1. Recovery of Rupees 9,241/6/- was sought to be made against Roshan Lal by the State of Punjab by way of arrears of land revenue on the plea that water-mill (Gharat) was leased out to him on 22-7-1952 and the aforesaid amount was still due from him. In this behalf, the plaintiff had received a notice from the Assistant Collector 2nd Grade, Nabha to pay the said amount failing which coercive procedure of recovery as arrears of land revenue was to be adopted. Roshan Lal served a notice under S. 80 of the Civil P. C. and thereafter filed a suit for injunction restraining the State from recovering the said amount on the plea that no amount was due from him and in any event, he had already paid in excess and in fact the State of Punjab owned about Rs. 3,000/- to him. In the plaint he had furnished the details about five times. That is how he pleaded that he had overpaid and nothing was due from him. The State contested the suit mainly on the ground that the Civil Court had no jurisdiction to entertain and try the suit and the proper remedy of the plaintiff was to pay the disputed amount and then to file a suit for the refund of the same. Some of the issues framed in the case on which fate of the suit will depend, are issues 2, 3, 4, 6 and 8, which are as follows :--
'2. Whether the plaintiff was dispossessed from the gharats by the defendant on 22-7-1952? OPP.
3. Whether the plaintiff deposited Rs. 5,000/- as security on 6-12-2000 BK? OPP.
4. Whether the amount mentioned in para 5 of the plaint relates to some period? OPD.
5. x x x x
6. Whether the civil court has no jurisdiction to try this suit? OPD.
7. x x x x
8. Whether the suit is not maintainable in the present form OPD.
9. x x x x
2. On issue No. 2, the trial Court found from the statements of PW 5, PW 6 and PW 7, besides the statement of the plaintiff as PW 8, that the plaintiff was ousted by the Canal Authorities from the water-mill in the month of July, 1952 and hence issue No. 2 was decided in favour of the plaintiff. The trial Court noticed that the State had not led any evidence in rebuttal. Issue No. 3 was also found in favour of the plaintiff by the trial Court. He had proved receipt Exhibit P. 1 by production Shambu Ram, Ex. Treasury Officer as PW 2. The trial Court believed the statement of Shambu Ram and plaintiff as PW 8 and in view of receipt Exhibit P.1, decided issue No. 3 in favour of the plaintiff and held that the plaintiff had deposited Rs. 5,000/- as security. Again it was noticed that no evidence was led by the State in rebuttal. As regards issue No. 4, since onus was placed on the State and no evidence was led, issue No. 4 was decided against the State. In para 5 of the plaint, regarding which issue No. 4 was framed, there was a categorical averment to the following effect:
'5. That over and above the security amount, the plaintiff had also paid the two amounts of Rs. 2,400/- and Rupees 3,471/- towards the lease money of these Gharats.'
3. In para 4 of the plaint, reliance had been placed on three receipts by way of security deposit, one for Rupees 5,000/- , another for Rs. 1,000/- and the third for Rs. 1,500/- . Since no evidence was produced by the State, issue No. 4 was also decided against the State and in favour of the plaintiff. The resultant effect is that besides Rs. 5,000/- the plaintiff had paid Rs. 5,871/- . However, issues 6 and 8 were decided together and in view of Punjab Province v. Municipal Committee, Rohtak, AIR 1947 Lah 236 and R. S. A. No. 559 of 1962, Mohinder Singh v. State of Punjab, decided on 29-10-1963, it was held that the Civil Court had no jurisdiction to grant injunction prayed for and the jurisdiction of the Civil Court is barred under S. 158 of the Punjab Land Revenue Act (hereinafter referred to as the Act) and the remedy of the plaintiff lay somewhere else. Consequently, the suit was dismissed. On appeal, the learned Additional District Judge did not go into the merits of the case and in view of the decision in Mohinder Singh's case (supra) and in Faqir Chand v. Gram Sabha, village Lataur, Tehsil Sirhind, District Patiala, (1970) 72 Pun LR 914, came to the conclusion that under Section 158 of the Act, the jurisdiction of the Civil Court is barred and the proper remedy of the plaintiff, according to the provisions of S. 78 of the Act, is to deposit the amount claimed under protest and only then he can file a civil suit to claim refund of the same and then it will be determined whether the rent claimed was correctly recovered or not. The plaintiff has come to this Court in second appeal.
