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Shankar and ors. Vs. Ram Saran and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 16 of 1968
Judge
Reported inILR1970Delhi94
ActsPunjab Tenancy Act, 1887 - Sections 50
AppellantShankar and ors.
RespondentRam Saran and ors.
Advocates: A.C. Sud,; K.D. Sood and; Malhotra, Advs
Cases ReferredBritania Building and Iron Co. Ltd. v. Gobinda Chandra Bhattacharjee and P. Krishnan Nair
Excerpt:
punjab tenancy act (1887) - sections 50, 51-a and 77(3) -- bar created by -- when comes into operation.; that as soon as the suit of a person is dismissed, under section 50 of the punjab tenancy act, the bar to his filing a civil suit created by section 51-a immediately comes into operation. the latter section in clear terms bars civil suits of person falling within its ambit. ; that while to successfully invoke the provision of section 77(3) of the punjab tenancy act in favor of the exclusive jurisdiction of the revenue court, it has to be seen if the person filing the suit was a tenant within the meaning of the act, it is nto so in case of the bar created by section 50-a, in the latter case the person against whom the bar is pleaded need nto be a tenant on the date of the suit. instead.....s.n. shankar, j.(1) this appeal under clause 10 of letters patent is directed against the order of the learned single judge of this court accepting the two second appeals of the respondents (rsa. nos. 133 and 134 of 1967) from the judgment and decree of the senior subordinate judge, kangra, and directing that civil suits for possession filed against them by the present appellants in the court of subordinate judge, iv class, hamirpur, be dismissed. (2) the appellants before us and their predecessors-in-interest (hereinafter called the tenants) held lands which formed the subject matter of the civil suits, out of which this appeal has arisen, as tenants of the respondents and their predecessors-in-interest (who are hereinafter called the landlords) under the provisions of punjab tenancy.....
Judgment:

S.N. Shankar, J.

(1) This appeal under clause 10 of Letters Patent is directed against the order of the learned single Judge of this Court accepting the two Second Appeals of the respondents (RSA. Nos. 133 and 134 of 1967) from the judgment and decree of the senior Subordinate Judge, Kangra, and directing that civil suits for possession filed against them by the present appellants in the Court of Subordinate Judge, Iv Class, Hamirpur, be dismissed.

(2) The appellants before us and their predecessors-in-interest (hereinafter called the tenants) held lands which formed the subject matter of the civil suits, out of which this appeal has arisen, as tenants of the respondents and their predecessors-in-interest (who are hereinafter called the landlords) under the provisions of Punjab Tenancy (Act Svi of 1887). On the allegations that they were forcibly dispossessed by the landlords on October 6, 1958, the tenants filed suit No. 1 of 1958 under section 50 of the Punjab Tenancy Act, 1887 (hereinafter called the Act) in the revenue Court of Assistant Collector, Hamirpur, on November 24, 1958, for recovery of possession of these lands. The landlords contested this suit on the ground that the plaintiff-tenants had in fact, of their own accord, given up cultivation of the lands with effect from the Rabi season of 1956 and the landlords had thereupon entered into possession of the same and that there was no forcible dispossession, as alleged, and further that the suit having been filed after the expiry of one year of their ceasing to be in possession was barred by time. The Revenue Court framed the following issues:

1. Whether defendants I and 2 (the landlords) had forcibly ejected the plaintiffs from the suit lands, and if so, when 2. Whether the suit was within limitation 3. Relief.

