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Parmanand and ors. Vs. Rakha and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 560 of 1948
Judge
Reported inAIR1952P& H94
ActsTenancy Law; ;Punjab Tenancy Act, 1887 - Sections 4(5), 50, 77 and 77(3); Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantParmanand and ors.;rakha and ors.
RespondentRakha and ors.;parmanand and ors.
Advocates: D.K. Mahajan,; D.N. Awasthy,; D.N. Aggarwala and;
Cases ReferredKesar Singh v. Nihal Singh
Excerpt:
.....has jurisdiction to try a suit brought by a person who has been dispossessed from his tenancy after a notice under section 43 of the tenancy act even though he had unsuccessfully sued under section 45 of the punjab tenancy act to contest his liability to ejectment. for both these reasons i am clearly of opinion that 'joti v......that the suit was governed by article 142 of the limitation act and that ss. 50 and 77 of the punjab tenancy act were no bar to the suit. he also held that the tenants were forcibly dispossessed and that the occupancy rights had not terminated. in the landlords' suit he held that the compensation due to the landlords was rs. 87/3/6, but he allowed them rs. 50/12/- presumably because of the order of remand. two appeals were taken to the senior subordinate judge who maintained the findings of the trial court. two second appeals have been brought by the landlords against the two decrees of the senior subordinate judge.4. mr. daya kishan mahajan has submitted that the civil court has no jurisdiction in view of the provisions of section 77 (3) (g) of the punjab tenancy act read with.....
Judgment:

Kapur, J.

1. This judgment will dispose of two appeals, Regular Second Appeal No. 560 of 1948 and Regular Second Appeal No. 561 of 1948.

2. The landlords Parma Nand and Amar Chand brought a suit against the tenants Rakha, Amin Chand and Gail for recovery of Rs. 200/- alleging that the defendants had illegally cut the crops sown by them the plaintiffs. The defence was that they had not cut the crops and the rights of occupancy tenancy had not been extinguished. In this suit another Amin Chand and Kishan Chand, who were also landlords, were defendants. After the decision of this suit an appeal was taken to the appellate Court and the case was remanded for retrial, one of the issues being whether the tenancy had terminated and i the occupancy rights had been lost, the landlords should be allowed half share in the standing crop. After the remand the other two landlords Amin Chand and Kishan Chand were transposed as plaintiffs in the suit.

3. The tenants also filed a suit for declaration that they had not lost their rights of occupancy and for injunction and in the alternative for possession. The trial Court decreed the tenants' suit holding that the suit was governed by Article 142 of the Limitation Act and that Ss. 50 and 77 of the Punjab Tenancy Act were no bar to the suit. He also held that the tenants were forcibly dispossessed and that the occupancy rights had not terminated. In the landlords' suit he held that the compensation due to the landlords was Rs. 87/3/6, but he allowed them Rs. 50/12/- presumably because of the order of remand. Two appeals were taken to the Senior Subordinate Judge who maintained the findings of the trial Court. Two Second appeals have been brought by the landlords against the two decrees of the Senior Subordinate Judge.

4. Mr. Daya Kishan Mahajan has submitted that the civil Court has no jurisdiction in view of the provisions of Section 77 (3) (g) of the Punjab Tenancy Act read with Section 50 of that Act, and even if the civil Court has Jurisdiction the only remedy which was open to the tenants as one under Section 50 of the Punjab Tenancy Act and as more than one year had elapsed that remedy was no longer open to them.

5. In 'order to decide this question it is necessary in the first instance to give the various sections of the Punjab Tenancy Act. 'Tenant' is denned in the Punjab Tenancy Act in Section 4 (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.........'

In Section 4 (7) it is stated :

' 'Tenant' and 'landlord' include the predecessors and successors in interest of a tenant and landlord, respectively.'

6. Section 38 deals with abandonment of tenancy by occupancy tenants and Section 39 with the ground of ejectment of occupancy tenants. Under Section 43 a landlord can apply to the Revenue Officer lor ejectment. Section 45 deals with ejectment of tenants from year to year by notice. Section 48 deals with relief against forfeiture and Section 50 with relief against wrongful dispossession or ejectment. I may here quote Ss. 50 and 77 (3) (g).

