V Somasundaram 33 STC 68
AS Hameed Bharath Press vs State of Tamil Nadu 54 STC 379 CST vs Uma Art Press 56 STC 300 Chandra Bhan Gosain vs State of Orissa XIV STC 766 CST vs Ms Sabarmati Reti Udvog Sanakari Mandali Ltd 38 STC 203 and Marcel Furri ers Ltd vs Tapper referred to
21 The primary difference between a contract for work or service and a contract for sale is that in the former there is in the person performing or rendering service no property in the thing produced as a whole notwithstanding that a part or even the whole of the material used by him may have been his property
Where the finished product supplied to a particular customer is not a commercial com modity in the sense that it cannot be sold in the market to any other person the transaction is only a works contract
316E 22 When the questions are set on a piece of paper and sent for printing the University remains the owner until it divulges these to the intending candidates or the students
But that is a matter which is relevant in the method of communication of the question to the candidates appearing in the examination
The means employees for such communication entail use of mind confidence trust for the material 304 paper and the technical skill of printing
It is a combina tion of these various factors that results in printing the question papers and the payment made in the process entails a composite payment for all these
Question papers as such after being printed are neither available commercially nor available to any community commercial or otherwise save under specific circumstances for the candidates appearing at a particular time in an examination
308D E 309C Court Press Job Branch Salem vs State of Tamil Nadu 54 STC 382 and CST vs MPV Ratna Fine Arts Printing Press 56 STC 77 approved
State of Madras vs Gannan Dunkerlay  Co Madras Ltd IX STC 353 Patnaik  Co vs State of Orissa XVI STC 364 and TV Sundaram lyengar  Sons vs State of Madras 35 STC 24 referred to
The contract in the present case is one having regard to the nature of the job to be done and the confi dence reposed for work to be done for remuneration and supply for paper was just incidental
Hence the entire price for the printed question papers would have been enti tled to be excluded from the taxable turnover but since the demand notes prepared by the assessee showed the costs of paper separately it appears that it has treated the supply of paper separately
Except the materials supplied on the basis of such contract the contract will continue to be a contract for work and labour and no liability to sales tax would arise in respect thereof
317A C