(3) After going through the evidence produced before him, the learned Assistant Collector by his order dated 18/11/1959, found that the tenants themselves had left cultivation of this land in the year 1956 and there was no forcible dispossession. He also held that the suit instituted by these tenants after the expiry of one year from the date when they ceased to be in possession was barred by time under Section 50 of the Act. Aggrieved from this order, the tenants went up in appeal, but it was also dismissed by the Collector on March 31, 1960. Thereupon, the tenants filed two suits, Nos. 151 and 153, of 1960, in the civil Court of Subordinate Judge, Iv Class, Hamirpur, on substantially the same allegation as were made by them in the revenue Court. The landlords contested these suits also and set up the same defense which they had urged before the revenue Court and in addition further pleaded that the dismissal of their suit by the revenue Court was a bar to the maintainability of the present suits in the civil Court and that the decision of the revenue Court operated as rest judicata between the parties. The learned Subordinate Judge trying these two suits consolidated them as they involved common questions of law and fact and by a common judgment dated 28/8/1961, found that the tenants who had nto acquired occupancy rights in the lands in suit had been forcibly dispossessed by the landlords on October 6, 1958, as alleged by them, and that they were entitled to recover possession from the landlords. He also held that the decision of the revenue Court was nto a bar to the two civil suits because these suits had been filed by the tenants more than one year after their dispossession and as such could nto be treated as suits under section 50 and were thereforee nto barred by section 77 (3)'(g) of the Act. On these findings he granted a decree for possession of the lands in favor of the tenants against the landlords. Aggrieved from this the landlords went up in appeal, but it was also dismissed by the learned Senior Subordinate Judge with enhanced appellate powers and hence the Second Appeal to the learned single Judge which he accepted by the order under appeal.

(4) The only two points convassed before the learned single Judge were (i) whether the present suits were barred under section 50-A and Section 77 (3) (g) of the Punjab Tenancy Act and (ii) whether the decision of the revenue Courts operated as rest judicata between the parlies. The learned single Judge after a consideration of the various sections of the Punjab Tenancy Act came to the conclusion that the suits filed by the tenants in the civil Court were barred both by reason of section 50-A as well as section 77 (3) (g) of the Act and that the decision of the revenue Courts also operated as rest judicata and precluded the tenants from suiting the landlords in the civil Courts for possession of the same lands which formed the subject matter of the suit before the revenue Court. The learned Judge observed that the provisions of the Act 'constitute a complete scheme of litigation on the subjects specified in sections 50, 50-A and 77 of the Act to the complete exclusion of civil Courts.'

(5) The learned counsel for the appellants has assailed these findings. After a careful consideration of the matter and the submissions made to us we find that we have no reason to differ from the basic conclusions arrived at by the learned single judge but on slightly different grounds.

(6) It is nto disputed before us that the appellants were tenants within the meaning of section 4, sub-clause (5) of the Act and on being dispossessed they filed a suit under section 50 of the Act for the recovery of possession of the lands comprised in their tenancy before the revenue Court of Assistant Collector, 1st Grade, Hamirpur. As stated earlier the learned Assistant Collector framed two specific issues arising from the pleadings of the parties and after going through the evidence came to the conclusion that it was nto proved that they had been forcibly evicted in the year 1958 as alleged and that the suit had nto been filed by them within one year of the date when they ceased to be in possession as required by section 50 and thereforee they were nto entitled to the recovery of possession as prayed for. On these findings he dismissed the suit by order, copy of which is Exhibit D-l. The appeal from this order to the Collector met with no better fate and by order Exhibit D-2 the Collector also held that the tenants who were barbers were nto interested in cultivating the lands and they voluntarily abandoned them sometimes in the year 1956 and to bring their claim within the ambit of section 50 filed this suit wrongly alleging 6th of October, 1958, as the date of the alleged forcible dispossession.

(7) The first question for consideration thereforee with these facts is whether it was open to the tenants to file the suits for recovery of possession in the civil Court in face of the bar created by section 50-A of the Act. Section 50-A reads as under:-

'NO person whose ejectment has been ordered by a revenue Court under section 45, sub-section (6) or whose suit has been dismissed under section 50, may institute a suit in a Civil Court to contest his liability to ejectment, or to recover possession or occupancy rights, or to recover compensation.'