'50. 'Relief for wrongful dispossession or ejectment.'

In either of 'the following cases, namely: '(a) if a tenant has been dispossessed without his consent of his tenancy or any part thereof otherwise than in execution of a decree or than in pursuance of an order under Section 44 or Section 45 ;

'(b) if a tenant who, not having instituted a suit under Section 45 has beep ejected from his tenancy or any part thereof in pursuance of an order under that section denies his liability to be ejected,

the tenant may, within one year from the date of his dispossession or ejectment, institute a suit for recovery of possession or occupancy or for compensation, or for both.' 77. ...............

(1).........

(2) .........

(3) The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Courts shall take cognisance of any, (such) dispute or matter with respect to which any suit might be instituted :

(a) to (f) .........

(g) suits by a tenant under Section 50 for recovery of possession or occupancy, or for compensation, or for both; ................'

The question to be decided in this case is whether the defendants in the present case are included in the word 'tenant'. In the definition given in Section 4 (5) of the Act 'tenant' means a person who holds land under another and in Section 4 (7) the word 'tenant' includes the predecessors and successors in interest of a tenant. In neither of these two sub-sections is it stated that the person who was a tenant at one time is included in the term 'tenant'. In Joti v. Naya., 44 Pun Re 1891, a Full Bench of the Punjab Chief Court had an occasion to discuss this matter and it was held that to establish the complete relation of landlord and tenant between two persons in respect of land within the meaning of the Tenancy Act, it is essential that two things shall concur viz., (1) a right to enter upon and possess the land, and (2) an entry into possession. Upon entry and not before the person having the right becomes a 'tenant' and 'holds' the land under the person called the landlord. The test, under the Tenancy Act, whether a person has or has not become a tenant (with or without a right of occupancy) is whether such person having the right to enter upon and possess particular land, has or has not entered into possession, in pursuance of that right. If such person has entered, he is a tenant. If such person has not entered, his suit for entry into possession, whether he claims a right of occupancy or not, is not cognizable by a Revenue Court, but by a civil Court only.

7. In 'Kesar Singh v. Nihal Singh', 45 Pun Re 1891, which was again a Full Bench decision of the Punjab Chief Court, a reference was made to the Full Bench decision (44 Pun Re 1891) by Plowden, J. He said at p. 242 :

'It is clear that for one purpose of the Act, wrongful dispossession does not put an end to the relation 'ipso facto'. A person wrongfully dispossessed is described as a tenant, even after the dispossession in Section 50, and again in Section 77 in describing the suit he may bring. That suit is by Section 50 to be brought within one year from the date of dispossession.

I am inclined to think that it is only for the purposes of this suit that the dispossessed tenant is regarded by the Act as continuing to hold the land of his tenancy after dispossession. His right to hold not being destroyed seems to be deemed by the Legislature sufficient to entitle him to maintain an action as a tenant during the period prescribed. But for these provisions, I think that the Courts would have been justified in laying, down a general rule that a dispossessed tenant is no longer a tenant, because of his having ceased to hold the land in fact, whatever his right might be.'

8. With regard to Section 50, the learned Judge said that the Legislature had made an exception in Section 50 to the rule that a tenant on being dispossessed ceases to be a tenant. He also held that he is a tenant only for a period of one year given in Section 50 and if he brings a suit within one year then he can avail himself of that section, but if he brings a suit after one year, the suit will be cognizable by a civil Court. On the matter coming before a Division Bench it was referred to a Full Bench and the following question was debated before that Bench :

'Is a suit by a person, who has been dispossessed more than a year before claim, to recover possession of land from the proprietor thereof on the ground that he is the occupancy tenant of the land, a suit falling under Section 77 (3) (i) of Act XVI (16) of 1887, and therefore cognizable by the Revenue Court?'

