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Priman and anr. Vs. Hari Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. Petn. No. 22 of 1949
Judge
Reported inAIR1953P& H125
ActsTenancy Law; Punjab Tenancy Act, 1887 - Sections 77(3); Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantPriman and anr.
RespondentHari Singh and ors.
Appellant Advocate C.L. Aggarwal, Adv.
Respondent Advocate P.C. Pandit, Adv.
Cases ReferredDaulat Ram v. Munshi Ram
Excerpt:
.....226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in the present matter the question now sought to be agitated by the present plaintiffs, namely, their claim to occupancy rights is precisely that which was agitated and decided in the revenue court. it would, i think, be an extraordinary result if when the matter has been decided by a revenue court having sole jurisdiction, then a change in the legal position of the parties resulting from the decision..........the facts shortly are these. one ram dayal and others who are defendants nos. 8 to 14 in the present suit were occupancy tenants of the suit land situate in village hanoli khurd in the hissar district. hari singh and others who are defendants nos. 1 to 7 in the suit are the landlords of that land. defendants nos. 8 to 14 left the land a considerable number of years ago, after which the plaintiffs had been in possession. the plaintiffs claimed that they had become occupancy tenants of the suit land by virtue of exchange of other land with defendants nos. 8 to 14. the landlords denied that there had been any such exchange with their consent and while admitting the possession of the plaintiffs claimed that they were ordinary tenants.3. this was the state of affairs about the year 1943.....
Judgment:
ORDER

Weston, C.J.

1. This civil revision raises the question whether under Section 77, Punjab Tenancy Act, jurisdiction exists in a Civil or in a Revenue Court in respect of the particular suit.

2. The facts shortly are these. One Ram Dayal and others who are defendants Nos. 8 to 14 in the present suit were occupancy tenants of the suit land situate in village Hanoli Khurd in the Hissar District. Hari Singh and others who are defendants Nos. 1 to 7 In the suit are the landlords of that land. Defendants Nos. 8 to 14 left the land a considerable number of years ago, after which the plaintiffs had been in possession. The plaintiffs claimed that they had become occupancy tenants of the suit land by virtue of exchange of other land with defendants Nos. 8 to 14. The landlords denied that there had been any such exchange with their consent and while admitting the possession of the plaintiffs claimed that they were ordinary tenants.

3. This was the state of affairs about the year 1943 when the landlords filed a suit in the Revenue Court under Clause (e) of Section 77(3). Punjab Tenancy Act.

4. It is convenient here to set out the material part of Section 77(3), Punjab Tenancy Act: '(3) The following suits shall be instituted in and heard and determined by Revenue Courts and no other Courts shall take cognisance of any dispute or matter with respect to which any such suit might be instituted: Provided that:

(i) Where in a suit cognizable by and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub-section be heard and determined only by a revenue Court, Civil Court shall endorse upon the plaint the nature of the matter lor decision and the particulars required by Order VII, Rule 10, Civil Procedure Code, and return the plaint for presentation to Collector;

(ii) * * *FIRST GROUP.(a) * * *(b) * * *(c) * * * SECOND GROUP.

(d) suits by a tenant to establish a claim to a right of occupancy, or by landlord to prove that a tenant has not such a right;

(e) suits by a landlord to eject a tenant;

(f) suits by a tenant under section 45 to contest liability to ejectment, when, notice of ejectment has been served;

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

(h) suits by a landlord to set aside a transfer made of a right of occupancy, of to dispossess a person to whom such a transfer has been made, or for both purposes;

(i) any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held;

(j) suits for sums payable on account of village expenses;

(k) suits by a co-sharer in an estate or holding for a share of the profits thereof or for a settlement of accounts;

(l) suits for the recovery of over-payments of rent or land revenue or of any other demand for which a suit lies in a Revenue Court under this sub-section;

(m)suits relating to the emolument of kanungos, zaildars, inamdars, or village officers;THIRD GROUP.(n) * * *(o) * * *(p) * * *