(8) As soon as the suit of a person is dismissed under section 50, the bar to his filling a civil suit created by this section immediately comes into operation. This section was inserted in the Act by the Legislature in the year 1929 by section 2 of Punjab Act V of 1929. It will be pertinent here to reproduce the Statement of Object and Reasons for this enactment. It is in the following words:-

'THE High Court of Lahore has held in Cheta v. Baija (1) that after the failure of an action by a tenant under section 45 of the Punjab Tenancy Act, a disappointed claimant can still seek his remedy in a civil Court because recourse to a civil Court is nto expressly barred by the Tenancy Act. The intention of the Tenancy Act is undoubtedly to make the decision of the revenue Courts under Sections 44 and 45 of the Act final; and the intention which was recognised by the Hon'ble Judges themselves, in deciding Cheta v. Baija has received judicial confirmation in cases under section 50 of the Tenancy Act by the decision of the Lahore High Court in 90 P.R. 1918 that any further remedy in a civil Court by a tenant who has failed in an action under section 50 is impliedly barred.'

'THE object of the proposed amendments is to give statutory effect to the intention of the Tenancy Act that the decision of the revenue Courts under sections 45 and 50 of the Act, should be final, by expressly barring recourse to a civil Court for the purposes of attacking the decision of the revenue Courts in such cases.'

(9) This section thus in clear terms bars civil suits of persons falling within its ambit. Section 77 (3) (g) of the Act has a different field or operation. It reads as under:-

'77(3)The following suits shall be instituted in and heard and determined by revenue Courts, and no other Courts shall take cognizance of any, such dispute or matter with respect to which any suit might be instituted: xxxx xxxx xxxx (g) suits by a tenant under section 50 for recovery of possession or occupancy, or for compensation, or for both;'

(10) To successfully invoke this provision in favor of the exclusive jurisdiction of the revenue Court it has to be seen if the person filing the suits was a tenant within the meaning of the Act on the date when he filed the suit. This is nto so in case of the bar creator by the section 50-A. Here the person against whom the bar is pleaded need nto be a tenant on the date of the suit. Instead of the words 'suit by a tenant' in clause (g) of sub-section 3 of section 77 the bar created by section 50-A is against 'any person whose suit has been dismissed under Section 50'. Such a person may be a tenant within the meaning of the Act on the date when he filed the suit or he may nto have been so but if his tenancy was governed by the Act and he had availed of this provision it would nto be open to him to institute a fresh suit in the civil Court to recover possession. The bar is mandatory and explicit and nto by implication.

(11) There is no manner of doubt thereforee that after the decision of the revenue Court vide Exhibits D-l and D-2 referred to earlier the two suits filed by the tenants in this case were barred nto by reason of section 77(3) (g) but by virtue cf the provisions of section 50-A of the Act.

(12) The learned counsel for the appellants however contented that even though the tenants in this case had filed the suit under section 50 but after the finding of the revenue Court that they had been dispossessed more than one year before the institution of the suit they had ceased to be tenants for purposes of the Act and the suit filed by them in the Court of the Assistant Collector could nto be considered to be a suit under section 50 to attract the bar of section 50-A. We are unable to sustain this argument of the learned counsel. It is nto understood how the suit filed under section 50 ceased to be a suit under this provision because it was dismissed on the ground that the plaintiffs had failed to prove that they had been dispossessed within one year of the date of the institution of the suit. If this suit had been decreed by the revenue Court, as the learned counsel had to concede that it could be, the decision would have been under section 50 of the Act with all the rights flowing from it in favor of the tenants; we are unable to see how the position is in any way different only because the suit was dismissed. Apart from this legal position as we have already pointed out, even if the appellants be assumed to have ceased to be tenants as a corollary to the find'ng of the revenue Court in this suit the bar of sect on 50-A still precluded them from filing the civil suits because they were undoubtedly 'persons' within the meaning of section 50-A whose suit had been dismissed under section 50.