Rivaz, J., held that continuance of possession would be essential for the maintenance of the relationship between the parties, and if this be so, the dispossession of the tenant would ordinarily sever this relationship and the intention of the Legislature as a combined result of Ss. 50 and 77 of the Punjab Tenancy Act was that up to a year after dispossession the tenant could claim to be a tenant and sue in a revenue Court, but if he allows the period of one year to elapse, he must be taken to have relinquished his right to be regarded as a tenant and he ..must seek his remedy whatever it may be in a civil Court.

9. The question was again discussed in 'Imam Din v. Feroze Khan', 64 Pun Re 1898, and it was held, following 'Kesar Singh v. Ninai Singh', 45 Pun Re 1891, that a suit by a tenantdispossessed more than a year before the suitlay in a civil Court and Section 50 was no bar tosuch suits and that that Section did not restrictthe period of limitation for suits by dispossessedoccupancy tenants suing for possession in a civilCourt. At p. 223 Anderson, J., observed :

'It is clear from the above that the learnedSenior Sub Judge was disposed to construeSection 50 of the Tenancy Act as enabling ratherthan restrictive, and we think now that thepoint which remained undecided in 1895 hascome up for decision, that we cannot betterthan follow this view which appears to be themost consonant with justice and certainly not,so far as we can see, opposed to any explicitlegal enactment.'

10. In 'Akbar Hussain v. Karam Dad', 90 Pun Re 1918, another Full Bench of the Punjab Chief Court held that the word 'tenant' included an ex-tenant. In that case the plaintiffs who were the tenants were dispossessed and within the period allowed under Section 50 of the Punjab Tenancy Act recovered possession. Later on they brought a suit claiming compensation in a civil Court and the plaint was returned for presentation to revenue Court. Chevis, J., repelled the contention that after the expiry of one year the claimant who was originally a tenant was no longer a tenant on the ground that he had actually recovered possession of the-- land and was undoubtedly a tenant when the suit was instituted and because he could be regarded as a tenant for a period of one year after dispossession and because he had recovered possession within that time he never ceased to be a tenant and therefore the suit was held to be one between the landlord and the tenant. He also held that even at the expiry of one year after the dispossession the claimants still remained tenants, and that a suit for possession could only be brought within one year as the intention of the Legislature was to curtail the period of a suit for recovery of possession by a tenant against the landlord. Shah Din, J., at P 304 held that because of the general policy underlying Sections 50, 51 and 77 (3) (g) of the Punjab Tenancy Act substituting the jurisdiction of the revenue Courts for that of civil Courts, a tenant who has been wrongly dispossessed of his tenancy in the circumstances mentioned in Section 50 of the Act can institute a suit for recovery of possession or for compensation or for both only in a revenue Court. I have already indicated that in this case which has been strongly relied upon by Mr. Mahajan the claimant had never ceased to be a tenant although he was forcibly dispossessed because he had regained possession within the period prescribed in Section 50 of the Act and therefore whatever the claim made by the tenant, it was a dispute between the landlord and the tenant within the definition of the word as given in the Punjab Tenancy Act. In my opinion this case is no authority for the propositions which were contended for by Mr. Mahajan.

11. In 'Cheta v. Baija', 9 Lah 38, all these cases were again reviewed and it was held that a civil Court has jurisdiction to try a suit brought by a person who has been dispossessed from his tenancy after a notice under Section 43 of the Tenancy Act even though he had unsuccessfully sued under Section 45 of the Punjab Tenancy Act to contest his liability to ejectment.

12. Finally in, 'Baru v. Niadar', ILR (1943) Lah 191, it was held by another Full Bench that a suit by a dispossessed occupancy tenant to recover possession from his landlord of the land to which he claims occupancy rights is initially within the jurisdiction of the civil Court and that a civil Court was not precluded from trying the question whether the occupancy right had been extinguished by abandonment, by reason of the proviso to Section 77 (3) of the Punjab Tenancy Act. The previous judgments of the Punjab Chief Court in 'Joti & another v. Maya and others', 44 Pun Re 1891, and 'Kesar Singh & Vir Singh v. Nihal Singh', 45 Pun Re 1891, were both approved of. At p. 213 Dalip Singh J., said :