5. On 29-6-1945, the landlords obtained the decree to eject the plaintiffs which they had sought. It is admitted that following this decree, the present plaintiffs were not ejected, and on 15-5-1946, while still in possession of the land the present plaintiffs filed a suit in the Civil Court. This suit in terms is a suit for declaration that the occupancy rights held by the defendants Nos. 8 to 14 in the suit land had not become extinct and had devolved upon the plaintiffs. The plaint asserts the exchange which is said to have been given sanction by mutation. The plaint mentions the revenue suit and the decree for ejectment passed but asserts that this decree has no legal effect on the question of title. By their written statement the landlords contended that the suit being between the landlords and tenants was not entertainable by the Civil Court, that the matter in dispute had been disposed of by the Revenue Court and that that judgment was final between the parties. The written statement nowhere challenged the present possession of the plaintiffs as being unlawful. The trial Court held that the proviso to Section 77(3) applied, for the questions which arose for determination in the suit were those exclusively cognisable by a Revenue Court. The trial Judge therefore directed the plaint to be returned for presentation to the Collector with the endorsement required by Clause (i) of the proviso. The plaintiffs went in appeal to the District Judge who has upheld the order of the trial court and dismissed the appeal, and the plaintiffs have now come here in revision.

6. The vexed question as to the precise jurisdiction of the Civil Courts on the one hand and of the Revenue Courts on the otherunder the Punjab Tenancy Act has been thesubject of much judicial comment, and in thecases to which I have been referred it is notaltogether easy to reconcile the opinions whichhave been given. The suit which was filed bythe present landlords in the Revenue Courtwas, as I have mentioned, a suit under Clause (e)of the Second Group, namely, a suit to ejecttenants. There can be no dispute that thissuit was triable 'only by the Revenue Court.The landlords equally might have placed theirsuit under Clause (d) of the Second Group. Theydid not dispute that the present plaintiffs weretheir tenants. The dispute between the partieswas the nature of the tenancy, the defendantsclaiming occupancy rights which the landlordsdenied. The decision of the Revenue Courtundoubtedly decided the dispute as to occupancyrights in favour of the landlords by holdingthat the present plaintiffs were not entitled tothe occupancy rights they claimed, and to thatextent it was a decree which could fall undereither Clause (d) or Clause (e) of the Second Group.The decree, however, went on to give the landlords the relief of ejectment which they sought,and I accept that this decree put an end inlaw to the relation of landlords and tenantbetween the contesting parties. Had the present plaintiffs been ejected in furtherance ofthe decree which had been passed, the casewould have come within the rule laid down bythe Full Bench decision in -- 'Baru v. Niadar',24 Lah 191 which is authority that a suit bya dispossessed occupancy tenant, that is to say,an occupancy tenant who is out of possession,to recover possession from his landlord of theland to which he claims the occupancy rightsis initially within the jurisdiction of Civil Court.It was held that suits claimed to fall within Clause (d) of the Second Group in Section 77 must besuits by an alleged tenant who is actually inpossession, for 'tenant' is defined in Section 4(5)of the Act as a person who holds land underanother person, and is, or but for a specialcontract would be, liable to pay rent for thatland to that other person.

7. Assuming this to be correct law, the question I have to consider is whether it applies to a case such as the present. In my opinion, it does not. The plaintiffs in the present case are in possession. By their plaint they assert that they are tenants. They do not acknowledge the Revenue Court decree as having in any way affected their legal rights. If then the nature of a suit is to be decided according to the averments made in the plaint, it would seem that the suit filed by the present plaintiffs is one falling within Clause (d) of the Second Group and therefore one which the Civil Court has not even initial jurisdiction to receive. If, however, the recital in the plaint mentioning the ejectment decree obtained against the plaintiffs in the Revenue Court is to be taken as stating that in law the plaintiffs at the time of the present suit were not tenants, then under the proviso to Section 77(3) the matters necessary to be decided in the suit, have to be considered. The defendant-landlords by their written statement have shown acquiescence in the continued occupation of the land by the plaintiffs after the decree for ejectment was obtained. Could the present plaintiffs on their plaint claim to be in adverse possession of the suit land at 'the date of suit? I do not think they could. They are in possession, no doubt, following a decree of ejectment against them, but in the plaint itself they have acknowledged the title of their landlords. In other words, they are holding the land under the present contesting defendants. It is not clear whether during their possession of the land prior to the Revenue Court decree the present plaintiffs were paying rent to their landlords. It may perhaps be said that mere acquiescence by the landlords in the continued possession by the plaintiffs after the ejectment decree is not sufficient to make the plaintiffs tenants within the definition. It is no case of the landlords that notwithstanding the decree they have acquiesced in the plaintiffs having occupancy rights. It may also be said that the liability to pay rent of an ordinary tenant must arise from contract. I think, however, without undue strain on the language of Section 4(5), in view of the pleadings of the parties in the present suit, the suit should be held to be one in which a matter, namely, determination of a tenant's claim against his landlord to occupancy rights; became necessary to be decided.