(13) In support of his submissions however the learned counsel placed reliance on Parmanand and Others v. Rakha and others (2) and contended that the word 'tenant' within the meaning of the Act was a person who had a right to hold possession of the land and who actually held it and this expression did nto include a person like the present tenants who had been forcibly dispossessed. He laid special emphasis on the observation of the Court in this judgment that if the period of one year had elapsed then the dispossessed tenant being no longer a tenant within the meaning of the Act was entitled to avail of the remedy of a suit for possession in the civil Court within the period allowed by the Limitation Act. He also relied on Ram Sarup and others v. Budh Ram and others (3) where also it was held that the suit for possession by a tenant dispossessed by force instituted after a period of one year after dispossession was triable by the civil Court. The same view, the learned counsel contended, was taken in another case of the Punjab High Court reported as Tulsi and others v. Rai Sahib Pt. Bhagat Ram and others (4) and submitted that this being the law the present suits by the tenants in the civil Court were maintainable.

(14) These cases are of no assistance to the learned counsel because as we have already said Section 50-A creates a bar nto against a suit by a tenant but against the suit of 'a person' whose suit under section 50 of the Act has been dismissed. In all the cited cases referred to above the position was examined with reference to Section 77 (3) (g) of the Act where the person filing the suit had necessarily to be tenant within the meaning of the Act on the date when he filed the suit. It was in this background that it was held that section 77(3) (g) was nto a bar to this civil suit. In Parmanand's case (2), the provisions of section 50-A of the Act were nto at all taken into account and it appears that no suit under section 50 had ever been filed by the dispossessed tenant. Similarly, in the other two cases (viz. 1960 P.L.R. 411 and 1961 P.L.R. 71 also the question was considered with reference to the same provision of section 77 (3) (g) and all that was held was that the suit filed by the erstwhile tenant after one year of dispossession could nto be said to be a suit for restoration of possession under section 50 for purposes of the bar under section 77(3) (g) and thereforee such a suit was triable by a civil Court. It would certainly be a moto question to consider whether the plaintiff in such cases at all remained a tenant entitled to possession according to the scheme of the Act when his rights to possession as a tenant stood extinguished after the expiry of one year of his dispossession and any relief of the basis of his previous possession as tenant also stood barred by the express provisions of section 51 of the Act and if he had no other independent title in support of his claim for possession. But for purposes of the preset appeal we are nto called upon to enter into that controversy in the facts of the case before us because as we had said the tenants in this case had filed a suit under section '50 which had been dismissed.

(15) The learned counsel then relied on Smt. Lakhi v. Sohan Lal anil others (5) where the

(16) Reference was then made by the learned counsel to Magiti Sasamal v. Pandat Bissoi and others (6), which was a case arising under the Orissa Tenants Protection Act (3 of 1948) and their Lordships held that the exclusion of the Jurisdiction of the civil Court could nto be lightly inferred and that such exclusion must be in express terms of the statute. Section 7 of that Act excluded the jurisdiction of the civil Court and specifically provided five categories of disputes which were within the jurisdiction of the Collector and which could thereforee be taken to be excluded from the jurisdiction of the civil Court. The section also postulated the subsistence of relationship of landlord and tenant between the parties and then proceeded to provide for the exclusive jurisdiction of the Collector. Their Lordships observed:-

'THE disputes which are the subject-matters of section 7 (1) must be in regard to the five categories. That is the plaint and obvious construction of the words 'any dispute as regards.' On this construction it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview of the said section. The scheme of section 7 (1) is unambiguous and clear. It refers to the tenant and landlord as such and it contemplates disputes of the specified character arising between them. thereforee, even on a liberal construction of section 7 (1) it would be difficult to uphold the argument that a dispute as regards the existence of the relationship of landlord and tenant falls to be determined by the Collector under section 7 (1).'

(17) We have nto been able to see how this authority can help the appellants in this case. The bar of section 50-A, it is true, is operative in two cases only, namely, when an order of ejectment had been made by the revenue Court under section 45-section (6) and secondly where a suit had been dismissed under section 50 of the Act. If either of the two conditions are satisfied it immediately comes into operation. The bar is also nto by implication but in express terms. It is clear that the tenants in this case filed a suit in the revenue Court because they had been dispossessed from the lands without their consent and that being the position the case was clearly covered by this section.