'Even if it was a question of doubt whether the word 'holds' should be construed as 'actually holds' or including 'the right to hold' then I would say that since it is a general principle of law that the Act restricting the powers of Courts of ordinary jurisdiction must be strictly construed, it would follow that the narrower interpretation must be preferred to the wider interpretation. For both these reasons I am clearly of opinion that 'Joti v. Maya', 44 P R 1891 was rightly decided and if this was rightly decided, it follows that 'Kesar Singh v. Nihal Singh', 45 Pun Re 1891 was also rightly decided because as rightly pointed out by the learned Judges in that case, if 'holds' does not include 'the right to hold', it follows that a person who does not actually hold the land is not a tenant within the meaning of Section 4 (5).'

Bhidc, J., said at p. 225 :

'The present suit was lodged more than oneyear after the alleged 'dispossession' and doesnot fall under Section 50. Consequently according tothe interpretation placed on the term 'tenant*in 'Kesar Singh v. Nihal Singh', 45 Pun Re1891, the plaintiffs in the present case couldnot be held to be 'tenants'.'

Abdul Rashid and Munir, JJ. agree with DalipSingh, J., and Tek Chand, J., gave a separatebut concurring judgment and said at p. 240as follows :

'I entirely agree with the view expressed by Plowden, J. in 'Kesar Singh v. Nihal Singh', 45 Pun Re 1891 that in order to constitute the relation of 'landlord' and 'tenant' as defined in the Tenancy Act, the latter must not merely have the 'right to hold' but must also have entered into possession as such, and further that the continuance of possession (actual or constructive) is necessary for the continuance of the relation, except for purposes for which the legislature has laid down the contrary, e.g., in cases covered by Sections 50 and 50A of the Act. This matter has been fully discussed by my learned brother Dalip Singh and I entirely agree with his reasoning and conclusion.'

13. A consideration of the sections of the Statute and the interpretation put upon them by the various rulings of the Punjab Chief Court and the Lahore High Court shows that a tenant is a person who has a right to hold possession and holds it and therefore would not include a person who has been forcibly dispossessed. No doubt for a period of one year by operation of Section 50 of the Punjab Tenancy Act he continues to be a tenant of his landlord but that is only under the special provisions of the Act. But if the period of one year elapses, then he is no longer a tenant and therefore the provisions of Section 77 are no longer a bar to his bringing a suit in the civil Court. As has been held in many cases the exclusion of jurisdiction of civil Courts should not be readily inferred and unless there is a very clear provision to the contrary, the civil Courts will have the jurisdiction to entertain a suit. In the present case, in my opinion, there is no bar to the jurisdiction of the civil Courts and therefore the suit was rightly entertained by the trial Court.

14. It was then submitted that even though the civil Court had jurisdiction, the only remedy open to the dispossessed tenant was under Section 50, and if he did not avail himself of that within a period of one year, he had no other remedy left. This argument is also without force and as it was held in 'Kesar Singh v. Nihal Singh', 45 Pun Re 1891, there are two remedies open to a dispossessed tenant (1) within one year a suit in a revenue Court under Section 50, Punjab Tenancy Act and (2) after that an ordinary suit for possession within the period allowed by the Limitation Act in a civil Court.

15. I am of the opinion that the Courts below have rightly decreed the suit of the tenants and I therefore dismiss this appeal with costs.

16. With regard to the appeal of the landlords in regard to compensation the sowing was actually done by the landlords themselves and therefore the tenants are not entitled to get any share out of it and they are entitled to the full compensation, i e., Rs. 87/3/6. This appeal is therefore allowed and the full compensation of Rs. 87/3/6 is decreed but no order as to costs.

17. In the result, the landlords' appeal, Reregular Second Appeal No. 560 of 1948, in the suitbrought by the tenants is dismissed with coststhroughout but their appeal, Regular SecondAppeal No. 561 of 1948, in which the sole question is one of amount of compensation, is allowed,but in the latter appeal the parties will beartheir own costs throughout.


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