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Kirpal Vs. Nathan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular Second Appeal No. 662 of 1976
Judge
Reported inAIR1984P& H308
ActsPunjab Tenancy Act, 1887 - Sections 77; Punjab Security of Land Tenures Act, 1953
AppellantKirpal
RespondentNathan and ors.
Cases ReferredArjan v. Haley
Excerpt:
.....kalu ma1 (air 1952 punj 52); that 'tenancy of agricultural land is forfeited by repudiation by the tenant of the tenancy by claiming in himself the title to the land' cannot be regarded as good law. that the suit was so determined in good faith, and that the parties have not been prejudiced by the mistake as to jurisdiction the high court may order that the decree be registered in the court which had jurisdiction' came to the conclusion that even if a tenant had made himself liable to forfeit hie right of being considered a tenant by repudiating the title of the landlord, it was not open to the civil court to order his dispossession in view of the provisions of section 9, security of land tenures act, which provides that a tenant can only be ejected from his holding on the grounds..........so if a court finds on the material placed before it that the party in possession of the suit land is a tenant, it must send the case to the revenue court.'5. i am in respectful agreement with tine view expressed in the aforesaid judgments end it is therefore, manifest that the tenancy of the defendant-appellant over the land in dispute does not stand determined and as such the only course open to the plaintiff-respondent is to initiate ejectment proceedings against the appellant before a revenue court, if he is so advised. civil courts have no jurisdiction to order for dispossession of the appellant by means of a decree of possession.6. in the light of what is stated above i allow this appeal, set aside the judgments and decrees of the courts below and dismiss the plaintiff's.....
Judgment:

1. This. second appeal is directed, against the judgment and decree dated April 5, 1976, of the lower appellate Court, by which the decision of the trial Court was affirmed and first appeal of the defendant-appellant Kirpal was dismissed.

2. The plaintiff-respondent Nathan brought a suit for possession of the land in dispute against the appellant Kirpal alleging that the latter had been inducted on this land as a licence and that his licence stood revoked. The case of the appellant in defence was that he was occupying the land as a tenant and had acquired occupancy rights. He took up the abjection that in view of Section 77, Punjab Tenancy Act, 1887, Civil Courts had no jurisdiction to try the suit,. The trial Court on assessment of evidence produced by the parties came to the conclusion that the appellant was inducted on the land in dispute as a tenant and not as a licencee, but, having asserted rights. of ownership in a previous litigation between the parties wherein the assertion was proved wrong he has forfeited tenancy rights and as such his present occupation is in the capacity of a trespasser. The trial Court held that in such circumstances the plaintiff's suit was triable in a Civil Court. On these findings the plaintiff was granted a decree for possession against the appellant. The lower appellate Court affirmed this decision and as mentioned earlier dismissed the first appeal of Kirpal.

3. The contention of the learned appellant's counsel is that despite the appellant's disclaimer of plaintiff's ownership he cannot be dispossessed by a decree of Civil Court and that the plaintiff can eject him only under the provisions of the Punjab Security of Land Tenures Act, 1953 (hereinafter called 'the Act') and for this he has to approach the Revenue Court, The submission of the learned counsel, therefore, is that the Civil Court had no jurisdiction to try the suit and to pass a decree of possession against the appellant. The contention of the learned respondent's counsel on the other hand is that he appellant having repudiated the relationship of landlord and tenant between the parties in the previous litigation forfeited his rights of tenancy and as such the Civil Court had requisite jurisdiction to entertain the suit and to grant a decree for possession to the respondent. against him.

