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Attra Vs. Atma Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 67 of 1952
Judge
Reported inAIR1953HP29
ActsCode of Civil Procedure (CPC) , 1908 - Section 115; ;Evidence Act, 1872 - Section 90; ;Registration Act, 1908 - Section 49; ;Tenancy Law; ;Punjab Tenancy Act, 1887 - Sections 44, 45, 45(6), 50, 50A and 77(3)
AppellantAttra
RespondentAtma Ram and ors.
Appellant Advocate Labh Singh, Adv.
Respondent AdvocateParty in person
DispositionRevision dismissed
Cases ReferredMaru v. Abdul Rahim
Excerpt:
.....decree for possession of land - contention that courts below had no jurisdiction to decide case on hand as suit was cognizable by revenue court and not by civil court - section 50-a clearly shows that in certain circumstances it is open to person disposed to seek his remedy in civil court - defendant treated petitioner as trespasser who had wrongfully dispossessed him of land in suit - defendant filed present suit after expiry of period of limitation of one year - it was certainly open to defendant to file present suit in civil court - both courts below based their decisions on document executed by defendant-petitioner himself, that he had in fact relinquished his occupancy rights in land in suit - defendant-petitioner now wants to get round relinquishment by raising technical..........holding was decreed.2. the defendant-petitioner was at one time occupancy tenant of the land in suit. the case of the plaintiff-respondent was that attra had relinquished his occupancy rights in the land in 1993 b., that thereafter the proprietor jagat bahadur had let out the land to the plaintiff, and that on 11-7-1949 attra had wrongfully dispossessed the plaintiff. the present suit was filed on 16-8-1950.3. it was held by the trial court that attra had in fact relinquished his occupancy rights as alleged by the plaintiff, and that the latter had been let into possession of the land by the proprietor. that court, therefore, granted the plaintiff-respondent a decree for possession of the land. the defendant attra went up in appeal to the district judge, but his appeal was.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is an application in revision by the defendant Attra against the judgment and decree of the learned District Judge of Mahasu and Sirmur, dated 1-3-1952, affirming the judgment and decree of the Senior Subordinate Judge, Nahan, dated 10-12-1951, whereby the suit of the plaintiff-respondent Atma Ram for possession of a certain cultivatory holding was decreed.

2. The defendant-petitioner was at one time occupancy tenant of the land in suit. The case of the plaintiff-respondent was that Attra had relinquished his occupancy rights in the land in 1993 B., that thereafter the proprietor Jagat Bahadur had let out the land to the plaintiff, and that on 11-7-1949 Attra had wrongfully dispossessed the plaintiff. The present suit was filed on 16-8-1950.

3. It was held by the trial Court that Attra had in fact relinquished his occupancy rights as alleged by the plaintiff, and that the latter had been let into possession of the land by the proprietor. That Court, therefore, granted the plaintiff-respondent a decree for possession of the land. The defendant Attra went up in appeal to the District Judge, but his appeal was dismissed, the District Judge agreeing with the findings of the trial Court. The defendant has now come up in revision to this Court.

4. The plaintiff-respondent Atma Ram was not represented by any counsel, and I have therefore had the benefit of the arguments of the learned counsel for the defendant-petitioner only. He impugned the judgment of the lower appellate Court on merits, his contention being that the petitioner continues to be recorded as an occupancy tenant of the land in question, and that the presumption of correctness that attaches to that record under Section 44, Punjab Land Revenue Act had not been rebutted in this case because the deed of relinquishment Ex. P. 1 relied upon by the Courts below was not admissible in evidence as the document was compulsorily registrable under Section 17 (b), Registration Act.

He also argued that one Bhau, to whom the proprietor is said to have leased out the land after the alleged relinquishment by the petitioner, had not been produced, and that the lower appellate Court had relied upon a ruling -- 'Brojonath v. Maheswar', 28 Cal L J 220 which was not applicable to the facts of the case.

Even if it be conceded that all these contentions put forward by the learned counsel for the defendant-petitioner be correct, that would not be a good ground for interference by this Court in exercise of its revisional jurisdiction. The simple reason for this view is that the Court below had the jurisdiction to decide the case erroneously. The learned counsel for the petitioner cited a ruling of this Court reported as -- 'Beg Ram v. Charan Das', AIR 1951 H P 16. The present is however not a case where the Court below has omitted to consider a certain piece of evidence, but a case where it is said to have come to a wrong conclusion with regard to the admissibility of a certain document. The Court below did not omit to consider that document; on the contrary, it did consider that document although it arrived at a conclusion which the learned counsel for the petitioner challenges as erroneous. That ruling has therefore no application. I hold that no interference in revision is called for on the merits of the case.