8. There is a decision of the Privy Council dealing with Section 77, Punjab Tenancy Act, --'Sardar Mohammad Nawaz Khan v. Bhagata Nand', 19 Lah 514. The facts of that case were that a village proprietor sued a Mahant, to recover the amount of 'haq buna' or door tax alleged to be a village cess' realisable from the defendant on the ground that he was a non-proprietor living in the village. This suit was filed in the Revenue Court. The defendant disputed his liability and also disputed the jurisdiction of the Revenue Court. The Revenue Court, however, held that it had jurisdiction. Shortly after this decision, the defendant brought a suit in the Civil Court for a declaration that he was not liable to pay the cess. From the Revenue Court decision an appeal was taken to the Collector and contrary decisions were given by the Civil and by the Revenue Courts. In appeal from the Civil Court, the District Judge held that the Civil Court had no jurisdiction. The defendant then came to the High Court in second appeal and in Letters Patent appeal reversing previous decrees in the suit it was held that the suit was within the jurisdiction of the Civil Court, and from this Letters Patent appeal decision the matter went to the Privy Council.

9. The suit filed in the Civil Court in that case was not in terms one falling directly under Clause (j) of the Second Group in Section 77(3). It was the converse suit for declaration of nonliability. It was said, however, by the Privy Council:

' 'Haq buha' being a village cess, Section 77 not only requires that a suit to recover sums payable on account thereof should be brought in the Revenue Court but forbids any other court to take cognisance of 'any dispute or matter with respect to which any such suit might be instituted.' Their Lordships see no way of interpreting these words which would exclude from their scope the question of the liability of Parkasha Hand (the non-proprietor) or any other person to pay the cess. His suit was not a 'suit for a sum payable' within Clause (j) because it was a suit for a declaration negativing his liability, but it raised a matter with respect to which a suit under Clause (j) might nave been Instituted. The purpose of the prohibition in Sub-section (3) is to prevent claims which are intended to be decided by the Revenue court being in effect carried before matter is raised.'

In the result, the appeal was allowed and the suit was directed to be dismissed throughout.

10. This decision, of course, cannot be said to be on all fours with the present matter, but it is authority that the jurisdiction of the Revenue Courts is not to be negatived by mere matters of form. In the present matter the question now sought to be agitated by the present plaintiffs, namely, their claim to occupancy rights is precisely that which was agitated and decided in the Revenue Court. The circumstance that in the Revenue Court the present plaintiffs were defendants is of no substance, for the present plaintiffs could have sought determination of their rights of occupancy under Clause (d) of the Second Group had the matter not been raised by the landlords, and it would have been in the Revenue Court and in the Revenue Court alone that the present plaintiffs of their own initiative could have raised this matter. It would, I think, be an extraordinary result if when the matter has been decided by a Revenue Court having sole jurisdiction, then a change in the legal position of the parties resulting from the decision of the Revenue Court should enable precisely the same matter again to be agitated in the Civil Court. If the present suit is tried by the Civil Court and a decision given in favour of the present plaintiffs, there will be nothing, so far as I am able to understand, to prevent the landlords again going to the Revenue Court and instituting a suit under either Clause (d) or Clause (e) of the Second Group to determine once again whether the present plaintiffs have occupancy rights. It is true there arc cases in which it has been held that the decision in one Court will be res judicata in the other, as for example -- 'Daulat Ram v. Munshi Ram', AIR 1932 Lah 623. There can, of course be no question of application of Section 11, Civil P. C. It seems to me that, if the wide view of the proviso laid down by the Privy Council is taken, it is unnecessary for the purpose of avoiding absurdity to invoke a theory of res judicata on the basis of a Revenue Court being one of special jurisdiction. The obvious intention of the Legislature was that the Revenue Courts should have exclusive jurisdiction in certain matters, and I think that a narrow and technical interpretation of words such as 'tenant' and 'landlord' is to be avoided when such interpretation frustrates the obvious intention of the Legislature. I think that the Courts below were justified in holding that the proviso to Section 77(3) applied and in directing the plaint to be returned for presentation to the Collector in the manner prescribed. The rule therefore is discharged. I consider the parties may be left to bear their own costs.

11. I am greatly indebted to the learned Advocates on both sides who re-argued this matter before me at length after an interval during which I did not find it possible to dispose of the case.


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