(18) Our attention was also invited to Nasib Singh v. Bajo Ram' which was decided by a Full Bench of the Court. Anant Singh, J. held in this case that the dispossessed occupancy tenant had two remedies open to him, one was the cheaper and shorter one to make an application before the revenue Court within the prescribed time for reinstatement and the second was the usual remedy in the civil Court within the prescribed period of limtation. But the other two learned Judges constituting the Bench held that the dispossessed tenant ceased to be a tenant as defined in the State Tenancy Act and had thereforee no right to be reinstated under the Act, but observed:-

'THAT is why such a tenant gets a right to be reinstated under the general law, that is to say by instituting a suit in a civil Court.'

(19) It was on the latter observation extracted above that the learned counsel laid his stress to justify the two suits filed by the tenants in the civil Court. To our mind this case does nto in any way improve the position in view of the express bar created by section 50-A of the Punjab Act to such a suit being filed. The observations very obviously can be availed of in the context of State Tenancy Act but they are nto in consonance with the scheme of the Punjab Act and in particular section 51 thereof which reads as under:-

'51.Possession of a tenancy or of any land comprised in a tenancy shall nto be recoverable under section 9 of the Specific Relief Act, 1877, by a tenant dispossessed thereof.'

(20) In view of the above discussion, it is nto possible for us to sustain the argument of the learned counsel for the appellants that the two suits filed by the tenants in the civil Courts were nto covered by section 50 and were nto hit by the bar of section 60-A of the Act.

(21) The learned single Judge in the course of his judgment had observed that the word 'hold' in section 4(5) of the Act defining a tenant did nto mean a person in actual possession and that it did nto necessarily imply that the tenants should be in occupation of the land. Referring to Woodfall on Landlord and Tenant (26 Ed. page 1) he held that the relationship created between the landlord and tenant was one of tenure and that it was the right to hold possession and 'nto the actual possession which formed the basis of the concept of tenancy. This was apparently in support of the argument endorsed by the learned single Judge that a tenant dispossessed of the land would still be a tenant for the purpose of section 77 (3) (g) of the Act and his suit in civil Court would thereforee be hit by this provision also. The learned counsel has very strongly assailed this view before us and has urged that the concept of tenancy under the Punjab Tenancy Act is wholly independent and different from the tenancy as envisaged in the Transfer of Property Act. He maintained that the tenant to claim that status under section 4 (5) of the Act should necessarily hold actual physical or constructive possession of the land and if he was ousted both from its actual as well as constructive possession he ceased to be a tenant under the Act except for the limited purpose of section 50 and in terms thereof to enable him to file a suit for recovery of possession if he so elected. In support of this submission he placed reliance on the Full Bench decision of the Lahore High Court in Baru and others v. Niadar and others. This aspect of the case however would have been relevant only if we had held that the suits of the appellants were barred under section 77 (3) (g) of the Act; but our finding is nto based on the operation of section 77 (3) (g), but on the statutory bar created by section 50-A of the Act and thereforee for purposes of this appeal it is nto necessary to examine the meaning of the word 'hold' in section 4 (5) of the Act.

(22) The second contention raised by the learned counsel in this appeal was that the finding of the revenue Court did nto operate as rest judicata and the finding of the learned single Judge to the contrary was nto correct. In support of this contention, he placed reliance on Shankar Lal Patwari v. Murarka and others (9), Britania Building and Iron Co., Ltd. v. Gobinda Chandra Bhattacharjee P. Krishnan Nair v. Ramchandra Vithal Sanghavi and Jamman Lal v. Deputy Custodian General.

(23) Strictly speaking in view of our decision that section 50-A of the Act completely barred the civil suits filed by the tenants it is unnecessary to decide this point but in view of the great emphasis that was laid and the specific contention raised we proceed to consider this aspect of the case also but subject to the observation made above.