5. The learned counsel for the defendant-petitioner, however, argued that the decisions of the Courts below should be set aside because they had no jurisdiction to decide the case. The contention was that the suit was cognizable by a revenue Court and not by a civil Court. In support of this contention the learned counsel for the petitioner argued that the case fell within the purview of Clause (d) of Sub-section (3) of Section 77, Punjab Tenancy Act. That clause contemplates suits by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right. This was not a suit by a landlord but by a tenant, and no question of the establishment of the plaintiff's right of occupancy arose. Clearly therefore the suit was not of the nature contemplated by the said clause.

6. The learned counsel for the defendant-petitioner then relied upon Clause (g) of the same sub-section which relates to suits by a tenant under Section 50 for recovery of possession or occupancy, or for compensation, or for both. Under Section 50 a tenant who has either 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, or who, not having instituted a suit under Section 45, has been ejected from his tenancy or any part thereof in pursuance of an order under that section, denies his liability to be ejected, 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. The present plaintiff-respondent did not profess to have been dispossessed of his tenancy in execution of a decree or in pursuance of an order under Section 44 or Section 45. He did not also profess to have been ejected from his tenancy in pursuance of an order under Section 45 by reason of having failed to institute a suit under that section. It appears therefore to have been open to him to institute a suit for recovery of possession and other reliefs contemplated by Section 50. From the wordings of the section, however, it appears that a suit may be filed by a tenant under the provisions of that section where the existence of the relationship of tenant and landlord between the (parties is not denied. And in that case, if the other conditions of the section are satisfied, as stated above, it is open to a tenant to file a suit in the revenue Court within one year from the date of his dispossession. But that does not appear to me to mean that a suit under Section 50 is the only remedy open to a dispossessed tenant, or, in other words, that a civil suit can in no circumstance be brought.

In fact, the newly added Section 50-A clearly shows that in certain circumstances it is open to a person dispossessed to seek his remedy in a civil Court. Those circumstances are that the person should not be one whose ejectment had been ordered by a revenue Court under Section 45, Sub-section (6), or whose suit had been dismissed under Section 50. It is manifest therefore from the aforesaid provisions of the Punjab Tenancy Act itself that an aggrieved person may also seek his remedy by a civil suit, and it appears to me that he may do so if the circumstances mentioned in Section 50-A do not exist, and if his suit does not come within the four corners of Section 50. In the present case the plaintiff-respondent's ejectment had not been ordered by a revenue Court under Section 45, Sub-section (6), nor had any suit of his been dismissed under Section 50. None of the bars against the institution of a civil suit mentioned in Section 50-A, therefore, existed. As regards Section 50, he did not file the present suit recognising the existence of the relationship of tenant and landlord between himself and the petitioner. On the contrary, he treated the petitioner as a trespasser who had wrongfully dispossessed him of the land in suit. It is also noteworthy that he filed the present suit after the expiry of the period of limitation of one year prescribed by that section. In these circumstances, it was certainly open to him to file the present suit in a civil Court.

7. The learned counsel for the defendant-petitioner cited two rulings in support of the contention that even after the expiry of one year a suit under Section 50, Punjab Tenancy Act could be filed. These rulings were: -- 'Nand Ram v. Ishar', AIR 1926 Lah 128, and -- 'Piran Ditta v. Lal', AIR 1926 Lah 613. It may be that a suit under Section 50 is competent even after the expiry of one year (a point upon which I need not express any opinion in this case), but it is to be noticed that they were both cases an which the person who filed the suit did not repudiate the existence of the relationship of tenant and landlord between himself and the defendant. On the other hand, I find support for the view held by me above in the Full Bench decision of the Lahore High Court reported as -- 'Ham Din v. Mangal Singh', AIR 1941 Lah 189 (FB), where it was laid down that a suit by a person claiming possession of the land under title of ownership or any title other than a title as a tenant could be filed in a civil Court. Likewise, it was held in -- 'Maru v. Abdul Rahim', AIR 1937 Lah 849, that a suit for recovery of possession by one who claimed to have acquired title by adverse possession was cognizable by a civil Court. In the present case, the plaintiff claimed recovery of possession of the land in suit otherwise than as a tenant, and it was open to him therefore to have filed the present suit in a civil Court. The argument of the learned counsel for the defendant-petitioner based on want of jurisdiction has therefore no force.

8. Even if the contention of the learned counsel for the defendant-petitioner with regard to want of jurisdiction were correct, that by itself would not have necessarily been any ground for reversing the decisions of the Courts below. In the first place, this Court could have taken action under Section 100 (3), Punjab Tenancy Act. In the next place, the High Court is not bound to allow a point of jurisdiction to be raised for the first time in revision, especially where, as in the present case, substantial justice has been done. There is a concurrent finding of both the Courts below, based on a document executed by the defendant-petitioner himself, that he had in fact relinquished his occupancy rights in the land in suit. He now wants to get round the relinquishment by urging technical objections. Whether the decisions of the Courts below were right or wrong with regard to those technical objections of the defendant-petitioner, so far as this Court is concerned it will not interfere with those decisions because substantial justice appears to have been done between the parties.

9. The revision is rejected and the judgment and decree of the lower appellate Court are affirmed.


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