4. After hearing the learned counsel for the parties. I am of the view that the two Courts below have erred in law in coming in the conclusion that the jurisdiction of tre civil Court is barred under S. 158 of the Act and that the only course open to the plaintiff is first to make the deposit of the claimed amount under protest and then to file a suit for the recovery of the same in view of S. 78 of the Act. It is true that not only Mohinder Singh's case (supra) and Faqir Chand's case (supra) support the view taken by the Courts below but the same view is also reiterated in Punjab State v. Kirpal Singh, 1978 Pun LJ 109. All these three decisions are by single Benches, but a Division Bench of this Court in Sardara Singh v. Sardara Singh, 1976 Pun LJ 199 : (AIR 1976 Punj 271), took a different view. In that case it was held that Section 158 of the Act does not exclude the jurisdiction of the Court if the action of the authorities is without jurisdiction. The facts of that case were that Rs. 40,000/- were sought to be recovered from a Lambardar and for recovery of the same his land was to be put to auction. Then he filed a suit to challenged the auction as also the claim of arrears of land revenue on the ground that he was never a defaulter in respect of the payment of land revenue as he had never recovered any land revenue and, therefore, besides praying that the auction sale be annulled, prayed that the defendants be restrained from taking possession of the land in dispute. After a positive finding was given that the plaintiff had not made any recovery of the land revenue and thus was not a defaulter under the Act, it was ruled that the action of sale of his land and the recovery proceedings were without jurisdiction and consequently the suit was not barred by virtue of S. 158(2)(xiv) or (xv) of the Act.
5. I am of the view that the Division Bench in Sardara Singh's case (supra) was right in coming to the conclusion that the jurisdiction of the civil Court is not barred by virtue of the provisions of S. 158 of the Act on peculiar facts of that case, I would like to elaborate the matter in a little more detail to support the view. A reading of the preamble of the Act would show that the Act was formulated for making and maintenance of records of rights in land, the assessment and collection of land-revenue and other matters relating to land and liabilities incidental thereto. Chap. IV, which contains S. 78, starts with the heading 'Collection of land Revenue'. All sections contained in Chap. VI provide for the mode of recovery for payment of the land revenue. If the land-revenue was recovered erroneously from any person, then S. 78 provided that in case he had paid the land-revenue under protest, he was entitled to come to the civil Court and claim refund of the same on proof of the illegal or excess recovery. In that very context, S. 158 of the Act has to be read and particularly sub-section (2), clause (xiv) with which we are concerned in this case. According to the plaintiff, he was a lessee up to 1952; whereas according to the State, he continued to be lessee even thereafter. The recovery was sought to be made from him for the period subsequent to 1952, long thereafter somewhere in the year 1968. The Land Revenue Act does not provide any procedure where the plaintiff could go and object or could have the matter sorted out. In these circumstances, it would be highly illogical and unreasonable to hold that the plaintiff must pay the amount first under protest and then file a suit for its refund. If (a suit for) refund is maintainable, I am of the view that a suit for injunction, not to recover the amount, would also be maintainable. However, the question of jurisdiction of the civil Court will depend only after the facts are found. If it is found that whole amount is due, then the jurisdiction of the civil Court to grant relief would be ousted, but in case it is found that nothing is due, or that part of the amount is not due, to that extent, the jurisdiction of the civil Court would not be barred. Therefore, the facts of the case had to be adverted to first.
6. Coming to the facts of the case, on the findings of the trial Court on issues 2 to 4 I would have decreed the suit for more than one reason. Before me a statement of accounts was produced on behalf of the State which showed that the State had claimed rent from the plaintiff even beyond 22-7-1952, which could not be claimed in view of the finding on issue No. 2 wherein it was held that the State had dispossessed the plaintiff on 22-7-1952. Further the payments pleaded in para 5 of the plaint, were for further sum of Rs. 2,400/- & Rs. 3,471/- . If these two amounts were to be tagged with the security of Rs. 5,000/- which finding under issue No. 3 is again in favour of the plaintiff, the plaintiff had paid more than Rs. 10,000/- ; whereas the claim was being made with regard to a lesser amount.
7. The learned counsel for the State strenuously urged that the State did not lead any evidence in this case because they were depending on the decision of this Court in Faqir Chand's case (supra) and Mohinder Singh's case (supra). That appears to be so. Accordingly, in the interest of justice, it is a fit case for remitting the matter to the trial Court for a fresh decision after affording the parties opportunity to lead evidence on issues 2 to 4 and on the basis of findings recorded on those issues to decide issues 6 to 8 keeping in view the aforesaid observations made by me.
8. For the reasons recorded above, this appeal is allowed; the judgments and decrees of the two Courts below are set aside and the case is remitted to the trial Court, i. e., Sub-Judge Ist Class, Patiala-D, who will permit both the parties to lead evidence on issues 2 to 4 in affirmative and in rebuttal and thereafter to decide the suit in accordance with law, keeping in view the observations made above. However, the respondents are restrained from recovering the amount claimed, till the final disposal of the suit. The parties, though their counsel, are directed to appear before the Sub-Judges Ist Class, Patiala-D on 11-4-1983. The costs in the suit shall abide the event.
9. Appeal allowed.