4. The Courts below have unanimously come to the conclusion that the appellant was occupying the land in dispute as a tenant under the plaintiff-respondent and that in a previous litigation he had learned ownership and had repudiated the relationship of landlord and tenant between the parties. In such circumstances the vital question for determination is whether by repudiation of tenancy the appellant had forfeited his tenancy rights and has, therefore, become trespasser over the land in dispute. This question arose before this Court in Harphul v. Sehja, (1967) 69 Pun LR 901, and it was answered in the negative by Shamsher Bahadur, J. In this judgment retying upon a previous Division Bench judgment in Sohawa Singh v. Kesar Singh (1932) ILR 13 Lah 432: (AIR 1932 Lah 586), it was held that mere repudiation by tenant does not determine a tenancy and render his possession adverse. The following pertinent observations were made in the judgment:

'It cannot, therefore, be legitimately argued. that !he denial by the defendants in their written statements put end to the relationship of landlord and tenant between the parties. The single Bench authority of Harnam Singh J. in Faqiria v. Kalu Ma1 (AIR 1952 Punj 52); that 'tenancy of agricultural land is forfeited by repudiation by the tenant of the tenancy by claiming in himself the title to the land' cannot be regarded as good law..................'

It was further held in this. judgment that:

'The circumstances in which a tenant can be ejected are specifically mentioned in sub-section (1) of Section 9 and nowhere is it said that disclaimer of the landlord's title would entail the penalty of forfeiture to enable him to seek. his ejectment.'

It was observed that under Section 9, whose provisions are pervasive and transcend even what may be to the contrary in the T. P: Act, no tenant broadly speaking can be ejected from his holding unless he is in arrears of rent or fails to pay rent regularly or he is in occupation of the area which has been reserved by the landlord'. It was opined that so firm is the statute based principle-of Security of Land Tenures Act in Punjab that it would be singularly improper direct dispossession of a person who is shown to be a tenant in the revenue records by invoking the harsh provisions of the Transfer of Property Act relating to. forfeiture of tenancy where the landlord's title is disclaimed. This judgment was later approved by this Court in Arjan v. Haley, AIR 1971 Punj & Har 469,. by D. S. Tewatia, J. wherein it was observed as follows (at pp. 470-71):--

'The principle of law enunciated by Shamsher Bahadur, J. in that case was that once a Civil Court comes to. a conclusion that the person, who is sought to be dispossessed, is a tenant on the hind in dispute, it is the duty of. the Civil Court to stay its hands after giving that finding arid thereafter direct the parties to approach the revenue Court to take out. ejectment proceedings. An argument was raised before the single Judge that. once a person had repudiated the title of. the landlord, he forfeited his right. to be considered a tenant and he could not challenge the jurisdiction of the Civil Court by saying that he was the tenant or on the ground that the plaintiff himself admitted that the defendant was his tenant. Shamsher Bahadur, J. on consideration of various decisions, as also after the consideration of the provisions of sub-section (2) of Section 100, Punjab Tenancy Act, which reads:'If on perusal of the record it appears to the High Court. that the suit was so determined in good faith, and that the parties have not been prejudiced by the mistake as to jurisdiction the High Court may order that the decree be registered in the Court which had jurisdiction' came to the conclusion that even if a tenant had made himself liable to forfeit hie right of being considered a tenant by repudiating the title of the landlord, it was not open to the Civil Court to order his dispossession in view of the provisions of Section 9, Security of Land Tenures Act, which provides that a tenant can only be ejected from his holding on the grounds specified therein. In view of the said provisions of the Punjab Security of Land Tenures Act, the principle incorporated in Section 111(g)(2), T, P. Act, will have no application. So if a Court finds on the material placed before it that the party in possession of the suit land is a tenant, it must send the case to the revenue Court.'

5. I am in respectful agreement with tine view expressed in the aforesaid judgments end it is therefore, manifest that the tenancy of the defendant-appellant over the land in dispute does not stand determined and as such the only Course open to the plaintiff-respondent is to initiate ejectment proceedings against the appellant before a Revenue Court, if he is so advised. Civil Courts have no jurisdiction to order for dispossession of the appellant by means of a decree of possession.

6. In the light of what is stated above I allow this appeal, set aside the judgments and decrees of the Courts below and dismiss the plaintiff's suit. The parties are left to bear their own costs.

7. Appeal allowed.


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