(24) As we have stated earlier, by order Exhibit D-2 the Collector as the revenue Court within the meaning of section 50 in exercise of his appellate powers under the Act came to the conclusion firstly that the tenants had voluntarily abandoned the land sometimes in the year 1956 and had nto been forcibly dispossessed as alleged by them and secondly that the suit for possession filed by them on 5th of November 1958 was filed beyond the period of one year prescribed by section 50 of the Act and was thereforee barred by time. These findings were given on the basis of evidence placed by the parties on the record by a Court having jurisdiction to do so and after full contest between them. The facts adjudicated were also necessary to be decided by the Court for the correct decision of the matter before it. Section 50 of the Act further conferred an exclusive jurisdiction on the Court for this determination. In these circumstances the findings of the revenue Court (independently of the bar of section 50-A) would operate as rest judicata. They would of course nto be rest judicata according to technical rules laid down in section 11 of the Code of Civil Procedure, but on the general principles of rest judicata, we are fortified in this view by the following observations of the Supreme Court in Gulab Chand Chhotalal Parekh v. Slate of Gujarat (13) -

'ASa result of the above discussion we are of opinion that the provisions of section 11, Civil Procedure Code are nto exhaustive with respect to an earlier decision operating as rest judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of rest judicato, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a court competent to decide it, will operate as rest judicata in a subsequent regular suit. It is nto necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter. The nature of the former proceedings is immaterial.'

(25) In Srimati Raj Lakshmi Dasi and others v. Banamali Sen and others also a similar question arose with reference to a decision of the Land Acquisition Collector. The subject matter of dispute was an estate called Raj Ballav's estate. The respective claims of the parties to this estate were founded on the assertion of their respective titles in parts of this estate. One of the properties described as 2, Deb Lane, Calcutta, forming part of the estate was allotted under a compromise to the share of one of the parties called Sens. It was notified for acquisition and the claim for its compensation was decided by the Land Acquisition Collector. Their Lordships observed on page 37 of this report:-

'..............The question of title to the four annas share was necessarily and substantially involved in the land acquisition proceedings and was finally decided by a Court having jurisdiction to try it and that decision thus operates as rest judicata and estops the Sens and the mortgagees from reagitating that matter in this suit.'

(26) None of the cases cited by the learned counsel for the appellants which have been specified above have any application to the facts of the case before us to point to a different conclusion. In Shankar Lal Patwari's case (9), the first case cited by the learned counsel for the appellants, the Court had found that the suit was nto maintainable because the plaintiff in that case had failed to serve the mandatory notice under section 80 of the Code of Civil Procedure on the defendant, but inspire of this finding it proceeded to determine the controversy between the parties and gave findings on the merits of the claim. It was held under these circumstances that such findings were merely obiter and would nto support the plea of rest judicata. This was because the suit stood finally disposed off on the finding of non-service of the notice as required by the mandatory provisions of section 80 and the findings on merits were nto at all necessary to decide the case. This certainly is nto the situation in the case before us where the findings given by the revenue Court were necessary to be given to decide the suit before it. Similarly, in Britania Building and Iron Co. Ltd. v. Gobinda Chandra Bhattacharjee and P. Krishnan Nair v. Ramchandra Vithal Sanghavi relied upon by the learned counsel, all that was held was that the decision of a Court having no jurisdiction over the subject matter would nto operate as rest judicata. There can hardly be any exception to this proposition. Such a decision would in fact be wholly void and non-existent in the eye of law but as we have already pointed out the revenue Court in this case had nto only the jurisdiction but the exclusive jurisdiction to determine the questions of fact raised before it. In the last case relied upon by the learned counsel on this point : AIR1965All253 the previous application on the basis of which some findings were recorded which were sought to be put up as rest judicata was found to have been dismissed on the ground that it was nto maintainable and thereforee the plea of rest judicata did nto succeed. The authorities thus do nto apply to the facts of the case in hand and as at present advised we have no hesitation in confirming the finding of the learned single Judge on this point.

(27) Under these circumstances, we see no merits in this appeal and the same is dismissed. The parties are left to bear their own costs.


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